WTO ANALYTICAL INDEX: CUSTOMS VALUATION AGREEMENT
Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade 1994 (Customs Valuation Agreement)
The texts reproduced here do not have the legal standing of the original documents which are entrusted and kept at the WTO Secretariat in Geneva.
Also in this section:
- General Introductory Commentary
- Article 1
- Article 2
- Article 3
- Article 4
- Article 5
- Article 6
- Article 7
- Article 8
- Article 9
- Article 10
- Article 11
- Article 12
- Article 13
- Article 14
- Article 15
- Article 16
- Article 17
- Article 18
- Article 19
- Article 20
- Article 21
- Article 22
- Article 23
- Article 24
- Annex I
- Annex II
- Annex III
XI. Article 9
1. Where the conversion of currency is necessary for the determination of the customs value, the rate of exchange to be used shall be that duly published by the competent authorities of the country of importation concerned and shall reflect as effectively as possible, in respect of the period covered by each such document of publication, the current value of such currency in commercial transactions in terms of the currency of the country of importation.
Note to Article 9
For the purposes of Article 9, “time of importation” may include the time of entry for customs purposes.
No jurisprudence or decision of a competent WTO body.
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XII. Article 10
All information which is by nature confidential or which is provided on a confidential basis for the purposes of customs valuation shall be treated as strictly confidential by the authorities concerned who shall not disclose it without the specific permission of the person or government providing such information, except to the extent that it may be required to be disclosed in the context of judicial proceedings.
47. The Panel in Thailand — Cigarettes (Philippines) explained that Article 10 prohibits customs authorities from disclosing information which is in essence confidential when an importer provided it for the purpose of customs valuation.(63) Regarding the specific types of information falling within the scope of Article 10, the Panel stated that:
“The Customs Valuation Agreement neither defines confidential information nor provides a specific list of information that qualifies as confidential information.
We find useful guidance in the discussions of the Ad Hoc Group on Implementation in the Committee on Anti-Dumping Practices. The record of the discussions indicates that information can be considered as confidential if it is not in the public domain and if its disclosure would be likely inter alia: ‘to be of significant competitive advantage to a competitor …, to have a significant adverse effect upon the party who submitted the information …, to prejudice the commercial position of a person who supplied or who is the subject of the information, …’.
Both parties agree that the PM Thailand’s c.i.f. price, transaction values and imports volume were revealed to the press by Thai officials… .
Thailand does not dispute that PM Thailand’s c.i.f. price is classified as confidential information. Thailand also admits that PM Thailand’s customs value is confidential information. Concerning import volumes, however, Thailand submits that although import volumes may be confidential information, they would not be confidential either when a company is the sole importer of a given good, or when the company has agreed that the information shall be publicly disclosed. In this regard, we note that PM Thailand is not the sole cigarette importer in Thailand. Furthermore, at no point has PM Thailand agreed to make its confidential information available to the public. On the contrary, PMTL has insisted on multiple occasions that this information should be kept confidential. Moreover, we agree that the very disclosure of PM Thailand’s c.i.f. price, transaction values and imports volume information could cause commercial damages to PM Thailand by giving its competitors access to its sensitive business information. For example, the nature of such information could give competitors useful indications on PM Thailand’s business strategy, including profit margins… .”(64)
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XIII. Article 11
1. The legislation of each Member shall provide in regard to a determination of customs value for the right of appeal, without penalty, by the importer or any other person liable for the payment of the duty.
2. An initial right of appeal without penalty may be to an authority within the customs administration or to an independent body, but the legislation of each Member shall provide for the right of appeal without penalty to a judicial authority.
3. Notice of the decision on appeal shall be given to the appellant and the reasons for such decision shall be provided in writing. The appellant shall also be informed of any rights of further appeal.
Note to Article 11
1. Article 11 provides the importer with the right to appeal against a valuation determination made by the customs administration for the goods being valued. Appeal may first be to a higher level in the customs administration, but the importer shall have the right in the final instance to appeal to the judiciary.
2. “Without penalty” means that the importer shall not be subject to a fine or threat of fine merely because the importer chose to exercise the right of appeal. Payment of normal court costs and lawyers’ fees shall not be considered to be a fine.
3. However, nothing in Article 11 shall prevent a Member from requiring full payment of assessed customs duties prior to an appeal.
No jurisprudence or decision of a competent WTO body.
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XIV. Article 12
Laws, regulations, judicial decisions and administrative rulings of general application giving effect to this Agreement shall be published in conformity with Article X of GATT 1994 by the country of importation concerned.
No jurisprudence or decision of a competent WTO body.
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XV. Article 13
If, in the course of determining the customs value of imported goods, it becomes necessary to delay the final determination of such customs value, the importer of the goods shall nevertheless be able to withdraw them from customs if, where so required, the importer provides sufficient guarantee in the form of a surety, a deposit or some other appropriate instrument, covering the ultimate payment of customs duties for which the goods may be liable. The legislation of each Member shall make provisions for such circumstances.
48. In US — Certain EC Products, the Panel examined whether the increased bonding requirements imposed by the United States on certain products imported from the European Communities were consistent with, among others, Article II of GATT 1994 and certain provisions in the DSU. The United States put forward Article 13 of the Customs Valuation Agreement as a defence, arguing “that the noncompliance of the European Communities [with a certain DSB recommendation] created a risk, which allowed the United States to have concerns over its ability to collect the full amount of duties which might be due”(65), and that the increased bonding requirements were consistent with that Article. The Panel stated that:
“In the present dispute the United States is not claiming that, as of 3 March, it required additional guarantees because the customs value of the EC listed imports had increased or changed on 3 March 1999. In the present dispute, there is no disagreement between the parties on the customs value of the EC listed imports. Article 13 of the Customs Valuation Agreement allows for a guarantee system when there is uncertainty regarding the customs value of the imported products, but is not concerned with the level of tariff obligations as such. Article 13 of the Customs Valuation Agreement does not authorize changes in the applicable tariff levels between the moment imports arrive at a US port of entry and a later date once imports have entered the US market. As we discuss further below, the applicable tariff (the applicable WTO obligation, the applicable law for that purpose) must be the one in force on the day of importation, the day the tariff is applied. In other words, Article 13 of the Customs Valuation Agreement is of no relevance to the present dispute. We reject, therefore, this US defence.”(66)
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XVI. Article 14
The notes at Annex I to this Agreement form an integral part of this Agreement and the Articles of this Agreement are to be read and applied in conjunction with their respective notes. Annexes II and III also form an integral part of this Agreement.
49. The text of Annex I is contained in Sections III.B, IV.B, V.B, VII.B, VIII.B, IX.B, X.B, XI.B, XIII.B and XXVII.A. With respect to the interpretation and application of Annex I, see the respective sections referring to paragraphs of Annex I.
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XVII. Article 15
(a) “identical goods” means goods which are the same in all respects, including physical characteristics, quality and reputation. Minor differences in appearance would not preclude goods otherwise conforming to the definition from being regarded as identical;
(b) “similar goods” means goods which, although not alike in all respects, have like characteristics and like component materials which enable them to perform the same functions and to be commercially interchangeable. The quality of the goods, their reputation and the existence of a trademark are among the factors to be considered in determining whether goods are similar;
(c) the terms “identical goods” and “similar goods” do not include, as the case may be, goods which incorporate or reflect engineering, development, artwork, design work, and plans and sketches for which no adjustment has been made under paragraph 1(b)(iv) of Article 8 because such elements were undertaken in the country of importation;
(e) goods produced by a different person shall be taken into account only when there are no identical goods or similar goods, as the case may be, produced by the same person as the goods being valued.
3. In this Agreement “goods of the same class or kind” means goods which fall within a group or range of goods produced by a particular industry or industry sector, and includes identical or similar goods.
5. Persons who are associated in business with one another in that one is the sole agent, sole distributor or sole concessionaire, however described, of the other shall be deemed to be related for the purposes of this Agreement if they fall within the criteria of paragraph 4.
Note to Article 15: Paragraph 4
For the purposes of Article 15, the term “persons” includes a legal person, where appropriate.
For the purposes of this Agreement, one person shall be deemed to control another when the former is legally or operationally in a position to exercise restraint or direction over the latter.
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XVIII. Article 16
Upon written request, the importer shall have the right to an explanation in writing from the customs administration of the country of importation as to how the customs value of the importer’s goods was determined.
52. The Panel in Thailand — Cigarettes (Philippines) noted that Article 16 sets forth two elements, namely (i) a written request from an importer for an explanation in writing and (ii) a customs authority’s obligation to provide an explanation in writing as to how the customs value of the importer’s goods was determined.(67) The Panel then elaborated on the nature, scope and extent of an explanation to be provided under the second element:
“To understand the nature of the explanation under Article 16, we first turn to the text of the provision. The term ‘explanation’ can be defined as ‘noun. 1 The action or act of explaining. 2 A statement, circumstance, etc., which makes clear or accounts for something… .’. The word ‘explain’ can in turn be defined as follows: ‘1 verb trans. & intrans. Make clear or intelligible (a meaning, difficulty, etc.); clear of obscurity or difficulty; give details of (a matter, how, etc.) … 6 verb trans. account for; make clear the cause or origin of’. The word ‘how’ means ‘adverb 1. In what way or manner; by what means; in whatever way; by whatever means …’. The dictionary meaning of the term ‘explanation’, taken together with the word ‘how’, therefore indicates that the explanation to be provided under Article 16 requires customs authorities to ‘make clear’ and ‘give details’ of the manner and means in which a customs authority determined the customs value of imported goods.
Further, considered in its context, as discussed above, the explanation under Article 16 is temporarily and substantively distinguished from the authority’s communication of its grounds for its consideration under Article 1.2(a) as the explanation under Article 16 must be provided after the final assessment of customs value is made and thus must be based on complete information that formed the basis for the customs authority’s decision. This can be contrasted with the ‘grounds’ under Article 1.2(a) that are based on the information initially provided by the importer or otherwise.
We also heed the transparency and due process objective that Article 16 is intended to achieve. As the Philippines submits, an explanation under Article 16 enables importers and foreign governments to effectively exercise their respective rights under Articles 11 and 19 of the Customs Valuation Agreement when requesting domestic reviewing tribunals, courts and WTO panels to determine whether the manner or means of valuation by a customs authority was consistent with the importing Member’s WTO obligations. It provides a window through which domestic tribunals and WTO panels review and understand a customs authority’s valuation determination… . our objective assessment of the Philippines’ claims under Articles 1.1 and 1.2(a) required us to base our evaluation of Thai Customs’ examination of the circumstances of the sale on, inter alia, its explanation provided pursuant to Article 16.”(68)
53. The Panel in Thailand — Cigarettes (Philippines) also clarified that the explanation under Article 16 must be understood to include in its scope the reason for rejecting the transaction value as well as the basis for the valuation method used:
“As we noted above, the primary basis for customs value under the Customs Valuation Agreement is the transaction value. Whenever the customs value cannot be determined based on the transaction value under Article 1 for the reasons authorized under the same provision, the methods under Articles 2 through 7 are to be used in the sequential order. Therefore, it seems logical for a customs authority to explain the basis for rejecting the transaction value in situations where the authority relies on a valuation method other than the transaction value under Article 1. Interpreting otherwise, in our view, would defeat the procedural objective of Article 16 to preserve due process rights and transparency in the context of customs value determination. This is particularly the case because, if not through an explanation under Article 16, the importer would be deprived of an opportunity to understand the customs authority’s determination of the final customs value for the concerned goods. Therefore, we consider that the explanation under Article 16 must be understood to include in its scope the reason for rejecting the transaction value as well as the basis for the valuation method used.”(69)
54. Further, the Panel in Thailand — Cigarettes (Philippines) concluded that the explanation to be provided under Article 16 must be sufficient to make clear and give details of how the customs value of the importers’ goods was determined, including the basis for rejecting the transaction value and other valuation methods that sequentially precede the method actually used by the customs authorities:
“We now address the extent of an explanation to be provided under Article 16, namely how extensive and detailed an explanation should be to satisfy the obligations under Article 16. The ordinary meaning of the word ‘explanation’, considered in its context and in the light of the object and purpose of Article 16 as discussed above, suggests that customs authorities’ explanation must include, at the minimum, the basis for rejecting the transaction value in the light of the information provided by the importer, the identification of the method used and the illustration of how the method was applied in reaching the final customs value.
In this connection, we observe that the extent of an explanation to be provided under Article 16 is not the same as that under the equivalent provisions of the WTO agreements on trade remedy measures. The obligations imposed on domestic authorities to explain determinations in the context of the trade remedy rules are much more detailed and specific. For example, Article 12.2 of the Anti-Dumping Agreement refers to ‘sufficiently detailed explanations’ and ‘a full explanation’. Article 4.1(c) of the Agreement on Safeguards requires a detailed analysis of the case under investigation as well as a demonstration of the relevance of the factors examined. In contrast to these provisions, Article 16 of the Customs Valuation Agreement contains succinct language that the importer shall have the right to ‘an explanation … as to how the customs value of the importer’s goods was determined’. The absence of any modifying words such as ‘detailed’ or ‘full’ before the term ‘explanation’ in Article 16 should be taken into account in clarifying the extent of the explanation under Article 16. Moreover, the obligation to provide ‘an explanation in writing’ under Article 16 arises only if there is a written request from the importer. This too shows that the standard for the explanation required under Article 16 of the Customs Valuation Agreement is less stringent than that under the Anti-Dumping Agreement, the SCM Agreement or the Agreement on Safeguards.
The above considerations lead us to conclude that although not as extensive and detailed explanations as required under the WTO agreements on trade remedy measures, the explanation to be provided under Article 16 of the Customs Valuation Agreement must be sufficient to make clear and give details of how the customs value of the importer’s goods was determined, including the basis for rejecting the transaction value and other valuation methods that sequentially precede the method actually used by the customs authorities.”(70)
55. In Thailand — Cigarettes (Philippines), Thailand raised an argument that in evaluating the Philippines’ claim under Article 16, if the Panel considers the information provided in a formal explanation insufficient, the Panel should consider the circumstances in which the explanation provided by Thai Customs pursuant to Article 16 was provided. The Panel considered that this argument raised the question of whether a meeting and/ or the minutes of a meeting that is not formally part of the written explanation provided by a customs authority pursuant to Article 16 can nevertheless be considered as constituting the explanation. The Panel explained that:
“As in the case of the requirement to publish a report under Article 3.1 of the Agreement on Safeguards, Article 16 of the Customs Valuation Agreement does not dictate the manner in which a written explanation must be provided. To that extent, we agree that the question of whether a certain instrument can constitute an explanation under Article 16 will have to be decided on a case-by-case basis. We also agree that if an explanation is to be given in multiple parts, factors such as ‘the overall structure, logic and coherence’ among these various parts must be considered to determine the appropriateness of the explanation given on the determination of the customs value of the goods imported. Furthermore, if explanations are provided in multiple parts, it must also be considered whether such a fact deteriorates the transparency and due process objective of Article 16.”(71)
56. The Panel in Thailand — Cigarettes (Philippines) further elaborated on the timing and form of an explanation to be provided under Article 16:
“Article 16 specifically requires an explanation to be provided ‘in writing’. In the light of this, we do not consider the discussion that took place during the meeting on 6 March 2007 as forming part of the written explanation provided in accordance with Article 16. Furthermore, the subject meeting took place before the final assessment of the customs value for the entries at issue was made, while the requirement to provide an explanation of the determination of the customs value arises once the final assessment is made. To recall, Thai Customs started issuing the Notices of Assessment for these entries as of 16 March 2007. In fact, evidence shows that further information was submitted to Thai Customs between the 6 March 2007 meeting and 16 March 2007… . The considerations above, taken together, suggest that although discussions at the 6 March 2007 meeting may be viewed as part of the process of determining the customs value of the entries at issue, the meeting itself does not constitute a written explanation as to the final customs determination. We consider that accepting the position that a discussion(s) before the final assessment of the customs value was even made forms an explanation, would not be in line with the purpose of Article 16 to maintain transparency and due process in the customs valuation process.”(72)
57. The Panel further found that the minutes of the concerned meeting did not constitute part of the written explanation within the meaning of Article 16. In reaching this conclusion, the Panel considered both the formalistic and substantive aspects of the minutes, including where both the original and revised minutes were sent, whether the minutes were referenced in the written explanation sent to the importer, and whether the original and revised minutes refer to the same alternative valuation method.(73)
58. The Panel in Thailand — Cigarettes (Philippines) explained that the obligation under Article 16 is to provide a formally sufficient explanation to make clear and give details of the customs authority’s decision to reject the transaction value and how the alternative valuation method was applied to derive the customs value in a given case. This obligation, according to the Panel, should be distinguished from the obligation to explain a customs authority’s grounds under Article 1.2(a):
“Further, we recall that we considered the substantive content of the explanation provided by Thai Customs of its determination in the context of reviewing the Philippines’ claims with respect to Thailand’s obligations under Articles 1.1 and 1.2(a). Our examination of the explanation in that context should be distinguished from our evaluation of whether the explanation satisfies the requirements within the meaning of Article 16. As the Philippines responded to a question from the Panel, under a hypothetical in which an authority determines the customs value using a spinning wheel, the authority would be found to have complied with its obligations under Article 16 if an authority concluded that the transaction value was not acceptable and provided an adequate explanation for how the spinning wheel was applied in a specific case. This will be the case even though the disclosed reasons would be insufficient to prove a compliance with Articles 1.1 and 1.2(a) in rejecting the transaction value. If, however, no (or insufficient) reasons, including, for example, how the spinning wheel was applied in a specific case, were disclosed in the explanation, the authority would violate both Articles 1.1 and 1.2(a) as well as Article 16. In this light, our assessment of the Article 16 claim should be focused on whether an explanation is formally sufficient to make clear and give details of its decision to reject the transaction value and how the valuation method was applied to derive the customs value.”(74)
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XIX. Article 17
Nothing in this Agreement shall be construed as restricting or calling into question the rights of customs administrations to satisfy themselves as to the truth or accuracy of any statement, document or declaration presented for customs valuation purposes.
59. Pursuant to the Ministerial mandate at Marrakesh, at its meeting of 12 May 1995, the Committee on Customs Valuation adopted the following decision:(75)
“Decision regarding cases where Customs Administrations have reasons to doubt the truth or accuracy of the declared value
Ministers invite the Committee on Customs Valuation established under the Agreement on Implementation of Article VII of GATT 1994 to take the following decision:
The Committee on Customs Valuation,
Reaffirming that the transaction value is the primary basis of valuation under the Agreement on Implementation of Article VII of GATT 1994 (hereinafter referred to as the “Agreement”);
Recognizing that the customs administration may have to address cases where it has reason to doubt the truth or accuracy of the particulars or of documents produced by traders in support of a declared value;
Emphasizing that in so doing the customs administration should not prejudice the legitimate commercial interests of traders;
Decides as follows:
1. When a declaration has been presented and where the customs administration has reason to doubt the truth or accuracy of the particulars or of documents produced in support of this declaration, the customs administration may ask the importer to provide further explanation, including documents or other evidence, that the declared value represents the total amount actually paid or payable for the imported goods, adjusted in accordance with the provisions of Article 8. If, after receiving further information, or in the absence of a response, the customs administration still has reasonable doubts about the truth or accuracy of the declared value, it may, bearing in mind the provisions of Article 11, be deemed that the customs value of the imported goods cannot be determined under the provisions of Article 1. Before taking a final decision, the customs administration shall communicate to the importer, in writing if requested, its grounds for doubting the truth or accuracy of the particulars or documents produced and the importer shall be given a reasonable opportunity to respond. When a final decision is made, the customs administration shall communicate to the importer in writing its decision and the grounds therefor.
2. It is entirely appropriate in applying the Agreement for one Member to assist another Member on mutually agreed terms.”
60. Further to this Decision, at the Doha Ministerial Conference Members decided that the Agreement on the Implementation of Article VII of GATT 1994:
“[U]nderlines the importance of strengthening cooperation between the customs administrations of Members in the prevention of customs fraud. In this regard, it is agreed that, further to the 1994 Ministerial Decision Regarding Cases Where Customs Administrations Have Reasons to Doubt the Truth or Accuracy of the Declared Value, when the customs administration of an importing Member has reasonable grounds to doubt the truth or accuracy of the declared value, it may seek assistance from the customs administration of an exporting Member on the value of the good concerned. In such cases, the exporting Member shall offer cooperation and assistance, consistent with its domestic laws and procedures, including furnishing information on the export value of the good concerned. Any information provided in this context shall be treated in accordance with Article 10 of the Customs Valuation Agreement. Furthermore, recognizing the legitimate concerns expressed by the customs administrations of several importing Members on the accuracy of the declared value, the Committee on Customs Valuation is directed to identify and assess practical means to address such concerns, including the exchange of information on export values and to report to the General Council by the end of 2002 at the latest.”(76)
61. At its meeting on 10–12 and 20 December 2002, the General Council took note of the report of the Customs Valuation Committee(77), and authorized the Committee to continue its work under the existing mandate(78) and to report to the General Council when it had completed this work.
Part II: Administration, Consultations and Dispute Settlement
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XX. Article 18
Article 18: Institutions
1. There is hereby established a Committee on Customs Valuation (referred to in this Agreement as “the Committee”) composed of representatives from each of the Members. The Committee shall elect its own Chairman and shall normally meet once a year, or as is otherwise envisaged by the relevant provisions of this Agreement, for the purpose of affording Members the opportunity to consult on matters relating to the administration of the customs valuation system by any Member as it might affect the operation of this Agreement or the furtherance of its objectives and carrying out such other responsibilities as may be assigned to it by the Members. The WTO Secretariat shall act as the secretariat to the Committee.
2. There shall be established a Technical Committee on Customs Valuation (referred to in this Agreement as “the Technical Committee”) under the auspices of the Customs Co-operation Council (referred to in this Agreement as “the CCC”), which shall carry out the responsibilities described in Annex II to this Agreement and shall operate in accordance with the rules of procedure contained therein.
62. At its meeting of 12 May 1995, the Committee on Customs Valuation agreed on observership in its meetings.(79)
63. On 1 December 1995, the Council for Trade in Goods approved the Rules of Procedure for meetings of the Committee on Customs Valuation adopted by the Committee on Customs Valuation.(80)
64. At its meeting of 15 June 1999, the General Council adopted the recommendation of the Working Party on Preshipment Inspection(81) that the future monitoring of the Agreement on Preshipment Inspection should be undertaken initially by the Committee on Customs Valuation, and that Preshipment Inspection should be a standing item on its agenda.
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XXI. Article 19
Article 19: Consultations and Dispute Settlement
2. If any Member considers that any benefit accruing to it, directly or indirectly, under this Agreement is being nullified or impaired, or that the achievement of any objective of this Agreement is being impeded, as a result of the actions of another Member or of other Members, it may, with a view to reaching a mutually satisfactory solution of this matter, request consultations with the Member or Members in question. Each Member shall afford sympathetic consideration to any request from another Member for consultations.
4. At the request of a party to the dispute, or on its own initiative, a panel established to examine a dispute relating to the provisions of this Agreement may request the Technical Committee to carry out an examination of any questions requiring technical consideration. The panel shall determine the terms of reference of the Technical Committee for the particular dispute and set a time period for receipt of the report of the Technical Committee. The panel shall take into consideration the report of the Technical Committee. In the event that the Technical Committee is unable to reach consensus on a matter referred to it pursuant to this paragraph, the panel should afford the parties to the dispute an opportunity to present their views on the matter to the panel.
5. Confidential information provided to the panel shall not be disclosed without formal authorization from the person, body or authority providing such information. Where such information is requested from the panel but release of such information by the panel is not authorized, a non-confidential summary of this information, authorized by the person, body or authority providing the information, shall be provided.
Part III: Special and Differential Treatment
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XXII. Article 20
1. Developing country Members not party to the Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade done on 12 April 1979 may delay application of the provisions of this Agreement for a period not exceeding five years from the date of entry into force of the WTO Agreement for such Members. Developing country Members who choose to delay application of this Agreement shall notify the Director-General of the WTO accordingly.
2. In addition to paragraph 1, developing country Members not party to the Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade done on 12 April 1979 may delay application of paragraph 2(b)(iii) of Article 1 and Article 6 for a period not exceeding three years following their application of all other provisions of this Agreement. Developing country Members that choose to delay application of the provisions specified in this paragraph shall notify the Director-General of the WTO accordingly.
3. Developed country Members shall furnish, on mutually agreed terms, technical assistance to developing country Members that so request. On this basis developed country Members shall draw up programmes of technical assistance which may include, inter alia, training of personnel, assistance in preparing implementation measures, access to sources of information regarding customs valuation methodology, and advice on the application of the provisions of this Agreement.
66. At its meeting of 31 January 1995, the General Council took a decision on the Continued Application under the WTO Customs Valuation Agreement of Invocations of Provisions for Developing Countries for Delayed Application and Reservations under the Customs Valuation Agreement 1979.(82)
67. At its meeting of 12 May 1995, the Committee on Customs Valuation agreed to continue the practice established by the Tokyo Round Committee on Information on Technical Assistance, in order to ensure transparency on technical assistance activities.(83)
68. Pursuant to paragraph 1 of Article 20, 58 developing country Members, which were not party to the 1979 Agreement on Implementation of Article VII of the GATT, requested a five-year delay of the application of the WTO Customs Valuation Agreement. This five-year delay was computed from the date of entry into force of the WTO Agreement for each of the Members concerned.(84) However, 22 Members requested a further extension of this five-year period pursuant to paragraph 1 of Annex III. The length of this additional extension varied by Member.(85)
69. At its meeting of 15 December 2000, the General Council adopted a decision concerning implementation related issues and concerns in respect of several WTO Agreements.(86) With respect to the Customs Valuation Agreement, the General Council decided:
“Noting that the process of examination and approval, in the Customs Valuation Committee, of individual requests from Members for extension of the five-year delay period in Article 20.1 is proceeding well, the General Council encourages the Committee to continue this work.”(87)
70. Pursuant to paragraph 2 of Article 20, 51 developing country Members delayed application of paragraph 2(b)(ii) of Article 1 and of Article 6 for three years from the date of entry into force of the WTO Agreement for each of them.(88)
71. At its meeting on 24 July 2001 the Committee agreed on resuming its work on technical assistance in response to a proposal from the European Communities and adopted its work programme on technical assistance(89). On 26 February 2002, the Committee decided to start its work programme with a seminar on technical assistance(90).
Part IV: Final Provisions
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XXIII. Article 21
Article 21: Reservations
Reservations may not be entered in respect of any of the provisions of this Agreement without the consent of the other Members.
73. At its meeting on 12 May 1995, the Committee on Customs Valuation adopted the decisions of the Tokyo Round Committee on Customs Valuation on reservations.(91)
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XXIV. Article 22
Article 22: National Legislation
1. Each Member shall ensure, not later than the date of application of the provisions of this Agreement for it, the conformity of its laws, regulations and administrative procedures with the provisions of this Agreement.
74. At its meeting on 12 May 1995, the Committee on Customs Valuation agreed to adopt for all WTO Members the procedures regarding notification and circulation of national legislation that had been in use by the Tokyo Round Committee on Customs Valuation.(92)
75. As the basis of an initial examination of national legislation, the Committee on Customs Valuation agreed to adopt the checklist of issues elaborated by the Tokyo Round Committee on Customs Valuation.(93) It also decided that in the cases of Members who were Tokyo Round signatories and whose legislation had already been examined, a communication from those Members could be sent to the Secretariat indicating that their responses to the Checklist of Issues remained valid under the WTO Customs Valuation Agreement.(94)
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XXV. Article 23
Article 23: Review
The Committee shall review annually the implementation and operation of this Agreement taking into account the objectives thereof. The Committee shall annually inform the Council for Trade in Goods of developments during the period covered by such reviews(95).
76. The Committee on Customs Valuation reports to the Council for Trade in Goods on an annual basis.(96)
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XXVI. Article 24
Article 24: Secretariat
This Agreement shall be serviced by the WTO Secretariat except in regard to those responsibilities specifically assigned to the Technical Committee, which will be serviced by the CCC Secretariat.
No jurisprudence or decision of a competent WTO body.
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XXVII. Annex I
Annex I: Interpretative Notes
1. Articles 1 through 7 define how the customs value of imported goods is to be determined under the provisions of this Agreement. The methods of valuation are set out in a sequential order of application. The primary method for customs valuation is defined in Article 1 and imported goods are to be valued in accordance with the provisions of this Article whenever the conditions prescribed therein are fulfilled.
2. Where the customs value cannot be determined under the provisions of Article 1, it is to be determined by proceeding sequentially through the succeeding Articles to the first such Article under which the customs value can be determined. Except as provided in Article 4, it is only when the customs value cannot be determined under the provisions of a particular Article that the provisions of the next Article in the sequence can be used.
3. If the importer does not request that the order of Articles 5 and 6 be reversed, the normal order of the sequence is to be followed. If the importer does so request but it then proves impossible to determine the customs value under the provisions of Article 6, the customs value is to be determined under the provisions of Article 5, if it can be so determined.
1. “Generally accepted accounting principles” refers to the recognized consensus or substantial authoritative support within a country at a particular time as to which economic resources and obligations should be recorded as assets and liabilities, which changes in assets and liabilities should be recorded, how the assets and liabilities and changes in them should be measured, what information should be disclosed and how it should be disclosed, and which financial statements should be prepared. These standards may be broad guidelines of general application as well as detailed practices and procedures.
2. For the purposes of this Agreement, the customs administration of each Member shall utilize information prepared in a manner consistent with generally accepted accounting principles in the country which is appropriate for the Article in question. For example, the determination of usual profit and general expenses under the provisions of Article 5 would be carried out utilizing information prepared in a manner consistent with generally accepted accounting principles of the country of importation. On the other hand, the determination of usual profit and general expenses under the provisions of Article 6 would be carried out utilizing information prepared in a manner consistent with generally accepted accounting principles of the country of production. As a further example, the determination of an element provided for in paragraph 1(b)(ii) of Article 8 undertaken in the country of importation would be carried out utilizing information in a manner consistent with the generally accepted accounting principles of that country.
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XXVIII. Annex II
Annex II: Technical Committee on Customs Valuation
1. In accordance with Article 18 of this Agreement, the Technical Committee shall be established under the auspices of the CCC with a view to ensuring, at the technical level, uniformity in interpretation and application of this Agreement.
(a) to examine specific technical problems arising in the day-to-day administration of the customs valuation system of Members and to give advisory opinions on appropriate solutions based upon the facts presented;
(d) to furnish such information and advice on any matters concerning the valuation of imported goods for customs purposes as may be requested by any Member or the Committee. Such information and advice may take the form of advisory opinions, commentaries or explanatory notes;
(f) to carry out an examination of a matter referred to it by a panel under Article 19 of this Agreement; and
3. The Technical Committee shall attempt to conclude its work on specific matters, especially those referred to it by Members, the Committee or a panel, in a reasonably short period of time. As provided in paragraph 4 of Article 19, a panel shall set a specific time period for receipt of a report of the Technical Committee and the Technical Committee shall provide its report within that period.
5. Each Member shall have the right to be represented on the Technical Committee. Each Member may nominate one delegate and one or more alternates to be its representatives on the Technical Committee. Such a Member so represented on the Technical Committee is referred to in this Annex as a “member of the Technical Committee”. Representatives of members of the Technical Committee may be assisted by advisers. The WTO Secretariat may also attend such meetings with observer status.
6. Members of the CCC which are not Members of the WTO may be represented at meetings of the Technical Committee by one delegate and one or more alternates. Such representatives shall attend meetings of the Technical Committee as observers.
7. Subject to the approval of the Chairman of the Technical Committee, the Secretary-General of the CCC (referred to in this Annex as “the Secretary-General”) may invite representatives of governments which are neither Members of the WTO nor members of the CCC and representatives of international governmental and trade organizations to attend meetings of the Technical Committee as observers.
Technical Committee Meetings
9. The Technical Committee shall meet as necessary but at least two times a year. The date of each meeting shall be fixed by the Technical Committee at its preceding session. The date of the meeting may be varied either at the request of any member of the Technical Committee concurred in by a simple majority of the members of the Technical Committee or, in cases requiring urgent attention, at the request of the Chairman. Notwithstanding the provisions in sentence 1 of this paragraph, the Technical Committee shall meet as necessary to consider matters referred to it by a panel under the provisions of Article 19 of this Agreement.
11. The Secretary-General shall inform all members of the Technical Committee and those included under paragraphs 6 and 7 at least 30 days in advance, except in urgent cases, of the opening date of each session of the Technical Committee.
12. A provisional agenda for each session shall be drawn up by the Secretary-General and circulated to the members of the Technical Committee and to those included under paragraphs 6 and 7 at least 30 days in advance of the session, except in urgent cases. This agenda shall comprise all items whose inclusion has been approved by the Technical Committee during its preceding session, all items included by the Chairman on the Chairman’s own initiative, and all items whose inclusion has been requested by the Secretary-General, by the Committee or by any member of the Technical Committee
Officers and Conduct of Business
14. The Technical Committee shall elect from among the delegates of its members a Chairman and one or more Vice-Chairmen. The Chairman and Vice-Chairmen shall each hold office for a period of one year. The retiring Chairman and Vice-Chairmen are eligible for re-election. The mandate of a Chairman or Vice-Chairman who no longer represents a member of the Technical Committee shall terminate automatically.
17. In addition to exercising the other powers conferred upon the Chairman by these rules, the Chairman shall declare the opening and closing of each meeting, direct the discussion, accord the right to speak, and, pursuant to these rules, have control of the proceedings. The Chairman may also call a speaker to order if the speaker’s remarks are not relevant.
18. During discussion of any matter a delegation may raise a point of order. In this event, the Chairman shall immediately state a ruling. If this ruling is challenged, the Chairman shall submit it to the meeting for decision and it shall stand unless overruled.
Quorum and Voting
21. Each member of the Technical Committee shall have one vote. A decision of the Technical Committee shall be taken by a majority comprising at least two thirds of the members present. Regardless of the outcome of the vote on a particular matter, the Technical Committee shall be free to make a full report to the Committee and to the CCC on that matter indicating the different views expressed in the relevant discussions. Notwithstanding the above provisions of this paragraph, on matters referred to it by a panel, the Technical Committee shall take decisions by consensus. Where no agreement is reached in the Technical Committee on the question referred to it by a panel, the Technical Committee shall provide a report detailing the facts of the matter and indicating the views of the members.
Languages and Records
22. The official languages of the Technical Committee shall be English, French and Spanish. Speeches or statements made in any of these three languages shall be immediately translated into the other official languages unless all delegations agree to dispense with translation. Speeches or statements made in any other language shall be translated into English, French and Spanish, subject to the same conditions, but in that event the delegation concerned shall provide the translation into English, French or Spanish. Only English, French and Spanish shall be used for the official documents of the Technical Committee. Memoranda and correspondence for the consideration of the Technical Committee must be presented in one of the official languages.
23. The Technical Committee shall draw up a report of all its sessions and, if the Chairman considers it necessary, minutes or summary records of its meetings. The Chairman or a designee of the Chairman shall report on the work of the Technical Committee at each meeting of the Committee and at each meeting of the CCC.
No jurisprudence or decision of a competent WTO body.
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XXIX. Annex III
1. The five-year delay in the application of the provisions of the Agreement by developing country Members provided for in paragraph 1 of Article 20 may, in practice, be insufficient for certain developing country Members. In such cases a developing country Member may request before the end of the period referred to in paragraph 1 of Article 20 an extension of such period, it being understood that the Members will give sympathetic consideration to such a request in cases where the developing country Member in question can show good cause.
2. Developing countries which currently value goods on the basis of officially established minimum values may wish to make a reservation to enable them to retain such values on a limited and transitional basis under such terms and conditions as may be agreed to by the Members.
3. Developing countries which consider that the reversal of the sequential order at the request of the importer provided for in Article 4 of the Agreement may give rise to real difficulties for them may wish to make a reservation to Article 4 in the following terms:
“The Government of ………… reserves the right to provide that the relevant provision of Article 4 of the Agreement shall apply only when the customs authorities agree to the request to reverse the order of Articles 5 and 6.”
If developing countries make such a reservation, the Members shall consent to it under Article 21 of the Agreement.
4. Developing countries may wish to make a reservation with respect to paragraph 2 of Article 5 of the Agreement in the following terms:
“The Government of ………… reserves the right to provide that paragraph 2 of Article 5 of the Agreement shall be applied in accordance with the provisions of the relevant note thereto whether or not the importer so requests.”
If developing countries make such a reservation, the Members shall consent to it under Article 21 of the Agreement.
5. Certain developing countries may have problems in the implementation of Article 1 of the Agreement insofar as it relates to importations into their countries by sole agents, sole distributors and sole concessionaires. If such problems arise in practice in developing country Members applying the Agreement, a study of this question shall be made, at the request of such Members, with a view to finding appropriate solutions.
6. Article 17 recognizes that in applying the Agreement, customs administrations may need to make enquiries concerning the truth or accuracy of any statement, document or declaration presented to them for customs valuation purposes. The Article thus acknowledges that enquiries may be made which are, for example, aimed at verifying that the elements of value declared or presented to customs in connection with a determination of customs value are complete and correct. Members, subject to their national laws and procedures, have the right to expect the full cooperation of importers in these enquiries.
7. The price actually paid or payable includes all payments actually made or to be made as a condition of sale of the imported goods, by the buyer to the seller, or by the buyer to a third party to satisfy an obligation of the seller(97).
80. Pursuant to the Ministerial Decision at Marrakesh, at its meeting of 12 May 1995, the Committee on Customs Valuation adopted the following decision:(98)
“Decision on Texts relating to Minimum Values and Imports by Sole Agents, Sole Distributors and Sole Concessionaires
Ministers decide to refer the following texts to the Committee on Customs Valuation established under the Agreement on Implementation of Article VII of GATT 1994, for adoption.
Where a developing country makes a reservation to retain officially established minimum values within the terms of paragraph 2 of Annex III and shows good cause, the Committee shall give the request for the reservation sympathetic consideration.
Where a reservation is consented to, the terms and conditions referred to in paragraph 2 of Annex III shall take full account of the development, financial and trade needs of the developing country concerned.
1. A number of developing countries have a concern that problems may exist in the valuation of imports by sole agents, sole distributors and sole concessionaires. Under paragraph 1 of Article 20, developing country Members have a period of delay of up to five years prior to the application of the Agreement. In this context, developing country Members availing themselves of this provision could use the period to conduct appropriate studies and to take such other actions as are necessary to facilitate application.
2. In consideration of this, the Committee recommends that the Customs Co-operation Council assist developing country Members, in accordance with the provisions of Annex II, to formulate and conduct studies in areas identified as being of potential concern, including those relating to importations by sole agents, sole distributors and sole concessionaires.”
81. Pursuant to paragraph 2 of Annex III, 38 Members made reservations regarding officially established minimum values.(99) The establishment of minimum values allows developing countries to apply the same minimum values to all identical products, without the need to look for the value that the products would have in the event of the application of the mandates contained in the present Agreement. No Members currently maintain this reservation.
82. Pursuant to paragraph 3 of Annex III, at the time of the 2010 annual review meeting of the implementation and operation of the Agreement on Customs Valuation, 53 Members maintained reservations concerning reversal of sequential order of Articles 5 and 6.(100)
83. Pursuant to paragraph 4 of Annex III, at the time of the 2006 annual review meeting of the implementation and operation of the Agreement on Customs Valuation, 51 Members maintained reservations concerning application of Article 5.2 whether or not the importer so requests.(101)