Article 2.1: Opportunity to Comment and Information before Entry into Force

Members must make publicly available legal acts (new or amended) prior to entry into force, allow comments prior to the adoption of the legal act, and provide a reasonable interval between publication and entry into force.


What is covered?

Scope and objective

The Measure applies to rules enacted by national legislative bodies (laws enacted by parliaments) as well as to secondary legal acts (regulations, rules, orders, etc.) issued by executive or administrative bodies. In this regard, the provision does not specify which agency should issue the legal act; the latter can therefore be issued by any border or regulatory agency involved in the movement, release and clearance of goods, including Customs, SPS authority, among others. The only requirement is that such laws and regulations should be of general application.
Thus, relevant stakeholders will have the opportunity to comment legislative proposal before entry into force on:

    1. New laws and regulations related to movement, clearance and release of import, export and transit goods, and
    2. Amendments to such laws and regulations.

Core obligation

Article 2.1 of the TFA requires WTO Members to grant traders and other interested parties a reasonable and adequate time-period to provide their comments on new or amended trade legislation regarding the movement, release and clearance of goods for import, export and transit. Moreover, it requests Members to publish new and amended laws and regulations related to the movement, release, and clearance of goods, including goods in transit, or to make information about them publicly available, as early as possible before these laws and regulations enter into force.

The use of “shall” indicates that the implementation of the provision is mandatory for all Members. However, the addition of the double qualification, “to the extent practicable” and “in a manner consistent with its domestic law and legal system”, mitigates the mandatory nature of the Measure. As a result, the Measure becomes contingent upon the practicability of implementation and, the consistency with the national legal framework. Hence, WTO Members are required to take some practical steps towards the implementation of this Measure but nonetheless enjoy flexibility in the way to implement this commitment, i.e. they might implement it partially in terms of scope, or they might totally challenge the compulsoriness of the implementation because not consistent with their national legal system.

Exemptions

Article 2.1 explicitly lists some items which are exempted from prior publication and discussion before the entry into force, concerning the following legal proposals:

  • Changes to duty rates or tariff rates;
  • Measures that have a relieving effect;
  • Measures the effectiveness of which would be undermined because of compliance with paragraphs 1.1 or 1.2;
  • Measures applied in urgent circumstances; or
  • Minor changes to domestic law and legal system.

The first exemption was included in order to discourage rent-seeking behaviors of traders arising from the advantage of having prior share of this kind of information. This, in fact, could eventually have adverse impacts on the economy (e.g. traders – acquainted before with an intended reduction in duty or tariff rates – may prefer to wait until the reduction in duty and tariff rates is fully in force before importing a good, causing revenue losses for the government). The other exemptions assume the non-detriment of traders’ interests (i.e. minor changes to domestic law and legal system) or even a benefit (i.e. measures with relieving effect).

What is not covered?

Although definitely before entry into force, the Measure does not define the extent of the terms “appropriate time” and “as early as possible”. It is not specified how many days, weeks or months should be provided to the traders and interested parties to comment on the laws, or what timeframe should elapse between the publication of laws and the entry into force. It is thus left to the discretion of each WTO Member to determine on a case-by-case basis the timings and intervals between the publication/opportunity to comment and the entry into force of a trade-related law or regulation.

The Measure does not also specify the modalities of publication or the mechanisms through which the traders and other interested parties can provide their comments during the legislative process of a proposed legislation. The publication and opportunity to comment legal proposal may contemplate the use of online platforms, public hearings, ad-hoc meetings and press release, among others.

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