Article 5.3: Test Procedures

Members have to provide, upon request, an opportunity for a confirmatory test

 

What is covered?

Core obligation

The Measure is applicable only when the results of the first test are in variance with the declaration of the goods at the time of import, described as an “adverse finding” in the provision. Hence, the intent is to grant the possibility to the importer who requests so to obtain a second test conducted if the first test resulted in an adverse finding when compared with the declaration of goods by the importer.

The WTO Members may provide the opportunity to conduct a confirmatory test, if so requested by the importer or their authorized agent, if the results of the first test differ from the declaration filed by the importer/authorized agent. The expression “may grant” in the first provision of this Article means that it is not mandatory for the country to grant a second confirmatory test, entailing that this decision is left to the discretion of the Member country, on case to case basis.

Publish in a non-discriminatory manner

Article 5.3.2 states that, only if granting second testing possibilities, WTO Members shall make public the name and address of any laboratory where the second test can be conducted in an open, transparent and non-discriminatory manner, in a way that the information provided remains easily accessible to all.

In alternative to publication, Members are requested to provide this information directly to the relevant importer, in respect of whose goods, the second test is being conducted. This means that – whether the country chooses to make the information on second test laboratory publicly available for all or to provide the relevant information to the importer that requests a second test – both possibilities entails a mandatory obligation for the Members, only if they grant second testing possibilities.

Consider the results of tests

In case there has been a second test, the Measure requires that the Members must take into consideration the results of the second test for the release or clearance of goods and, if appropriate, accept the result of the second test, confirmatory test conducted to confirm or challenge the findings of the first test, which led to an adverse finding. What the Measure does not oblige the Members to do, however, is to accept the results of the second test.

Hence WTO Members are requested to consider the results of the second test but are not required to accept them automatically. Rejecting the result of the second test must be based on cogent reasons and in any case Appeal and Review procedure is available to the traders. enjoy the prerogative not to accept the results of the confirmatory test and may decide the assessment of the goods in the light of any test results they deem most appropriate on a case-by-case basis. The Member country may decide the case in the light of the results of the second test if this is found to be more appropriate given all the technical and contextual realities of the case.

What is not covered?

The Measure does not provide any obligation to carry out the confirmatory test in accredited laboratories, as well as there is no obligation to undertake the second test in a different laboratory than the one where the first test was conducted. The laboratory can be located within the concerned WTO Member’s territory or abroad. It could also be a private or public laboratory. Members do not have any obligation to establish a dedicated laboratory to reach compliance with this Measure.

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