RESTRICTEDWORLD TRADE
ORGANIZATIONG/C/W/363
12 April 2002
(02-2082)
Council for Trade in Goods Original:  English
TRADE FACILITATION: ARTICLE X OF GATT ON THE PUBLICATION AND
ADMINISTRATION OF TRADE REGULATIONS
Communication from the European Communities
The following communication, dated 12 April 2002, has been received from the Permanent
Mission of the European Communities.
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Introduction
Transparency is a cornerstone of the multilateral system. Without transparency of trade rules
and trade policy, other fundamental principles of  non-discrimination, proportionality, and special and
differential treatment are of less practical use, the value of Members' liberalisation commitments mayremain theoretical, and Members' rights and obligations cannot be properly exercised.
At a very practical level, traders need full knowledge of other Members' trade rules and
practices in order to take advantage of the trade benefits conferred by Members' WTO commitments.
Complete, simple and easily accessible information is especially important for SMEs to do business.
Transparency also renders governments more accountable and in doing so encourages more efficient
and business-friendly design and administration of trade policy, while reducing trade conflicts.Transparency and predictability in the application of trade regulations and procedures are, ultimately,
an important aid to development.
The Doha Declaration mandates Members to "review and, as appropriate, clarify and
improve", by the fifth ministerial conference, relevant aspects of GATT Article X on the Publicationand Administration of Trade Regulations. This Article has stood unchanged since the 1940's, but
some of its concepts – concerning for example transparency, advance notice of proposed trade rules,
and right of appeal against administrative decisions have since been developed further in the national
regimes of some Members, in specific Marrakech Agreements on trade in goods, or in other
international instruments. Modern principles of sound and transparent public administration have, inother words, overtaken GATT Article X since it was first negotiated.
The European Communities therefore suggest that, taking in account what has been found
useful in other WTO Agreements and elsewhere, the following improvements and clarifications to
GATT Article X be considered, as part of a set of future WTO commitments on trade facilitation. TheEC has divided these improvements into four categories: publication and availability of information;
predictability of measures; appeal and due process measures; and Special and Differential Treatment,
including technical assistance.
The improvements proposed would also apply, where appropriate, to subfederal and local
authorities who may have responsibilities for the requirements and procedures in place affecting the
movement of goods across borders.G/C/W/363
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A.  Publication and Availability of Information
1. All relevant laws, regulations, administrative guidelines , specific decisions of or having
general application, information on customs and other agency processes, conditions andqualifications for different forms of customs treatment
1, right of appeal procedures, fees and
charges, port, airport and other entry-point procedures etc, relating to border crossing  trade,
should be published and made easily available via an officially designated medium, (including in
electronic form) and accessible to any interested party on a non-discriminatory basis. All
amendments thereto should be made public in the same way. Any fees charged for the provision
of information to interested parties should be  commensurate with the cost of providing that
service. The information to be made public could include also details of customs’ and othergovernment agencies’ management plans  relating to implementation of WTO commitments, or
of their relevant reform and modernisation programmes, including for example targets, deadlines
and benchmarks set in such programmes.
Comments: this expands slightly the current scope of the information required to be published
under GATT Article X to reflect the needs of today’s trade.  Experience demonstrates that
information of this nature is necessary both to assist traders in day to day management of their
transactions, but also to encourage a co-operative and trustful relationship between the trading
community and customs and other public administrations. This is a priority need for SMEs, whose
capacity to trade can be greatly improved by access to such information.
2. Information made public could also include relevant advance rulings , notably binding rulings on
classification and origin, provided confidentiality and commercial secrecy is respected. Provision
is needed whereby binding rulings can be revoked at any time if made pursuant to false, incorrect
or incomplete information, but otherwise not with retroactive effect or without prior informationof interested/affected parties.
Comment: the WTO Agreement on rules of origin requires Members to provide rulings on origin.
Again, such information is of use to traders.
3. Information should be presented in a simple and accessible  manner and not designed to
discriminate or make it inaccessible or difficult for non-national operators to access.
Comment: this is recommended, inter alia by the WCO in respect of customs related information.
We note further that provisions on use of internationally agreed standards, data sets etc, and
commitments to reduce and simplify official re quirements to the very minimum will help to
achieve simplicity in information because there will be less information to provide and it will bein a more standard, familiar format . The EC will address this in a future communication .
Legislation, regulations and administrative guidelines made generally available using new
technology will generally meet this standard.
4. Members could confirm their commitment only to take administrative actions, decisions or
rulings affecting importers or exporters where a legal basis  to do so is established.
Comments: the purpose of this is in order to reduce the scope for arbitrary decision making on
the part of the public authorities.
                                                     
1 For example, MoU’s between customs and opera tors, criteria for authorised trader statusG/C/W/363
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5. Enquiry points or trade desks providing information on all the above should be established for
use of governments and traders on a non-discriminatory basis, and notified to the WTO
secretariat.
Comments: this is a familiar provision in certain WTO Agreements such as TBT and SPS, but
there is no provision in Article X for enquiry points for general customs and other agency
requirements relating to trade in goods. It is noted that in many cases such enquiry points either
already exist or are being provided via technical assistance programmes. Where they do not exist,
the provision of such enquiry points, and the assembly of all the necessary information on the
laws and regulations of the Member in question, could be a priority for technical assistance in the
field of trade facilitation. In addition to ensuring the creation of information points by WTO-
members, members could consider the possibility of establishing, on the basis of the informationnotified by WTO members to the WTO, a publicly accessible (via the Internet) WTO database of
the countries requirements identified in this section. The EU has some experience in putting
together databases in relation to the import and export procedures that traders might encounter
around the world and would be interested in discussing further with WTO-members the scope for
this possibility.
B. Predictability via Prior Consultation & Minimum Time Periods before entry into force etc
6. It would be useful to establish a provision for consultation between interested parties , both
governments and private sector, on proposed new legislation, regulations and other proceduresaffecting import and export administration, before formal adoption or entry into force. The scope
of any such provision should be further discussed. This could be extended to include a
requirement to establish a regular consultative mechanism  with representative private sector
bodies including importers, exporters, carriers, chambers of commerce, relating to new or revised
laws and regulations, and to major changes in operating procedures, particularly where these arein legislative form.
Comments: the relevant WCO Ky oto Convention Standard could be indicated as a preferred
means to implement this commitment. A provision on these lines is useful both for administrations
and traders in order to ensure sensible regulation, co-operation, mutual trust and high levels of
compliance on the part of trade.
7. Standard, and adequate time periods  to be provided for comment, and between adoption and
entry into force of regulations, to allow trade to adjust.
Comments: this is already provided for e.g. in the context of the TBT and SPS Agreements, and
there is no reason why the concept could not be applied more widely to customs and other relatedimport or export requirements.
8. Notice of proposed regulations etc on which comments invited could be accompanied by
publication of the reasoned motivations for a proposed measure  in relation to the policy
objectives sought, the availability of other, possibly less trade restrictive measures etc.  A
commitment could be considered whereby the primary legislation would be reviewed, and as
necessary codified or consolidated at reasonable intervals in order to ensure it remains up to date
and so as to ensure efficiency in the information process.
Comments: commitments along these lines are also found in specific WTO agreements. They will
be made more operational if accompanied by a re quirement that regulations be proportionate to
the objectives sought and that the objectives sought should be legitimate ones.  The EC will
address these issues in a subsequent communication to the WTO.G/C/W/363
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C. Appeal Procedures and Due Process
9. There should be a non discriminatory, legal right of appeal  against customs and other agency
rulings and decisions, initially to a higher authority within the same agency or another body, andsubsequently to a separate judicial or administrative body. Appeal procedures, and standard times
and conditions for appeal should be made publicly available. A standard time should be set for
resolution of minor appeals at administrative level. Procedures for appeal should be easily
accessible, including to SMEs, and costs should be reasonable and commensurate with costs in
providing for the appeals.
Comments: this builds on existing provisions in  GATT Article X. Future WTO commitments could
specify that implementation of the substance of the relevant provisions of the WCO Kyoto
Convention (General Annex, Chapter 10 and accom panying Guidelines) would be deemed to fulfil
these requirements, as far as customs rulings are concerned.
10. Appeal procedures should also be available in resp ect of decisions relating to goods in transit and
exports, as well as imports. Companies should have right to be represented at all stages of appeal
procedure by an agent or legal representative.
Comments: transit operators’ and exporters’ interests are not necessarily guaranteed by national
treatment provisions, which is why the right of app eal should apply also to them. SMEs need the
facility of being represented by an agent sin ce small companies cannot always spare their
managers to be absent to pursue appeals/complaint s - a point well made by the ICC in its
Customs Guidelines.
11. Goods should normally be released, and the possibility be available in given circumstances for
duty payment to be left in abeyance, pending outcome of appeal, subject, where required by
national legislation, to the payment of a surety, guarantee or other form of bond.
Comments: this would act as a disincentive to drawn out appeal procedures, and ensure that
trade is not unduly affected pending the outcome of appeal procedures. The Customs Valuation
Agreement requires all WTO Members to make provision for goods release in the event of delays
in the determination of customs value, so it should be feasible to extend this to other aspects ofagency determinations.  There could not however be an unfettered right of release of goods
pending the outcome of the appeal, since this  would unduly reduce the enforcement ability of
customs or other agencies.
D. Special and Differential Treatment, including technical assistance
12. The above proposals, however desirable in themselves, may in some cases justify the provision of
technical assistance for some developing countries, who lack resources to implement them, or
who may need time to introduce changes. For these reasons it is important that Members provide
Technical Assistance  to assist developing countries, especially least developed, to establish
requisite information platforms, particularly in electronic format, in order to fulfil transparency
requirements. Where necessary, assistance may also be provided to support the implementation of
other commitments that Members may enter into based on the above proposals. The possible
scope and nature of, special and differential treatment provisions for, in particular, the least
developed countries, also needs further discussion.
Comments: as noted in proposal 5 on enquiry points, measures to improve transparency and
predictability have been a traditional focus of trade related technical assistance, since they are
relatively straightforward to implement yet constitute the basis for other improvements inG/C/W/363
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Members' trade regimes. Assistance to transparency is often provided through the creation of
databases and enquiry points for traders, in particular SMEs. Many Members already operate
specific systems,  such as trade points,  or investment desks,  which demonstrate the feasibility of
introducing such facilities. The EC regards this as a useful component of trade related assistance
in the short to medium term and will endeavour to address this in its bilateral technical assistanceprogrammes.
More generally, the issue of how to integrate the technical assistance/capacity building dimension in
the final result of the process on trade facilitation needs to be considered in depth, taking into account
the sum of trade facilitation commitments that WTO members will take on. The EC has already
presented its views on this in previous submissions to the Council on Trade in goods, as well as in its
presentation to the May 2001 Workshop on Technical Assistance and will review these ideas and
present a further submission in due course.
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