Article 5.1: Notification for Enhanced Controls and Inspections
What is covered?
Article 5.1 of the TFA details measures to enhance impartiality, non-discrimination and transparency with regard to the issuance, termination or suspension of notifications for enhanced controls of inspections at the border imposed on the following items:
with the aim of safeguarding human, animal or plant life and health within the territory of a Member.
In case of enhanced inspections or controls occurring at the border, the binding obligation of this Measure sets that Members must quickly terminate or suspend the notification of such controls as soon as the underlying risk no longer exists, or if changed circumstances allow for a re-evaluation of the notification in a less trade restrictive manner. It is important to clarify that this provision is only applicable when the WTO Member has set up or maintains a system of issuing notifications or guidance to enhance border controls in respect of foods, beverages or feedstuffs. The TFA does not require WTO Members to establish rapid alert systems.
The use of the verb “shall”, without the addition of any qualifying language, indicates that the implementation of this provision of Article 5.1 is mandatory, and no sort of flexibility is provided for Members.
Prompt announcement of termination of the notification or guidance
Sub-paragraph (d) pertains to the announcement of termination or suspension of a notification or guidance. In particular, Article 5.1(d) provides that WTO Members shall, as appropriate, readily publish the announcement of the termination or suspension of the notification or guidance of enhanced controls or inspections in a non-discriminatory and easily accessible manner or inform the exporting Member or the importer. The use of the phrase “shall, as appropriate” states that the discipline of Article 5.1(d) is legally mandatory, but with some degrees of flexibility.
Risk-based notification or guidance recommended
Sub-paragraph (a) relates to the issuance of a notification or guidance for enhanced controls or inspections with the aim of protecting human, animal, or plant life or health. It suggests that WTO Members may, as appropriate, issue the notification or guidance based on the risk criterion. The use of the verb “may, as appropriate” does not impose a legally binding obligation but encourages the possibility and discretion of Members to issue the notification or guidance based on risk.
Application of notification or guidance to only certain entry points recommended
Sub-paragraph (b) pertains to the application of the notification or guidance to a Member’s authorities enhancing the level of controls or inspections at the border, formulating the possibility that the notification or guidance may apply uniformly only to those points of entry affected.
As in the previous case, the use of the word “may” reflects the absence of a mandatory obligation but gives instead WTO Members the discretion to decide whether to limit the issuance of notifications or guidance only to those points of entry where the sanitary and phytosanitary conditions on which the notification or guidance are based apply.
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 light 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?
This Measure remains silent on the procedural aspects of notifications or alerts, including the specific means of publication of the announcement of termination or suspension. Nonetheless, in choosing a particular means of publication, national policy-makers should bear in mind that the objective of publishing this information is to make relevant stakeholders fully aware of the termination or suspension of the notification in a quick and accessible manner.
Pages that cite the Notes: