Article 7.9: Perishable Goods
What is covered?
Article 7.9 of the TFA requires Member States to allow the release of perishable goods ,provided all the regulatory requirements have been met, within the shortest possible time, giving them appropriate priority when scheduling examinations, and allowing for proper storage prior to release, including release at storage facilities where practicable.
Fast-tracking the release of perishable goods
In line with the objective of preventing avoidable loss or deterioration of perishable goods, the Measure requires the prompt release of the perishable goods at the condition that all the regulatory requirements have been met. Paragraph 9.1 also states that all WTO Members must provide for the release of perishable goods:
a) I the shortest possible time under normal circumstances; and
b) Even outside the normal business hours under exceptional circumstances when deemed appropriate to do so.
The use of the word shall indicates that this provision is mandatory for all WTO Members without any room for flexibility or partial execution.
The Measure establishes the generally applicable rules on the release of perishable goods. Under normal circumstances, on a day-to-day basis, the release of perishable goods must be made in the shortest possible period of time. More specifically, within regular business hours, the process of releasing perishable goods must be completed as fast as possible by the relevant national authorities of WTO Members to prevent any loss in the goods’ quality and characterizing features.
The Measure further explains that in some cases the perishable goods must even be released outside the normal business hours under exceptional circumstances, where it would be appropriate to do so. In light of the objectives of the Measure, this means that – if deemed necessary or more appropriate – customs and other border control authorities must make efforts to ensure that perishable goods are released even outside customs’ business hours to prevent unnecessary damage. This implies that each WTO Member must dispose of the appropriate administrative and logistical capacity and facilities to provide for the release of perishable goods outside regular business hours in case of exceptional circumstances that may be faced by importers and exporters at the border.
Prioritizing examination of perishable goods
Paragraph 9.2 contains an obligation that addresses the prioritization of perishable goods in the scheduling process of examinations that may be required to be carried out at the border. As detailed in the Measure, WTO Members shall give appropriate priority to perishable goods when scheduling any examination that may be required.
In practical terms, this means that the relevant national border authorities would have to assess and provide for the release of perishable goods before any other merchandise waiting at the border in order to prevent avoidable deterioration of the perishable products, provided all the regulatory requirements are met.
Providing storage of perishable goods
This Measure further foresees a situation in which perishable goods would need particular storage pending their examination and release. Paragraph 9.3 mandates that Members must arrange or allow an importer to arrange himself the most appropriate storage of perishable goods pending their release. The use of the verb shall indicates that this provision is compulsory and that each State is obliged to implement the Measure as per description of the provision.
More specifically, the provision provides that WTO Members are endowed with two options pertaining to the perishable goods storage:
- Arranging themselves for the proper storage of perishable goods pending their release, which would imply making adequate storage facilities available near customs posts at borders or building new facilities dedicated to perishable goods, where appropriate.
- Allowing an importer to arrange himself for the proper storage of perishable goods pending their release, which would imply the availability of adequate storage facilities near customs posts at borders. In this case, each WTO Member has the discretion to decide to require – that is, may require – that the storage facilities arranged by the importer have to be approved or designated by its relevant national authorities.
possibility to require – that is, may require – their approval as a condition for the movement of the goods to the storage facilities, including for the authorizations of the operator moving the goods.
Additionally, at the importer’s request, WTO Members have the binding obligation to allow the release procedures to take place at those storage facilities. However, this requirement is watered down by two conditions, entailed by the use of the qualifying language “where practicable” and “consistent with domestic legislation”. This means that the actual implementation of this specific provision depends on two factors:
i. Whether the Member deems that the provision’s realization is available in practice and is feasible, therefore whether the action can actually be performed by the relevant national authorities.
While the use of the term “practicable” may induce a certain degree of flexibility, the Member is nonetheless expected to undertake some steps towards the implementation of the provision.
ii. Whether the realization of the provision is consistent and compatible with domestic legislation.
The condition of consistency with internal law is especially challenging in the case of federal States or other multi-layered governance schemes, in which central government may not be the sole authority responsible for implementing the TFA. Therefore, depending on the internal division of powers, certain WTO Members’ central governments may not have the authority to perform the obligation to provide for release procedures at those storage facilities.
Communicating reasons of delays
The last paragraph of Article 7.9 addresses cases where perishable goods have been subjected to significant delay in their release. In this case, paragraph 9.4 provides that the importing Member “shall, to the extent practicable”, provide a communication on the reasons for such delay. The use of “shall” suggests that the reform is compulsory, but the expression “to the extent practicable” gives some flexibility to WTO Members.
In addition, this provision explicitly mentions that the obligation to provide a communication on the reasons of the delay is subject to the receipt of a written request. It is understood that this written communication should be sent by the importer that suffered from the delay, or possibly by the exporting Member. This implies that each Member must arrange for receiving written communications from traders and build the capacity to provide for a response.
What is not covered?
This Measure remains silent on a number of issues. In first instance, the definition of “exceptional circumstances” is not expressed; therefore, it is open to various, and possibly diverging, interpretations by different Members.
Moreover, even when the exceptional circumstances exist and the release of perishable goods is made outside the business hours of customs and other relevant authorities, this provision does not mention whether extra fees apply and they need to be paid by the importer. Since asking for such fees is not explicitly excluded in the text, relevant national authorities are not precluded to claim for additional charges when providing for the release of perishable goods outside normal business hours.
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