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ASEAN R egional Integration Supported by EU ARISE

ASEAN R egional Integration Supported by EU ARISE. NTMs Classification in the Context of Regulatory Transparency: ASEAN, EU and WTO Perspectives Presentation by Paolo R. Vergano Institutional Strengthening Expert, ARISE and Partner, FratiniVergano – European Lawyers

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ASEAN R egional Integration Supported by EU ARISE

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  1. ASEAN Regional Integration Supported by EUARISE NTMs Classification in the Context of Regulatory Transparency: ASEAN, EU and WTO Perspectives Presentation by Paolo R. Vergano Institutional Strengthening Expert, ARISE and Partner, FratiniVergano – European Lawyers Bangkok, 15 March 2013

  2. Table of Contents • Presentation of ARISE • The ASEAN: Transparency, NTMs and NTRs/ATR • The EU: Relevant Mechanisms • The WTO: Overarching Obligations and Structures • Conclusions

  3. ARISE Basis: • EU-ASEAN Co-operation Agreement signedin 1980, with AMSs and the ASEAN Secretariat. Implemented by: • Consortium lead by AETS and partners (i.e., Transtec, the Instituto de la Calidad, ACE and FratiniVergano).

  4. Key Experts • The following key experts are made available to ASEAN and the ASEAN Secretariat: • Mr. Paul MANDL – Key Expert 1 : Team Leader responsible for overall project management; • Mr. Glyn EVANS– Key Expert 2 : Transit Adviser – Customs / Transport; • Mr. Rajinder Raj SUD - Key Expert 3: Standards and Conformance; • Mr. Keith ATKINSON – Key Expert 4 : Monitoring and Evaluation Specialist; and • Mr. Paolo R. VERGANO – Key Expert 5 : Institutional Strengthening Specialist. • The experts will additionally draw upon the experience and knowledge of the EU towards the integration targets through the use of experienced regional and international short term experts.

  5. Project Objectives • To Support ASEAN and AMS in achieving ASEAN economicintegration; • Contributing to the implementation of the AEC Blueprint and ATIGA for realisation of the ASEAN Economic Community; and • Enhancing the Capacities of Member States in implementation of initiatives agreed by ASEAN towards AEC realisation.

  6. Project Background • ARISE Programme follows the success of 2 previous phases ofthe ASEAN-EU Programme for Regional Integration Support: • (APRIS 1) - September 2003 to September 2006; and • (APRIS 2) - November 2006 toDecember 2010. • ARISE will continue the specific, outcome-oriented support providedby APRIS2 by: • Strengthening ASEAN’s overall management of the economicintegration process; • Progressing the free flow of goods within ASEAN; and • Strengthening the capacity of the ASEAN Secretariat (ASEC) to support AECimplementation.

  7. ARISE Components Component 1: Strengthening the management of the overall regionaleconomic integration process; Component 2: Achieving progress in securing the free flow of goods in ASEAN; and Component 3: Strengthening the capacity of the ASEAN Secretariat.

  8. Component 1:Assistance on NTMs, NTRs and ATR • A fundamental catalyst for economic development, cross-border investment and trade, and ASEAN integration is transparency; • This is an area where the EU has considerable expertise and its assistance through the ARISE project is intended to contribute strengthening the overall ASEAN integration process management and build institutional capacity; • Linkages to the “ASEAN Consultation to Solve Trade and Investment Issues System” (ACTS) and ARISE assistance in light of the EU’s experience with its SOLVIT system; • Transparency as a critical tool to avoid ASEAN trade disputes (EDSM) and foster economic development.

  9. Component 1:Assistance on NTMs, NTRs and ATR • With respect to the planned Project (i.e., Project 1.1.3) of assisting the process of regional economic integration, with particular focus on enhanced transparency and non-tariff measures, ARISE’s expected outputs, to be achieved through a set of specific Sub-Projects, will be: • Holding 2 regional workshops on NTM classification, notification processes and related institutional framework; • A series of 10 national seminars to train AMSs in order to collect information on NTMs and domestic regulatory developments, classify it and notify it to the ATR; and • The operationalization of the NTRs at AMS level (drafting of SOPs and training of officials) and the establishment of the ATR, in line with the ATIGA.

  10. Programme Inception • Stock-taking on previous achievements, review of existing plans, other donors’ activities and coordination with Beneficiary; • Developing an Overall Work Plan; • Developing an Annual Work Plan for the first year; • Consultation with ASEAN Secretariat and Working Groups (i.e., CCA for Transparency/NTMs work) to finalise work programmes; and • Programme launch in April 2013. • Early support of selected projects and activities.

  11. The ASEAN:Transparency, NTMs and NTRs/ATR • ASEAN instruments refer to the three concepts of NTBs, NTMs and quantitative restrictions; • Both the CEPT (Art. 1.2) and the ATIGA (Art. 2(k)) define NTBs as “measures other than tariffs which effectively prohibit or restrict import or export of products within Member States”; • No definition of NTMs is provided, even though NTMs are explicitly mentioned in ATIGA (Articles 40 and 42) and the ATIGA clearly distinguishes between NTMs and NTBs; • AMSs have agreed that NTMs “applied to CEPT products should be transparent and would be considered as a non-tariff barrier only if these have the effect of prohibiting or restricting trade”.

  12. The ASEAN:Transparency, NTMs and NTRs/ATR • NTMs therefore capture all measures other than “ordinary customs duties”, “extra-ordinary duties and charges” (i.e., AD, CVD, etc.) and “other duties and charges”; • The ASEAN Trade in Goods Agreements (ATIGA) requires that an ASEAN Trade Repository (ATR) be established; • In particular, Article 13 of the ATIGA provides that: • An ASEAN Trade Repository containing trade and customs laws and procedures of all Member States shall be established and made accessible to the public through the internet; • and that...

  13. The ASEAN:Transparency, NTMs and NTRs/ATR • The ASEAN Trade Repository shall contain trade related information such as (i) tariff nomenclature; (ii) MFN tariffs, preferential tariffs offered under this Agreement and other Agreements of ASEAN with its Dialogue Partners; (iii) rules of origin; (iv) non-tariff measures; (v) national trade and customs laws and rules; (vi) procedures and documentary requirements; (vii) administrative rulings; (viii) best practices in trade facilitation applied by each Member State; and (ix) list of authorized traders of Member States; and • The ASEAN Secretariat shall maintain and update the ASEAN Trade Repository based on the notifications submitted by Member States as set out in Article 11.

  14. The ASEAN:Transparency, NTMs and NTRs/ATR • Nevertheless, the ATIGA does not provide for the timeline for the development of the ATR or on the architecture/design of the ATR; • Discussions at different levels of the ASEAN-AEC decision making mechanism have indicated that it is imperative to meet the commitments of the ATR in the ATIGA by 2015; • A network of AMSs’ National Trade Repositories (NTRs) is seen as the necessary precursor to the ATR and AMSs have been urged to look into the setting-up of the NTRs to support the eventual setting-up of the ATR at a regional level.

  15. The ASEAN:Transparency, NTMs and NTRs/ATR • When the NTRs network is operational, an ATR will be established to link all the individual operating NTRs. For the NTRs and ATR to operate efficiently, the integration of government agencies at national levels must be organized and well-implemented; • The cooperation among AMSs (primarily within the Coordinating Committee on the Implementation of the ATIGA - the CCA), the ASEAN Secretariat and the ASEAN sectoral committees responsible for trade, customs, standards and technical regulations must be assisted and enhanced; • ARISE intends to provide specialized technical assistance.

  16. The EU: Relevant Mechanisms • The EU Export Helpdesk (http://exporthelp.europa.eu)is a free online service, provided by the European Commission, to facilitate market access (in particular by developing countries) to the European Union. Information is provided on: • Requirements and taxes (i.e., requirements to be met to import to and market goods in the EU; internal taxes applicable in every EU country; and product-specific legal or market requirements); Import tariffs (i.e., import duties; applicable preferential regimes; preferential and non-preferential tariff quotas; import licences; and anti-dumping measures); Preferential arrangements (i.e., EU’s main trade agreements with developing countries; documents that must accompany exported goods; and applicable rules of origin); Trade statistics; and Business contacts.

  17. The EU: Relevant Mechanisms • The 98/34/EC Directive sets up a procedure, which imposes an obligation upon EU Member States to notify to the Commission and to each other all the draft technical regulations concerning products (and soon Information Society Services) before they are adopted in national law; • Such procedure aims at providing transparency and control with regard to those regulations. Since they could create unjustified barriers between EU Member States, their notification in the draft form and subsequent evaluation of their content in the course of the procedure, help to diminish this risk; • The TRIS database (i.e., Technical Regulations Information System) is freely accessible to all on the following link: http://ec.europa.eu/enterprise/tris/pisa/app/search/index.cfm?fuseaction=advanced&lang=EN

  18. The EU: Relevant Mechanisms • By virtue of an automatic alert system, TRIS can also automatically notify via e-mail as soon as a new notified text is received in the selected category/ies; • The TRIS relies on a network of EU Member States’ Central Units, that can also be accessed for obtaining information; • Many other instruments exist to foster transparency, such as the European Customs Information Portal (http://ec.europa.eu/ecip), a website providing information to traders on the safety and security amendments to the Community Customs Code; • And the various mechanisms set up by the EU and its Member States to comply with WTO transparency obligations (i.e., SPS, TBT, GATS Enquiry Points and Notification Authorities).

  19. The WTO:Overarching Obligations and Structures • GATT disciplines and interpretative guidance on NTMs and transparency; • Relevant WTO language in SPS and TBT Agreements calling for measures to be notified when they have a “significant effect on trade”; • Difference vis-à-vis ATIGA (Art. 11.1 thereof, which calls for the notification of any action or measure that AMSs intend to take that (a) “may nullify or impair any benefit to other Member States, directly or indirectly” under the ATIGA or (b) “when the action or measure may impede the attainment of any objective” of the ATIGA); • “Presumption of Innocence” vs. “Presumption of Guilt”.

  20. The WTO:Overarching Obligations and Structures • Art. X of the GATT and Art. 12 of the ATIGA on the “Publication and Administration of Trade Regulations”; • WTO transparency and notification obligations are already complied with by AMSs, all of which are now WTO Members; • To avoid overlaps, duplication and additional costs relating to largely similar obligations under the WTO and the ATIGA, AMSs should (as much as possible) rely on the same mechanisms/authorities set up for the WTO or at least coordinate their WTO and ATIGA tasks.

  21. Conclusions • The ATR must contain a wealth of trade-related information, including the all-encompassing category of NTMs (Art. 13); • The ASEAN category of NTMs must be defined; • NTMs are not (necessarily) NTBs. In fact, very few are; • No “Presumption of Guilt”. Notifications must be automatic and non self-incriminatory. The presumption must be of “Innocence”; • Transparency is good and must be pursued in light on 2015 and ATIGA implementation; • WTO and ASEAN transparency and notification obligations of AMSs should be coordinated; • ARISE is committed to assist ASEAN in this area of regional economic integration.

  22. Thank you for your attention! Paolo R. Vergano FratiniVergano – European Lawyers Rue de Haerne 42 - B-1040 Brussels, Belgium Tel.: +32 2 648 21 61 – Fax: +32 2 646 02 70 p.vergano@fratinivergano.eu – www.fratinivergano.eu

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