Article 4: Procedures for Appeal or Review
What is covered?
This Measure requires that WTO Members provide a right of appeal and/or review to any person aggrieved by an administrative decision issued by the customs authority. A footnote to paragraph 4.1 clarifies that administrative decisions are those issued for an individual specific case, as opposed to administrative regulations which are generally applicable. The mandatory nature of this Measure affects only administrative decisions issued by customs, whereas the expression “is encouraged” suggests a best-endeavour effort to extend the provisions also to other border agencies’ administrative decisions.
Already Article X of the GATT 1994 contains firm obligations to provide for appeal and/or review of customs decisions. However, the TFA allows the petitioner to submit a request of further appeal and/or review to the administrative authority or to the judicial authority if the verdict is not given within the set period or unduly delayed. Moreover, as seen, the TFA encourages to extend these provisions related to decisions by customs authorities also to decisions by other relevant border agencies.
A footnote to paragraph 4.4 recognizes that Members can recognize a “non-decision” – an administrative silence – with regard to the appeal or review submitted, as a decision in favour of the petitioner, in case it is so provided in the domestic legislation. Therefore, the petitioner should make sure whether the laws and regulations of the concerned country envisage this specific provision.
Two-track appeal or review
This Measure of the TFA provides for a two-track appeal and review process. In fact, WTO Members are mandatorily required to provide to any person to whom customs has issued an administrative decision the right to appeal and review it. More specifically, on the basis of the national legal framework of the country, this Measure obliges Members to allow affected persons to have recourse to:
- An administrative appeal or review; and/or
- A judicial appeal or review of the decision.
In particular, regarding the administrative route, the TFA specifies that the request of appeal or review must be addressed to an administrative authority higher than, or independent of, the officer or office that issued the contested decision. This means that the appeal or review can be handled within the customs administration itself, provided that the appeal or review is carried out by a higher authority than the office/officer who issued the first decision. On the other hand, an authority independent of the office/officer who issued the decision may notably include an established arbitration procedure or a special administrative tribunal.
As the TFA is an international agreement which had to take into consideration various legal systems and practices in WTO Members, the double conjunction “and/or” was introduced to open different scenarios, whereby the petitioner can both appeal to the administrative and judicial route, or have direct access to just one channel.
Paragraph 4.2 explicitly recognizes that the national legislation of a Member may legislate that the petitioner firstly submits the case for appeal or review to the administrative authority, before having access to the judicial appeal or review, in line with the principle of “exhaustion of administrative remedies”. In fact, although some legislations of Members allow judicial appeal at any stage, other legislations stipulate that all stages of an administrative appeal must be exhausted before the right to judicial appeal.
Non-discriminatory processes of appeal or review
This Measure requests WTO Members to ensure that appeal or review procedures are carried out in a non-discriminatory manner to protect the rights and obligations of traders.
To enhance transparency and fairness of rules, this Measure also requires WTO Members to provide the petitioner with the rationale of the administrative decision issued, so as to enable recourse to appeal or review procedures.
Administrative decisions adopted by other border agencies
In addition to customs, the Measure also encourages WTO Members to make efforts to apply the same provisions of appeal and/or review to administrative decisions issued by any relevant border agency other than customs. The prospect of extending the same rules of appeal or review to other border agencies other than customs is not a mandatory provision. In lights of its best-endeavor nature, the verb “encourages” suggests that WTO Members enjoy the discretion whether to implement it or not.
What is not covered?
The Measure does not explain how the procedures for appeal or review will be integrated within each Member’s legal framework. As each Member has its own legal system in place, flexibility is provided regarding the modality of implementation of the Measure.
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