CHAPTER 4 — General provisions
Free trade area
1. This Agreement establishes a free trade area (FTA) between the Parties, in conformity with the General Agreement on Tariffs and Trade (hereinafter referred to as ‘GATT 1994’), and in particular Article XXIV thereof.
2. The FTA shall respect the principle of asymmetry, commensurate to the specific needs and capacity constraints of the SADC EPA States, in terms of levels and timing for commitments under this Agreement.
3. The FTA will apply to trade between, of the one part, the European Community and, of the other part, the SADC EPA States.
Scope
This Chapter shall apply to products:
1.
falling within Chapters 01 to 97, with the exception of Chapter 93, set out in each Party's respective tariff nomenclature in conformity with the rules of classification applicable to the Harmonised Commodity Description and Coding System (HS); and
2.
originating in the European Community or in the SADC EPA States.
Rules of origin
1. For the purposes of this Chapter, ‘originating’ means qualifying under the rules of origin set out in Protocol 1.
2. Within the first three years of the entry into force of this Agreement, the Parties shall review the provisions of Protocol 1, with a view to further simplifying the concepts and methods used for the purpose of determining origin. In such review the Parties shall take into account the development of technologies, production processes and all other factors, including on-going reforms of rules of origin, which may require modifications to the provisions of this Protocol. Any such modifications shall be effected by a decision of the Joint Council as defined in Article 93.
3. Particular attention shall be given to these provisions within the framework of the review foreseen in paragraph 2.
Customs duties
1. A customs duty includes any duty or charge of any kind imposed on, or in connection with, the importation of goods, including any form of surtax or surcharge, but does not include:
(a)
internal taxes or other internal charges imposed consistently with Article III of GATT 1994;
(b)
any antidumping, countervailing or safeguard measure imposed consistently with Title II;
(c)
fees and charges for consular services imposed consistently with paragraph 2; and
(d)
fees or other charges imposed consistently with paragraph 2.
2. Fees and charges referred to in paragraph 1(c) and (d) shall be limited in amount to the approximate cost of services rendered and shall not represent indirect protection for domestic products or a taxation of imports for fiscal purposes. They shall be based on specific rates that correspond to the real value of the service rendered.
3. For each product the basic duty, to which the successive reductions set out in the Agreement are to be applied, shall be the most-favoured-nation (hereinafter referred to as ‘MFN’) rate of duty effectively applied at the day of entry into force of this Agreement.
4. In cases where the process of tariff dismantlement does not start at the entry into force of this Agreement the duty to which the successive reductions are to be applied shall be either the basic duty referred to in paragraph 3 of this Article, or the duty applied on an erga omnes basis on the starting day of the relevant tariff dismantlement schedule, whichever is the lower.
5. The reduced duties calculated in accordance with the reduction schedules contained in this Agreement shall be applied rounded to the first decimal place or, in case of specific duties, to the second decimal place.
Standstill
No new customs duties shall be introduced, nor shall those already applied be increased in trade between the Parties as from the entry into force of this Agreement for all products subject to liberalisation.
Duties, taxes or other fees and charges on exports
1. No new customs duties on exports or charges having equivalent effect shall be introduced, nor shall those already applied be increased, in the trade between the European Community and the SADC EPA countries from the date of entry into force of this Agreement.
2. In exceptional circumstances where the SADC EPA States can justify specific revenue needs, protection of infant industries, or protection of the environment, these SADC EPA States may introduce, after consultation with the EC Party, temporary export taxes or charges having equivalent effect on a limited number of additional products.
3. The Parties agree to review the provisions of this Article in the Joint Council no later than three years after the entry into force of this Agreement, taking fully into account their impact on development and diversification of the SADC EPA States’ economies.
Customs duties on products originating in the SADC EPA States
1. The EC Party shall provide duty free, quota free (DFQF) treatment for all products, except those referred to in paragraph 3, falling within the scope of this Agreement and originating in Botswana, Lesotho, Mozambique, Namibia and Swaziland.
2. Customs duties on imports of products originating in the SADC EPA States shall be reduced or eliminated in accordance with the provisions set out in Annex 1.
3. Imports of products as defined in the Annex 2 will be subject to the transitional regime set out therein.
Customs duties on products originating in the EC
1. Products originating in the EC Party shall be imported into Botswana, Lesotho, Namibia and Swaziland in accordance with the treatment described in Annex 3.
2. Imports of products originating in the EC Party shall be imported into Mozambique in accordance with the treatment described in Annex 4.
3. The Parties agree to merge the two above annexes into a single SADC EPA tariff schedule at the time of Mozambique's introduction of the HS 2007. The merger shall be made effective by a decision of the Joint Council.
Free circulation of goods
1. Customs duties shall be levied only once for goods originating in the EC Party or in the SADC EPA States in the territory of the other Party.
2. Any duty paid upon importation into an SADC EPA State shall be refunded fully when the goods are re-exported from the customs territory of the SADC EPA State of first importation. Such products shall then be subject to the duty in the country of consumption.
3. The Parties agree to cooperate with a view to facilitating the circulation of goods and simplifying customs procedures.
More favourable treatment resulting from free trade agreements
1. With respect to the subject matter covered by this Chapter, the EC Party shall accord to SADC EPA States any more favourable treatment applicable as a result of the EC Party becoming party to a free trade agreement with third parties after the signature of this Agreement.
2. With respect to the subject matter covered by this Chapter, the SADC EPA States shall accord to the EC Party any more favourable treatment applicable as a result of the SADC EPA States or any Signatory SADC EPA State becoming party to a free trade agreement with any major trading economy after the signature of this Agreement.
3. Where an SADC EPA State can demonstrate that it has been given by a third Party substantially more favourable treatment than that offered by the EC Party, the Parties will consult and jointly decide how best to implement the provisions of paragraph 2.
4. The provisions of this Chapter shall not be so construed as to oblige the EC Party or any SADC EPA State to extend reciprocally any preferential treatment applicable as a result of the EC Party or any SADC EPA State being party to a free trade agreement with third parties on the date of signature of this Agreement.
5. For the purposes of this Article, ‘major trading economy’ means any developed country, or any country accounting for a share of world merchandise exports above 1 percent in the year before the entry into force of the economic integration agreement referred to in paragraph 2, or any group of countries acting individually, collectively or through an economic integration agreement accounting collectively for a share of world merchandise exports above 1,5 percent in the year before the entry into force of the economic integration agreement referred to in paragraph 2.
Special provisions on administrative cooperation
1. The Parties agree that administrative cooperation is essential for the implementation and the control of the preferential treatment granted under this Title and underline their commitment to combat irregularities and fraud in customs and related matters.
2. The Parties also agree to cooperate in ensuring that the necessary institutional structures enable the responsible authorities to effectively respond to requests for assistance in a timely manner.
3. For the purpose of this Article and without prejudice to Article 9 of Protocol 2, a failure to provide administrative cooperation shall mean, inter alia :
(a)
a repeated failure to respect the obligations to verify the originating status of the product(s) concerned as provided for in Article 34 of Protocol 1;
(b)
a repeated refusal or undue delay in carrying out and/or communicating the results of subsequent verification of the proof of origin as provided for in Article 34 of Protocol 1;
(c)
a repeated refusal or undue delay in obtaining authorisation to conduct administrative cooperation missions to verify the authenticity of documents or accuracy of information relevant to the granting of the preferential treatment in question as provided for in Article 7 of Protocol 2.
4. For the purpose of this Article a finding of irregularities or fraud may be made, inter alia , where there is a rapid increase, without legitimate explanation, in imports of goods exceeding the usual level of production and export capacity of the other Party that is linked to objective information concerning irregularities or fraud.
5. Where a Party or an SADC EPA State, as the case may be, has made a finding, on the basis of objective information, of a failure to provide administrative cooperation and/or of irregularities or fraud, the Party concerned may, in exceptional circumstances, temporarily suspend the relevant preferential treatment of the product(s) concerned, and of their specific origin concerned in accordance with this Article. For the purposes of this Article, exceptional circumstances mean those circumstances which have or might have a significant negative effect on a Party or an SADC EPA State, as the case may be, if a relevant preferential treatment of the product(s) concerned is to be continued.
6. The application of a temporary suspension shall be subject to the following conditions:
(a)
The Party or SADC EPA State, as the case may be, which has made a finding, on the basis of objective information, of a failure to provide administrative cooperation and/or of irregularities or fraud shall without undue delay notify the Trade and Development Committee of its finding together with the objective information and enter into consultations within the Trade and Development Committee, on the basis of all relevant information and objective findings, with a view to reaching a solution acceptable to both Parties
(b)
Where the Parties have entered into consultations within the Trade and Development Committee as provided for above and have failed to agree on an acceptable solution within three months following the notification, the Party or SADC EPA State concerned, as the case may be, may temporarily suspend the relevant preferential treatment of the product(s) concerned, and of the specific origin concerned. A temporary suspension shall be notified to the Trade and Development Committee without undue delay.
(c)
Temporary suspensions under this Article shall be limited to those necessary to protect the financial interests of the Party or SADC EPA State concerned. They shall not exceed a period of six months, which may be renewed. Temporary suspensions shall be notified immediately after their adoption to the Trade and Development Committee. They shall be subject to periodic consultations within the Trade and Development Committee in particular with a view to their termination as soon as the conditions for their application are no longer given.
Management of administrative errors
The Parties recognise each other's right to correct administrative errors during the implementation of this Agreement. Where errors are identified either Party may request the Trade and Development Committee to examine the possibilities of adopting all appropriate measures with a view to resolving the situation.
Customs unions and free-trade areas
1. This Agreement shall not preclude the maintenance or establishment of customs unions, free-trade areas or other arrangements between either of the Parties and third countries, except in so far as they alter the rights and obligations provided for in this Agreement.
2. Consultation between the EC Party and the SADC EPA States shall take place within the Joint Council concerning agreements establishing or adjusting customs unions or free-trade areas and, where required, on other major issues related to their respective trade policy with third countries.
TITLE II — TRADE DEFENSE INSTRUMENTS
Anti-dumping and countervailing measures
The rights and obligations of the EC Party or the SADC EPA States in respect of the application of antidumping or countervailing measures shall be governed by the relevant WTO Agreements. Any disputes related to these measures can only be settled through WTO Dispute Settlement procedures.
Multilateral safeguards
1. Subject to the provisions of this Article, nothing in this Agreement shall prevent the SADC EPA States and the EC Party from adopting measures in accordance with Article XIX of GATT 1994, the WTO Agreement on Safeguards, Article 5 of the Agreement on Agriculture annexed to the Marrakech Agreement Establishing the World Trade Organisation and any other relevant WTO Agreements.
2. Notwithstanding paragraph 1, the EC Party shall, in the light of the overall development objectives of this Agreement and the small size of the economies of the SADC EPA States, exclude imports from any SADC EPA State from any measures taken pursuant to Article XIX of GATT 1994, the WTO Agreement on Safeguards and Article 5 of the Agreement on Agriculture.
3. The provisions of paragraph 2 shall apply for a period of five years, beginning from the date of entry into force of the Agreement. Not later than 120 days before the end of this period, the Joint SADC EPA States-EC Council shall review the operation of those provisions in the light of the development needs of the SADC EPA States, with a view to determining whether to extend their application for a further period.
4. The provisions of paragraph 1 shall not be subject to the Dispute Settlement provisions of this Agreement.
Bilateral safeguard
1. Notwithstanding Article 33, after having examined alternative solutions, a Party may apply safeguard measures of limited duration which derogate from the provisions of Articles 25 and 26, under the conditions and in accordance with the procedures laid down in this Article.
2. Safeguard measures referred to in paragraph 1 of this Article may be taken where a product originating in one Party is being imported into the territory of the other Party in such increased quantities and under such conditions as to cause or threaten to cause:
(a)
serious injury to the domestic industry producing like or directly competitive products in the territory of the importing Party, or
(b)
disturbances in a sector of the economy producing like or directly competitive products, particularly where these disturbances produce major social problems, or difficulties which could bring about serious deterioration in the economic situation of the importing Party, or
(c)
disturbances in the markets of like or directly competitive agricultural products ( 4 ) or mechanisms regulating those markets.
3. Safeguard measures referred to in this Article shall not exceed what is necessary to remedy or prevent serious injury or disturbances, as defined in paragraph 2 of this Article.
4. Those safeguard measures which may be taken by the importing Party may only consist of one or more of the following:
(a)
suspension of the further reduction of the rate of import duty for the product concerned, as provided for under this Agreement; or
(b)
increase in the customs duty on the product concerned up to a level which does not exceed the WTO bound rate of duty; or
(c)
introduction of tariff quotas on the product concerned.
5. Without prejudice to paragraphs 1, 2 and 3 of this Article, where any product originating in one or more SADC EPA States is being imported in such increased quantities and under such conditions as to cause or threaten to cause one of the situations referred to under 2(a), (b) and (c) of this Article to a like or directly competitive production sector of one or several of the EC Party's outermost regions, the EC Party may take surveillance or safeguard measures limited to the region or regions concerned in accordance with the procedures laid down in paragraphs 6 to 9.
6.
(a)
Without prejudice to paragraphs 1, 2 and 3 of this Article, where any product originating in the EC Party is being imported in such increased quantities and under such conditions as to cause or threaten to cause one of the situations referred to under paragraph 2(a), (b) and (c) of this Article to an SADC EPA State, the SADC EPA State concerned may take surveillance or safeguard measures limited to its territory in accordance with the procedures laid down in paragraphs 7 to 10 of this Article.
(b)
An SADC EPA State may take safeguard measures as provided for in paragraph 2 of this Article, where a product originating in the EC Party as a result of the reduction of duties is being imported into its territory in such increased quantities and under such conditions as to cause or threaten to cause disturbances to an infant industry producing like or directly competitive products. Such provision is applicable for a period of 12 years for Botswana, Namibia and Swaziland or 15 years for LDCs from the date of entry into force of this Agreement. This application period can be further extended on review by the Joint Council, in view of the overall level of development achieved by the SADC EPA States. Measures must be taken in accordance with the procedures laid down in paragraphs 6 to 9 of this Article.
7.
(a)
Safeguard measures referred to in this Article shall only be maintained for such a time as may be necessary to prevent or remedy serious injury or disturbances as defined in paragraphs 2, 5 and 6 of this Article.
(b)
Safeguard measures referred to in this Article shall not be applied for a period exceeding two years. Where the circumstances warranting imposition of safeguard measures continue to exist, such measures may be extended for a further period of no more than two years. Where one or more SADC EPA States apply a safeguard measure, or where the EC Party applies a measure limited to the territory of one or more of its outermost regions, they may however apply that measure for a period not exceeding four years and, where the circumstances warranting the imposition of safeguard measures continue to exist, extend it for a further period of four years.
(c)
Safeguard measures referred to in this Article that exceed one year shall contain clear elements progressively leading to their elimination at the end of the set period, at the latest.
(d)
No safeguard measure referred to in this Article shall be applied to the import of a product that has previously been subject to such a measure, within a period of at least one year from the expiry of the measure.
8. For the implementation of the above paragraphs, the following provisions shall apply:
(a)
Where a Party takes the view that one of the circumstances set out in paragraphs 2, 5 and/or 6 exists, it shall immediately refer the matter to the Trade and Development Committee for examination.
(b)
The Trade and Development Committee may make any recommendation needed to remedy the circumstances which have arisen. If no recommendation has been made by the Trade and Development Committee aimed at remedying the circumstances, or no other satisfactory solution has been reached within 30 days of the matter being referred to the Trade and Development Committee, the importing Party may adopt the appropriate measures to remedy the circumstances in accordance with this Article.
(c)
Before taking any measure provided for in this Article or, in the case to which paragraph 9 of this Article applies, as soon as possible, the Party or the SADC EPA State concerned shall supply the Trade and Development Committee with all relevant information required for a thorough examination of the situation, with a view to seeking a solution acceptable to the parties concerned.
(d)
In the selection of safeguard measures pursuant to this Article, priority must be given to those which least disturb the operation of this Agreement.
(e)
Any safeguard measure taken pursuant to this Article shall be notified immediately to the Trade and Development Committee and shall be the subject of periodic consultations within that body, particularly with a view to establishing a timetable for its abolition as soon as circumstances permit.
9. In critical circumstances where delay would cause damage which would be difficult to repair, the importing Party concerned, whether the EC Party, or one or more SADC EPA States as the case may be, may take the measures provided for in paragraphs 3, 5 and/or 6 on a provisional basis without complying with the requirements of paragraph 8. Such action may be taken for a maximum period of 180 days where measures are taken by the EC Party and 200 days where measures are taken by one or more SADC EPA States as the case may be, or where measures taken by the EC Party are limited to the territory of one or more of its outermost region(s). The duration of any such provisional measure shall be counted as a part of the initial period and any extension referred to in paragraph 6. In the taking of such provisional measures, the interest of all parties involved shall be taken into account. The importing Party concerned shall inform the other Party concerned and it shall immediately refer the matter to the Trade and Development Committee for examination.
10. If an importing Party subjects imports of a product to an administrative procedure having as its purpose the rapid provision of information on the trend of trade flows liable to give rise to the problems referred to in this Article, it shall inform the Trade and Development Committee without delay.
11. Safeguard measures adopted under the provisions of this Article shall not be subject to WTO Dispute Settlement provisions.
CHAPTER 6 — Non-tariff measures
Prohibition of quantitative restrictions
All prohibitions or restrictions applying to the import or export of goods between the Parties, other than customs duties and taxes, and fees and other charges provided for under Article 22 of this Agreement, whether made effective through quotas, import or export licenses or other measures, shall be eliminated upon the entry into force of this Agreement, unless justified under the exceptions of Article XI of GATT 1994. No new such measures shall be introduced. The provisions of this Article shall be without prejudice to the provisions of Article 32, Title II, on antidumping and countervailing measures.
National treatment on internal taxation and regulation
1. Imported products originating in the other Party shall not be subject, either directly or indirectly, to internal taxes or other internal charges of any kind in excess of those applied, directly or indirectly, to like national products. Moreover, the Parties and the SADC EPA States shall not otherwise apply internal taxes or other internal charges so as to afford protection to national production.
2. Imported products originating in the other Party shall be accorded treatment no less favourable than that accorded to like national products in respect of all laws, regulations and requirements affecting their internal sale, offering for sale, purchase, transportation, distribution or use. The provisions of this paragraph shall not prevent the application of differential internal transportation charges which are based exclusively on the economic operation of the means of transport and not on the nationality of the product.
3. No Party or SADC EPA State shall establish or maintain any internal quantitative regulation relating to the mixture, processing or use of products in specified amounts or proportions which requires, directly or indirectly, that any specified amount or proportion of any product which is the subject of the regulation must be supplied from domestic sources. Moreover, no Party or SADC EPA State shall otherwise apply internal quantitative regulations so as to afford protection to national production.
4. The provisions of this Article shall not prevent the payment of subsidies exclusively to national producers, including payments to national producers derived from the proceeds of internal taxes or charges applied consistently with the provisions of this Article and subsidies effected through governmental purchases of national products.
CHAPTER 7 — Customs and trade facilitation
Objectives
The objectives of the Parties in this Chapter are to:
1.
reinforce cooperation in the area of customs and trade facilitation with a view to ensuring that the relevant legislation and procedures, as well as the administrative capacity of the customs authorities, fulfil the objectives of effective control and the promotion of trade facilitation;
2.
promote harmonisation of customs legislation and procedures;
3.
ensure that legitimate public policy objectives, including those related to security and the prevention of fraud in the area of customs and trade facilitation shall not be compromised in any way; and
4.
provide the necessary support for SADC EPA States customs administrations to effectively implement this Agreement.
Customs and administrative cooperation
1. In order to ensure compliance with the provisions of this Title and effectively respond to the objectives laid down in Article 37, the Parties shall:
(a)
exchange information on customs legislation and procedures;
(b)
jointly develop initiatives relating to customs and trade facilitation and the strengthening of administrative capacity;
(c)
exchange experience and best practices on combating corruption and fraud in matters relating to this Chapter;
(d)
exchange experience and best practices on issues relating to import, export and transit procedures and on issues relating to improving services to the business community;
(e)
exchange experience and best practices on facilitating transit;
(f)
facilitate the exchange of experts between customs administrations; and
(g)
promote coordination between all related agencies, both internally and across borders.
2. The EC Party and SADC EPA States will prepare and develop an enhanced cooperation on the implementation of the World Customs Organisation Framework of Standards to Secure and Facilitate Global Trade. The conditions, as stipulated by the World Customs Organisation, will have to be met and in particular the relevant legislation and measures in this area will have to be implemented in the EC Party and in the said SADC EPA States. This cooperation shall include initiatives aimed at working towards the mutual recognition of the Authorised Economic Operator (AEO) status and the exchange of advance information to allow an effective risk assessment and management for security purposes.
3. Notwithstanding paragraphs 1 and 2, the Parties shall provide mutual administrative assistance in customs matters in accordance with the provisions of Protocol 2 on Mutual Administrative Assistance in Customs Matters.
Customs and legislative procedures
1. The Parties agree that their respective trade and customs legislation and procedures shall be based on:
(a)
the revised Kyoto Convention on the Simplification and Harmonisation of Customs Procedures, the substantive elements of the World Customs Organisation Framework of Standards to Secure and Facilitate Global Trade, the International Convention on the Harmonised System and other international instruments and standards applicable in the field of customs and trade;
(b)
the need to protect and facilitate legitimate trade;
(c)
the need to avoid unnecessary and discriminatory burdens on economic operators, the need to safeguard against fraud and corruption and the need to provide further facilitation for operators that meet a high level of compliance;
(d)
the need for each Party to apply a single administrative document or electronic equivalent;
(e)
the application of modern customs techniques, including risk assessment, simplified procedures for entry and release of goods, post release controls, and company audits;
(f)
transparency, efficiency and proportionality, in order to reduce costs and increase predictability for economic operators;
(g)
the need for non-discrimination in terms of requirements and procedures applicable to import, export and goods in transit, though it is accepted that consignments might be treated differently according to objective risk assessment criteria;
(h)
the progressive development of systems, including those based upon information technology, for both export and import operations, to facilitate the exchange of information between economic operators, customs administrations and other agencies;
(i)
the adoption of systems that facilitate the importation of goods through the use of simplified customs procedures and processes, including pre-arrival clearance;
(j)
the elimination of any requirements for the mandatory use of pre-shipment inspections as defined by the WTO Agreement on Pre-shipment Inspection, or their equivalent;
(k)
the application of rules that ensure that any penalties imposed for minor breaches of customs regulations or procedural requirements are proportionate and, in their application, do not give rise to undue delays in customs clearance;
(l)
a system of binding advance rulings on customs matters, notably on tariff classification and rules of origin, in accordance with rules laid down in their respective legislation;
(m)
the facilitation of transit movements;
(n)
the elimination of all requirements for the mandatory use of customs brokers; and
(o)
transparent, non-discriminatory and proportionate rules in respect of the licensing of customs brokers.
2. In order to improve working methods and to ensure transparency and efficiency of customs operations, the Parties shall:
(a)
ensure that the highest standards of integrity are maintained, through the application of anti corruption measures in this field;
(b)
take further steps towards the reduction, simplification and standardisation of data in the documentation required by customs and other related agencies;
(c)
simplify requirements and formalities wherever possible, in respect of the rapid release and clearance of goods;
(d)
provide effective, prompt and non-discriminatory procedures enabling the right of appeal against customs and other agency administrative actions, rulings and decisions affecting imports, exports or goods in transit. The procedures for appeal shall be easily accessible to all including small and medium enterprises; and
(e)
create the environment for the effective enforcement of legislative requirements.
Facilitation of transit movements
1. The Parties or the SADC EPA States, as the case may be, shall ensure freedom of transit through their territory via the route most convenient for transit. Any controls or requirements must be non-discriminatory, proportionate and applied uniformly.
2. Without prejudice to legitimate customs control, the Parties shall accord to traffic in transit treatment no less favourable than that accorded to domestic goods, exports and imports, and their movement.
3. The Parties or the SADC EPA States, as the case may be, shall operate bonded transport regimes that allow the transit of goods without payment of duties or other charges, subject to the provision of an appropriate guarantee.
4. The Parties or the SADC EPA States, as the case may be, shall promote and implement regional transit arrangements.
5. The Parties or the SADC EPA States, as the case may be, shall use international standards and instruments relevant to transit.
6. The Parties or the SADC EPA States, as the case may be, shall promote coordination between all concerned agencies, both internally and across borders.
Fees and charges
1. Fees and charges shall be reasonable and shall not be more than the cost of the service provided in relation to any specific transaction. They shall not be calculated on an ad valorem basis.
2. Fees and charges shall not be imposed for consular services.
Relations with the business community
The Parties agree:
1.
to ensure that all customs legislation, procedures and fees and charges are made publicly available, as well as whenever possible the necessary explanations, and as far as possible through electronic means;
2.
on the need, as far as possible, for timely and regular consultation with trade representatives on legislative proposals and procedures related to customs and customs related trade issues;
3.
that, where appropriate, new or amended legislation and procedures and their entry into force are introduced in a way to allow traders to become well prepared for complying with them. The Parties shall make publicly available relevant notices of an administrative nature, including agency requirements and entry procedures, hours of operation and operating procedures for customs offices at ports and border crossing points, and points of contact for information enquiries; and
4.
to foster cooperation between operators and relevant administrations through the use of instruments such as Memoranda of Understanding.
Customs valuation
1. The Agreement on the implementation of Article VII of GATT 1994 shall govern customs valuation rules applied to trade covered by this Agreement.
2. The Parties shall cooperate with a view to reaching a common approach to issues relating to customs valuation.
Harmonisation of customs standards at regional level
The Parties shall promote harmonisation of customs legislation, procedures, standards and requirements. The content and pace of this process shall be determined by each Party.
Support to SADC EPA customs administrations
1. The Parties recognise the importance of supporting SADC EPA States’ customs administrations for the implementation of this Chapter, in line with the provisions of Part I, Chapter 2, of this Agreement.
2. The priority areas for support are:
(a)
the application of modern customs techniques, including:
(i)
risk management;
(ii)
post release controls; and
(iii)
automation of customs procedures;
(b)
control of customs valuation, classification and rules of origin, including in view of meeting the requirement of Article 39(1)(j) of this Agreement;
(c)
the facilitation of transit and the enhancement of the efficiency of regional transit arrangements;
(d)
transparency issues relating to the publication and administration of all trade regulations, as well as relevant fees and formalities;
(e)
the introduction and implementation of procedures and practices which reflect international instruments and standards applicable in the field of customs and trade, inter alia the revised Kyoto Convention on the Simplification and Harmonisation of Customs Procedures and the WCO Framework of Standards to Secure and Facilitate Global Trade.
3. The Parties recognise the need for specific needs assessment studies taking into account the situation in each country, using WTO and WCO needs assessment instruments or any other mutually agreed instrument.
Transitional arrangements
1. The Parties recognise the need for transitional arrangements to ensure the smooth implementation of the provisions of this Chapter.
2. In view of the need to enhance their capacity in the area of customs and trade facilitation and without prejudice to their WTO commitments, SADC EPA States shall benefit from a transitional period of five years to meet those requirements referred to in Articles 39, 40, 41 and 42 of this Chapter where the need for capacity building exists at the time of entry into force of this Agreement.
3. The Joint Council may accord a two-year extension of this transitional period in case attainment of the necessary capacity has not yet been achieved.
Special Committee on Customs and Trade Facilitation
1. The Parties hereby establish a Special Committee on Customs and Trade Facilitation, composed of representatives of the Parties.
2. The functions of the Special Committee on Customs and Trade Facilitation shall, inter alia , be the following:
(a)
monitoring the implementation and administration of this Chapter and of the Protocol on Rules of Origin;
(b)
providing a forum to consult and discuss all issues concerning customs, including rules of origin, general customs procedures, customs valuation, tariff classification, transit and mutual administrative assistance in customs matters;
(c)
enhancing cooperation on the development, application and enforcement of rules of origin and related customs procedures, general customs procedures and mutual administrative assistance in customs matters;
(d)
enhancing cooperation on capacity building and technical assistance;
(e)
follow-up on the implementation of Article 44 of this Agreement; and
(f)
any other issues agreed by the Parties in respect of this Chapter.
3. The Special Committee on Customs and Trade Facilitation shall meet on a date and with an agenda agreed in advance by the Parties.
4. The Special Committee on Customs and Trade Facilitation shall be chaired alternatively by either Party.
5. The Special Committee on Customs and Trade Facilitation shall report to the Trade and Development Committee.
CHAPTER 8 — Technical barriers to trade
Multilateral obligations
1. The Parties confirm their commitment to the rights and obligations provided for in the WTO Agreement on Technical Barriers to Trade (hereinafter referred to as ‘the TBT Agreement’).
2. These rights and obligations shall underlie the activities of the Parties under this Chapter.
Objectives
1. The Parties agree to cooperate in order to facilitate and increase trade in goods between them, by identifying, preventing and eliminating unnecessary barriers to trade within the terms of the TBT Agreement.
2. The Parties undertake to cooperate in strengthening regional, and specifically SADC EPA States’ integration and cooperation on matters concerning technical barriers to trade.
3. The Parties undertake to establish and enhance SADC EPA States’ technical capacity on matters concerning technical barriers to trade.
Scope and definitions
1. The provisions of this Chapter shall apply to technical regulations, standards and conformity assessment procedures as defined in the TBT Agreement in so far as they affect trade covered by this Agreement.
2. For the purposes of this Chapter, the definitions used by the TBT Agreement shall apply.
Collaboration and regional integration
The Parties agree that collaboration between national and regional authorities dealing with TBT matters, in both the public and private sector, is important to facilitate trade in the region and between the Parties, as well as for the overall process of regional integration and undertake to cooperate to this end.
Transparency
The Parties reaffirm the principle of transparency in the application of technical regulations and standards in accordance with the TBT Agreement.
The Parties recognise the importance of effective mechanisms for consultation, notification and exchange of information with respect to technical regulations and standards in accordance with the TBT Agreement.
Measures for identifying, preventing and eliminating technical barriers to trade
The Parties agree to identify and implement mechanisms among those supported by the TBT Agreement that are the most appropriate for particular priority issues or sectors. Such mechanisms may include:
1.
intensifying their collaboration, with a view to facilitating access to their respective markets, by increasing the mutual knowledge and understanding of their respective systems in the field of technical regulations, standards, metrology, accreditation and conformity assessment;
2.
exchanging information, identifying and implementing appropriate mechanisms for particular issues or sectors, i.e. alignment with international standards, reliance on the supplier's declaration of conformity, the use of internationally recognised accreditation to qualify conformity assessment bodies and the use of international product testing and certification schemes;
3.
identifying and organising sector-specific interventions on technical regulations and conformity assessment with a view to facilitating understanding of and access to their respective markets. These sectors will be chosen taking into account key areas of trade, including priority products;
4.
developing cooperation activities and measures with a view to supporting the implementation of the rights and obligations under the TBT Agreement;
5.
developing common views and approaches on technical regulatory practices, including transparency, consultation, necessity and proportionality, the use of international standards, conformity assessment requirements, the use of impact and risk assessment, enforcement and market surveillance, where appropriate;
6.
promoting harmonisation, whenever possible and in areas of mutual interest, towards international standards, and the use of such standards in the development of technical regulations and conformity assessment procedures;
7.
undertaking to consider, in due course, negotiating mutual recognition agreements in sectors of mutual economic interest;
8.
promoting collaboration between the Parties’ and SADC EPA States’, as the case may be, organisations responsible for technical regulations, metrology, standardisation, testing, certification, inspection and accreditation; and
9.
promoting the participation by the SADC EPA States in international standards-setting bodies.
Implementation
The Parties agree that the Trade and Development Committee shall be competent under this Chapter to:
1.
monitor and review its implementation;
2.
provide coordination and consultation on TBT issues;
3.
identify and review priority sectors and products and the resulting priority areas for cooperation; and
4.
make recommendations for modifications to it if necessary and appropriate.
Capacity building and technical assistance concerning technical barriers to trade
1. The Parties recognise the importance of cooperating in the areas of technical regulations, standards, metrology, accreditation and conformity assessment in order to achieve the objectives of this Chapter;
2. The Parties agree that the following are priority areas for cooperation:
(a)
the establishment of appropriate arrangements for the sharing of expertise, including appropriate training intended to ensure adequate and enduring technical competence of the relevant standardisation and conformity assessment bodies of the SADC EPA States and mutual understanding between such bodies in the territories of the Parties;
(b)
the development of capacities of the SADC EPA States in the fields of technical regulations, metrology, standards, accreditation and conformity assessment including through the upgrading or setting up of laboratories and other equipment. In this regard, the Parties acknowledge the importance of strengthening regional cooperation and the need to take into account priority products and sectors;
(c)
the development and adoption, within the SADC EPA States, of harmonised technical regulations, standards, metrology, accreditation and conformity assessment procedures based on relevant international standards;
(d)
the support for the participation of SADC EPA States in international standardisation, accreditation and metrology activities; and
(e)
the development of TBT enquiry and notification points within the SADC EPA States.
CHAPTER 9 — Sanitary and phytosanitary measures
Multilateral obligations
1. The Parties reaffirm the principles and objectives of the WTO SPS Agreement (hereinafter referred to as ‘the SPS Agreement’), the International Plant Protection Convention (IPPC), the Codex Alimentarius Commission and the World Organisation for Animal Health (OIE).
2. These principles and objectives shall underlie the activities of the Parties and the SADC EPA States, as the case may be, under this Chapter.
Objectives
1. The Parties agree to facilitate trade and investment within the SADC EPA States and between the Parties while ensuring that measures adopted shall apply only to the extent necessary to protect human, animal or plant health or life in accordance with the provisions of the SPS Agreement.
2. The Parties undertake to cooperate in strengthening regional integration and specifically SADC EPA States’ cooperation on matters concerning sanitary and phytosanitary measures (hereinafter referred to as ‘SPS measures’) and to address problems arising from SPS measures on agreed priority sectors and products ( 5 ) whilst giving due consideration to regional integration.
3. As a result thereof, the Parties agree to promote bi-regional collaboration aiming at recognition of appropriate levels of protection in SPS measures.
4. The Parties agree to establish and enhance SADC EPA States’ technical capacity to implement and monitor SPS measures, including promoting greater use of international standards and other matters concerning SPS.
Scope and definitions
For the purposes of this Chapter, definitions used in the SPS Agreement and international standard-setting bodies, namely the Codex Alimentarius Commission, the International Plant Protection Convention (IPPC) and the World Organisation for Animal Health (OIE) shall apply.
Competent authorities
1. The respective SPS authorities shall be the competent authorities in the SADC EPA States and the EC Party for the implementation of the measures referred to in this Chapter.
2. The Parties or the SADC EPA States, as the case may be, shall, in accordance with this Agreement, inform each other of their respective competent SPS authorities and any changes thereto.
Transparency
1. The Parties reaffirm the principle of transparency in the application of SPS measures, in accordance with the SPS Agreement.
2. The Parties recognise the importance of effective mechanisms for consultation, notification and exchange of information with respect to SPS measures in accordance with the SPS Agreement.
3. The importing Party shall inform the exporting Party of any changes in its sanitary and phytosanitary import requirements that may affect trade falling under the scope of this Chapter. The Parties undertake to establish mechanisms for the exchange of such information where appropriate.
4. The Parties will apply the principle of zoning or compartmentalisation when defining import conditions, taking into account international standards. Zones or compartments of defined sanitary or phytosanitary status may also be identified and proposed jointly by the Parties, on a case by case basis, wherever possible, in order to avoid disruption to trade.
Information exchange
1. The Parties agree to establish an early-warning system to ensure that the SADC EPA States are informed in advance of new EC SPS measures that may affect SADC EPA exports to the EU. This system shall be based on existing mechanisms where appropriate.
2. The Parties or the SADC EPA States, as the case may be, agree to collaborate in the further development of the epidemiological surveillance network on animal disease and in the domain of plant health. The Parties will exchange information on the occurrence of pests of known and immediate danger to the other Party.
Implementation
The Parties agree that the Trade and Development Committee shall be competent under this Chapter to:
1.
monitor and review its implementation;
2.
advise and make recommendations for the implementation aimed at achieving its objectives;
3.
provide a forum for discussion and exchange of information as well as issues of cooperation;
4.
make recommendations for modifications to it if necessary and appropriate;
5.
review the list of priority sectors and products and the resulting priority areas for cooperation;
6.
enhance cooperation on the development, application and enforcement of SPS measures; and
7.
any other relevant matters relating thereto.
Consultations
If either Party or an SADC EPA State, as the case may be, considers that another Party has taken measures which are likely to affect, or have affected, access to its market, appropriate consultations will be held with a view to avoiding undue delays and finding an appropriate solution in conformity with the WTO SPS Agreement. In this regard, the Parties shall exchange names and addresses of contact points with sanitary and phytosanitary expertise in order to facilitate communication and the exchange of information.
Cooperation, capacity building and technical assistance on sanitary and phytosanitary measures
1. The Parties agree to promote cooperation between SADC EPA States’ SPS institutions and equivalent EC Party institutions.
2. The Parties agree to cooperate in facilitating regional harmonisation of measures and the development of appropriate regulatory frameworks and policies within and between the SADC EPA States, thereby enhancing intra-regional trade and investment.
3. The Parties agree that the following are priority areas for cooperation:
(a)
the building of technical capacity in the public and private sectors of SADC EPA States to enable sanitary and phytosanitary control, including training and information events for inspection, certification, supervision and control;
(b)
the building of capacity in SADC EPA States to maintain and expand their market access opportunities;
(c)
the building of capacity to ensure that measures adopted do not become unnecessary barriers to trade, while recognising the Parties’ rights to set their own appropriate levels of protection;
(d)
the enhancement of technical capacity for the implementation and monitoring of SPS measures, including promoting greater use of international standards;
(e)
the promotion of cooperation on the implementation of the SPS Agreement, particularly strengthening SADC EPA States’ notification and enquiry points as well as other matters concerning relevant international standards setting bodies;
(f)
the development of capacities for risk analysis, harmonisation, compliance, testing, certification, residue monitoring, traceability and accreditation including through the upgrading or setting up of laboratories and other equipment to help SADC EPA States comply with international standards. In this regard, the Parties acknowledge the importance of strengthening regional cooperation and the need to take into account the priority products and sectors identified in accordance with this Chapter; and
(g)
the support for the participation of SADC EPA States in relevant international standards setting bodies.
Appendix I A
Priority products and sectors for SADC EPA States' harmonisation
Fish, fishery products, aquaculture products, fresh or processed
Cattle, sheep and poultry
Fresh meat
Processed meat products
Cereals
Vegetables and spices
Oilseeds
Coconut
Copra
Cotton seeds
Groundnut
Cassava
Beer, juices
Dried and canned fruits
Appendix I B
Priority products and sectors for export from SADC EPA States to the EC Party
Fish, fishery products and aquaculture products, fresh or processed
Beef and beef products
Other meat products
Fruit and nuts
Vegetables
Cut flowers
Coffee
Sugar
TITLE III — CURRENT PAYMENTS AND CAPITAL MOVEMENT
Current payments
1. Subject to the provisions of Article 66 of this Agreement, the SADC EPA States and the EC Party undertake to impose no restrictions and to allow all payments for current transactions between residents of the EC Party and of the SADC EPA States to be made in freely convertible currency.
2. SADC EPA States may take the necessary measures to ensure that the provisions of paragraph 1 of this Article, which liberalise current payments, are not used by its residents to make unauthorised capital outflows.
Safeguard measures
1. Where, in exceptional circumstances, payments and capital movements between the Parties cause or threaten to cause serious difficulties for the operation of monetary policy or exchange rate policy in one or more SADC EPA States or one or more Member States of the European Union, safeguard measures with regard to capital movements that are strictly necessary may be taken by the EC Party or the concerned SADC EPA State for a period not exceeding six months.
2. The Joint Council shall be informed forthwith of the adoption of any safeguard measure and, as soon as possible, of a time schedule for its removal.
TITLE IV — Ongoing negotiations for a full EPA
CHAPTER 11 — Ongoing negotiations for a full EPA
Second stage of negotiations
The Parties agree to continue negotiations in 2008 to extend the scope of this Agreement. For the purpose of this Title, the SADC EPA States will be constituted of Botswana, Lesotho, Mozambique and Swaziland. The remaining SADC EPA States may join the process of negotiation on a similar basis. To this end, they will notify in writing the EC Party and the other SADC EPA States.
1.
Trade in Services
(a)
The Parties recognise the growing importance of trade in services for the development of their economies and reaffirm their respective rights and obligations under the General Agreement on Trade in Services (GATS).
(b)
No later than 31 December 2008, the Parties will complete negotiations on services liberalisation on the basis of the following:
(i)
a liberalisation schedule for one service sector for each participating SADC EPA State;
(ii)
a commitment to a standstill as specified in Article V(1)(b)(ii) GATS, for all services sectors; and
(iii)
an agreement to negotiate progressive liberalisation with substantial sectoral coverage within a period of three years following the conclusion of a full EPA.
2.
Cooperation in Services
(a)
The Parties recognise that trade capacity building can support the development of economic activities, in particular in services sectors. To this end, the EC Party agrees to support capacity building aimed at strengthening the regulatory framework of the participating SADC EPA States.
(b)
By the time of laying down the necessary arrangements for the liberalisation of trade in services, the Parties will define the specific cooperation objectives, principles and procedures that will accompany trade liberalisation.
3.
Investment
The Parties agree to negotiate an Investment Chapter, taking into account the relevant provisions of the SADC Protocol on Finance and Investment, no later than 31 December 2008.
4.
Cooperation on Investment
The EC Party agrees to provide adequate technical assistance to facilitate negotiations and implementation of the Investment Chapter.
5.
Competition and Government Procurement
The EC Party agrees to cooperate with a view to strengthening regional capacity in the areas of competition and government procurement. Negotiations will only be envisaged once adequate regional capacity has been built.
Source: EUR-Lex (Publications Office of the EU), © European Union, reuse permitted under Commission Decision 2011/833/EU.
