Premier of Queensland
For reply please quote: TF/1O/14942 - DOC/10/76802 Executive Building ioo George Street Brisbane 30 JUN 110 PO Box 15185 City East Queensland 4002 Australia Telephone +61 7 3224 4500 Mr Neil Laurie Facsimile +617 3221 3631 Email ThePremierca premiers.gld.gov.au Clerk of the Parliament Website www.thepremier.gld.gov.au Parliament House George Street BRISBANE QLD 4000
In accordance with parliamentary procedures , I wish to table correspondence from the Federal Parliament's Joint Standing Committee on Treaties (JSCOT) in the Legislative Assembly.
The attached material for tabling includes: • a copy of the letters from the Chair of the JSCOT regarding the proposed international treaty actions tabled in both houses of Federal Parliament on 15 and 16 June 2010, and • the Treaties, National Interest Analyses and Regulatory Impact Statement for the proposed treaty actions: 15 June 2010 Federal Tabling • Second Protocol to the Agreement between Australia and the Republic of Austria on Social Security (Vienna, 17 February 2010) • 2010 Amendments to Appendices I and II of the Convention on International Trade in Endangered Species of Wild Fauna and Flora, done at Doha on 25 March 2010 • United Nations Convention on the Use of Electronic Communications in International Contracts, done at New York on 23 November 2005 • Implementation Procedures for Airworthiness Covering Design Approval, Production Activities, Export Airworthiness Approval, Post Design Approval Activities, and Technical Assistance Between Authorities under the Agreement on the Promotion of Aviation Safety Between the Government of Australia and the Government of the United States of America, done at Canberra on 21 June 2005. (7 May 2010)
lueensland Government • Universal Postal Union: Eighth Additional Protocol to the Constitution of 10 July 1964, as Amended; Convention and Final Protocol; First Additional Protocol to the General Regulations; Postal Payment Services Agreement done at Geneva on 12 August 2008 • Amendments to the Convention on the International Mobile Satellite Organization adopted at the Twentieth Session of the Assembly, done at Malta on 2 October 2008 • Convention between the Government of Australia and the Government of the Republic of Turkey for the Avoidance of Double Taxation with Respect to Taxes on Income and the Prevention of Fiscal Evasion • World Wine Trade Group Agreement on Requirements for Wine Labelling, Canberra, 23 January 2007 • The Agreement Establishing the Advisory Centre on WTO Law (Seattle, 30 November 1999) 16 June 2010 Federal Tabling • Exchange of Notes Amending Annex 4-A of the Australia-United States Free Trade Agreement (Done at Washington on 18 May 2004) Thank you for your assistance in arranging the tabling of this material as soon as possible.
Yours sincerely
ANNA BLIGH MP PREMIER OF QUEENSLAND
*Encls Page 1 of 2
Bronwyn Edmeades
From : Gillian Corlass Sent: Tuesday, 15 June 2010 2:24 PM To: Gillian Corlass Subject: FW: Treaties tabled on 15 June 2010 Attachments : Postal Payment Services Agreement - NIA.pdf; Agreement between Australia and the Republic of Austria on Social Security.pdf; Agreement between Australia and the Republic of Austria on Social Security - NIA.pdf; Agreement on Requirements for Wine Labelling.pdf; Agreement on Requirements for Wine Labelling - NIA.pdf; Agreement on Requirements for Wine Labelling - RIS.pdf; Agreement on the Promotion of Avaiation Safety.pdf; Agreement on the Promotion of Avaiation Safety - NIA.pdf; Agreement on the Promotion of Avaiation Safety - RIS.pdf; Convention on the International Mobile Satellite Organization.pdf; Convention on the International Mobile Satellite Organization - NIA.pdf; Postal Payment Services Agreement. pdf; United Nations Convention on the Use of Electronic Communications in International Contracts - NIA.pdf; The Agreement Establishing the Advisory Centre on World Trade Office Law.pdf; The Agreement Establishing the Advisory Centre on World Trade Office Law - NIA.pdf; The Convention on International Trade in Endangered Species of Wild Fauna and Flora.pdf; The Convention on International Trade in Endangered Species of Wild Fauna and Flora - NIA.pdf; Turkey - Avoidance of Double Taxation and Prevention of Fiscal Evasion.pdf; Turkey - Avoidance of Double Taxation and Prevention of Fiscal Evasion - NIA.pdf; United Nations Convention on the Use of Electronic Communications in International Contracts.pdf
Gillian Corlass Policy Officer Intergovernmental Relations Department of the Premier and Cabinet, Queensland 07 323 41392 [email protected] o v.au Executive Building I Level 13 1 100 George Street I Brisbane PO Box 15185 1 City East I Queensland 4002 1
Tomorrow's Queensland : strong , green , smart, healthy and fair - www.towardQ2. qld.gov.au
Please consider the environment before printing this email
From : Luschtinetz, Heidi (REPS) [mailto:Heidi. [email protected]. au] On Behalf Of Committee, Treaties (REPS) Sent: Tuesday, 15 June 2010 12:58 PM To: Andrew Kefford; SCOT; Georgie Enright; Graham Chandler; Jerome Partridge; Jonathan Faulkner; Kate Hastings; Liz Develin; Lyn Genoni; Mark Duckworth; R Young; SA; SCOT Act; SCOT Tas; [email protected]; Stephanie Page Subject: Treaties tabled on 15 June 2010
TO MEMBERS OF SCOT
PROPOSED INTERNATIONAL TREATY ACTIONS
24/06/2010 Page 2 of 2
The Joint Standing Committee on Treaties invites comment on the following proposed treaties which were tabled in both Houses of the Parliament:
Treaties tabled on 15 June 2010:
• Second Protocol to the Agreement betzveen Australia and the Republic of Austria on Social Security (Vienna, 17 February 2010) • 2010 Amendments to Appendices I and II of the Convention on International Trade in Endangered Species of Wild Fauna and Flora, done at Doha on 25 March 2010 • United Nations Convention on the Use of Electronic Communications in International Contracts, done at New York on 23 November 2005 • Implementation Procedures for Airzvorthiness Covering Design Approval, Production Activities, Export Airworthiness Approval, Post Design Approval Activities, and Technical Assistance Betzveen Authorities under the Agreement on the Promotion of Aviation Safety Betzveen the Government of Australia and the Government of the United States of America, done at Canberra on 21 June 2005. (7 May 2010) • Universal Postal Union: Eighth Additional Protocol to the Constitution of 10 July 1964, as Amended; Convention and Final Protocol; First Additional Protocol to the General Regulations; Postal Payment Services Agreement done at Geneva on 12 August 2008 • Amendments to the Convention on the International Mobile Satellite Organization adopted at the Twentieth Session of the Assembly, done at Malta on 2 October 2008 • Convention betzveen the Government of Australia and the Government of the Republic of Turkey for the Avoidance of Double Taxation with Respect to Taxes on Income and the Prevention of Fiscal Evasion • World Wine Trade Group Agreement on Requirements for Wine Labelling, Canberra, 23 January 2007 • The Agreement Establishing the Advisory Centre on WTO Lazv (Seattle, 30 November 1999)
Electronic copies of each of these agreements, and explanatory information about their purposes and impact, are available through the Committee's website at http:/ /www.aph.gov.au/house/committee 'sct 15'une2010/tor.htm
Hard copies of the documents can be requested by telephoning the Committee Secretariat on (02) 6277 4002.
The Committee would be pleased to receive your comments by Friday, 16 July 2010 if possible. Please email to [email protected] or post to the mailing address below:
The Secretary Joint Standing Committee on Treaties PO Box 6021 Parliament House Canberra ACT 2600
24/06/2010 Page 1 of 2
Bronwyn Edmeades
From : Gillian Corlass Sent: Wednesday, 16 June 2010 5:00 PM To: Bradley Kinsela Cc: SCOT Subject: Treaty tabled on 16 June 2010
Hi Brad
Please see the email below from the Joint Standing Committee on Treaties (JSCOT) inviting comment on the proposed treaty Exchange of Notes Amending Annex 4-A of the Australia-United States Free Trade Agreement (Done at Washington on 18 May 2004) which was tabled in Commonwealth Parliament on 16 June 2010 . Intergovernmental Relations (IGR) have organised for the treaty to be tabled in Queensland Parliament.
Could you please organise for the treaty to be reviewed by the appropriate officer within Trade Queensland for any potential implications/interactions with state interest and, if required, make comment or advise us of a "Nil Response".
We will then provide a response to JSCOT. Please don 't hesitate to contact IGR if you have any questions regarding this process.
Regards
Gillian Corlass Policy Officer Intergovernmental Relations Department of the Premier and Cabinet, Queensland 07 323 41392 [email protected] Executive Building I Level 13 1 100 George Street I Brisbane PO Box 15185 1 City East I Queensland 4002 1
Tomorrow's Queensland : strong , green , smart, healthy and fair - www.towardQ2. gld.gov.au
Please consider the environment before printing this email
From : Luschtinetz, Heidi (REPS) [mailto:[email protected]] On Behalf Of Committee, Treaties (REPS) Sent : Wednesday, 16 June 2010 4:35 PM To: Andrew Kefford; SCOT; Graham Chandler; Jerome Partridge; Jonathan Faulkner; Kate Hastings; Liz Develin; Lyn Genoni; Mark Duckworth; R Young; SA; SCOT Act; SCOT Tas; [email protected]; Stephanie Page Subject: Treaty tabled on 16 June 2010
TO MEMBERS OF SCOT
24/06/2010 Page 2 of 2
PROPOSED INTERNATIONAL TREATY ACTION
The Joint Standing Committee on Treaties invites comment on the following proposed treaty which was tabled in both Houses of the Parliament:
Treaty tabled on 16 June 2010:
Exchange of Notes Amending Annex 4-A of the Australia-United States Free Trade Agreement (Done at Washington on 18 May 2004)
Electronic copies of each of these agreements, and explanatory information about their purposes and impact, are available through the Committee's website at http://www.aph.gov,au/house/committee/.jsct/15,june2Ol0 / tor.htm
Hard copies of the documents can be requested by telephoning the Committee Secretariat on (02) 6277 4002.
The Committee would be pleased to receive your comments by Friday, 16 July 2010 if possible. Please email to [email protected] or post to the mailing address below:
The Secretary Joint Standing Committee on Treaties PO Box 6021 Parliament House Canberra ACT 2600
24/06/2010 DEPARTMENT OF FOREIGN AFFAIRS AND TRADE CANBERRA
SECOND PROTOCOL
to the Agreement between Australia
and the Republic of Austria
on Social Security
(Vienna, 17 February 2010)
Not yet in force [2010] ATNIF 4 Australia
and
the Republic of Austria
being desirous of amending and supplementing the Agreement on Social Security between them done at Canberra on the first day of April 1992, as amended by the Protocol between them done at Vienna on the twenty-sixth day of June 2001 have agreed as follows:
Article I
1. In this Protocol "Agreement" means the Agreement between Australia and the Republic of Austria on Social Security done on the first day of April 1992 at Canberra, as amended by the Protocol amending the Agreement between Australia and the Republic of Austria on Social Security, done on the twenty-sixth day of June 2001 at Vienna.
2. In the application of this Protocol any term defined in the Agreement shall, unless the context otherwise requires, have the same meaning.
Article II
In this Protocol "First Protocol" means the Protocol done on the twenty-sixth day of June 2001 at Vienna amending the Agreement between Australia and the Republic of Austria of 1 April 1992.
Article III
1.(a) In subparagraph 1(b) of Article I of the Agreement the words "in relation to Australia, the law specified in subparagraph 1 (a) of Article 2" shall be replaced by the words " in relation to Australia, the law specified in subparagraph 1(a)(i) of Article 2 except in relation to the application of Part IA of the Agreement (including the application of other Parts of the Agreement as they affect the application of that Part) where it means the law specified in subparagraph 1(a)(ii) of Article 2"; (b) Subparagraph 1(c) of Article 1 of the Agreement shall be deleted and replaced by the following:
"(c) "competent authority" means, in relation to Australia, the Secretary of the department responsible for the legislation specified in subparagraph 1(a)(i) of Article 2 except in relation to the application of Part I A of the Agreement (including the application of other Parts of the Agreement as they affect the application of that Part) where it means the Commissioner of Taxation or an authorized representative of the Commissioner; and
in relation to Austria, the Federal Minister responsible for the application of the legislation specified in subparagraph 1(b) of Article 2."
(c) Subparagraph 1(h) of Article 1 of the Agreement shall be amended by inserting the words "but, for Australia, does not include any benefit, payment or entitlement under the law concerning the superannuation guarantee ;" following the words "in addition to that benefit, pension or allowance;".
(d) In paragraph 1 of Article 1 of the Agreement the following new subparagraphs (m), (n), (o) and (p) shall be inserted:
(m) "Australia" means Australia as defined in the legislation of Australia
(n) "Austria" means the Republic of Austria;
(o) "Government" for the purposes of Article 5d includes, in relation to Australia, the government of Australia including a political subdivision or local authority of Australia;"
(p) "Party" means Australia or Austria as the context requires."
2. Paragraph 1 of Article 2 of the Agreement shall be deleted and replaced by the following:
"1. Subject to paragraph 2, this Agreement shall apply to:
(a) in relation to Australia:
(i) the Acts forming the social security law insofar as the law provides for, applies to or affects the following benefits:
(A) age pension; (B) disability support pension; (C) carer payment; (D) benefits payable to widowed persons; and (E) double orphan pension.
(ii) with regard to Part I A only, the law concerning the superannuation guarantee (which at the time of signature of the Second Protocol is contained in the Superannuation Guarantee (Administration) Act 1992, the Superannuation Guarantee Charge Act 1992 and the Superannuation Guarantee (Administration) Regulations) provided that this Agreement shall not extend the application of that law; and
(b) in relation to Austria:
(i) the legislation concerning pension insurance with the exception of the insurance for notaries; and
(ii) with regard to Part I A only, the legislation concerning sickness insurance and accident insurance."
3.(a) Paragraph 1 of Article 4 of the Agreement shall be deleted and replaced by the following:
"(1) Unless otherwise provided in this Agreement, the following persons shall, in the application of the legislation of one Party, receive equal treatment with the nationals of this Party regarding eligibility for and payment of benefits:
(a) nationals of the other Party;
(b) refugees as defined in Article 1 of the Convention relating to the Status of Refugees dated 28 July 1951 and the Protocol to that Convention dated 31 January 1967, ordinarily resident in the territory of one Party;
(c) stateless persons as defined in Article 1 of the Convention relating to the Status of Stateless Persons dated 28 September 1954, ordinarily resident in the territory of one Party."
(b) Paragraph 3 of Article 4 of the Agreement shall be deleted and replaced by the following:
"(3) Paragraph 1 shall not apply to the provisions of the Austrian legislation concerning the apportionment of insurance burdens resulting from agreements with third States."
4.(a) Paragraph 1 of Article 5 of the Agreement shall be deleted and replaced by the following:
"(1) Unless otherwise provided in this Agreement, any provision of the legislation of one Party which requires that entitlement to or the payment of benefits is dependent on residence or presence in the territory of that Party shall not be applicable to persons who reside or stay in the territory of the other Party."
(b) Subparagraphs 4(a) and (b) of Article 5 of the Agreement shall be deleted and replaced by the following:
"(a) Paragraph 1 shall not apply to any additional amount, increase or supplement such as rent assistance which is intended to assist Australian pensioners with certain additional living costs and which is not payable indefinitely outside Australia. Such amounts shall be payable outside the territory of Australia only to the extent provided by the legislation of Australia.
(b) Paragraph 1 shall not apply to a claimant for a carer payment who has never been an Australian resident."
(c) In paragraph 7 of Article 5 of the Agreement the words "for more than 26 weeks" shall be replaced by the words "for more than 13 weeks".
5. After Article 5 of the Agreement the following new Part I A shall be inserted:
"PART I A
Provisions relating to applicable legislation
Article 5a General provisions
1. Subject to Articles 5b to 5e a person who is employed or self-employed in the territory of a Party is subject to the legislation of that Party. In relation to Austria, this shall also apply if the employer's place of business is in the territory of the other Party.
2. In relation to Australia, a reference in this Part to an employee also includes their employer, in respect of work of the employee or remuneration paid for that work.
ARTICLE 5b Special provisions
1. An employed person who, usually is employed by an employer with an office in the territory of one of the Parties, is posted by this employer to the territory of the other Party to work on its account or for a related entity, shall be subject only to the legislation of the former Party as if the person continued to be employed in the territory of the former Party, on the condition that the person's work does not exceed five years.
2. For the purposes of paragraph I an entity is a related entity of an employer if the entity and the employer are members of the same wholly or majority owned group. ARTICLE 5c
Members of diplomatic missions and consular posts
This Agreement shall not affect the provisions of the Vienna Convention on Diplomatic Relations of 18 April 1961 or the Vienna Convention on Consular Relations of 24 April 1963.
ARTICLE 5d Government officials
Government officials and equivalent personnel who are sent by the government of a Party to the territory of the other Party are subject only to the legislation of the first mentioned Party. These persons are, for this purpose, considered to be resident in the territory of this Party, even if they are located in the territory of the other Party.
ARTICLE 5e Exceptions
In the interest of certain persons or certain categories of persons covered by this Part, the competent authorities can, by agreement in writing, specify exceptions to the provisions of Articles 5a to 5d."
6. In Article 7 of the Agreement the following new paragraph 5a shall be inserted:
"5a The provisions in paragraphs 4 and 5 shall continue to apply for 26 weeks where a person temporarily leaves Australia."
7. Article 8 of the Agreement shall be deleted.
8. Paragraph 4 of Article 17 of the Agreement shall be deleted.
9. After Article 18 of the Agreement the following new Article 18a shall be inserted:
"Article 18a Data protection
(1) Insofar as personal data are communicated pursuant to this Agreement and subject to domestic law the following provisions shall apply taking into consideration other binding provisions of the respective Party:
(a) For the implementation of this Agreement and the legislation referring thereto personal data may be communicated to the competent bodies of the receiving Party. The respective receiving body may not use these data for other purposes. Onward transmission of personal data within the territory of the receiving Party to other bodies is admissible in conformity with the domestic law of the receiving Party insofar as it serves social security purposes or the purposes of the legislation specified in subparagraph 1(a)(ii) of Article 2 including related court proceedings. Even in the case of disclosure of information in public court proceedings or in judicial decisions confidentiality of personal data shall only be subject to those restrictions which are necessary to safeguard overriding legitimate interests of another person or overriding substantial public interests.
(b) Any personal data communicated in whatsoever form between the two Parties' responsible authorities, institutions and other bodies concerned pursuant to this Agreement or to any arrangement implementing this Agreement are treated as confidential in the same manner as like information obtained under the domestic law of the receiving Party. These obligations shall apply to all persons fulfilling tasks under this Agreement and also to persons bound themselves by the obligation of confidentiality.
(c) In specific cases the receiving body shall give information upon request of the communicating body about both the use of the personal data received and the results which have been achieved through the use of this personal data.
(d) The communicating body shall ensure that the personal data communicated is accurate and up-to-date. Before initiating any communication of personal data the communicating body has to examine whether or not the communication is necessary and proportionate with regard to the purpose of the communication in question. This is to be done with due consideration to prohibitions on communication existing in the relevant domestic law. In the case of communication of inaccurate data or data which was not permitted to have been communicated under the domestic law of the communicating Party the receiving body must be informed thereof without undue delay. The latter shall carry out the necessary deletion or correction of the data immediately. If the receiving body has reason to suppose that communicated data might be inaccurate or should be deleted, this body shall inform the communicating body thereof without undue delay.
(e) Every person concerned, who proves their identity in an appropriate manner, shall, upon request, be provided by the body responsible for the data processing with information about the data relating to them which have been communicated or processed, about their origin as far as possible, the recipients or categories of recipients of communications, the intended purpose of the use of the data as well as the legal basis of the communication of the data in a generally understandable form. The information shall be given without undue delay and, in principle, free of charge. Moreover the person concerned shall have the right to have incomplete or inaccurate data corrected and unlawfully processed data deleted. Further procedural details relating to the enforcement of these rights are subject to domestic law.
(f) The Parties shall provide every data subject whose rights to information, correction and deletion have been violated with the right to have the matter decided by an independent authority. Furthermore, the Parties shall ensure that any data subject who has suffered damage as a result of an unlawful processing of data is entitled to receive compensation for the damage suffered from the body responsible for the processing in accordance with the respective Party's domestic law.
(g) Personal data communicated shall be deleted, if found to be inaccurate, or unlawfully obtained or communicated, or if lawfully communicated data are to be deleted at a later date pursuant to the domestic law of the communicating Party, or if the data is no longer needed for the purpose for which it was communicated and if there is no reason to suppose that the deletion could affect interests deserving protection of the person concerned in the field of social security or the legislation specified in subparagraph 1(a)(ii) of Article 2 of the Agreement.
(h) Both the communicating body and the receiving body shall be obliged to record the reason, contents and date of any communication or receipt of personal data as well as the communicating and receiving bodies. Data communicated online shall be logged using automated processes. The records and logs shall be stored for at least three years and may only be used for the purpose of monitoring compliance with the applicable provisions on data protection.
(i) Both the communicating body and the receiving body shall be obliged to effectively protect communicated personal data against accidental or unauthorised destruction, accidental loss, unauthorised access, unauthorised or accidental modification and unauthorised disclosure.
(2) The provisions of paragraph (1) of this Article shall apply accordingly to trade and business secrets."
10. In Article 19 of the Agreement a new paragraph 3 shall be inserted:
"3. Paragraph 2 does not apply in relation to the application of Part 1 A of this Agreement."
Article IV
1. Unless otherwise provided in this Article, this Protocol shall enter into force on the first day of the third month following the month in which the last of the notes are exchanged by the Parties through the diplomatic channel notifying each other that all matters as are necessary to give effect to this Protocol have been finalised. 2. Notwithstanding subparagraph 1(a)(i) of Article 2 of the Agreement as amended by this Protocol, the Agreement as amended by the First Protocol shall continue to apply to persons in receipt of Australian wife pension as at the date of entry into force of this Protocol.
3. Part 1 A of this Protocol shall also apply to employees who were sent before the date of entry into force of this Protocol. In the case of such persons who have been working in the territory of a Party prior to the entry into force of this Protocol, the period referred to shall be considered to begin on the date of entry into force of this Protocol.
4. Subject to paragraph 5, this Protocol shall remain in force until the expiration of twelve months from the date on which either Party receives through the diplomatic channel a written notice of termination of this Protocol from the other Party, or the Protocol shall terminate on the date the Agreement on Social Security between Australia and Austria terminates, whichever is the earlier.
5. In the event that this Protocol is terminated, but the Agreement is not terminated, only Part 1A of the Agreement (and other parts of the Agreement as they affect the application of that Part) shall terminate, but this Protocol shall continue to have effect in relation to all persons who, immediately before the date of termination, are subject only to the legislation of one Party by virtue of Part I A of the Agreement as inserted by this Protocol, provided that the person concerned continues to satisfy the criteria of that Part.
IN WITNESS WHEREOF, the undersigned, being duly authorized thereto by their respective Governments, have signed this Protocol.
DONE in two copies at Vienna on 17 February 2010 in the English and German languages, each text being equally authoritative.
For Australia: For the Republic of Austria:
Stephen Smith Rudolph Hundstorfer
Minister for Foreign Affairs Federal Minister for Labour, Social Affairs and Consumer Protection National Interest Analysis [2010 ] ATNIA 28
with attachment on consultation
Second Protocol to the Agreement Between Australia and the Republic of Austria on Social Security, done at Vienna on 17 February 2010
[2010] ATNIF 4 NATIONAL INTEREST ANALYSIS - CATEGORY 2 TREATY
SUMMARY PAGE
Second Protocol to the Agreement between Australia and the Republic of Austria on Social Security, done at Vienna on 17 February 2010 [2010] ATNIF 4
Nature and Timing of Proposed Treaty Action
1. The treaty action proposed is to bring into force the Second Protocol to amend the existing Agreement between Australia and the Republic of Austria on Social Security done at Canberra on 1 April 1992, as amended by the Protocol (the First Protocol) done at Vienna on 26 June 2001 (the Agreement).
2. Pursuant to Article IV of the Second Protocol, the Second Protocol will enter into force on the first day of the third month following the month in which the last of the diplomatic notes are exchanged by Austria and Australia notifying each other that all matters necessary to give effect to the Protocol have been finalised. The Protocol is expected to enter into force in the first half of 2011.
Overview and national interest summary
3. Australia's social security agreements are bilateral treaties which close gaps in social security coverage for people who migrate between countries. The agreements do this by overcoming barriers to pension payment in the domestic legislation of each country, such as citizenship, minimum contributions or residence requirements and restrictions on claiming from outside the country.
4. The Second Protocol complements and amends Australia's existing Social Security Agreement with Austria, under which both countries share responsibility for providing social security coverage for people who move between these countries.
5. The Second Protocol will facilitate business between Australia and Austria through the inclusion of double coverage provisions which will ensure that compulsory pension/superannuation contributions do not need to be made into both countries' systems when an employee is seconded to work in the other country temporarily. In the Australian context, this Protocol will exempt relevant employers and employees from making compulsory social security contributions in Austria if superannuation guarantee contributions continue to be made in Australia. Similarly, relevant Austrian employers will be exempted from making superannuation guarantee contributions for employees sent to work temporarily in Australia provided relevant social security contributions continue to be made in Austria.
6. The Second Protocol includes new data protection provisions proposed by Austria which are in line with European Union standards to protect personal data communicated under the Agreement.
7. It also includes an amendment to the portability period for the Australian Disability Support Pension to bring it in line with domestic legislation.
8. The Second Protocol will consolidate the economic and social benefits to Australia under the Agreement and facilitate business links between the two countries by removing unnecessary costs. Reasons for Australia to take the proposed treaty action
9. Under current arrangements, compulsory contributions under the legislation of both Australia and Austria may be required when an employee is sent from one country to the other to work temporarily. The Second Protocol will reduce costs of doing business in both countries by providing that, generally, the employer and/or employee need to contribute only to the relevant pension/superannuation scheme in their home country.
10. The Second Protocol to the Agreement between Australia and Austria on social security incorporates the same principles as Australia's other social security agreements that include `double coverage' provisions, namely the Social Security Agreements with Belgium, Chile, Croatia, Finland, Germany, Greece, Ireland, Japan, Korea, the Netherlands, Norway, Portugal, Switzerland and the United States. The recently signed Agreements (not yet in force) with the Czech Republic, the Former Yugoslav Republic of Macedonia, and Poland also contain equivalent provisions and are the subject of separate National Interest Analyses.
Obligations
11. The Second Protocol places reciprocal obligations on both Australia and Austria. Article III comprises the substantive amendments to the Agreement. Subparagraphs 1(a) to (d) amend certain definitions contained in Articles I to 5 of the Agreement. These amendments are in line with Australia's other social security agreements and clarify the operation of the double coverage provisions. In particular, the Second Protocol updates the definition of legislation in subparagraph 1(c) of the Agreement, to include Australia's superannuation guarantee laws.
12. Paragraph 2 of Article III replaces paragraph 1 of Article 2 of the Agreement (Legislative Scope) to insert the relevant references to the laws concerning the superannuation guarantee for Australia. It also updates the social security payments included in the scope of the Agreement to remove the reference (for Australia) to `wife pensions' as this pension is gradually being phased out and there have been no new grants possible since 1 July 1995.
13. Paragraph 3 of Article III updates provisions in Article 4 of the Agreement relating to Equality of Treatment. Subparagraph 3(a) replaces paragraph 1 of Article 4 to extend its application to refugees and stateless persons, as well as to nationals. Subparagraph 3(b) replaces paragraph 3 of Article 4 of the Agreement to provide that the equal treatment provisions do not apply to provisions of Austrian legislation concerning the apportionment of insurance burdens resulting from agreements with third States.
14. Paragraph 4 of Article III updates provisions of Article 5 of the Agreement regarding equivalence of territories. Subparagraph 4(a) updates paragraph 1 of Article 5 of the Agreement. It provides that where a provision of domestic legislation specifies that entitlement to a benefit is contingent on residing in the territory of that Party, that provision will not be applicable where a person lives in the territory of the other Party. This is necessary to implement double coverage. Subparagraph 4(b) updates the provisions of 4(a) and 4(b) of Article 5 of the Agreement by providing that `add-ons' such as rent assistance to assist Australian pensioners with additional living costs, are only payable outside Australia according to Australian social security law. Subparagraph 4(c) also reduces the portability period of Disability Support Pension for persons who are not severely disabled from 26 weeks to 13 weeks, in line with Australian domestic legislation.
15. Paragraph 5 of Article III inserts a new Part 1A into the Agreement after Article 5 to deal with the avoidance of double coverage. These provisions are consistent with those in Australia's other social security agreements. Article 5a provides that generally, a person who works in the territory of a Party is subject to that Party's legislation. Articles 5b to 5e deal with exceptions to the general principle in Article 5a. Article 5b provides that a person who is `posted' by an employer for less than 5 years in the territory of the other Party, will be subject to the legislation of the sending Party. Articles 5c and 5d set out the special considerations applying to members of diplomatic missions and consular posts and government officials. Government officials who are sent to the territory of the other Party are considered to be resident in the territory of the sending Party for the purposes of legislation. Article 5e allows the `Competent Authorities', by agreement in writing, to specify exceptions from the provisions of Articles 5a to 5d for certain persons or categories of persons, in the interest of those person's.
16. Paragraph 6 of Article III inserts a new paragraph 5a into Article 7 of the Agreement, applying the provisions of existing paragraphs 4 and 5 for a period of 26 weeks where a person is temporarily absent from Australia in line with Australia's domestic legislation
17. Paragraphs 7 and 8 of Article III delete Article 8 and paragraph 4 of Article 17 of the Agreement. These provisions deal with the Australian `wife pension' which has had no new grants since 1 July 1995, and confidentiality of information, which is superseded by new Article 18a.
18. Paragraph 9 of Article III inserts a new Article 18a into the Agreement to deal with data protection requirements. These requirements are more detailed than previously, consistent with European Standards and with data protection provisions in Australia's other social security agreements. Under subparagraph 1(a), personal data may be communicated between the Competent Authorities of each Party for the purposes of the Agreement but subparagraph 1(b) provides that the data must be treated as confidential in the same manner as like information obtained under domestic legislation. Subparagraph 1(d) imposes obligations on communicating bodies to ensure that data communicated is up-to-date and accurate (with a duty to delete or correct inaccurate data), and to ensure that the communication is necessary and proportionate having regard to the purpose of the communication.
19. Subparagraphs 1(e) and (f) concern freedom of information. Subparagraph 1(e) provides that people are able to request information about the data relating to them which has been communicated or processed and that such information must be given without undue delay and, in principle, free of charge. That person also has the right to have any inaccurate data corrected. Subparagraph 1(f) enshrines the right of `data subjects', whose rights to accurate data have been violated, to receive compensation and to have the matter decided by an independent authority.
20. Subparagraph 1(i) imposes an obligation on both the communicating and receiving body to provide effective personal data protection.
21. Paragraph 10 of Article III inserts a new paragraph 3 into Article 19 of the Agreement, which excludes the new Part IA from the operation of the arbitration provisions in Paragraph 2 of the Agreement, in line with superannuation guarantee policy.
22. Article IV contains transitional and final provisions for the Second Protocol. Paragraph 2 provides that the Agreement shall continue to apply to persons in receipt of the Australian `wife pension' as at the date of entry into force of the Second Protocol. Paragraph 3 extends the double coverage provisions contained in the Second Protocol to employees who were sent and have been working in the other country before the date of entry into force of the Protocol.
Implementation
23. The Social Security (International Agreements) Act 1999 gives effect in domestic law to relevant provisions of social security agreements that are scheduled to the Act. A new Schedule containing the full text of the Second Protocol will be added to the Social Security (International Agreements) Act 1999 pursuant to sections 8 and 25 of that Act.
24. Relevant provisions of social security agreements relating to double superannuation coverage are automatically given effect , in domestic law, once the agreement is scheduled to the Social Security (International Agreements) Act 1999. This is pursuant to paragraph 27(I)(e) of the Superannuation Guarantee (Administration) Act 1992 and regulation 7AC of the Superannuation Guarantee (Administration) Regulations 1993, which together provide that payment of salary or wages to an employee who has been sent temporarily to work in Australia will not give rise to a superannuation guarantee obligation for the overseas employer, provided that a scheduled social security agreement is in place.
Cost
25. The financial implications of this Protocol are estimated to be nil or negligible over the forward estimates period.
Regulation Impact Statement
26. The Office of Best Practice Regulation within the Department of Finance and Deregulation has advised that a Regulation Impact Statement is not required.
Future Treaty Action
27. The Second Protocol does not provide for the negotiation of any related treaties or deal with possible amendments to it. It may be amended at any time by agreement between the Parties in accordance with Article 39 of the Vienna Convention on the Law of Treaties.
28. Any such amendments to this Protocol or the Agreement would be subject to Australia's domestic treaty-making process, including tabling and consideration by the Joint Standing Committee on Treaties.
Withdrawal or denunciation
29. Paragraph 4 of Article IV of the Second Protocol provides that the Protocol will remain in force indefinitely, unless terminated by either party through giving twelve months' written notice, or unless the Agreement is terminated. Article IV also provides that, if the Protocol only is terminated, it shall continue to apply for all persons who were subject to its provisions before the termination, provided those persons continue to satisfy the required criteria.
30. Any termination of this Protocol or the Agreement would be subject to Australia's domestic treaty-making process, including tabling and consideration by the Joint Standing Committee on Treaties.
Contact Details
International Agreements International Branch Department of Families , Housing, Community Services and Indigenous Affairs ATTACHMENT ON CONSULTATION
Second Protocol to the Agreement between Australia and the Republic of Austria on Social Security, done at Vienna on 17 February 2010 [20101 ATNIF 4
CONSULTATION
31. Treasury consulted a range of organisations as part of the treaty process.
32. Letters and an information sheet outlining the Agreement were sent to each group on 14 April 2010 seeking their views and asking for a response by 7 May 2010.
33. No formal responses were received by Treasury.
34. The organisations Treasury consulted were:
• Institute of Chartered Accountants in Australia
• Australian Chamber of Commerce and Industry
• Industry Funds Forum Inc
• A.C.T.U.
• Council of Small Business Organisations of Australia
• Association of Superannuation Funds of Australia
• Investment and Financial Services Association
• CPA Australia
35. The State and Territory Governments FaHCSIA consulted were:
• ACT Chief Minister's Department
• QLD Department of Premier and Cabinet
• VIC Department of Premier and Cabinet
• NT Department of Chief Minister
• SA Department of Premier and Cabinet
• TAS Department of Premier and Cabinet
• WA Federal Affairs
• NSW Intergovernmental & Regulatory Reform Branch DEPARTMENT OF FOREIGN AFFAIRS AND TRADE CANBERRA
2010 AMENDMENTS TO APPENDICES I AND II
OF
THE CONVENTION ON INTERNATIONAL TRADE IN ENDANGERED SPECIES OF WILD FAUNA AND FLORA DONE AT WASHINGTON ON 3 MARCH 1973, [1976] ATS 29
DOHA, 25 MARCH 2010
Not yet in force [2010] ATNIF 32
1 2010 AMENDMENTS TO APPENDICES I AND II OF THE CONVENTION ON INTERNATIONAL TRADE IN ENDANGERED SPECIES OF WILD FAUNA AND FLORA
adopted by the Conference of the Parties at its 15th meeting, Doha (Qatar), 13-25 March 2010
1. In accordance with the provisions of Article XV of the Convention, the Conference of the Parties to the Convention, at its 15th meeting (CoP15), held in Doha, Qatar, from 13 to 25 March 2010, considered the amendments to Appendices I and II proposed by the Parties. These proposed amendments were communicated to the contracting States of the Convention by Notification sent through the diplomatic channel, dated 21 April 2010.
2. At CoP 15, the Conference of the Parties took the decisions listed below. The abbreviation `spp.'is used to denote all species of a higher taxon.
a) The following taxon is deleted from Appendix I of the Convention:
FAUNA CHORDATA AVES ANSERIFORMES Anatidae Anas oustaleti
b) The following taxa are deleted from Appendix H of the Convention:
FLORA EUPHORBIACEAE Euphorbia misera PROTEACEAE Orothamnus zeyheri Protea odorata
c) The following taxa are transferred from Appendix I to Appendix II of the Convention: FAUNA CHORDATA REPTILIA CROCODYLIA Crocodylidae Crocodylus moreletii (Only the populations of Belize and Mexico, with a zero quota for wild specimens traded for commercial purposes) Crocodylus niloticus (Only the population of Egypt, with a zero quota for wild specimens traded for commercial purposes) d) The following taxon is included in Appendix I of the Convention:
FAUNA CHORDATA AMPHIBIA CAUDATA Salamandridae Neurergus kaiseri e) The following taxa are included in Appendix II of the Convention:
FAUNA CHORDATA REPTILIA SAURIA Iguanidae Ctenosaura bakeri Ctenosaura oedirhina Ctenosaura melanosterna Ctenosaura palearis AMPHIBIA ANURA Hylidae Agalychnis spp. ARTHROPODA INSECTA COLEOPTERA Scarabaeidae Dynastes satanas FLORA ANACARDIACEAE Operculicarya hyphaenoides Operculicarya pachypus
CUCURBITACEAE Zygosicyos pubescens Zygosicyos tripartitus
LAURACEAE Aniba rosaeodora (Logs, sawn wood, veneer sheets, plywood and essential oil, excluding finished products packaged and ready for retail) PASSIFLORACEAE Adenia olaboensis VITACEAE Cyphostemma elephantopus Cyphostemma montagnacii ZYGOPHYLLACEAE Bulnesia sarmientoi (Logs, sawn wood, veneer sheets, plywood, powder and extracts) f) The species Canis lupus (MAMMALIA, CARNIVORA, Canidae), with populations included in Appendices I and II, will be annotated as follows:
"Excludes the domesticated form and the dingo which are referenced as Canis lupus familiaris and Canis lupus dingo." g) For plant taxa listed in Appendix II, delete annotations #1 and #4 and replace them both with the following new annotation:
"All parts and derivatives, except:
a) seeds (including seedpods of Orchidaceae), spores and pollen (including pollinia). The exemption does not apply to seeds from Cactaceae spp. exported from Mexico, and to seeds from Beccariophoenix madagascariensis and Neodypsis decaryi exported from Madagascar;
b) seedlings or tissue cultures obtained in vitro, in solid or liquid media, transported in sterile containers;
c) cut flowers of artificially propagated plants;
d) fruits and parts and derivatives thereof of naturalized or artificially propagated plants of the genus Vanilla (Orchidaceae) and of the family Cactaceae;
e) stems, flowers, and parts and derivatives thereof of naturalized or artificially propagated plants of the genera Opuntia subgenus Opuntia and Selenicereus (Cactaceae); and
f) finished products of Euphorbia antisyphilitica packaged and ready for retail trade." h) For Cactaceae spp. (FLORA), the footnote is amended to read as follows: "Artificially propagated specimens of the following hybrids and/or cultivars are not subject to the provisions of the Convention: - Hatiora x graeseri
Schlumbergera x buckleyi
Schlumbergera russelliana x Schlumbergera truncata
Schlumbergera orssichiana x Schlumbergera truncata Schlumbergera opuntioides x Schlumbergera truncata
Schlumbergera truncata (cultivars)
Cactaceae spp. colour mutants grafted on the following grafting stocks: Harrisia 'Jusbertii', Hylocereus trigonus or Hylocereus undatus
Opuntia microdasys (cultivars)."
i) The annotation to all species of Orchidaceae (FLORA) in Appendix I is replaced with the following annotation:
"For all of the following Appendix-I species, seedling or tissue cultures obtained in vitro, in solid or liquid media, and transported in sterile containers are not subject to the provisions of the Convention only if the specimens meet the definition of `artificially propagated' agreed by the Conference of the Parties."
3. As a consequence of the adoption by the Conference of the Parties of amendments to Resolution Conf. 12.11 (Rev. CoP14) on Standard nomenclature, containing taxonomic and nomenclature references for species included in the Appendices, some changes to the names of species are being introduced in the revised version of Appendices I, II and III.
4. In accordance with the provisions of Article XV, paragraph 1, subparagraph (c), of the Convention, the amendments adopted at the 15th meeting of the Conference of the Parties shall enter into force 90 days after that meeting, i.e. on 23 June 2010, for all Parties except those which make reservations in accordance with paragraph 3 of that Article.
5. In accordance with the provisions of Article XV, paragraph 3, of the Convention, and during the period of 90 days provided for by subparagraph (c) of paragraph 1 of that Article (i.e. by 23 June 2010), any Party may by notification in writing to the Depositary Government (the Government of the Swiss Confederation) make a reservation with respect to one or more amendments adopted at the 15th meeting of the Conference of the Parties. In this case, the Party shall be treated as a State not party to the Convention with respect to trade in the species concerned. The other Parties shall then apply the provisions of Article X of the Convention to such trade with the Party having made the reservation.
6. In accordance with the provisions of Article XII, paragraph 2, subparagraph (f), of the Convention, the Secretariat shall publish an updated version of Appendices I, II and III to take into account the amendments adopted at the 15th meeting of the Conference of the Parties and the changes necessitated by the adoption of standard references mentioned under paragraph 3 above. This updated version, valid from 23 June 2010, will be placed on the CITES website as soon as it is available. National Interest Analysis [2010] ATNIA 32
with attachment on consultation
2010 Amendments to Appendices I and II of the Convention on International Trade in Endangered Species of Wild Fauna and Flora, done at Doha on 25 March 2010
[2010] ATNIF 32 NATIONAL INTEREST ANALYSIS: CATEGORY 1 TREATY
SUMMARY PAGE
2010 Amendments to Appendices I and II of the Convention on International Trade in Endangered Species of Wild Fauna and Flora, done at Doha on 25 March 2010 [2010] ATNIF 32
Nature and timing of proposed treaty action
1. The treaty action is notification of amendments to Appendices I and II of the Convention on International Trade in Endangered Species of Wild Fauna and Flora [1976] ATS 29 (CITES) adopted by the 15th Conference of the Parties (CoP 15), held from 13-25 March 2010 in Doha, Qatar, in accordance with paragraph 1 of Article XV of CITES.
2. Amendments to the Appendices automatically come into force for all Parties to the Convention 90 days after the Conference of the Parties at which they were adopted, in accordance with Article XV(1)(c) of CITES. Parties may, however, enter a reservation with respect to a particular amendment during that 90 day period, in accordance with paragraph 3 of Article XV. As Australia has not lodged a reservation, the amendments will automatically enter into force for Australia on 23 June 2010. Based on information currently available, to date no Parties have entered reservations in relation to any of the amendments to Appendices I and II adopted at COP15. As such, the amendments will enter into force for all Parties on 23 June 2010.
Overview and national interest summary
3. CITES is a multilateral environmental agreement that regulates the international trade (export, re-export, import and introduction from the sea) in endangered species of wild fauna and flora (taxa). CITES includes lists of species in three appendices, with the international movement of the species on each appendix attracting a different level of regulation. Listing on Appendix I means that international commercial trade in the species is generally prohibited, whilst listing on Appendix II means that international trade is regulated via a system of non detriment fording assessments and permits. The CoP15 amendments make various changes to the lists of species included in Appendices I and II, including the deletion of some taxa from the Appendices, the addition of some taxa to the Appendices, the transfer of taxa between Appendices I and II and amendments to the annotations accompanying some taxa already on the Appendices.
4. Ensuring that species are listed in the appropriate appendix is crucial to the effective operation of the Convention. It ensures that species are protected from over-exploitation whilst facilitating legal trade in specimens where their conservation status permits and avoiding burdensome regulation where it is not necessary. Constantly updating the species in each list, taking into account changes to their respective conservation status, is critical. This is why a mechanism permitting timely entry into force of amendments to the Appendices has been included in the Convention. 5. The action is consistent with Australia's strong commitment to CITES and to international cooperation for the protection and conservation of wildlife more generally. The action is required for Australia to meet its obligations as a Party to CITES. Reasons for Australia to take the proposed treaty action
6. CITES is a multilateral environmental agreement that entered into force generally on 1 July 1975 and to which Australia has been a Party since 27 October 1976. It arose from recognition that international cooperation is essential to protect and conserve species from over-exploitation due to international trade.
7. Participation in CITES advances Australia's interests by promoting Australia as a leading environmental steward in its efforts to protect wild species from over-exploitation due to international trade. It also facilitates Australia's domestic conservation and trade interests by protecting native species from detrimental trade and aids legitimate wildlife trade into and out of Australia. CITES also provides a forum for international cooperation needed to regulate species of interest to Australia.
8. CITES provides a mechanism for the strict regulation of international trade in endangered species via Appendix I and for regulating and monitoring trade in species that may become endangered if trade is not regulated via Appendix II. A Party may also unilaterally identify species or populations within its jurisdiction where the cooperation of other Parties is needed to assist in regulating international trade and to avoid undermining the domestic regulation. These species are included in Appendix III.
9. As noted, timely amendments to the CITES appendices ensures that species are regulated appropriately according to current conservation requirements. This is crucial to the effective operation and implementation of the Convention.
Amendments to listed species
10. The amendments make various changes to the lists of taxa included in Appendices I and II, as follows:
® The species Anas oustaleti (Mariana mallard) is deleted from Appendix I;
® The species Euphorbia misera (cliff spurge), Orothamnus zeyheri (marsh rose) and Protea odorata (Swartland sugarbush) are deleted from Appendix II;
Populations of the species Crocodylus moreletti (Morelet's crocodile - populations of Belize and Mexico only) and C. niloticus (Nile crocodile - populations of Egypt only) are transferred from Appendix Ito Appendix II;
® The species Neurergus kaiseri (Kaiser's spotted newt) is added to Appendix I; and
® The following species are added to Appendix II: ® Ctenosaura bakeri, C. oedirhina, C. melanosterna, C. palearis (spiny-tailed iguanas); ® Agalychnis spp. (tree frogs); ® Dynastes satanas (rhinoceros beetle); ® Operculicarya hyphaenoides, O. pachypus (Madagascan shrubs); Zygosicyos pubescens, Z. tripartitus (Madagascan lump plants) ; ® Aniba rosaeodora (rosewood - logs, sawn wood, veneer sheets, plywood and essential oil, excluding finished products packaged and ready for retail); ® Adenia olaboensis (adenia); ® Cyphostemma elephantopus, C. montagnacii (grape trees); and ® Bulnesia sarmientoi (Argentine lignum vitae tree - logs, sawn wood, veneer sheets, plywood, powder and extracts).
11. Australia is not a range State for any of the above species (that is, they do not occur naturally in Australia). Bulnesia sarmientoi (lignum vitae), which has been listed in Appendix II, is used primarily for essential oil and timber flooring, but Australia does not currently appear to be an importer of this species.
Amendments to annotations
12. Many of the species listed in the Appendices to CITES have interpretive annotations specifying: the populations of the species that are subject to the trade controls of CITES; and/or the parts or products derived from the species that are subject to the trade controls; and/or the circumstances under which trade is permitted. At CoP 15, amendments were made to the annotations for various taxa of flora and for the species Canis lupus (grey wolf). The details of these are set out in sub-paragraphs 2(f)-(i) in the attached text of the treaty action.
13. An amendment was made to the annotation for the Appendix I and II listed Canis lupus to clarify that the domesticated form (Canis lupusfamiliaris) and the dingo (C. 1. dingo) are excluded from listing. The amendment continues exemptions that were in place for dogs and dingoes under a previous taxonomic classification. It will not change Australia's export requirements for dingoes, as Australia regulates all export of native species.
14. Amendments to the annotations for plant taxa listed in Appendix II, detail the parts or derivatives of specimens which are exempt from CITES regulation. The amendments are minor and technical in nature and will have only minor regulatory implications. In addition, minor amendments to existing annotations for Appendix II-listed Cactaceae species exempt certain hybrids, as well as finished products of Euphorbia antisyphilitica from CITES regulation. The exemptions will reduce the regulatory burden on importers of those specimens, as import permits will no longer be required.
Entry into force for Australia
15. The amendments to Appendices I and II agreed at CITES CoP 15 are consistent with Australia's commitment to the conservation of species threatened by international trade. Therefore, Australia did not lodge a reservation under paragraph 3 of Article XV for any of the amendments and they will all enter into force for Australia on 23 June 2010.
Obligations
16. The amendments to Appendices I and II will not change the substantive obligations of Parties to CITES. As such, Australia will still be obliged to prohibit trade in the species included in Appendices I and II except in accordance with the provisions of CITES. The amendments will, however, change the list of species to which the export and import rules must be applied.
17. CITES provides different degrees of regulation of trade depending on the Appendix listing of the species, as outlined in the following paragraphs. Trade is defined as export, re-export, import and introduction from the sea.
18. International movement in species listed on Appendix I is subject to particularly strict regulation to ensure the survival of the species in the wild. International movement is possible only under limited circumstances and appropriate CITES documentation must accompany shipments.
19. International movement of species listed on Appendix II requires the determination by the country of export that the shipment will not be detrimental to the survival of the species in the wild. Regulation of Appendix II listed species is less restrictive than Appendix I, though appropriate CITES documentation is still required before specimens can be moved internationally.
Implementation
20. CITES is implemented in Australia via the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). Section 303CA of that Act requires the Minister to establish a list of CITES species for the purposes of the Act, which is to reflect the content from time to time of the three Appendices. Implementation of the current amendments to CITES has therefore required the Minister's delegate to amend the list pursuant to subsection 303CA(9). The instrument amending the list under Section 303CA is being published in the Gazette and registered on the Federal Register of Legislative Instruments. It is not a disallowable instrument (under Section 44 of the Legislative Instruments Act 2003).
Costs
21. The treaty action is not expected to impose any additional costs to Australia in complying with its obligations under CITES, nor will there be any significant effect on Australia's trade interests. Australia already has legislation and administrative arrangements in place to implement the provisions of CITES. The amendments to the Appendices will not require any new domestic regulatory or management arrangements.
22. Rosewood (Aniba rosaeodora) has been listed under CITES Appendix II and is used primarily for essential oil. The listing exempts finished products packaged and ready for retail so there will be no regulatory implications for retailers and traders in finished oils. In order to import raw Aniba rosaeodora products, however, manufacturers will be required to present an export permit granted by the country of export and obtain a $30 import permit from the Department of the Environment, Water, Heritage and the Arts (DEWHA).
23. Amendments to the existing annotations for Appendix II Cactaceae species exempting certain hybrids, as well as finished products of Euphorbia antisyphilitica, will reduce costs for importers of those specimens, as $30 import permits will no longer be required.
Regulation Impact Statement
24. DEWHA has assessed the implementation of these amendments against criteria in The Best Practice Regulation Handbook. This regulatory option has low impact on business and individuals or on the economy and a Regulation Impact Statement or Business Cost Calculator report is not required.
Future treaty action
25. Appendices I and II are amended from time to time in accordance with the provisions of Article XV of CITES. That is, amendments may be adopted by two thirds majority of the Conference of the Parties or through a postal procedure between meetings. Amendments to Appendices I and II then enter into force automatically 90 days following the meeting or the completion of the postal procedure for all Parties except those Parties that lodge a reservation.
26. The Convention itself (that is, other than the Appendices) can only be amended at an extraordinary meeting of the Conference of the Parties, pursuant to Article XVII. Such amendments are to be adopted by a two-thirds majority and will enter into force for those Parties accepting it 60 days after two-thirds of the Parties have deposited an instrument of acceptance.
27. CITES does not expressly provide for the negotiation of future related legally binding instruments such as protocols or annexes.
28. Any future amendment to either Appendices I and II or the Convention more broadly would constitute a treaty action and be subject to Australia's domestic treaty process, including tabling in Parliament and consideration by the Joint Standing Committee on Treaties (JSCOT).
Withdrawal or denunciation
29. Australia may denounce CITES in accordance with Article XXIV, by written notification to the Depositary Government (Government of Switzerland) at any time. The denunciation takes effect twelve months after the Depositary Government has received the notification.
30. Any denunciation by Australia would constitute a treaty action and would be subject to the domestic treaty process.
Contact details International Wildlife Trade Section Approvals and Wildlife Division Department of the Environment, Water, Heritage and the Arts ATTACHMENT ON CONSULTATION
2010 Amendments to Appendices I and II of the Convention on International Trade in Endangered Species of Wild Fauna and Flora, done at Doha on 25 March 2010 [2010] ATNIF 32
CONSULTATION
Summary ofoutcomes
31. The Department of the Environment, Water, Heritage and the Arts (the Department) consulted with Federal Government, State and Territory agencies, relevant industry groups, Non-Government Organisations (NGOs) and members of the public on proposed amendments to the CITES Appendices in advance of the 15th Conference of the Parties (CoP15) at which they were agreed. Numerous submissions and comments were received and considered.
32. The Department concluded that the changes to CITES listings agreed at CoP15 will have a minor impact on Australia . This is due to:
® low levels of imports into, or exports from, Australia, of affected specimens; and ® no change to the ability to trade domestically in affected specimens.
Consultation process
33. From 30 October 2009, the Department advised, via letter and email, relevant Federal government agencies, State and Territory agencies, NGOs and industry groups of the upcoming CoP and invited comments on the list of proposals for amendment to the Appendices, available on the CITES website. A consultation page was also established on the Department's website advising of the meeting and requesting comments from the public and interested groups.
34. Relevant Commonwealth agencies were afforded the opportunity to identify items of interest for CoP 15 for which they would provide input for the development of Australia's position. The following Commonwealth agencies were consulted:
® Attorney-General's Department; ® Australian Customs and Border Protection Service; ® Department of Foreign Affairs and Trade; ® Department of Agriculture, Fisheries and Forestry; ® Australian Fisheries Management Authority; and ® Department of Prime Minister and Cabinet.
35. In addition to input from these Commonwealth Departments, comments were received from New South Wales, Victoria, Northern Territory, South Australia, Western Australia and Queensland Governments. Input included support for the Canis lupus annotation. Comments were incorporated into briefs and were considered against scientific evidence about the conservation status of the species when negotiating positions were formed.
36. An NGO Round Table discussion was held on 25 November 2009 between the Department and NGO representatives from the Humane Society International, the International Fund for Animal Welfare and TRAFFIC. In addition, detailed comments on amendment proposals for consideration by CoP 15 were provided by the International Fund for Animal Welfare, Humane Society International, Species Survival Network, TRAFFIC International/IUCN (World Conservation Union) Species Programme and Species Survival Commission, Greenpeace and the Australian Marine Conservation Society. These comments were included in delegation briefs and were considered against scientific evidence about the conservation status of the species when negotiating positions were formed.
37. Comments were also received from members of the public and were considered against scientific evidence about the conservation status of the species when negotiating positions were formed.
38. The Australian delegation at CoP 15 comprised officers from the Department of the Environment, Water, Heritage and the Arts, the Attorney-General's Department, the Australian Fisheries Management Authority and the Department of Foreign Affairs and Trade. Additional members participating as Advisers to the delegation included representatives from the Northern Territory Government, Tony's Tuna International and the Australian Southern Bluefm Tuna Industry Association.
39. Following CoP15, the Minister, the Hon. Peter Garrett AM MP, wrote to the Chair of the JSCOT on 1 March 2010 advising of the listing proposals and the automatic entry into force for those proposals that were agreed by CoP15. Advance notice of the upcoming CoP was provided to the Commonwealth-State/Territory Standing Committee on Treaties.
40. Stakeholders from whom input was sought are identified in the lists below. List of NGOs and Industry groups consulted
• NGOs • Arid Lands Environment Centre • Australasian Bat Society • Australian Conservation Foundation (ACF) • Australian Marine Conservation Society (AMCS) • Birds Australia • Cairns and Far North Environment Centre (CAFNEC) • Clean Up Australia Ltd • Climate Action Network Australia • Conservation Council ACT Region • Conservation Council of South Australia • Conservation Council of Western Australia • Environment Tasmania • Environment Victoria • Environs Kimberley • Friends of the Earth Australia (FoE) • Greenpeace Australia Pacific • Humane Society International • International Fund for Animal Welfare (IFAW) • Mineral Policy Institute • National Parks Australia Council (NPAC) • National Toxics Network (NTN) • Nature Conservation Council of NSW • Pew Trust • Queensland Conservation Council (QCC) • Seaweb • Tasmanian Conservation Trust (TCT) • The Wilderness Society Inc (TWS) • TRAFFIC Oceania • WetlandCare Australia • World Wildlife Fund Australia (WWF) • World Society for the Protection of Animals (WSPA) Indus
® Western Australia Fishing Industry Council ® Timber and Building Materials Association • Western Australian Fishing Industry Council Inc ® National Seafood Industry Alliance • Plywood Association of Australasia Ltd • Southern Rock Lobster Ltd ® Northern Territory Seafood Council ® Australian Plantation Products and Paper Industry ® Council (A3P) ® Queensland Seafood Industry Association ® Seafood Services Australia Pty Ltd • Australian Timber Importers' Federation • Tasmanian Seafoods Pty Ltd ® Queensland Seafood Industry Association ® Seafood Industry Victoria ® Tuna Boat Owners Association • Australian Federation of International Forwarders • Seafood Industry Victoria ® Commonwealth Fisheries Association • Customs Brokers & Forwarders Council of Australia Inc. ® National Association of Forest Industries Limited • Western Australian Fishing Industry Council Inc • Tasmanian Seafood Industry Council • MPM Limited • Australian Forest Growers • Commonwealth Fisheries Association ® National Farmers Federation ® Queensland Aquarium Supply Divers Association ® Australian Wood Panels Association ® Tasmanian Seafood Industry Council ® Ocean Watch Australia • Seafood Council (SA) Ltd ® Timber Promotion Council • Timber Trade Industrial Association ® Australian Chamber of Commerce and Industry ® Australian Seafood Industry Council Ltd ® Australian Southern Bluefm Tuna Industry Association ® Australian Industry Group • Business Council of Australia • Recfish Australia List of State and Territory agencies consulted
New South Wales
® Department of Environment, Climate Change and Water
® Office of Water
® Industry & Investment NSW
Queensland
® Department of Environment and Resource Management
® Queensland Primary Industries and Fisheries
Northern Territory
® Department of Natural Resources, Environment, the Arts and Sport
® Department of Regional Development, Primary Industry, Fisheries and Resources
Western Australia
® Department of Agriculture and Food
® Department of Environment and Conservation
® Department of Fisheries
0 Forests Products Commission ® Department of Water
Tasmania
® Department of Infrastructure, Energy and Resources
® Department of Primary Industries, Parks, Water and Environment
South Australia
® Department for the Environment and Heritage
® Department of Water, Land and Biodiversity Conservation
® Primary Industries and Resources SA
Victoria
® Department of Primary Industries
® Department of Sustainability and Environment
Australian Capital Territory
® Department of the Environment, Climate Change, Energy and Water DEPARTMENT OF FOREIGN AFFAIRS AND TRADE CANBERRA
United Nations Convention
on the Use of Electronic Communications in International Contracts,
done at New York on 23 November 2005
Not yet in force
[2010] ATNIF 33 United Nations Convention on the Use of Electronic Communications in International Contracts
The States Parties to this Convention,
Reaffirming their belief that international trade on the basis of equality and mutual benefit is an important element in promoting friendly relations among States,
Noting that the increased use of electronic communications improves the efficiency of commercial activities, enhances trade connections and allows new access opportunities for previously remote parties and markets, thus playing a fundamental role in promoting trade and economic development, both domestically and internationally,
Considering that problems created by uncertainty as to the legal value of the use of electronic communications in international contracts constitute an obstacle to international trade,
Convinced that the adoption of uniform rules to remove obstacles to the use of electronic communications in international contracts, including obstacles that might result from the operation of existing international trade law instruments, would enhance legal certainty and commercial predictability for international contracts and help States gain access to modern trade routes,
Being of the opinion that uniform rules should respect the freedom of parties to choose appropriate media and technologies, taking account of the principles of technological neutrality and functional equivalence, to the extent that the means chosen by the parties comply with the purpose of the relevant rules of law,
Desiring to provide a common solution to remove legal obstacles to the use of electronic communications in a manner acceptable to States with different legal, social and economic systems,
Have agreed as follows:
CHAPTER I. SPHERE OF APPLICATION
Article 1. Scope of application
1. This Convention applies to the use of electronic communications in connection with the formation or performance of a contract between parties whose places of business are in different States.
2. The fact that the parties have their places of business in different States is to be disregarded whenever this fact does not appear either from the contract or from any dealings between the parties or from information disclosed by the parties at any time before or at the conclusion of the contract.
3. Neither the nationality of the parties nor the civil or commercial character of the parties or of the contract is to be taken into consideration in determining the application of this Convention.
2 Article 2. Exclusions
1. This Convention does not apply to electronic communications relating to any of the following: (a) Contracts concluded for personal, family or household purposes; (b) (i) Transactions on a regulated exchange; (ii) foreign exchange transactions; (iii) inter-bank payment systems, inter-bank payment agreements or clearance and settlement systems relating to securities or other financial assets or instruments; (iv) the transfer of security rights in sale, loan or holding of or agreement to repurchase securities or other financial assets or instruments held with an intermediary.
2. This Convention does not apply to bills of exchange, promissory notes, consignment notes, bills of lading, warehouse receipts or any transferable document or instrument that entitles the bearer or beneficiary to claim the delivery of goods or the payment of a sum of money.
Article 3. Party autonomy
The parties may exclude the application of this Convention or derogate from or vary the effect of any of its provisions.
CHAPTER II. GENERAL PROVISIONS
Article 4. Definitions
For the purposes of this Convention:
(a) "Communication" means any statement, declaration, demand, notice or request, including an offer and the acceptance of an offer, that the parties are required to make or choose to make in connection with the formation or performance of a contract; (b) "Electronic communication" means any communication that the parties make by means of data messages; (c) "Data message" means information generated, sent, received or stored by electronic, magnetic, optical or similar means, including, but not limited to, electronic data interchange, electronic mail, telegram, telex or telecopy; (d) "Originator" of an electronic communication means a party by whom, or on whose behalf, the electronic communication has been sent or generated prior to storage, if any, but it does not include a party acting as an intermediary with respect to that electronic communication; (e) "Addressee" of an electronic communication means a party who is intended by the originator to receive the electronic communication, but does not include a party acting as an intermediary with respect to that electronic communication; (9 "Information system" means a system for generating, sending, receiving, storing or otherwise processing data messages; (g) "Automated message system" means a computer program or an electronic or other automated means used to initiate an action or respond to data messages or performances in whole or in part, without review or intervention by a natural person each time an action is initiated or a response is generated by the system; (h) "Place of business" means any place where a party maintains a non-transitory establishment to pursue an economic activity other than the temporary provision of goods or services out of a specific location.
Article 5. Interpretation
1. In the interpretation of this Convention, regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade. 3 2. Questions concerning matters governed by this Convention which are not expressly settled in it are to be settled in conformity with the general principles on which it is based or, in the absence of such principles, in conformity with the law applicable by virtue of the rules of private international law.
Article 6. Location of the parties
1. For the purposes of this Convention, a party's place of business is presumed to be the location indicated by that party, unless another party demonstrates that the party making the indication does not have a place of business at that location.
2. If a party has not indicated a place of business and has more than one place of business, then the place of business for the purposes of this Convention is that which has the closest relationship to the relevant contract, having regard to the circumstances known to or contemplated by the parties at any time before or at the conclusion of the contract.
3. If a natural person does not have a place of business, reference is to be made to the person's habitual residence.
4. A location is not a place of business merely because that is:
(a) where equipment and technology supporting an information system used by a party in connection with the formation of a contract are located; or (b) where the information system may be accessed by other parties.
5. The sole fact that a party makes use of a domain name or electronic mail address connected to a specific country does not create a presumption that its place of business is located in that country.
Article 7. Information requirements
Nothing in this Convention affects the application of any rule of law that may require the parties to disclose their identities, places of business or other information, or relieves a party from the legal consequences of making inaccurate, incomplete or false statements in that regard.
CHAPTER III. USE OF ELECTRONIC COMMUNICATIONS IN INTERNATIONAL CONTRACTS
Article 8. Legal recognition of electronic communications
1. A communication or a contract shall not be denied validity or enforceability on the sole ground that it is in the form of an electronic communication.
2. Nothing in this Convention requires a party to use or accept electronic communications, but a party's agreement to do so may be inferred from the party's conduct.
Article 9. Form requirements
1. Nothing in this Convention requires a communication or a contract to be made or evidenced in any particular form.
4 2. Where the law requires that a communication or a contract should be in writing, or provides consequences for the absence of a writing, that requirement is met by an electronic communication if the information contained therein is accessible so as to be usable for subsequent reference.
3. Where the law requires that a communication or a contract should be signed by a party, or provides consequences for the absence of a signature, that requirement is met in relation to an electronic communication if: (a) A method is used to identify the party and to indicate that party's intention in respect of the information contained in the electronic communication; and (b) The method used is either: (i) As reliable as appropriate for the purpose for which the electronic communication was generated or communicated, in the light of all the circumstances, including any relevant agreement; or (ii) Proven in fact to have fulfilled the functions described in subparagraph (a) above, by itself or together with further evidence.
4. Where the law requires that a communication or a contract should be made available or retained in its original form, or provides consequences for the absence of an original, that requirement is met in relation to an electronic communication if:
(a) There exists a reliable assurance as to the integrity of the information it contains from the time when it was first generated in its final form, as an electronic communication or otherwise; and
(b) Where it is required that the information it contains be made available, that information is capable of being displayed to the person to whom it is to be made available.
5. For the purposes of paragraph 4 (a):
(a) The criteria for assessing integrity shall be whether the information has remained complete and unaltered, apart from the addition of any endorsement and any change that arises in the normal course of communication, storage and display; and
(b) The standard of reliability required shall be assessed in the light of the purpose for which the information was generated and in the light of all the relevant circumstances.
Article 10. Time and place of dispatch and receipt of electronic communications
1. The time of dispatch of an electronic communication is the time when it leaves an information system under the control of the originator or of the party who sent it on behalf of the originator or, if the electronic communication has not left an information system under the control of the originator or of the party who sent it on behalf of the originator, the time when the electronic communication is received.
2. The time of receipt of an electronic communication is the time when it becomes capable of being retrieved by the addressee at an electronic address designated by the addressee. The time of receipt of an electronic communication at another electronic address of the addressee is the time when it becomes capable of being retrieved by the addressee at that address and the addressee becomes aware that the electronic communication has been sent to that address. An electronic communication is presumed to be capable of being retrieved by the addressee when it reaches the addressee's electronic address.
5 3. An electronic communication is deemed to be dispatched at the place where the originator has its place of business and is deemed to be received at the place where the addressee has its place of business, as determined in accordance with article 6.
4. Paragraph 2 of this article applies notwithstanding that the place where the information system supporting an electronic address is located may be different from the place where the electronic communication is deemed to be received under paragraph 3 of this article.
Article 11. Invitations to make offers
A proposal to conclude a contract made through one or more electronic communications which is not addressed to one or more specific parties, but is generally accessible to parties making use of information systems, including proposals that make use of interactive applications for the placement of orders through such information systems, is to be considered as an invitation to make offers, unless it clearly indicates the intention of the party making the proposal to be bound in case of acceptance.
Article 12. Use of automated message systems for contract formation
A contract formed by the interaction of an automated message system and a natural person, or by the interaction of automated message systems, shall not be denied validity or enforceability on the sole ground that no natural person reviewed or intervened in each of the individual actions carried out by the automated message systems or the resulting contract.
Article 13. Availability of contract terms
Nothing in this Convention affects the application of any rule of law that may require a party that negotiates some or all of the terms of a contract through the exchange of electronic communications to make available to the other party those electronic communications which contain the contractual terms in a particular manner, or relieves a party from the legal consequences of its failure to do so.
Article 14. Error in electronic communications
1. Where a natural person makes an input error in an electronic communication exchanged with the automated message system of another party and the automated message system does not provide the person with an opportunity to correct the error, that person, or the party on whose behalf that person was acting, has the right to withdraw the portion of the electronic communication in which the input error was made if:
(a) The person, or the parry on whose behalf that person was acting, notifies the other party of the error as soon as possible after having learned of the error and indicates that he or she made an error in the electronic communication; and
(b) The person, or the party on whose behalf that person was acting, has not used or received any material benefit or value from the goods or services, if any, received from the other party.
2. Nothing in this article affects the application of any rule of law that may govern the consequences of any error other than as provided for in paragraph 1.
CHAPTER IV. FINAL PROVISIONS
Article 15. Depositary 6 The Secretary-General of the United Nations is hereby designated as the depositary for this Convention.
Article 16. Signature, ratification, acceptance or approval
1. This Convention is open for signature by all States at United Nations Headquarters in New York from 16 January 2006 to 16 January 2008.
2. This Convention is subject to ratification, acceptance or approval by the signatory States.
3. This Convention is open for accession by all States that are not signatory States as from the date it is open for signature.
4. Instruments of ratification, acceptance, approval and accession are to be deposited with the Secretary-General of the United Nations.
Article 17. Participation by regional economic integration organizations
1. A regional economic integration organization that is constituted by sovereign States and has competence over certain matters governed by this Convention may similarly sign, ratify, accept, approve or accede to this Convention. The regional economic integration organization shall in that case have the rights and obligations of a Contracting State, to the extent that that organization has competence over matters governed by this Convention. Where the number of Contracting States is relevant in this Convention, the regional economic integration organization shall not count as a Contracting State in addition to its member States that are Contracting States.
2. The regional economic integration organization shall, at the time of signature, ratification, acceptance, approval or accession, make a declaration to the depositary specifying the matters governed by this Convention in respect of which competence has been transferred to that organization by its member States. The regional economic integration organization shall promptly notify the depositary of any changes to the distribution of competence, including new transfers of competence, specified in the declaration under this paragraph.
3. Any reference to a "Contracting State" or "Contracting States" in this Convention applies equally to a regional economic integration organization where the context so requires.
4. This Convention shall not prevail over any conflicting rules of any regional economic integration organization as applicable to parties whose respective places of business are located in States members of any such organization, as set out by declaration made in accordance with article 21.
Article 18. Effect in domestic territorial units
1. If a Contracting State has two or more territorial units in which different systems of law are applicable in relation to the matters dealt with in this Convention, it may, at the time of signature, ratification, acceptance, approval or accession, declare that this Convention is to extend to all its territorial units or only to one or more of them, and may amend its declaration by submitting another declaration at any time.
2. These declarations are to be notified to the depositary and are to state expressly the territorial units to which the Convention extends.
7 3. If, by virtue of a declaration under this article, this Convention extends to one or more but not all of the territorial units of a Contracting State, and if the place of business of a party is located in that State, this place of business, for the purposes of this Convention, is considered not to be in a Contracting State, unless it is in a territorial unit to which the Convention extends.
4. If a Contracting State makes no declaration under paragraph 1 of this article, the Convention is to extend to all territorial units of that State.
Article 19. Declarations on the scope of application
1. Any Contracting State may declare, in accordance with article 21, that it will apply this Convention only:
(a) When the States referred to in article 1, paragraph 1, are Contracting States to this Convention; or
(b) When the parties have agreed that it applies.
2. Any Contracting State may exclude from the scope of application of this Convention the matters it specifies in a declaration made in accordance with article 21.
Article 20. Communications exchanged under other international conventions
1. The provisions of this. Convention apply to the use of electronic communications in connection with the formation or performance of a contract to which any of the following international conventions, to which a Contracting State to this Convention is or may become a Contracting State, apply:
Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York, 10 June 1958);
Convention on the Limitation Period in the International Sale of Goods (New York, 14 June 1974) and Protocol thereto (Vienna, 11 April 1980);
United Nations Convention on Contracts for the International Sale of Goods (Vienna, 11 April 1980);
United Nations Convention on the Liability of Operators of Transport Terminals in International Trade (Vienna, 19 April 1991);
United Nations Convention on Independent Guarantees and Stand-by Letters of Credit (New York, 11 December 1995);
United Nations Convention on the Assignment of Receivables in International Trade (New York, 12 December 2001).
2. The provisions of this Convention apply further to electronic communications in connection with the formation or performance of a contract to which another international convention, treaty or agreement not specifically referred to in paragraph 1 of this article, and to which a Contracting State to this Convention is or may become a Contracting State, applies, unless the State has declared, in accordance with article 21, that it will not be bound by this paragraph.
8 3. A State that makes a declaration pursuant to paragraph 2 of this article may also declare that it will nevertheless apply the provisions of this Convention to the use of electronic communications in connection with the formation or performance of any contract to which a specified international convention, treaty or agreement applies to which the State is or may become a Contracting State.
4. Any State may declare that it will not apply the provisions of this Convention to the use of electronic communications in connection with the formation or performance of a contract to which any international convention, treaty or agreement specified in that State's declaration, to which the State is or may become a Contracting State, applies, including any of the conventions referred to in paragraph 1 of this article, even if such State has not excluded the application of paragraph 2 of this article by a declaration made in accordance with article 21.
Article 21. Procedure and effects of declarations
1. Declarations under article 17, paragraph 4, article 19, paragraphs 1 and 2, and article 20, paragraphs 2, 3 and 4, may be made at any time. Declarations made at the time of signature are subject to confirmation upon ratification, acceptance or approval.
2. Declarations and their confirmations are to be in writing and to be formally notified to the depositary. 3. A declaration takes effect simultaneously with the entry into force of this Convention in respect of the State concerned. However, a declaration of which the depositary receives formal notification after such entry into force takes effect on the first day of the month following the expiration of six months after the date of its receipt by the depositary.
4. Any State that makes a declaration under this Convention may modify or withdraw it at any time by a formal notification in writing addressed to the depositary. The modification or withdrawal is to take effect on the first day of the month following the expiration of six months after the date of the receipt of the notification by the depositary.
Article 22. Reservations
No reservations may be made under this Convention.
Article 23. Entry into force
1. This Convention enters into force on the first day of the month following the expiration of six months after the date of deposit of the third instrument of ratification, acceptance, approval or accession.
2. When a State ratifies, accepts, approves or accedes to this Convention after the deposit of the third instrument of ratification, acceptance, approval or accession, this Convention enters into force in respect of that State on the first day of the month following the expiration of six months after the date of the deposit of its instrument of ratification, acceptance, approval or accession.
Article 24. Time of application
This Convention and any declaration apply only to electronic communications that are made after the date when the Convention or the declaration enters into force or takes effect in respect of each Contracting State.
Article 25. Denunciations
9 1. A Contracting State may denounce this Convention by a formal notification in writing addressed to the depositary.
2. The denunciation takes effect on the first day of the month following the expiration of twelve months after the notification is received by the depositary. Where a longer period for the denunciation to take effect is specified in the notification, the denunciation takes effect upon the expiration of such longer period after the notification is received by the depositary.
DONE at New York this twenty-third day of November two thousand and five, in a single original, of which the Arabic, Chinese, English, French, Russian and Spanish texts are equally authentic.
IN WITNESS WHEREOF the undersigned plenipotentiaries, being duly authorized by their respective Governments, have signed this Convention.
10 National Interest Analysis [2010] ATNIA 33
with attachment on consultation
United Nations Convention on the Use of Electronic Communications in International Contracts, done at New York on 23 November 2005
[20101 ATNIF 33 NATIONAL INTEREST ANALYSIS: CATEGORY 1 TREATY
SUMMARY PAGE
United Nations Convention on the Use of Electronic Communications in International Contracts, done at New York on 23 November 2005 [2010] ATNIF 33
Nature and timing of proposed treaty action
1. The proposed treaty action is for Australia to accede to the United Nations Convention on the Use of Electronic Communications in International Contracts, done at New York on 23 November 2005 (the Convention).
2. Article 16(3) provides that the Convention is open to accession by all States that have not signed the Convention between 16 January 2006 and 16 January 2008. Australia is not a signatory to the Convention.
3. Accession will occur as soon as practicable after the enactment of domestic legislative amendments. Subject to the Joint Standing Committee on Treaties' (JSCOT) recommendation, it is expected that Australia's instrument of accession will be lodged after corresponding legislation in the States and Territories has been enacted.
4. The Convention will enter into force for Australia on the first day of the month following the expiration of six months after the date of deposit of its instrument of accession (Article 23(2)).
Overview and national interest summary
5. The Convention establishes uniform rules regarding the use of electronic communications in connection with the formation or performance of a contract between Parties whose places of business are in different States. Accession to the Convention will enhance legal certainty and commercial predictability where electronic communications are used in relation to international contracts. It will also facilitate international trade and commerce by offering practical solutions for issues arising out of the use of electronic communications.
6. Accession will also facilitate the use of electronic communications in international commerce as reflected in Free Trade Agreements. Reasons for Australia to take the proposed treaty action
7. The Convention is the first United Nations Convention that addresses legal issues arising from the digital economy. It was developed by the United Nations Commission on International Trade Law (UNCITRAL) and updates many of the core provisions of the Model Law on Electronic Commerce 1996 (the 1996 Model Law), also developed by UNCITRAL. Australia is currently a member of UNCITRAL and was re-elected by the United Nations General Assembly last year for a term of six years.
8. The Commonwealth, States and Territories all have Electronic Transactions Acts based on the 1996 Model Law. The Convention updates and introduces some refinements in approach since the 1996 Model Law was developed, taking into account the greater use and knowledge of the electronic environment. It also expands on the 1996 Model Law to address apparent gaps which create obstacles to international trade. Accession to the Convention will ensure that Australia continues to remain up-to-date with international rules governing paperless communication in international commerce.
9. Acceding to the Convention requires harmonisation of Australia's domestic legislation with internationally recognised standards. Harmonisation of Australia's laws regarding electronic contracts will strengthen legal certainty in international electronic communications. A more certain legal environment will enable increased confidence in participation in electronic commerce.
10. Accession to the Convention will also improve the efficiency of commercial activities, promote trade and economic development both domestically and internationally and promote relations between Australia and other countries.
Obligations
11. The Convention requires Contracting States to bring their domestic legislation in line with the, Convention. The Convention is based on the principles of `functional equivalence' and `technological neutrality'. `Functional equivalence' refers to the establishment of international standards for the recognition of electronic communications as the legal equivalent of paper-based documentation. The principle of `technological neutrality' refers to the accommodation of technological developments in the field of e-commerce by incorporating flexibility into the methods of recognised electronic communication. Obligations primarily refer to how Contracting States in their domestic legislation define and regulate the use of electronic communication with regards to commercial contracts between Parties to which the Convention applies.
12. Article 3 of the Convention preserves Parties' contractual autonomy to exclude or vary the effect of the provisions of the Convention. Accordingly, Parties to a commercial contract can expressly derogate from this Convention if they so agree.
13. Article 6 provides a set of presumptions and default rules to assist in the determination of the place of business of a Party to a contract. Article 8 states that a communication or a contract shall not be denied validity or enforceability on the sole ground that it is in the form of an electronic communication. However, the Convention does not require a Party to use or accept electronic communications and does not purport to vary existing contract law.
14. Article 9 establishes minimum standards to meet form requirements for contracts but only applies in so far as laws in the Contracting State exist to regulate such requirements of a contract. If laws do exist, a Contracting State will be obliged to ensure that a contract, or communications surrounding a contract, are recognised if they are made in electronic form.
15. Article 10 provides default rules to determine the time of dispatch and receipt of an electronic communication in circumstances where Parties are exchanging communications through the same information system. Article 10 also recognises the effect on the receipt of an electronic communication arising from increasing use of security filters (such as spam filters) and other technologies restricting the receipt of unwanted or potentially harmful communications (such as communications suspected of containing computer viruses).
16. Article 11 clarifies the extent to which Parties offering goods or services through open, generally accessible communication systems, such as a website, are bound by advertisements made by providing rules about what is an invitation to treat in the electronic context.
17. Article 12 concerns the use of automated message systems and recognises that the absence of human intervention does not by itself preclude the conclusion of a valid contract.
18. Article 14 creates a right of withdrawal for an `input error' made in a transaction between a person and an automated message system where the system does not provide the person with the possibility to correct the error.
19. Article 20(1) provides a list of other conventions to which the Convention (in so far as it is relevant) applies. A Contracting State is only bound by this Article if it is Party to or becomes Party to a listed convention. The Convention also applies to other international treaties, conventions and agreements not listed in Article 20(1), unless the Contracting State declares otherwise.
20. The Convention enables Contracting States to make a declaration at any time in relation to the following:
® modify or withdraw a declaration (Article 21(4));
® as to when the Convention will apply, or when it will be excluded from application (Article 19); and
® when a State will or will not apply the Convention to the use of electronic communications in connection another international convention, treaty or agreement to which the State is a Party (Article 20).
21. Declarations are to be made in writing and formally notified to the depositary (Article 21(2)). A declaration made following entry into force of the Convention will take effect on the first day of the month following the expiration of six months after the date of its receipt by the depositary (Article 21(3)).
22. Article 22 states that no reservations may be made under the Convention.
Implementation
23. Accession to the Convention will require amendments to the relevant Commonwealth, State and Territory Electronic Transactions Acts. The amendments required are minor and serve to update the national electronic transactions regime to accommodate the needs of electronic commerce and reflect international standards.
24. Model provisions to amend the uniform Electronic Transactions Acts have been drafted and approved by the Standing Committee of Attorneys-General (SCAG).
Costs
25. The only costs arising from acceding to the Convention are those relating to the introduction of amending legislation in each jurisdiction. For the Commonwealth, these costs will be met from within existing resources.
26. There is no contribution payable by Australia under the Convention.
Regulation impact statement
27. The Attorney-General's Department has assessed the implementation of the Treaty against criteria in The Best Practice Regulation Handbook. This regulatory option has no/low impact on business and individuals or on the economy and a Regulation Impact Statement or Business Cost Calculator report is not required.
Future treaty action
28. The Convention does not provide for future treaty action or a formal process for modification of the Convention. In the absence of specific procedures, the Parties may amend the Convention by mutual consent at any time, pursuant to Article 39 of the Vienna Convention on the Law of Treaties 1969. Any such amendment would be subject to Australia's domestic treaty-making process, including tabling and consideration by the JSCOT.
Withdrawal or denunciation
29. Article 25 of the Convention provides that a Contracting State can denounce the Convention at any time, by written notification to the Secretary-General of the United Nations. The denunciation will take effect on the first day of the month following the expiration of 12 months after the notification is received by the Secretary-General. A longer period for denunciation may be specified in the notification.
Contact details
Copyright and Classification Policy Branch Civil Law Division Attorney- General ' s Department. ATTACHMENT ON CONSULTATION
United Nations Convention on the Use of Electronic Communications in International Contracts, done at New York on 23 November 2005 [2010] ATNIF 33
CONSULTATION
State and Territory Governments
30. At the April 2007 Standing Committee of Attorneys-General (SCAG) meeting, Ministers agreed to consider updating the model Commonwealth, State and Territory electronic transactions legislation in light of the proposal to accede to the Convention.
31. The Commonwealth prepared a consultation paper on changes that would be required to the uniform electronic transactions regime for SCAG Officers to consider. The Consultation Paper contained an article by article analysis of the Convention , the differences between it and Australia's electronic transactions regime and proposed amendments to the current regime. The draft Consultation Paper was circulated to the State and Territory SCAG Officers.
32. At the November 2008 SCAG meeting, Ministers noted that the Commonwealth, in consultation with States and Territories, had developed and released the consultation paper on proposed amendments to the electronic transactions regime needed to accede to the Convention.
33. The comments received during public consultation were discussed and noted at the SCAG Officers' meeting on 5-6 March 2009. At the 16-17 April 2009 SCAG meeting, Ministers agreed that drafting of model provisions could commence and would be done by the Parliamentary Counsels' Committee.
34. At the SCAG meeting on 7 May 2010, Ministers agreed to enact the model provisions to implement the Convention.
Commonwealth departments and agencies
35. In March 2008, the draft consultation paper was circulated to:
® Department of Broadband, Communications and the Digital Economy; • The Treasury; ® Department of Innovation, Industry, Science and Research; and ® Department of Foreign Affairs and Trade.
Public consultation
36. On 10 November 2008, the Commonwealth Attorney-General issued a media release and launched the consultation paper on the Department's website, seeking comments on the proposal to accede to the Convention. The Attorney-General's Department also wrote directly to peak business groups and law societies seeking submissions. The consultation paper appeared on the Government's small business consultation website, the SCAG website and the Attorney-General's Department's webpage.
37. Submissions were received from:
® the Insurance Council of Australia; ® the National Measurement Institute, Department of Innovation, Industry, Science and Research; ® the Australian Government Information Management Office, Department of Finance and Deregulation; ® the Department of Resources, Energy and Tourism; ® the Australian Information Industry Association; ® the Australian Taxation Office; ® the Department of Broadband, Communications and the Digital Economy; ® the Law Council's E-Commerce Committee; and ® Mr Aashish Srivastava.
38. All submissions were positive and supported Australia's accession to the Convention. DEPARTMENT OF FOREIGN AFFAIRS AND TRADE CANBERRA
IMPLEMENTATION PROCEDURES
FOR
AIRWORTHINESS
COVERING
DESIGN APPROVAL, PRODUCTION ACTIVITIES, EXPORT AIRWORTHINESS APPROVAL, POST, DESIGN APPROVAL ACTIVITIES, AND TECHNICAL ASSISTANCE BETWEEN AUTHORITIES
under
the Agreement on the Promotion of Aviation Safety Between the Government of Australia and the Government of the United States of America, done at Canberra on 21 June 2005.
7 May 2010
Not yet in force [2010] ATN IF 30 IMPLEMENTATION PROCEDURES
FOR AIRWORTHINESS
COVERING DESIGN APPROVAL, PRODUCTION ACTIVITIES, EXPORT AIRWORTHINESS APPROVAL, POST DESIGN APPROVAL ACTIVITIES, AND TECHNICAL ASSISTANCE BETWEEN AUTHORITIES
Under the Agreement on the Promotion of Aviation Safety Between the Government of Australia and the Government of the United States of America, done at Canberra on 21 June 2005.
Revision 1 TABLE OF CONTENTS
Page SECTION I GENERAL 1.0 Authorization ...... 1 1.1 Purpose ...... 1 1.2 Principles ...... 1 1.3 Changes in Authority Aircraft Certification Systems ...... 2 1.4 Implementing Authority Meetings ...... 3 1.5 Applicable National Requirements , Procedures, and Guidance Material ... 3 1.6 Interpretations ...... 3 1.7 Amendments , Status of Appendices and Points of Contact ...... 4 1.8 Entry Into Force and Termination ...... 4 1.9 Definitions ...... 4
SECTION II SCOPE OF THESE IMPLEMENTATION PROCEDURES 2.0 General ...... 8 2.1 Products, Parts and Appliances Manufactured in the Country of the Exporting Authority Accepted for Import Under These Implementation Procedures ...... 8 2.1.0 Australia Acceptance of FAA Export Certificates of Airworthiness 8 2.1.1 Australia Acceptance of FAA Authorized Release Certificates ..... 8 2.1.2 U.S . Acceptance of CASA Export Certificates of Airworthiness .... 9 2.1.3 U.S . Acceptance of CASA Authorized Release Certificates ...... 9 2.1.4 Acceptance of Standard Parts ...... 9 2.1.5 Airworthiness Certification ...... 10 2.2 Acceptance of Used Aircraft Manufactured in Third Countries ...... 10 2.3 Provisions for Design and Design Change Approvals ...... 10 2.3.0 Australian Acceptance of FAA Design Approvals as Basis for CASA Approval ...... 10 2.3.1 Australian Acceptance of FAA Design Approvals without Further Investigation ...... 10 2.3.2 U.S. Acceptance of CASA Design Approvals as Basis for FAA Approval ...... 11 2.3.3 U.S. Acceptance of CASA Design Approvals without Further Investigation ...... 11 2.4 Provisions for Environmental Testing and Approvals ...... 11 2.4.0 Australia Acceptance of FAA Findings for Environmental Requirements [Reserved] ...... 11
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 TABLE OF CONTENTS Page
2.4.1 U.S. Acceptance of CASA Findings for Environmental Requirements [Reserved] ...... 11 2.5 Provisions for Technical Assistance ...... 11 2 2.6 Provisions for Special Arrangements ...... 12 2.7 Summary Tables ...... 12
SECTION III ESTABLISHED WORKING PROCEDURES 3.0 Design Approval Procedures ...... 15 3.0.0 General ...... 15 3.0.1 Design Approval Procedures for U.S. Type Certificates ...... 15 3.0.2 Design Approval Procedures for Australian Type Acceptance Certificates ...... 17 3.0.3 Design Approval Procedures for U.S. Supplemental Type Certificates (STCs) ...... 18 3.0.4 Design Approval Procedures for Australian Supplemental Type Certificates ...... 19 3.0.5 Design Approval Procedures for FAA Letters of Technical Standard Order (TSO) Design Approval ...... 19 3.0.6 Design Approval Procedures for CASA Letters of Australian Technical Standard Order (ATSO) Approval ...... 20 3.0.7 Joint Design Approval Procedures ...... 21 3.1 Production and Surveillance Activities ...... 21 3.1.0 Production Quality System ...... 21 3.1.1 Surveillance of Production Approval Holders ...... 21 3.1.2 Extensions of Production Approvals ...... 22 3.1.3 Product Production Approval Based on a Licensing Agreement... 23 3.1.4 Parts Production Approval Based on a Licensing Agreement...... 23 3.1.5 Supplier Surveillance - Outside the Exporting Country ...... 23 3.1.6 Multi-National Consortiums ...... 24 3.2 Export Airworthiness Approval Procedures ...... 24 3.2.0 General ...... 24 3.2.1 FAA Acceptance of CASA Export Certificates of Airworthiness and Authorized Release Certificates ...... 24 3.2.2 CASA Acceptance of FAA Export Certificates of Airworthiness and Authorized Release Certificates ...... 27
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 TABLE OF CONTENTS Page
3.2.3 Additional Requirements for Imported Products, Parts, and Appliances ...... 30 3.3 Post Design Approval Procedures ...... 32 3.3.0 Continued Airworthiness ...... 32 3.3.1 Design Changes ...... 33 3.3.2 Approval of Design Data Used in Support of Repairs ...... 34 3.3.3 Administration of Design Approvals ...... 35
SECTION IV TECHNICAL ASSISTANCE BETWEEN AUTHORITIES 4.0 General ...... 38 4.1 Airworthiness Certificates ...... 39 4.2 Protection of Proprietary Data and Freedom of Information Requests ...... 39 4.2.0 Protection of Proprietary Data ...... 39 4.2.1 U.S. Freedom of Information Act (FOIA) Requests ...... 39 4.2.2 Australian FOI Requests ...... 40 4.3 Accident/Incident and Suspected Unapproved Parts Investigation Information Requests ...... 40
SECTION V SPECIAL ARRANGEMENTS ...... 41
SECTION VI AUTHORITY ...... 41
APPENDIX A List of Addresses for FAA Headquarters Offices, FAA Mike Monroney Aeronautical Center, FAA Aircraft Certification Service Directorates, FAA Manufacturing Inspection Offices , FAA Aircraft Certification Offices, and CASA Offices ...... A-1
APPENDIX B List of Referenced Documents ...... B-1
APPENDIX C Supplemental Administrative Instructions ...... C-1
APPENDIX D List of Special Arrangements ...... D-1
APPENDIX E List of Acronyms ...... E-1
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 iii IMPLEMENTATION PROCEDURES for AIRWORTHINESS COVERING Design Approval, Production Activities, Export Airworthiness Approval, Post Design Approval Activities, and Technical Assistance Between Authorities
SECTION I GENERAL
1.0 Authorization. These Implementation Procedures are executed pursuant to Article 4 of the Agreement on the Promotion of Aviation Safety Between the Government of Australia and the Government of the United States of America, dated June 21, 2005, also known as the "Bilateral Aviation Safety Agreement."
1.0.1 These Implementing Procedures supersede the Implementation Procedures for Airworthiness Covering Design Approval, Production Activities, Export Airworthiness Approval, Post Design Approval Activities, and Technical Assistance Between Authorities under the Agreement on the Promotion of Aviation Safety. Between the Government of Australia and the Government of the United States of America done Canberra on 21 June 2005, dated 26 September 2005.
1.0.2 In accordance with Article 4 of the Bilateral Aviation Safety Agreement, the Parties agree that the aircraft certification systems of their implementing authorities (i.e. the Federal Aviation Administration of the United States (FAA) and the Civil Aviation Safety Authority of Australia (CASA)) for the design approval, production approval, airworthiness certification, and continuing airworthiness of civil aeronautical products, parts, and appliances are sufficiently similar in structure and performance to support these Implementation Procedures.
1.1 Purpose. The purpose of these Implementation Procedures is to define the civil aeronautical products, parts, and appliances eligible for import into the United States and Australia (See Section II - Scope), and to define the interface requirements and activities between the implementing authorities for the import and continued support of those civil aeronautical products.
1.2 Principles. These Implementation Procedures address the performance of design, production, airworthiness, and related certification functions, and are based on a high degree of mutual confidence in the implementing authorities' technical competence and regulatory capabilities to perform these tasks within the scope of these Implementation Procedures. Each Party agrees that their implementing authority, as the importing civil airworthiness authority, shall give the same validity to the certification made by the other Party's implementing authority, as the exporting civil airworthiness authority, as if the certification had been made by their
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 1 implementing authority in accordance with its own applicable laws, regulations, and requirements. Also, each Party agrees that when a finding is made by the other Party's implementing authority in accordance with the laws and regulations of the other Party and in accordance with these Implementation Procedures, that finding is to be given the same validity as if it were made by their implementing authority. Therefore, the fundamental principle of these Implementation Procedures is to maximize the use of the exporting civil airworthiness authority's aircraft certification system to ensure that the airworthiness standards of the importing civil airworthiness authority are satisfied.
1.2.0 The Parties agree that all information, including technical documentation, exchanged under these Implementation Procedures shall be in the English language.
1.2.1 The Parties recognize each other's delegation and designee systems as part of their overall aircraft certification systems. Each Party agrees that findings by the other Party's implementing authority made under such systems and pursuant to these Implementation Procedures are to be given the same validity as those made directly by their implementing authority. (See Appendix C, Paragraph C1.1).
1.3 Changes in Authority Aircraft Certification Systems.
1.3.0 These Implementation Procedures are based upon sufficiently similar aircraft certification systems being in place at the time of signing. Therefore, the Parties agree that their importing and exporting authorities shall keep each other informed in a timely manner of significant changes within those systems, such as changes to:
(a) statutory responsibilities;
(b) organizational structure (e.g. key personnel, management structure, technical training, office location);
(c) significant revisions to airworthiness and environmental standards and procedures;
(d) production quality control system oversight, including oversight of out-of-country production of parts; or
(e) delegated functions or the kinds of organizations to which functions have been delegated.
1.3.1 The Parties recognize that revision by either implementing authority of its regulations, policies, procedures, statutory responsibility, organizational structure, production quality control system oversight, or delegation system may affect the basis and the scope of these Implementation Procedures. Accordingly, upon notice of such changes by
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 2 one implementing authority, the other implementing authority may request a meeting to review the need for amendment to these Implementation Procedures.
1.4 Implementing Authority Meetings. The Parties agree that their implementing authorities shall meet as necessary to review these Implementation Procedures and their continued validity. The frequency of these meetings will be mutually decided by both implementing authorities, and will depend on the number and significance of the issues to be discussed between the implementing authorities. Every effort shall be made to alternate the location of these meetings between Washington, DC, and Canberra, Australia.
1.5 Applicable National Requirements, Procedures, and Guidance Material.
1.5.0 The United States' standards for aircraft airworthiness and environmental certification are contained in the Code of Federal Regulations (CFR), Title 14, parts 21, 23, 25, 26, 27, 29, 31, 33, 34, 35, and 36, as amended from time to time. The FAA also uses Certification Specifications (CS)-22 and CS-VLA, as amended from time to time, for some special class aircraft. Guidance material, policy, and procedures are contained in FAA Advisory Circulars, Orders, Notices, and Policy Memoranda.
1.5.1 The Australian standards for aircraft airworthiness and environmental certification are as follows:
(a) Aircraft airworthiness certification standards are set out in the Civil Aviation Safety Regulations 1998 (CASR), Parts 21, 22, 23 25, 26, 27, 29, 31, 32, 33, and 35 as amended from time to time. Guidance material, policies, and procedures are contained in CASA Advisory Circulars, Civil Aviation Orders, CASA Procedures Manuals, and Civil Aviation Advisory Publications and Civil Aviation Information Publications.
(b) Environmental certification standards are set out in the Air Navigation (Aircraft Noise) Regulations 1984, the Air Navigation (Fuel Spillage) Regulations 1999 and the Air Navigation (Aircraft Engine Emissions) Regulations for noise, fuel venting, and emissions - as amended from time to time.
1.6 Interpretations. The obligations regarding consultations on the interpretation of these Implementation Procedures are addressed in Article 5 of the Bilateral Aviation Safety Agreement. In the case of conflicting interpretations of the laws, airworthiness or environmental regulations/standards, requirements, or acceptable means of compliance pertaining to certifications, approvals, or acceptance under these Implementation Procedures, the interpretation of the Party whose law, regulation/standard, requirement, or acceptable means of compliance is being interpreted shall prevail.
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 3 1.7 Amendments, Status of Appendices and Points of Contact.
1.7.0 These Implementation Procedures may be amended, and such amendments shall enter into force, in accordance with Article 7 of the Bilateral Aviation Safety Agreement.
1.7.1 Appendices to these Implementation Procedures address only administrative matters reflecting the mutual understanding of the implementing authorities and do not form an integral part of these Implementation Procedures. Changes to the Appendices will be incorporated when mutually decided by the implementing authorities. 1.7.2 The designated offices for the technical implementation and administrative coordination of these Implementation Procedures are set out in Appendix A.
1.8 Entry Into Force and Termination. These Implementation Procedures shall enter into force in accordance with Article 6 of the Bilateral Aviation Safety Agreement. Either Party may terminate these Implementation Procedures six months from the date of written notice to the other Party of its intention to terminate. Termination shall not affect the validity of activity conducted under these Implementation Procedures prior to termination.
1.9 Definitions. For the purpose of these Implementation Procedures, the following definitions are provided. Additional definitions can be found in Article 3 of the Bilateral Aviation Safety Agreement.
(a) "Additional technical condition" means a requirement of the importing country that is in addition to the applicable airworthiness requirements of the State of Design or that may be prescribed to provide a level of safety equivalent to that provided by the applicable airworthiness requirements for the importing country.
(b) "Airworthiness Directives (ADs) means legally enforceable rules issued by the FAA in accordance with 14 CFR part 39 or mandatory regulatory documents issued by CASA under regulation 39.001 to correct an unsafe condition in a product or appliance
(c) "Airworthiness standards" means regulations governing the design and performance of civil aeronautical products, parts, and appliances.
(d) "Appliance" means any instrument, mechanism, equipment, part, apparatus, appurtenance, or accessory, including communications equipment, that is used or intended to be used in operating or controlling an aircraft in flight, is installed in or attached to the aircraft, and is not part of an airframe, aircraft engine, or propeller.
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 4 (e) "Civil aeronautical product" (herein also referred to as "product") is confined from the definition contained in the Bilateral Aviation Safety Agreement to mean any civil aircraft, aircraft engine or propeller.
(f) "Critical component" means a part identified as critical by the type design approval holder during the product validation process, or otherwise, by the exporting authority. Typically, such components include parts for which a replacement time, inspection interval, or related procedure is specified in the Airworthiness Limitations section of the product's maintenance manual or Instructions for Continued Airworthiness.
(g) "Environmental approval" means a finding that a civil aeronautical product complies with standards agreed between the Parties concerning noise and/or exhaust emissions.
(h) "Environmental standards" means regulations governing designs with regard to noise characteristics, fuel venting, and exhaust emissions of civil aeronautical products and appliances.
(i) "Environmental testing" means a process by which a civil aeronautical product is evaluated for compliance with environmental standards agreed between the Parties, using procedures agreed between the Parties.
Q) "Equivalent level of safety finding" means a finding that alternative action taken provides a level of safety equal to that provided by the requirements for which equivalency is being sought.
(k) "Exemption" means a grant of relief from requirements of a current regulation when processed through the appropriate regulatory procedure and found to have a level of safety to be acceptable by the applicable implementing authority.
(I) "Export" means the process by which a product, part or appliance is released from a civil aviation authority's regulatory system for subsequent use within another country.
(m) "Exporting civil airworthiness authority" or "exporting authority" means the implementing authority within the exporting State, charged by the laws of the exporting State, to regulate the airworthiness and environmental certification, approval, or acceptance of civil aeronautical products, parts, and appliances.
(n) "Finding" means a determination of compliance/non-compliance as the result of an implementing authority's review, investigation, inspection, test, and/or analysis.
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 5 (o) "Import" means the process by which an exported product, part or appliance is accepted by a country's civil aviation authority for use and is subsequently placed under that authority's regulatory system.
(p) "Importing civil airworthiness authority" or "importing authority" means the implementing authority within the importing State, charged by the laws of the importing State with regulating the airworthiness and environmental certification, approval, or acceptance of civil aeronautical products, parts, and appliances.
(q) "Issue paper" means a document representing an item that requires resolution prior to the issuance of the CASA or FAA Type Certificate or Supplemental Type Certificate.
(r) "Maintenance" means the performance of inspection, overhaul, repair, preservation, or replacement of parts, materials, appliances, or components of a civil aeronautical product to assure the continued airworthiness of that product, but excludes alterations or modifications.
(s) "Manufacturer" means the person who is responsible under the applicable law for determining that all products or parts thereof, produced within the quality control system, conform to an FAA or CASA approved design, or established government or industry standard, and are in a condition for safe operation.
(t) "Multi-national consortium" means a group of manufacturers from multiple countries who have agreed to form a single company for production of a particular product.
(u) "New aircraft" means an aircraft that is still owned by the manufacturer, distributor, or dealer, if there is no intervening private owner, lease, or time sharing arrangement, and the aircraft has not been used in any pilot school and/or other commercial operation.
(v) "Person" means an individual, firm, partnership, corporation, company, association, joint stock association, or governmental entity, and includes a trustee, receiver, assignee, or other similar representative of any of them.
(w) "Product" see (d) Civil aeronautical product.
(x) "Production quality system" means a systematic process which meets the requirements of the exporting authority and ensures that products, parts, and appliances conform to the approved design and are in a condition for safe operation.
(y) "Special condition " means an additional airworthiness standard(s) prescribed by the FAA or CASA when the airworthiness standards for the
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 6 category of product do not contain adequate or appropriate safety standards due to novel or unusual design features. Special Conditions contain such safety standards as are necessary to establish a level of safety equivalent to that established in the applicable regulations.
(z) "Standard Part" means a part that is manufactured in complete compliance with an established government or industry-accepted specification, which contains design, manufacturing, and uniform identification requirements. The specification must include all information that any person or organization may manufacture the part, and must be published so that any person or organization may manufacture the part.
(aa) "Supplier" means a person or organization at any tier contracted to furnish aviation products, parts, components, materials or services.
(ab) "Used aircraft" means each aircraft that is not a new aircraft, as defined in paragraph (u) above.
(ac) "Validation" means the importing authority's process for type certification, or equivalent, of a product certificated by either the FAA or CASA acting as an exporting authority.
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 7 SECTION II SCOPE OF THESE IMPLEMENTATION PROCEDURES
2.0 General. These Implementation Procedures cover the products, parts, and appliances identified below, their approvals and other provisions as set forth in the following paragraphs.
2.1 Products, Parts, and Appliances Manufactured in the Country of the Exporting Authority Accepted for Import Under These Implementation Procedures.
2.1.0 Australia shall accept FAA Export Certificates of Airworthiness for the following products
(a) new and used aircraft,
(b) new aircraft engines, and
(c) new propellers . [1][2]
2.1.1 Australia shall accept FAA Authorized Release Certificates (Airworthiness Approval Tags) for the following appliances and parts:
(a) new TSO appliances,
(b) new parts that are eligible for installation in a product or appliance when that product or appliance has been granted an FAA design approval and a CASA design approval, and the parts conform to CASA-approved design data. This includes:
(1) Replacement parts for all products and appliances, regardless of the State of Design; and
(2) Modification parts for all products and appliances, regardless of the State of Design. [2]
[1. Should the U.S. documentation accompanying engines and propellers change, CASA will continue to accept these products when accompanied by the appropriate form.]
[2. See Summary Table 1, at the end of this Section, for listing of the classes and categories of United States products and associated approvals eligible for import into Australia.]
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 8 2.1.2 The United States shall accept CASA Export Certificates of Airworthiness for the following products:
(a) new and used aircraft. [3]
2.1.3 The United States shall accept CASA Authorized Release Certificates for the following products , appliances, and parts:
(a) new aircraft engines,
(b) new propellers,
(c) new Australian Technical Standard Order (ATSO) appliances, including replacement parts produced by the ATSO holder,
(d) new replacement parts, including those for modification parts that have received FAA design approval, for all products and appliances regardless of the State of Design that are eligible for installation in a product which has been granted an FAA design approval and conform to FAA-approved design data, and
(e) new modification parts that are eligible for installation in a product which has been granted an FAA design approval and conform to FAA- approved design data , for the following:
(1) products for which Australia is State of Design for both the product and the design change, or
(2) 14 CFR part 23 and similar size part 21 (§21.17[b] special class and §21.25[a][1 ] and [b] restricted category) airplanes for which the United States is State of Design, and Australia is the State of Design for the design change. [3]
[3. See Summary Table 2, at the end of this Section, for a listing of the classes and categories of Australian products, appliances, parts, and associated approvals eligible for import into the United States].
2.1.4 Acceptance of Standard Parts.
(a) Australia shall accept standard parts for all products , parts, and appliances covered under these Implementation Procedures when the standard parts conform to established United States industry or United States government specifications , or to an FAA parts TSO (e.g., TSO C148, C149, or C150).
(b) The United States shall accept standard parts for all products, parts, and appliances covered under these Implementation Procedures when the
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 9 standard parts conform to established United States or Australian industry specifications or Australian government specifications, or to a CASA parts ATSO.
2.1.5 Airworthiness Certification. These Implementation Procedures for design approval shall apply to such aircraft type designs to be type certificated by the FAA or CASA for standard category airworthiness certification. Standard airworthiness certificates shall be issued in the normal, utility, acrobatic, commuter, and transport categories of aircraft, as well as for manned-free balloons and special classes of aircraft which include airships, very light aircraft (VLA), gliders, and other non- conventional aircraft. Aircraft, for which a special airworthiness certificate may be issued, will be dealt with on a case-by-case basis through the special arrangements provision in Section V of these Implementation Procedures.
2.2 Acceptance of Used Aircraft Manufactured in Third Countries. These Implementation Procedures shall also apply to the acceptance of Export Certificates of Airworthiness for used aircraft, for which a third country is the State of Design, that are subsequently exported from Australia to the United States or vice versa. However, this shall only apply when bilateral agreements/arrangements for this purpose have been formalized between such a third country and each Party, covering the same class of products.
2.3 Provisions for Design and Design Change Approvals.
2.3.0 Australia shall accept, as the basis of CASA Design Approval, the following FAA Design Approvals:
(a) Type Certificates and Amended Type Certificates for products for which the United States is the State of Design;
(b) FAA Technical Standard Order (TSO) authorization; and
(c) Other approved major design changes to CASA-approved designs (as identified in Section III, paragraph 3.3.1.1) for products , parts, and appliances for which the United States is the State of Design.
2.3.1 Australia shall accept, without further investigation, the following FAA Design Approvals:
(a) Supplemental Type Certificates for all products , regardless of the State of Design;
(b) Approved design data used in support of repairs for products, parts, and appliances regardless of State of Design;
(c) Parts Manufacturer Approval; and
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 10 (d) All other minor design changes.
2.3.2 The United States shall accept, as the basis for FAA Design Approval, the following CASA Design Approvals:
(a) Type Certificates and Amended Type Certificates for products for which Australia is the State of Design;
(b) Supplemental Type Certificates for all products for which Australia is the State of Design;
(c) Supplemental Type Certificates on 14 CFR part 23 and similar size part 21 (§21.17[b]. special class, and §21.25[a][1] and [b] restricted category airplanes for which the United States is the State of Design;
(d) Australian TSO authorization; and
(e) Other approved major design changes (as identified in Section III, paragraph 3.3.1.0) for products and aircraft parts and appliances for which Australia is the State of Design.
2.3.3 The United States shall accept, without further investigation, the following CASA Design Approvals:
(a) Approved design data used in support of repairs (as identified in Section III, paragraph 3.3.2) for products, and aircraft parts and appliances for which Australia is the State of Design;
(b) Approved design data used in support of repairs (as identified in Section III, paragraph 3.3.2) for transport category airplanes for which the United States is the State of Design;
(c) Australian Parts Manufacturer Approval; and
(d) All other minor design changes made by an Australian design approval holder.
2.4 Provisions for Environmental Testing and Approvals.
2.4.0 Australia Shall Accept Findings for the Following Environmental Requirements:
[Reserved.]
2.4.1 The United States Shall Accept Findings for the Following Environmental Requirements:
[Reserved.]
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 11 2.5 Provisions for Technical Assistance. The scope of all technical assistance activities between the Parties implementing authorities is specified in Section IV of these Implementation Procedures.
2.6 Provisions for Special Arrangements. Section V of these Implementation Procedures provide for designated officials within the Parties' implementing authorities to develop special arrangements-with respect to design approval, production activities, export airworthiness approval, post design approval, or technical assistance-in unique situations which have not been specifically addressed in these Implementation Procedures, but which are within the scope of these Implementation Procedures.
2.7 Summary Tables. The following tables summarize the new products, appliances, and parts manufactured in the United States or Australia that shall be eligible for import under these Implementation Procedures. (These tables do not show third country products eligible for import.)
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 12 Table 1 Summary of United States (State of Design) Products, Appliances, and Parts and Associated FAA Approvals Eligible for Import into Australia.
Type Supplemental Technical Parts Certificate, and Type Certificate Standard Order Manufacturer Products, Appliances, and Parts Amendments Authorization Approval (Note 1) Airplanes in the following categories:
Normal N/A N/A Utility 3 3 N/A N/A Acrobatic N/A N/A Commuter ,/ 3 N/A N/A Transport 3 3 N/A N/A
Rotorcraft in the following categories:
Normal 3 3 N/A N/A Transport I 3 N/A N/A
Manned Free Balloons ,/ 3 N/A N/A
Engines 3 3 N/A N/A
Propellers 3 3 N/A N/A
Aircraft in Special Classes: Airships 3 3 N/A N/A VLA 3 3 N/A N/A Gliders 3 3 N/A N/A Powered Lift ,/ 3 N/A N/A
TSO Appliances N/A N/A 3 N/A
Replacement and Modification Parts for the above airplanes, rotorcraft, balloons, engines, 3 3 3 3 propellers, special class aircraft, Note: Produced & articles/appliances Note: Produced under under production production approval. 11 approval. Note 1: Aircraft certificated in the primary, provisional and restricted categories will be dealt with on a case-by-case basis through the special arrangement provision in Section V.
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 13 Table 2 Summary of Australia (State of Design) Products, Appliances, and Parts and Associated CASA Approvals Eligible for Import into the United States. Type Supplemental Australian Australian Certificate, and Type Certificate Technical Products, Appliances, and Parts Amendments Standard Order Parts (Note 2) (Note 1 Authorization Manufacturer Approval
Airplanes in the following categories:
Normal 3 3 N/A N/A Utility 3 3 N/A N/A Acrobatic 3 3 N/A N/A Commuter 3 3 N/A N/A Transport 3 3 N/A N/A
Rotorcraft in the following categories: Normal ,/ 3 N/A N/A Transport ,/ . 3 N/A N/A
Manned Free Balloons 3 ,/ N/A N/A
Engines N/A N/A
Propellers 3 3 N/A N/A
Aircraft in Special Classes: Airships 3 3 N/A N/A VLA 3 3 N/A N/A Gliders 3 3 N/A N/A Powered Lift N/A N/A N/A N/A
ATSO Appliances N/A N/A 3 N/A
Replacement and Modification Parts for the above airplanes, rotorcraft, balloons, engines, 3 3 3 3 propellers , special class aircraft, and articles/appliances Note: Produced Note: Produced under under production production certificate . certificate.
Note 1: Aircraft certificated in the primary, provisional and restricted categories will be dealt with on a case-by-case basis through the special arrangement provision in Section V. Note 2: CASA-issued STCs are accepted on all Australia State of Design products, and on United States State of Design small airplanes (see Section II, paragraph 2.1.3(e)).
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 14 SECTION III ESTABLISHED WORKING PROCEDURES
3.0 DESIGN APPROVAL PROCEDURES
3.0.0 General. (See Appendix C, Paragraph C2.1).
(a) The FAA, as the importing authority, shall conduct certification activities under a validation process on an imported product in order to make a finding of compliance and issue its design approval.
(b) With only a few exceptions, the determinations of compliance with the FAA's requirements shall be made by CASA, as delegated by the FAA. Working in accordance with the principle that communications shall occur authority-to-authority, correspondence shall be answered through and coordinated with CASA.
(c) CASA as the importing authority shall conduct an acceptance process to facilitate type acceptance and the importation of aircraft on the basis of a Type Certificate issued by the FAA.
(d) The FAA does not issue a design approval for a product manufactured outside the United States, except for an aircraft to be United States-registered or an engine, propeller, appliance, or part to be incorporated into the design of a United States-registered aircraft or United States-manufactured product. Therefore, Australian applicants for United States design approval shall be required to provide the FAA with evidence that the product, part, or appliance will be imported into the United States, or will be installed on a United States-registered or United States- manufactured product.
3.0.1 Design Approval Procedures for United States Type Certificates. (See Appendix C, Paragraph C2.2).
3.0.1.0 Application for United States Type Certification.
(a) An application for United States Type Certificate (TC), in accordance with 14 CFR § 21.15, from an applicant in Australia shall be required to be submitted to CASA. Applications shall only be received for products with an Australian Type Certificate, or for products where application for type certification has been made to CASA. CASA shall ensure the application has the following information:
(1) CASA Type Certificate and TC Data Sheet , if available, a definition of the national airworthiness and environmental standards upon which CASA design approval was (or is to be ) based , and the amendment level
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 15 of the United States airworthiness and environmental standards CASA believes to be satisfied by its own standards;
(2) The applicant's requested date for FAA type certification; and
(3) Available information on United States market potential, including specific customers and United States content of the product, if known at the time of application.
(b) Also, the application shall be required to contain the following, if known at the time of application:
(1) A description of all novel or unusual design features known to the applicant or CASA at the time of application that might necessitate issuance of FAA special conditions under 14 CFR § 21.16, or that might require a special review of acceptable means of compliance; and
(2) All known or expected exemptions or equivalent level of safety findings relative to CASA's national standards for design approval that might affect compliance with the applicable United States airworthiness and environmental standards.
(c) CASA shall forward the application to the appropriate FAA Aircraft Certification Service Directorate , based on the class and category of product. Appendix A contains a list of addresses for the FAA Aircraft Certification Service Directorates.
3.0.1.1 Establishment of United States Type Certification Basis.
(a) New Type Certificates. The FAA shall develop the certification basis using:
(1) For type designs that do not hold an approval from CASA, the applicable airworthiness standards in effect on the date the application is made to the FAA;
(2) For type designs that hold an approval from CASA, the applicable airworthiness standards in effect on the date the application was made to CASA for a domestic TC [4];
(3) Any additional FAA requirements deemed necessary in the interest of safety or to address novel or unusual design features.
[4. When 14 CFR part 26 applies to an Australian transport category airplane, the applicability date is specified in each subpart].
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 16 (b) Environmental (Type) Certification Basis . The regulatory basis for compliance with 14 CFR Parts 34 and 36 is the amendment in effect on the date of application to the FAA for certification. An applicant for a TC or Supplemental Type Certificate shall be required to show that the aircraft meets the applicable airworthiness standards, special conditions, fuel venting and exhaust emission standards of 14 CFR part 34 and the noise standards of 14 CFR part 36.
3.0.1.2 Compliance to the United States Certification Basis. CASA shall review the FAA's proposed United States type certification basis and notify the FAA Project Manager of the applicant's proposed methods of compliance. The certification basis shall be to Title 14 of the CFRs, plus environmental standards of the United States. CASA shall verify that all applicant data provided to substantiate compliance with the FAA's certification basis has been reviewed and, if required, approved by CASA.
3.0.1.3 Environmental Testing and Approval. Only the FAA is authorized to make findings of compliance to 14 CFR parts 34 and 36 and shall do so based upon FAA witnessed tests conducted in accordance with FAA-approved test plans, and FAA review and approval of all data and compliance demonstration reports submitted via CASA.
3.0.1.4 Final Certification Meeting/Issuance of the Type Certificate. Upon issuance of its domestic TC and demonstrated compliance with the United States type certification basis, CASA shall forward a certifying statement to the FAA, in accordance with 14 CFR § 21.29, along with all additional requested materials. The FAA, upon receipt and review of the documents, shall prepare the TC and TC Data Sheet and forward them to CASA for transmittal to the applicant. A final meeting shall only be necessary if there are areas of further discussion or if the sharing of information would be beneficial.
3.0.1.5 Evaluation of Operational and Maintenance Aspects. Prior to Type Certificate issuance, the FAA Aircraft Evaluation Groups (AEG) shall conduct Review Boards, as appropriate, to review the following items on Australian products prior to their entry into United States operations: Maintenance Review Board (MRB) Report and associated Instructions for Continued Airworthiness documentation; Operational configuration; Pilot training and licensing requirements; and the formulation and approval of a Master Minimum Equipment List (MMEL).
3.0.2 Design Approval Procedures for Australian Type Acceptance Certificates.
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 17 3.0.2.0 Application for Australian Type Acceptance Certificate. An application for an Australian Type Acceptance Certificate (TAC), in accordance with CASR 21.29A, shall be required to be submitted to the FAA Aircraft Certification Office (ACO) responsible for the applicant's geographic area. The FAA shall coordinate with CASA to establish the supporting documentation necessary to satisfy CASR 21.29A prior to forwarding CASA the application.
3.0.2.1 Issuance of Australian Type Acceptance Certificate (TAC). CASA may make the issuance of a TAC subject to one or more conditions in accordance with CASR 21.29B and 21.29C.
3.0.3 Design Approval Procedures for United States Supplemental Type Certificates (STCs ). (See Appendix C, Paragraph C2.3).
(a) United States STCs may be issued to an Australian applicant under the provisions of 14 CFR § 21.117, as identified in Section II.
(b) The FAA shall develop the STC certification basis in accordance with 14 CFR §21 .115 in a manner that is consistent with the criteria that is used to establish the certification basis for a domestic STC of similar design and service history. The date of application is the date the application is made to CASA for the STC.
(c) Australian applicants shall be required to submit STC applications to CASA with a request that the application and required information be forwarded to the appropriate FAA office. (See Appendix C, Paragraph C2.3(b)).
(d) Each application shall be required to contain the following information:
(1) A description of the change, together with the make and model of the product;
(2) A copy of the Australian STC and certification basis;
(3) An applicant's requested date for FAA issuance of the STC;
(4) A description of all novel or unusual design features which might necessitate issuance of FAA special conditions; and
(5) All exemptions or equivalent level of safety findings granted by CASA for the Australian STC.
(6) Available information on United States market potential, including specific customers, if known at the time of application.
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 18 (e) The basic design approval procedures for United States type certification (paragraph 3.0.1 above) shall be used for STCs, but both authorities may jointly determine to streamline these procedures based on the magnitude and complexity of the design change. CASA shall share issue papers or similar documents with the FAA as early as possible.
(f) The following documentation shall be required, as applicable, for review by the FAA during the STC approval process:
Compliance Checklist;
Aircraft Flight Manual (AFM) Supplement;
Master Documentation List/Master Drawing List;
Manufacturing and Installation Instruction Drawings;
Maintenance/Repair Manual Supplements;
Weight and Balance data; and
Instructions for Continued Airworthiness.
3.0.4 Design Approval Procedures for Australian STCs. CASR 21.114 states that an STC issued by the FAA is taken to be an STC issued by CASA, and thus there is no subsequent issuance of a corresponding Australian STC. An FAA STC is considered to be approved data for incorporation in an Australian registered aircraft, or in an aircraft engine or propeller installed on an Australian aircraft.
3.0.5 Design Approval Procedures for FAA Letters of Technical Standard Order (TSO) Design Approval.
3.0.5.0 Application. The FAA only issues a Letter of TSO Design Approval for appliances of a kind for which a minimum performance standard has been published in an FAA Technical Standard Order (TSO). All Australian applicants for an FAA letter of TSO design approval shall be required to make application through CASA with a request that the application and required information be forwarded to the appropriate FAA ACO. (See Appendix C, Paragraph C2.4). The applicant shall be required to provide evidence of import into the United States for installation on a United States registered aircraft or on a United States product. CASA shall contact the FAA for the latest FAA technical policy and procedures related to the TSO performance standard.
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 19 3.0.5.1 Issuance of a Letter of TSO Design Approval. The appropriate form of TSO design approval, within the scope of these Implementation Procedures, may be issued to the applicant by the FAA after:
(a) Receipt of all the required data/documentation pertaining to the proper installation , performance, operation, and maintenance of the TSO appliance;
(b) Receipt of other specific technical data, as jointly determined between CASA and the FAA, needed to demonstrate compliance with a TSO standard (e.g., a first-of-a-kind TSO);
(c) Receipt and approval of all proposed deviations; and
(d) Receipt of a certifying statement from the applicant through CASA, with certification by CASA that the performance of the appliance complies with the applicable FAA TSO or other accepted standards of the FAA which provide an equivalent level of safety.
3.0.5.2 Installation Approval. An FAA Letter of TSO Design Approval does not constitute an installation approval for the TSO appliance on a product. The installer shall be required to obtain installation approval from its implementing authority for use on a product that is under its regulatory control.
3.0.6 Design Approval Procedures for CASA Letters of Australian Technical Standard Order (ATSO) Approval.
3.0.6.0 Application. CASA only issues a Letter of ATSO Design Approval for appliances of a kind for which a minimum performance standard has been published in a CASA Australian Technical Standard Order (ATSO). All United States applicants for a CASA letter of ATSO design approval shall be required to make application through the FAA ACO responsible for the applicant's geographic area, with a request that the application and required information be forwarded to the appropriate CASA Office. (See Appendix C, Paragraph C2.5). The FAA shall contact CASA for the latest CASA technical policy and procedures related to the ATSO performance standard.
3.0.6.1 Issuance of a Letter of ATSO Design Approval. The appropriate form of ATSO design approval, within the scope of these Implementation Procedures, may be issued to the applicant by the CASA after:
(a) Receipt of all the required data/documentation pertaining to the proper installation , performance, operation, and maintenance of the ATSO
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 20 appliance;
(b) Receipt of other specific technical data , as jointly determined between the FAA and CASA, needed to demonstrate compliance with an ATSO standard (e.g., a first-of-a-kind ATSO);
(c) Receipt and approval of all proposed deviations; and
(d) Receipt of a certifying statement from the applicant through the FAA, with certification by the FAA that the performance of the appliance complies with the applicable CASA ATSO or other accepted standards of CASA which provide an equivalent level of safety.
3.0.6.2 Installation Approval. A CASA Letter of ATSO Design Approval does not constitute an installation approval for the ATSO appliance on a product. The installer shall be required to obtain installation approval from its implementing authority for use on a product that is under the implementing authority's regulatory control.
3.0.7 Joint Design Approval Procedures. The FAA and CASA may undertake concurrent type certification/validation and other design approval projects with respect to products covered by the scope of these Implementation Procedures when it is in the interest of both authorities and their aviation industries. The procedures for such projects will be mutually determined by the FAA and CASA.
3.1 PRODUCTION AND SURVEILLANCE ACTIVITIES
3.1.0 Production Quality System. All products, parts, and appliances exported under the provisions of these Implementation Procedures shall be produced in accordance with a production quality system which ensures conformity to the approved design of the importing authority and ensures that completed products are in a condition for safe operation. This production quality system covers the fabrication of products, parts, and appliances within and outside of the country of export. When these fabrication and/or production activities occur outside of the country of export, the associated products or parts shall be considered as being manufactured in the exporting country.
3.1.1 Surveillance of Production Approval Holders. (See Appendix C, Paragraph C3.1).
3.1.1.0 The FAA and CASA, as exporting authorities , shall conduct regulatory surveillance of production approval holders and their suppliers in accordance with the exporting authority's specific policies, practices , and/or procedures . Both ongoing and
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 21 scheduled evaluations shall be conducted to verify that the production approval holder is in continual compliance with their approved production quality system, manufacturing products, appliances, and parts which fully conform to the approved design, and are in a condition for safe operation. The correction of all deficiencies shall be verified by the exporting authority.
3.1.1.1 Production surveillance includes the surveillance of manufacturers and their suppliers who may be fabricating prototype or pre-production parts for products which are still undergoing type certification. The Parties shall require these parts to be produced by the manufacturer, or its approved supplier, with the concurrence of the exporting authority, using an existing approved production quality system for similar type certificated products. The Parties shall require such approved production quality systems to ensure that the prototype or pre- produced parts are properly controlled so that a final determination of airworthiness can be undertaken prior to their export.
3.1.2 Extensions of Production Approvals.
3.1.2.0 When a production approval has been granted or extended by the FAA or CASA, as exporting authorities, to include manufacturing sites and facilities in each other's countries or in a third country, the exporting authority remains fully responsible for the surveillance and oversight of these manufacturing sites and facilities.
3.1.2.1 The FAA is responsible for surveillance and oversight of United States production approval holders located in Australia. CASA is responsible for surveillance and oversight of CASA production approval holders located in the United States. Routine surveillance and oversight may be performed by either CASA or the FAA on behalf of the other implementing authority through the provisions of Section IV.
3.1.2.2 The FAA or CASA may seek assistance from the civil airworthiness authority of a third country in the undertaking of FAA or CASA regulatory surveillance and oversight functions when a production approval has been granted or extended in that third country. This shall be done only when an agreement/arrangement for technical assistance has been formalized between the FAA or CASA and the civil airworthiness authority of the third country.
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 22 3.1.3 Product Production Approval Based on a Licensing Agreement. Either Party's implementing authority may grant a production approval for a product (i.e., aircraft, aircraft engine, or propeller) in their respective country based on design data obtained through a licensing agreement with a type design holder in another country (i.e., licensing the rights to use the design data of a type-certificated product). In this case, the Party whose implementing authority is granting that production approval shall ensure the establishment of adequate manufacturing processes and quality control procedures to assure that each completed product conforms to the approved design data obtained through the licensing agreement. The Party shall also require the applicant to have procedures in place to ensure that all changes to be introduced into the design by the licensee are approved by the type design holder and its certificating authority. Production approvals based on a licensing agreement involving companies in the United States and Australia are considered unique situations and will be addressed on a case-by-case basis under the Special Arrangements as provided for in Section V of these Implementation Procedures.
3.1.4 Parts Production Approval Based on Licensing Agreement. Either Party's implementing authority may grant a production approval in their respective country based on design data obtained through a licensing agreement with a design approval holder in the other country (i.e. licensing the rights to use the design data). In this case, the Party whose implementing authority is granting that production approval shall ensure the establishment of adequate manufacturing processes and quality control procedures to assure that each part conforms to the approved design data. The Party shall also require the applicant to have procedures in place to ensure that all changes to be introduced into the design by the licensee are approved by the design approval holder under the system of its certificating authority.
3.1.5 Supplier Surveillance - Outside the Exporting Country. (See Appendix C, Paragraph C3.2).
3.1.5.0 The FAA and CASA , as exporting authorities, shall include in their regulatory surveillance and oversight programs a means of surveilling production approval holders ' suppliers who are located outside the exporting country. This surveillance and oversight shall be equivalent to that program for domestic suppliers . This surveillance activity shall assist the FAA and CASA in determining conformity to approved design and whether the parts are safe for installation on type certificated products.
3.1.5.1 The FAA is responsible for surveillance and oversight of United States production approval holders' suppliers located in
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 23 Australia . CASA is responsible for surveillance and oversight of CASA production approval holders' suppliers located in the United States . Routine surveillance and oversight may be performed by either CASA or the FAA on behalf of the other implementing authority through the provisions of Section IV.
3.1.6 Multi-National Consortiums.
3.1.6.0 If multi-national consortiums are issued approvals for the design and production of products, appliances , and/or parts in either the United States or Australia , these consortiums shall be required to clearly define one responsible design and production approval holder, for the purposes of regulatory accountability, located in the exporting country.
3.1.6.1 The FAA and CASA, as exporting authorities , shall continue to conduct regulatory surveillance and oversight of the domestic design and production approval holder, and shall emphasize surveillance and oversight of suppliers of complex or critical components. The exporting authority shall use its regulatory surveillance and oversight programs to best enable it to determine that consortium suppliers are producing parts that conform to the approved design and are in a condition for safe operation.
3.2 EXPORT AIRWORTHINESS APPROVAL PROCEDURES
3.2.0 General. For the FAA, Export Certificates of Airworthiness are issued for completed aircraft, aircraft engines, and propellers. Authorized Release Certificates (Airworthiness Approval Tags) are issued by the FAA for appliances and parts. For CASA, Export Certificates of Airworthiness are issued for completed aircraft. Authorized Release Certificates are issued for aircraft engines, propellers, parts, and appliances. (See Appendix C, Paragraph C4.1).
3.2.1 FAA Acceptance of CASA Export Certificates of Airworthiness and Authorized Release Certificates. (See Appendix C, Paragraph C4.2).
3.2.1.0 New Aircraft.
(a) Except as provided in paragraph 3.2.1.5, the FAA shall accept CASA Export Certificates of Airworthiness on new aircraft, as identified in Section II, only when CASA certifies that each aircraft:
(1) Conforms to a type design approved by the FAA, as specified in the FAA's Type Certificate Data Sheet, and any additional STCs approved by the FAA;
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 24 (2) Is in a condition for safe operation, including compliance with applicable FAA Airworthiness Directives, as notified; and
(3) Meets all additional requirements prescribed by the FAA, as notified.
(b) Each aircraft exported to the United States with CASA airworthiness approval shall be required to have appropriate documentation with a certifying statement issued in accordance with the requirements of CASR Part 21 , Subpart L. (See Appendix C, Paragraph C4.2(c)).
3.2.1.1 New Engines and Propellers.
(a) Except as provided in paragraph 3.2.1.5, the FAA shall accept CASA Authorized Release Certificates on new engines and propellers, as identified in Section II, only when CASA certifies that each engine and propeller:
(1) Conforms to a type design approved by the FAA, as specified in the FAA's Type Certificate Data Sheet and any additional STCs approved/accepted by the FAA;
(2) Is in a condition for safe operation, including compliance with applicable United States Airworthiness Directives, as notified;
(3) Meets all additional requirements prescribed by the FAA, as notified; and
(4) Has undergone a final operational check.
(b) Each aircraft engine and propeller exported to the United States with a CASA airworthiness approval shall be required to have appropriate documentation with a certifying statement issued in accordance with the requirements of CASR Part 21, Subpart L. (See Appendix C, Paragraph C4.2(d)).
3.2.1.2 New TSO Appliances. Each new appliance exported to the United States with a CASA airworthiness approval shall be required to have a CASA Authorized Release Certificate. The FAA shall accept CASA authorized release certificates on new TSO appliances, as identified in Section II, only when CASA certifies that each TSO appliance:
(1) Conforms to the design approved by the FAA, as specified in the FAA Letter of TSO Design Approval;
(2) Complies with applicable FAA Airworthiness Directives, as notified;
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 25 (3) Is marked in accordance with paragraph 3.2.3.0(a) of these Implementation Procedures; and
(4) Meets all additional requirements prescribed by the FAA, as notified.
3.2.1.3 New Parts, Including Replacement and/or Modification Parts. (See Appendix C, Paragraphs C4.1(a) and C4.2(a)).
(a) Each new part exported to the United States with a CASA airworthiness approval shall be required to have a CASA Authorized Release Certificate . The FAA shall accept these CASA Authorized Release Certificates on new parts , including replacement and/or modification parts, that have been identified in Section II, only when CASA certifies, by issuance of the CASA Authorized Release Certificate, that each part:
(1) Is eligible for installation in a product or appliance which has been granted an FAA design approval;
(2) Conforms to FAA-approved design data and is safe for installation;
(3) Is marked in accordance with paragraph 3.2.3.0(a) of these Implementation Procedures; and
(4) Meets all additional requirements prescribed by the FAA, as notified.
(b) The FAA shall require evidence to be provided of direct shipment authorizations extended to approved suppliers . If a part is shipped under direct ship authorization , CASA's Authorized Release Certificates shall indicate that the production approval holder has direct shipment authorization . (This indication may be a supplemental "remark " entry on the Authorized Release Certificate indicating the authorization to the supplier for direct shipment of parts from the supplier's location.)
3.2.1.4 Used Aircraft for Which a Design Approval Has Been Granted by the FAA. (See Appendix C, Paragraph C4.2(e)).
(a) The FAA shall accept Export Certificates of Airworthiness on used aircraft for which the FAA has issued a type design approval in accordance with 14 CFR §21.21 or §21.29 for import into the United States for airworthiness certification when CASA certifies that each used aircraft:
(1) Conforms to the FAA-approved type design as specified in the FAA's Type Certificate Data Sheet , and any additional STCs approved by the FAA, as notified;
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 26 (2) Is in a condition for safe operation, including compliance with all applicable Airworthiness Directives issued by the FAA, as notified;
(3) Has been properly maintained using CASA-approved procedures and methods during its service life (evidenced by logbooks and maintenance records);
(4) Meets all additional requirements prescribed by the FAA, as notified; and
(5) CASA Export Certificate of Airworthiness includes an appropriate certifying statement (See Appendix C, Paragraph C4.2(e)).
(b) The FAA shall also accept CASA's Export Certificate of Airworthiness for used aircraft manufactured in a third country when that country has a bilateral agreement/arrangement with both the FAA and CASA covering the same class of product, and the conditions of paragraph 3.2.1.4(a)(1) through (5) have been met.
3.2.1.5 Exceptions on Export Documents. CASA shall notify the FAA in writing prior to issuing an export airworthiness document in which a non-compliance to the FAA-approved type design is to be noted. (See Appendix C, Paragraph C4.2(f)). This notification shall help to resolve all issues concerning the aircraft's eligibility for a United States airworthiness certificate. The notation shall be entered in the "Remarks" block of the Authorized Release Certificate for engines or propellers or under the "Exceptions" section of the Export Certificate of Airworthiness for aircraft. A written acceptance from the FAA is required before the issuance of CASA Export Certificate of Airworthiness.
3.2.2 CASA Acceptance of FAA Export Certificates of Airworthiness and Authorized Release Certificates. (See Appendix C, Paragraph C4.3).
3.2.2.0 New Aircraft, Aircraft Engines, and Propellers.
(a) Except as provided in paragraph 3.2.2.5 below, CASA shall accept FAA Export Certificates of Airworthiness on new aircraft, aircraft engines and propellers, as identified in Section II, when the FAA certifies that each aircraft, aircraft engine and propeller:
(1) Conforms to a type design approved by the FAA and accepted by CASA, including any additional STCs;
(2) Is in a condition for safe operation, including compliance with applicable Australian and United States Airworthiness Directives, as notified;
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 27 (3) Meets all additional requirements prescribed by CASA, as notified; and
(4) Has undergone a final operational check (only for aircraft engines and propellers).
(b) Each aircraft, aircraft engine, and propeller exported to Australia with FAA airworthiness approval shall be required to have appropriate documentation, with a certifying statement issued in accordance with the requirements of 14 CFR part 21, Subpart L. (See Appendix C, Paragraph C4.3(c)).
3.2.2.1 New ATSO Appliances. Each new appliance exported to Australia with an FAA airworthiness approval shall be required to have an Authorized Release Certificate. CASA shall accept FAA Authorized Release Certificates on new ATSO appliances, as identified in Section II, only when the FAA certifies, by the issuance of the Authorized Release Certificate, that each ATSO appliance:
(a) Conforms to the design approved by CASA, as specified in the CASA Letter of ATSO Design Approval;
(b) Complies with applicable CASA Airworthiness Directives, as notified;
(c) Is marked in accordance with paragraph 3.2.3.1(a) of these Implementation Procedures; and
(d) Meets all additional requirements prescribed by CASH; as notified.
3.2.2.2 New Parts, Including Replacement and/or Modification Parts.
(a) Each new part exported to Australia with an FAA airworthiness approval shall be required to have an Authorized Release Certificate. CASA shall accept FAA Authorized Release Certificates on new parts, including replacement and/or modification parts that have been identified in Section II, only when the FAA certifies, by issuance of the Authorized Release Certificate, that each part:
(1) Is eligible for installation in a product or appliance which has been granted a CASA design approval;
(2) Conforms to CASA-approved or CASA-accepted design data and is safe for installation;
(3) Is marked in accordance with paragraph 3.2.3.1(a) of these Implementation Procedures; and
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 28 (4) Meets all additional requirements prescribed by CASA, as notified.
(b) CASA shall require evidence to be provided of direct shipment authorizations extended to approved subcontractors/suppliers. If a part is shipped under direct ship authorization, FAA's Authorized Release Certificate shall indicate that the production approval holder has direct shipment authorization. (This indication may be a supplemental "remark" entry on the Authorized Release Certificate indicating the authorization to the supplier/subcontractor for direct shipment of parts from the supplier's/subcontractor's location.)
3.2.2.3 Used Aircraft for Which a Design Approval Has Been Granted by CASA.
(a) CASA shall accept FAA Export Certificates of Airworthiness on used aircraft for which CASA has issued,a type design approval in accordance with CASR Part 21, Regulation 21.021 or 21.029 for import into Australia for airworthiness certification when the FAA certifies that each used aircraft:
(1) Conforms to CASA-approved type design, as specified in CASA's Type Certificate or Type Acceptance Certificate, and any additional STCs approved by CASA, as notified;
(2) Is in condition for safe operation, including compliance with all applicable Australian and United States Airworthiness Directives, as notified;
(3) Has been properly maintained using FAA-approved procedures and methods during its service life (evidenced by logbooks and maintenance records);
(4) Meets all additional requirements prescribed by CASA, as notified; and
(5) The FAA Export Certificate of Airworthiness includes an appropriate certifying statement. (See Appendix C, Paragraph C4.3(d)).
(b) CASA shall also accept the FAA Export Certificate of Airworthiness for used aircraft manufactured in a third country when that third country has a bilateral agreement/arrangement with the FAA and CASA covering the same class of product, and the conditions of paragraph 3.2.2.3(a)(1) through (5) have been met.
3.2.2.4 Used Aircraft for Which CASA has issued a Type Acceptance Certificate.
(a) CASA shall accept Export Certificates of Airworthiness on used
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 29 aircraft for which CASA has issued a Type Acceptance Certificate in accordance with CASR, Part 21, Regulation 21.029A for import into Australia for airworthiness certification when the FAA certifies that each used aircraft:
(1) Conforms to the FAA-approved type design, as specified in the FAA's Type Certificate on which the Type Acceptance Certificate is based and any additional STCs;
(2) Is in a condition for safe operation, including compliance with all applicable Australian and United States Airworthiness Directives, as notified;
(3) Has been properly maintained using FAA-approved procedures and methods during its service life (evidenced by logbooks and maintenance records);
(4) Meets all additional requirements prescribed by CASA, as notified; and
(5) The FAA Export Certificate of Airworthiness includes an appropriate certifying statement. (See Appendix C, Paragraph C4.3(d)).
(b) CASA shall also accept the FAA Export Certificate of Airworthiness for used aircraft manufactured in a third country when that third country has a bilateral agreement/arrangement with the FAA and CASA covering the same class of product, and the conditions of paragraph 3.2.2.4(a)(1) through (5) have been met.
3.2.2.5 Export Certificate of Airworthiness Exceptions. The FAA shall notify CASA prior to issuing an Export Certificate of Airworthiness in which a non-compliance to CASA-approved type design is to be noted under the "Exceptions" section of the Export Certificate of Airworthiness. This notification shall help to resolve all issues concerning the aircraft's eligibility for a CASA airworthiness certificate. A written acceptance from CASA is required before the issuance of the FAA Export Certificate of Airworthiness.
3.2.3 Additional Requirements for Imported Products, Parts, and Appliances. The following identifies those additional requirements which shall be complied with as a condition of acceptance for products, parts, and appliances imported into the United States or Australia, or for use on either a United States- or Australian-registered aircraft.
3.2.3.0 The United States requirements are as follows:
(a) Identification and Marking.
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 30 (1) Aircraft must be identified in a manner outlined in 14 CFR §45.11.
(2) Each critical component of a product must be identified with a part number (or equivalent) and serial number (or equivalent) in accordance with 14 CFR §45.14.
(3) Each appliance of a design approved by an FAA letter of TSO design approval must be marked in accordance with the requirements in 14 CFR parts 21, Subpart 0, and all additional marking requirements specified in the particular TSO.
(4) Each replacement or modification part must be marked with, the part number, serial number if applicable, and the manufacturer's name or trademark. The model designation of the type certificated product on which the part is eligible for installation must be marked on the part, or included on the appropriate airworthiness approval document if it is impractical to mark the part. In addition parts produced to United States STC design data must be accompanied with information that identifies the applicable United States STC. This information may be included on the appropriate airworthiness approval document.
(b) Instructions for Continued Airworthiness. Each aircraft, aircraft engine, and propeller must be accompanied by instructions for continued airworthiness and manufacturer's maintenance manuals having airworthiness limitation sections, as prescribed in 14 CFR § 21.50.
(c) Maintenance Records. Each aircraft, including the aircraft engine, propeller, rotor, or appliance, must be accompanied by maintenance records equivalent to'those specified in 14 CFR § 91.417.
3.2.3.1 The Australian requirements are as follows:
(a) Identification and Marking.
(1) Aircraft must be identified in a manner outlined in CASR regulation 21.820.
(2) Each critical component of a product must be identified with a part number (or equivalent) and serial number (or equivalent) in accordance with CASR regulation 21.850.
(3) Each appliance of a design approved by a CASA letter of ATSO design approval must be marked in accordance with the requirements in CASR Part 21, Subpart 0, and all additional marking requirements specified in the particular ATSO.
(4) Each part to be used as a replacement or modification part must be marked with a part number, serial number if applicable, and the
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 31 manufacturer's name or trademark. In addition, information concerning the model designation of the type certificated product for which the part is eligible for installation must be furnished.
(b) Instructions for Continued Airworthiness. Each aircraft, aircraft engine, and propeller must be accompanied by instructions for continued airworthiness and manufacturer's maintenance manuals having airworthiness limitation sections, as prescribed in CASR regulation 21.50.
(c) Maintenance Records. Each aircraft, including the aircraft engine, propeller, rotor, or appliance, must be accompanied by maintenance records equivalent to those specified in CAR regulation 50A.
3.3 POST DESIGN APPROVAL PROCEDURES
3.3.0 CONTINUED AIRWORTHINESS
3.3.0.0 General.
(a) The exporting authority is responsible as the State of Design (under Annex 8 to the Convention on International Civil Aviation done at Chicago on December 7, 1944 (the Chicago Convention)) for resolving in-service safety issues related to design or production . The exporting authority shall provide applicable information which it has found to be necessary for mandatory modifications, required limitations and/or inspections to the importing authority to ensure continued operational safety of the product, part, or appliance. The importing authority shall review and normally accept the corrective actions taken by the exporting authority in the issuance of its own mandatory corrective actions.
(b) At the request of the importing authority, the exporting authority shall assist the importing authority in determining what action is considered necessary by the importing authority for the continued operational safety of the product, part, or appliance. The decision as to the final action to be taken with respect to the products, parts, or appliances under the jurisdiction of the importing country lies solely with the importing authority.
3.3.0.1 Reporting of Malfunctions, Failures, and Defects (MF&D). (See Appendix C, Paragraph C5.1(a)). The implementing authority of each Party shall perform the following functions for the products, parts, and appliances exported to the other Party:
Tracking of MF&D reports and accident/incidents.
Evaluating MF&D and accident/incidents.
Investigating and resolving all suspected unsafe conditions.
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 32 (4) Advising the importing authority of all unsafe conditions and the necessary corrective actions (see Appendix C, Paragraph C5.1(b)).
(5) Making a reasonable effort to resolve issues raised by the importing authority concerning matters of safety for products registered in the importing country.
3.3.0.2 Mandatory Continuing Airworthiness Actions. (See Appendix C, Paragraph C5.1(b)). Each Party's implementing authority shall, for the products, appliances, and parts for which it is the State of Design (exporting authority), issue a mandatory continuing airworthiness action (Airworthiness Directive) whenever the implementing authority determines that an unsafe condition exists in a type certificated product or appliance, and is likely to exist or develop on a type certificated product or appliance of the same type design. This may include a product or appliance that has another product, part, or appliance installed on it and the installation causes the unsafe condition.
3.3.1 DESIGN CHANGES. (See Appendix C, Paragraph C5.2).
3.3.1.0 Procedures for Changes to a United States TO. (See Appendix C, Paragraph C5.2(a)).
(a) Major changes (e.g., model changes, product improvements, etc.) to a type design, sought by the TC holder, may be issued as amendments to the TC issued under the provisions of 14 CFR § 21.29 or otherwise approved by the FAA. A certification procedure similar to that described in paragraph 3.0.1 shall be applied, but adjusted as appropriate for the magnitude and complexity of the design change. The FAA retains the right to determine if the proposed change is so substantial that a new TC is required for the changed type design.
(b) To assist the FAA in determining its level of activity with a specific design change, CASA shall notify the FAA of each major type design change proposed by the Type Certificate holder that would affect:
the AFM,
the Approved Airworthiness Limitations,
the Type Certificate Data Sheet (TCDS),
the MMEL,
a Certification Maintenance Requirement, or
any other specific items identified by the FAA.
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 33 Based on this information , the FAA shall determine whether the changes can be considered approved by the FAA upon CASA's approval under its standard procedures.
3.3.1.1 Procedures for Changes to an Australian Type Acceptance Certificate (TAC). CASA only amends a TAC when a new model is added. (See Appendix C, Paragraph C5.2(b)).
3.3.1.2 Procedures for Changes to an FAA STC. (See Appendix C, Paragraph C5.2(c)). The procedures in paragraph 3.3.1.0 of these Implementation Procedures shall be followed to the extent applicable.
3.3.1.3 Procedures for Changes to an FAA Letter of TSO Design Approval for an Australian Manufacturer. Major changes to a TSO design require resubstantiation of the new design and reissuance of the Letter of TSO Design Approval, and shall be done in accordance with the procedures in paragraph 3.0.5. For minor changes which remain within the scope of the Letter of TSO Design Approval, the FAA shall not require prior notification and shall rely upon a CASA determination of compliance.
3.3.1.4 Procedures for Changes to a CASA letter of ATSO Design Approval for a United States Manufacturer . Major changes to a CASA ATSO design require resubstantiation and reissuance of a Letter of ATSO Design Approval , and shall be done in accordance with the procedures in paragraph 3.0.6. For minor changes which remain within the scope of the Letter of TSO Design Approval , CASA shall not require prior notification and shall rely upon an FAA determination of compliance.
3.3.2 APPROVAL OF DESIGN DATA USED IN SUPPORT OF REPAIRS.
3.3.2.0 General. Design data used in support of repairs shall be required to be approved or accepted, as appropriate, by the exporting authority (State of Design). Design data approved by the exporting authority as set forth below is considered to be approved by the importing authority without further investigation.
3.3.2.1 CASA Acceptance of FAA Repair Data. (See Appendix C, Paragraph C5.3(a)).
(a) CASA shall accept FAA-approved design data used in support of major repairs within the scope identified in Section II.
(b) CASA shall accept all minor repair data from a U.S. design approval
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 34 holder or a third-party that has been accepted by the FAA under its procedures.
3.3.2.2 FAA Acceptance of CASA Repair Data. (See Appendix C, Paragraph C5.3(b)).
(a) The FAA shall accept CASA-approved design data used in support of major or minor repairs within the scope identified in Section II.
(b) The FAA shall also accept used transport category United States State of Design airplanes with Australian approved repair data . Prior to export of such used transport category airplanes, CASA shall provide an appropriate certifying statement to the FAA.
3.3.3 ADMINISTRATION OF DESIGN APPROVALS
3.3.3.0 Transfer of United States TC or STC to a Person in Australia.
(a) Upon transfer or an agreed-upon date, CASA shall become responsible for complying with the requirements of Annex 8 to the Chicago Convention, Airworthiness of Aircraft, for affected products. For TC transfers, CASA shall notify all International Civil Aviation Organization (ICAO) member countries of the change in State of Design responsibility, upon completion of the procedures described below.
(b) The FAA may transfer to CASA the ICAO State of Design responsibilities for TCs only for products within the scope of these Implementation Procedures . The FAA may transfer to CASA the ICAO State of Design responsibilities for STCs for any product. CASA shall not assume ICAO State of Design responsibilities for TCs or STCs that have not been found to meet CASA's certification requirements.
(c) Each transfer will be accomplished on a case-by-case basis through a special arrangement which identifies each implementing authority's responsibilities in the transfer process. (See Appendix C, Paragraph C5.4(a)).
3.3.3.1 Transfer of Australian TC or STC to a Person in the United States.
(a) Upon transfer or an agreed-upon date, the FAA shall become responsible for complying with the requirements of Annex 8 to the Chicago Convention, Airworthiness of Aircraft, for affected aircraft. For TC transfers, the FAA shall notify all ICAO member countries of the change in State of Design responsibility, upon completion of the procedures described below.
(b) CASA may transfer to the FAA the ICAO State of Design
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 35 responsibilities for TCs only for products within the scope of these Implementation Procedures. CASA may transfer to FAA the ICAO State of Design responsibilities for STCs only for Australian products which are eligible for import into the United States. The FAA shall not assume ICAO State of Design responsibilities for TCs or STCs that have not been found to meet the FAA certification requirements.
(c) Each transfer will be accomplished on a case-by-case basis through a special arrangement which identifies each implementing authority's responsibilities in the transfer process. (See Appendix C, Paragraph C5.4(b)).
3.3.3.2 Surrender of TC or STC. If a certificate holder elects to surrender a TC or STC issued by either the FAA or CASA as the exporting authority, the FAA or CASA shall immediately notify the other in writing of the action. The FAA and CASA, as exporting authorities, shall accomplish all actions necessary to ensure continued airworthiness of the product until such time as:
(a) The TC or STC is reissued to a new holder when that new holder demonstrates competence to fulfill the necessary obligations; or
(b) The FAA or CASA, as the exporting authority, terminates the TC or STC. Prior to termination, the exporting authority shall notify the importing authority of the pending cancellation.
3.3.3.3 Revocation or Suspension of TC or STC. In the event that CASA revokes or suspends a TC or STC of a product for which CASA is the implementing authority of the State of Design, or in the event that the FAA revokes or suspends a TC or STC of a product for which the FAA is the implementing authority of the State of Design, the FAA or CASA (as exporting authorities) shall immediately inform the importing authority in writing of the action. Upon notification, the importing authority shall conduct an investigation to determine if action is required in their country. If the revocation or suspension was "for cause" and the importing authority concurs with the exporting authority's certificate action, the importing authority shall initiate revocation or suspension of the TC or STC in their country. The importing authority may decide to assume continued airworthiness responsibilities if there is sufficient information for it to support the continued operational safety of the fleet on their registry. In this case the exporting authority shall obtain and provide type design data, as requested, to the importing authority. Final certificate action is at the sole discretion of the importing authority. The importing authority may revoke the TC or STC
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 36 issued by the importing authority if the continued airworthiness responsibilities would cause an undue burden for the importing authority.
3.3.3.4 Surrender, Withdrawal/Suspension or Termination/Cancellation of Letter of TSO or ATSO Design Approval or Parts Manufacturer Approval or Australian Parts Manufacturer Approval (APMA).
(a) Surrenders. If the holder of
(i) an FAA TSO Authorization or Letter of Design Approval ,
(ii) a CASA ATSO Authorization or Letter of Design Approval,
(iii) an FAA Parts Manufacturer Approval, or
(iv) a CASA Australian Parts Manufacturer Approval
elects to surrender the design approval , the responsible authority shall immediately notify the other authority in writing of the action . The FAA or CASA shall accomplish all actions necessary to ensure continued airworthiness of the appliance or part , until such time as the design approval is formally withdrawn.
(b) Withdrawal/Suspension or Termination/Cancellation. If a design approval is withdrawn/suspended, or terminated/cancelled, the FAA or CASA respectively, as the State of Design (exporting authorities), shall immediately notify the other in writing of the action. The exporting authority shall accomplish all actions necessary to ensure continued airworthiness of the appliance produced under its design approval. In the event of withdrawal/suspension or termination/cancellation of a design approval for noncompliance, the exporting authority shall investigate all nonconformities for corrective action and notify the importing authority of the corrective action. The exporting authority still has the responsibility for the continued airworthiness of those appliances or parts manufactured under its authority that are still in service.
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 37 SECTION IV TECHNICAL ASSISTANCE BETWEEN AUTHORITIES
4.0 General.
(a) Upon request and after mutual agreement/arrangement, and as resources permit, the Parties may provide technical assistance to each other when significant activities are conducted in either the United States or Australia. These technical assistance activities shall help to avoid the undue burden imposed on the exporting authority in the undertaking of its regulatory surveillance and oversight functions at locations outside of the country of export. These supporting technical assistance activities shall in no way relieve the exporting authority of the responsibilities for regulatory control and airworthiness certification of products, appliances, and parts manufactured at facilities located outside the exporting country. Each Party's implementing authority shall use its own policies and procedures when providing technical assistance to the other Party's implementing authority, unless other special arrangements are mutually determined. Types of assistance may include, but are not limited to, the following:
(1) Determination of Compliance.
a. Witnessing tests;
b. Performing compliance and conformity inspections;
c. Reviewing reports; and
d. Obtaining data.
(2) Surveillance and Oversight.
a. Witnessing of first article inspection of parts;
b. Monitoring the controls on special processes;
c. Conducting sample inspections on production parts;
d. Monitoring the activities and functions of designees or approved organizations;
e. Conducting investigations of service difficulties; and
f. Evaluating/surveilling of production quality systems.
(b) The implementing authority of the Party in which a design approval applicant is located may request test witnessing from the implementing authority of the Party in which a design approval applicant's supplier is located, or conformity certifications for prototype parts produced by that supplier. Only authority-to-
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 38 authority requests are permissible and the Parties' implementing authorities shall not respond to a request from the manufacturer or supplier. Assistance shall be provided only after consultations between the Parties' implementing authorities on the specific work to be performed and approval has been obtained from the implementing authority of the Party in which the supplier is located. (See Appendix C, Paragraphs C6.1 and C6.2).
4.1 Airworthiness Certificates. There may be certain programs and conditions that warrant technical assistance from each Party's implementing authority for the issuance of standard airworthiness certificates so that aircraft may be placed directly into operation from the site of manufacture. The importing authority may seek assistance from the exporting authority in the final processing and delivery of an airworthiness certificate when the aircraft has completed its manufacturing cycle, and has subsequently been granted an Export Certificate of Airworthiness by the exporting authority. This may require the development of a special procedure between the exporting and importing authorities to mitigate all undue regulatory burdens.
4.2 Protection of Proprietary Data and Freedom of Information Requests.
4.2.0 Protection of Proprietary Data. Subject to their domestic laws, both Parties recognize that data submitted by a design approval holder is likely to be protected by intellectual property laws and that accordingly the release of this data is likely to be restricted. Subject to their domestic laws, both Parties recognize the need to protect the confidentiality of proprietary data obtained from either implementing authority. (See Appendix C, Paragraph C6.3).
4.2.1 United States Freedom of Information Act (FOIA) Requests. The United States' implementing authority receives requests from the public under the United States Freedom of Information Act (FOIA) (5 U.S.C. 552) to release information which it may have in its possession . Each record the FAA has in its possession is required to be disclosed under the FOIA unless a FOIA exemption applies to that record . One exemption is for trade secrets, and financial or commercial information that is confidential or privileged . Design approval holders ' data may include trade secrets or other information that is confidential because release of the information would damage the competitive position of the holder or other person.
When the FAA receives a FOIA request related to a product, part, or appliance of an FAA approval holder or applicant who is located in Australia, the FAA shall request CASA's assistance in contacting the FAA approval holder or applicant to help determine what portions of that information may qualify for exemption under the criteria above and to ask the approval holder or the applicant to provide factual information justifying use of the exemption. If the approval holder or applicant consents to the release of information, CASA shall provide the approval holder's or
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 39 applicant's written consent to the FAA. If release is objected to, a statement of the reasons shall be furnished by CASA to the FAA.
4.2.2 Australian FOI Requests. Australia's implementing authority receives requests from the public under Australia's Freedom of Information Act 1982 (FOI Act) to release information which it may have in its possession. Each document CASA has in its possession, that is relevant to a request, is required to be disclosed under the FOI Act unless an exemption under the Act applies to that document. One exemption is for trade secrets and information that has a commercial value which would be diminished or destroyed if disclosed. Design approval holders' data may include trade secrets or other information that is confidential because release of the information would damage the competitive position of the holder or other person.
When CASA receives an FOI request related to a product, part or appliance of a CASA approval holder or applicant who is located in the United States, CASA shall request the FAA's assistance in contacting the CASA approval holder or applicant to help determine what, if any, portions of that information may qualify for exemption under the criteria shown above and to ask the approval holder or applicant to provide factual information justifying use of the exemption. If the approval holder or applicant consents to the release of information, the FAA shall provide the approval holder's or applicant's written consent to CASA. If there is an objection to release of information, a statement of the reasons shall be furnished by the FAA to CASA. Despite receiving such an objection CASA may still disclose a document if it is not satisfied that an exemption applies, in accordance with the FOI Act.
4.3 Accident/Incident and Suspected Unapproved Parts Investigation Information Requests. When either Party needs information for the investigation of service incidents, accidents, or suspected unapproved parts involving a product, part, or appliance imported under these Implementation Procedures, the request for the information shall be directed to the appropriate office of the exporting authority. In turn, upon receipt of the request for information, the exporting authority shall do everything reasonably necessary to make sure the requested information is provided in a timely manner. If urgency requires that either Party request the information directly from the manufacturer because immediate contacts cannot be made with the exporting authority, the importing authority shall inform the exporting authority of this action as soon as possible.
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 40 SECTION V SPECIAL ARRANGEMENTS
5.0 The Parties recognize that urgent or unique situations may develop which have not been specifically addressed in these Implementation Procedures, but which are within the scope of these Implementation Procedures. When such a situation arises, the Parties agree that it shall be reviewed by the FAA Aircraft Certification Service Director and an appropriate representative from CASA, and that a special arrangement may be developed to address the situation. The special arrangement will be mutually decided by the FAA and CASA in a separate working procedure.
5.1 The Parties agree that when the unique or urgent situation falls within the responsibility of an FAA Aircraft Certification Service Directorate Manager, that Manager shall be responsible for developing the necessary special arrangement with CASA.
5.2 The special arrangements developed by the Parties' implementing authorities are listed in Appendix D.
SECTION VI AUTHORITY
6.0 The Parties agree to the provisions of these Implementation Procedures as indicated by the signature of their duly authorized representatives done at Washington, on the seventh day of May two thousand and ten.
FOR THE GOVERNMENT OF FOR THE GOVERNMENT OF THE AUSTRALIA UNITED STATES OF AMERICA:
...... Elizabeth H. Ward Dorenda D. Baker Minister-Counsellor (Commercial) Director - Aircraft Certification Service Federal Aviation Administration
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 41 APPENDIX A List of Addresses for FAA Headquarters Offices , FAA Mike Monroney Aeronautical Center, FAA Aircraft Certification Service Directorates , FAA Manufacturing Inspection Offices, FAA Aircraft Certification Offices, and CASA / Infrastructure Offices
POINTS OF CONTACT.
The designated offices for the technical implementation of these Implementation Procedures are:
For the FAA: For CASA: Aircraft Certification Service Airworthiness and Engineering Branch International Policy Office (AIR-40) Civil Aviation Safety Authority Federal Aviation Administration 16 Furzer St 800 Independence Avenue, SW Phillip ACT 2606 Washington, DC 20591 Australia USA Telephone: 61-2-6217 1577 Telephone: 1-202-385-8940 Fax: 61-2-6217 1914 Fax: 1-202-493-5144
The designated offices for administrative coordination of these Implementation Procedures are:
For the FAA: For CASA: Assistant Administrator for International Corporate Relations and Strategy Branch Aviation (API-1) Civil Aviation Safety Authority Federal Aviation Administration 16 Furzer St 800 Independence Ave., SW Phillip ACT 2601 Washington, DC 20591 Australia USA Telephone: 61-2-6217 1010 Telephone: 1-202-385-8857 Fax: 61-2-6217 1209 Fax: 1-202-267-5032
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 A-1 FAA Headquarters - Aircraft Certification Service
Mailing Address Office Address
International Policy Office International Policy Office AIR-40 AIR-40, Room 600W Room 600W 600 Independence Avenue, SW c/o Wilbur Wright Office Building Washington, DC 20202 800 Independence Avenue, SW Washington, DC 20591 Telephone: 1-202-385-8940 Fax: 1-202-493-5144
Aircraft Engineering Division AIR-100 950 L'enfant Plaza SW, 5th Floor Washington, DC 200024 Telephone: 1-202-385-6348 Fax: 1-202-385-6475
Production & Airworthiness Division AIR-200 950 L'enfant Plaza SW, 5th Floor Washington, DC 200024 Telephone: 1-202-385-6346 Fax: 1-202-483-6475
FAA Headquarters - Environmental Policy and Regulations
Office of Environment and Energy AEE-1 800 Independence Avenue, SW Washington, DC 20591 Telephone: 1-202-267-3576 Fax: 1-202-267-5594
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 A-2 FAA Mike Monroney Aeronautical Center - Contact Point for FAA Airworthiness Directives Mailing Address: Office Address: Delegation & Airworthiness Programs Delegation & Airworthiness Programs Branch Branch AIR-140 AIR-140 P.O. Box 26460 ARB, Room 304 Oklahoma City, OK 73125 6500 S. MacArthur Blvd. Oklahoma City, OK 73169 Telephone: 405-954-4776 Fax: 405-954-2209
FAA Aircraft Certification Service Directorates Engine and Propeller Directorate ANE-100 Regulatory and policy responsibility for all aircraft engines, propellers, and auxiliary power units. 12 New England Executive Park Burlington, MA 01803 Telephone: 1-781-238-7100 Fax: 1-781-238-7199
Rotorcraft Directorate ASW-100 Regulatory and policy responsibility for normal and transport category rotorcraft. 2601 Meacham Blvd. Fort Worth, TX 76137-4298 Telephone: 1-817-222-5100 Fax: 1-817-222-5959
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 A-3 FAA Aircraft Certification Service Directorates (continued) Small Airplane Directorate ACE-100 Regulatory and policy responsibility for: 1. Airplanes weighing less than 12,500 pounds and having passenger configurations of 9 seats or less, 2. Commuter airplanes weighing 19,000 pounds or less, with passenger configurations of 19 seats or less, and 3. Gliders, airships, and hot air balloons. DOT Building, 901 Locust Room 301 Kansas City, MO 64106-2641
Telephone: 1-816-329-4100 Fax: 1-816-329-4106
Transport Airplane Directorate ANM-100 Regulatory and policy responsibility for all transport category airplanes. 1601 Lind Avenue, SW Renton , WA 98055-4056 Telephone: 1-425-227-2100 Fax: 1-425-227-1100
FAA Manufacturing Inspection Offices Engine and Propeller Directorate Manufacturing Inspection Office For the States of: Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, Virginia, and West Virginia. ANE-180 12 New England Executive Park Burlington, MA 01803 Telephone: 1-781-238-7180 Fax: 1-781-238-7199
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 A-4 FAA Manufacturing Inspection Offices (continued) Rotorcraft Directorate Manufacturing Inspection Office For the States of: Arkansas, Louisiana, New Mexico, Oklahoma, and Texas.
ASW-1 80 2601 Meacham Blvd. Fort Worth, TX 76137-4298 Telephone: 1-817-222-5180 Fax: 1-817-222-5962
Small Airplane Directorate Manufacturing Inspection Office For the States of: Alabama, Alaska, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Michigan, Minnesota, Mississippi, Missouri, Nebraska, North Carolina, North Dakota, Ohio, South Carolina, South Dakota, Tennessee, and Wisconsin. DOT Building, 901 Locust Room 301 Kansas City, MO 64106-2641 Telephone: 1-816-329-4181 Fax: 1-816-329-4157
Transport Airplane Directorate Manufacturing Inspection Office For the States of: Arizona, California, Colorado, Hawaii, Idaho, Montana, Nevada, Oregon, Utah, Washington, and Wyoming. ANM-108 1601 Lind Avenue, SW Renton, WA 98055-4056 Telephone: 1-425-227-2108 Fax: 1-425-227-1100
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 A-5 FAA Aircraft Certification Offices (ACOs) Boston Aircraft Certification Office Boston Engine Certification Office ANE-150 ANE-140 12 New England Executive Park 12 New England Executive Park Burlington , MA 01803 Burlington , MA 01803 Telephone: 1-781-238-7150 Telephone: 1-781-238-7140 Fax: 1-781-238-7199 Fax: 1-781-238-7199
New York Aircraft Certification Office Atlanta Aircraft Certification Office ANE-170 ACE-115A 1600 Stewart Avenue 1701 Columbia Ave Suite 410 College Park, GA 30337 Westbury, NY 11590 Telephone: 1-404-474-5500 Telephone: 1-516-228-7300 Fax: 1-404-474-5606 Fax: 1-516-794-5531
Chicago Aircraft Certification Office Wichita Aircraft Certification Office ACE-115C ACE-115W 2300 East Devon Avenue 1801 Airport Road Room 323 Room 100, Mid-Continent Airport Des Plaines , IL 60018 Wichita, KS 67209 Telephone: 1-847-294-7357 Telephone: 1-316-946-4106 Fax: 1-847-294-7834 Fax: 1-316-946-4407
Anchorage Aircraft Certification Office Seattle Aircraft Certification Office ACE-115N ANM-100S 222 West 8th Avenue, 1601 Lind Avenue, SW Anchorage, AK 99513 Renton, WA 98055-4056 Telephone: 1-907-271-2669 Telephone: 1-425-917-6400 Fax: 1-907-271-6365 Fax: 1-425-917-6590
Denver Aircraft Certification Office Los Angeles Aircraft Certification Office ANM-100D ANM-100L Technical Operations Center (TOC) 3960 Paramount Blvd. 26805 E. 68th Avenue, Room 214 Lakewood, CA 90712 Denver, CO 80249 Telephone: 1-562-627-5200 Telephone: 1-303-342-1080 Fax: 1-562-627-5210 Fax: 1-303-342-1088
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 A-6 FAA Aircraft Certification Offices ( continued) Fort Worth Airplane Certification Office Fort Worth Rotorcraft Certification Office ASW-150 ASW-1 70 2601 Meacham Blvd. 2601 Meacham Blvd. Fort Worth, TX 76137-4298 Fort Worth, TX 76137-4298 Telephone: 1-817-222-5150 Telephone: 1-817-222-5170 Fax: 1-817-222-5960 Fax: 1-817-222-5960
Fort Worth Special Certification Office ASW-1 90 2601 Meacham Blvd. Fort Worth, TX 76137-4298 Telephone: 1-817-222-5190 Fax: 1-817-222-5785
CASA Offices Website: www.casa.gov.au Administration and Coordination Corporate Relations and Strategy Branch Telephone: 61-2-6217 1010 Fax: 61-2-6217 1209 Civil Aviation Safety Authority 16 Furzer St Phillip ACT 2606 Australia
Aircraft Certification Airworthiness and Engineering Branch Civil Aviation Safety Authority GPO Box 2005 Telephone: 61-2-6217 1577 Canberra ACT 2601 Fax: 61-2-6217 1914 Australia
Department of Infrastructure , Transport, Regional Development and Local Government Aviation Environment Branch Aviation and Airports Division Department of Infrastructure, Transport, Regional Development and Local Government GPO Box 594 Canberra ACT 2601 Australia Telephone: 61-2-6274 8087 Fax: 61-2-6274 7804
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 A-7 APPENDIX B List of Referenced Documents
FAA Referenced Documents
1. Code of Federal Regulations, Title 14, parts 21-36, 39, 43, 45, 91, and 183
FAA Advisory Circular 21-23, Airworthiness Certification of Civil Aircraft , Engines, Propellers, and Related Products Imported into the United States
3. FAA Order 8110.4, Type Certification
4. FAA Order 8130.2, Airworthiness Certification of Aircraft and Related Products
5. FAA Order 8130.21, Procedures for Completion and Use of the Authorized Release Certificate, FAA Form 8130-3, Airworthiness Approval Tag
6. FAA Advisory Circular 21-2, Export Airworthiness Approval Procedures
7. Annex 8 to the Chicago Convention, Airworthiness of Aircraft
8. FAA Order 8120.2, Production Approval and Certificate Management Procedures
9. FAA Order 8100.7, Aircraft Certification Systems Evaluation Program
10. FAA Advisory Circular 21-20, Supplier Surveillance Procedures
11. Authorized Release Certificate, FAA Form 8130-3, Airworthiness Approval Tag
12. FAA Form 8130-4, Export Certificate of Airworthiness
13. FAA Form 8120-10, Request for Conformity
14. FAA Order 8110.52, Type Validation and Post-Type Validation Procedures
15. FAA Order 8110.42, Parts Manufacturer Approval
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 B-1 APPENDIX B List of Referenced Documents
CASA Referenced Documents
1. Freedom of Information Act 1982
2. Air Navigation (Aircraft Noise) Regulations 1984
3. Air Navigation (Fuel Spillage) Regulations 1999
4. Air Navigation (Aircraft Engine Emissions) Regulations
5. Civil Aviation Regulations 1988
6. Civil Aviation Safety Regulations 1998 , Parts 21, 22, 23 25, 26, 27, 29, 31, 32, 33, and 35
CASA's Type Certification Procedures Manual
8. CASA's Surveillance Procedures Manual
9. Annex 8 to the Chicago Convention, Airworthiness of Aircraft
10. Annex 13 to the Chicago Convention, Aircraft Accident and Incident Investigation
11. CASA Form 917, Authorized Release Certificate
12. CASA Form 979, Statement of Compliance with the Civil Aviation Regulations
13. CASA Form 723, Export Certificate of Airworthiness
14. CASA Advisory Circular 21-17 Export Airworthiness Approvals
15. CASA Advisory Circular 21-22 Approval of Imported Engines, Propellers, Materials, Parts and Appliances
16. CASA Advisory Circular 21-30 Type Acceptance Certificates for Imported Aircraft
17. CASA Advisory Circular 21-16 Australian Parts Manufacturer Approval (APMA)
18. Production Approval Procedures Manual
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 B-2 19. Surveillance Procedures for CASR Part 21
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 B-3 APPENDIX C Supplemental Administrative Instructions This Appendix provides supplemental administrative instructions to the Implementation Procedures for Airworthiness.
C1 GENERAL (Reference Section I, paragraph 1.2.1).
C1.1 Designee Activities
Unless otherwise agreed for specific projects, the FAA or CASA will not routinely notify the other of designees or representatives of delegated organizations traveling to the United States or to Australia to make findings of compliance and/or to perform conformity inspections
FAA and CASA understand that there may be occasional situations where either may interact directly with an individual designee or representative of a delegated organization of the other Party. In such cases it is the responsibility of the initiator of the contact to notify the other as soon as possible. Any such direct communication between FAA or CASA and the other's designees or organizational representatives should be limited to information exchange. The FAA and CASA will consult with one another on significant validation program decisions.
C2 DESIGN APPROVAL SUPPLEMENTAL INSTRUCTIONS
C2.1 General. (Reference Section III, Paragraph. 3.0.0).
(a) The validation process used by the FAA to facilitate type approval and importation of an aeronautical product from Australia is conducted in accordance with FAA Order 8110.52. The validation process is initiated by an application and entails a familiarization briefing by the applicant, the establishment of the certification basis by the FAA, a technical information exchange in the form of data, specialist meetings on technical compliance, and/or the development of issue papers, establishment of the scope of delegation to CASA, compliance determinations, and finally, the issuance of the design approval. The design approval issued by the FAA is based to the maximum extent practicable on the technical evaluations, tests, inspections, and compliance certifications made by CASA.
(b) The FAA is able to make findings of compliance , without further showing , based upon statements of compliance by CASA. Since CASA needs to understand the FAA's position on all the items for which CASA will be making determinations of compliance, both authorities will ensure that they communicate adequately on these items. Both authorities will discuss certification/validation issues before meeting together with the applicant. Also, the FAA will seek CASA's opinions before significant
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 C-1 issues are resolved and , accordingly, may postpone a meeting with the applicant to discuss and resolve technical issues until CASA is adequately represented.
(c) The acceptance process used by CASA to facilitate type acceptance and the importation of aircraft on the basis of a Type Certificate issued by the FAA is conducted in accordance with CASR 21.29A, 21.298 and 21.29C and is outlined in CASA's Type Certification Procedures Manual and Advisory Circular 21-30 Type Acceptance Certificates for Imported Aircraft.
(d) The FAA and CASA recognize that direct communications between the importing authority and the applicant are sometimes necessary. Direct communications should be limited to technical questions regarding the product (familiarization). The original certificating implementing authority should be informed on the outcome from these discussions. Close cooperation between the importing and the exporting authorities is necessary to provide for effective management of the validation or acceptance process and for the most cost effective utilization of resources.
C2.2 Supplemental Instructions for United States Type Certificates. (Reference Section III, Paragraph. 3.0.1).
(a) Application for United States Type Certificate. If the application is for a category of product or which is of a level of complexity that has not been previously certificated by CASA, the FAA may increase the scope of its validation program. CASA will notify the FAA as soon as it becomes aware of this type of pending application, so that the FAA may plan for the additional resources required.
(b) Familiarization Meeting.
(1) CASA will arrange a familiarization meeting between the FAA, CASA, and the applicant to discuss the validation process, the approved or proposed domestic (Australian) certification basis, and all novel or unusual features of the product.
(2) At this meeting the FAA will work to establish the United States type certification basis and the means of compliance for the product under application by determining the United States airworthiness and environmental standards that would be applied to a similar product if it were to be produced in the United States. The extent to which these activities are accomplished at the meeting will depend on the FAA's familiarity with the product and applicant, the applicant's familiarity with the FAA's process and, in general, the overall preparedness of all parties.
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 C-2 (3) For simple projects or less complex products, technical familiarization may be streamlined if jointly determined by both the FAA and CASA.
(c) Establishment of Proiect Certification Team. An important consideration that should be addressed at the familiarization meeting is the composition of the Project Certification Team. The composition of the team should include specialist representation to cover the technology level of the certification project. The FAA and CASA will mutually determine a plan to ensure adequate compliance finding capability. The FAA will notify CASA of its Project Manager.
(d) Establishment of Type Certification Basis.
(1) In general, the FAA may require the applicant to comply with additional technical conditions in the interest of safety. These requirements may include actions deemed necessary for continued safe operation in the United States as a result of service history and actions taken by CASA to correct unsafe conditions.
(2) The FAA will review all novel and unusual design features for development of special conditions. The FAA will work closely with CASA in the development of special conditions and exemptions providing CASA and the applicant an opportunity to comment on the proposal.
(e) Data Submittal and Review. In order to find compliance with additional technical conditions, special conditions, or equivalent levels of safety, the FAA may make written requests for data to CASA. Compliance documentation (e.g., certification test plans and reports, flight test plans and reports, system safety assessments, data substantiation reports) will be required to be complete and detailed enough for the authorities to determine whether compliance has been made to the regulations.
(f) Technical Meetings.
(1) In addition to the initial familiarization meeting, other technical meetings may be necessary to assure that any additional technical conditions that have been communicated to CASA are well understood, and that any outstanding technical issues are resolved. These meetings should be held as early as possible in the certification process in order to permit timely design changes. All technical meetings will normally be arranged through CASA and will normally have both implementing authorities' representatives in attendance.
(2) Early in the program , based on the known design and information presented in the familiarization and technical meetings , the FAA will identify the areas in which further FAA activity will be required (e.g.,
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 C-3 required data, certification plans, reports, tests and test witnessing, areas of concern or special emphasis). The anticipated level of activity by the FAA will be documented in writing. This written arrangement may be revised if the initial design definition is incomplete or subsequent design changes are made.
(3) CASA will keep the FAA informed of the progress of its domestic type certification program on a regular basis . CASA should notify the FAA Project Manager as soon as possible of all additional novel or unusual design features , and all other design features that might cause or have caused CASA to develop a special condition or to make an equivalent level of safety finding.
(g) Issue Papers.
(1) The FAA will prepare issue papers which identify the certification basis and other items such as unique import requirements, acceptable means of compliance, equivalent level of safety findings, and special conditions. However, when the FAA's and CASA's positions are equivalent, CASA's issue papers may be used directly by the FAA in lieu of an FAA issue paper. Nevertheless, the FAA will process its own issue papers which address equivalent levels of safety or special conditions.
(2) The FAA will coordinate all issue papers and changes to issue papers with CASA. Such coordination will expedite the timely and mutually acceptable resolution of certification issues.
(h) Environmental Testing and Approval Process. (Reference Section III, Paragraph 3.0.1.3). The typical process for environmental testing and approvals in the United States includes the following:
(1) Environmental (noise, fuel venting, and exhaust emissions) certification compliance demonstration plans will be submitted to the FAA for review, comment, and subsequent approval prior to undertaking certification testing.
(2) Information and data will be supplied to the FAA in order to conduct a finding in accordance with the Noise Control Act of 1972 (42 U.S.C. 4901-4918 and 49 U.S.C. 44715(a)(3)). The FAA, before issuing an original Type Certificate for an aircraft of any category , will assess the extent of noise abatement technology incorporated into the type design and determine whether additional noise reduction is achievable. This examination will be initiated as soon as possible after the application for type certification in each original type certification project and reflect noise reduction potentials that become evident during the design and certification process.
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 C-4 (3) Information and data will be supplied to the FAA in order to conduct an evaluation of the measurement and analysis methods and practices, and data correction procedures of the applicant for aircraft noise certification under 14 CFR part 36, Subpart B and/or Subpart H.
(4) Compliance demonstration aircraft noise test plans and engine exhaust emissions test plans to be used for demonstrating United States environmental certification compliance will be submitted to the FAA for review and comment, and subsequent approval not less than 90 days prior to commencing testing.
(5) Proposed equivalent procedures to be used by the applicant during testing, data processing, data reduction, and data analysis will be specifically identified to the FAA and approved in advance by the FAA as part of items (1) and (4) above.
(6) Compliance demonstration tests will be witnessed by FAA personnel, or FAA designated engineering representatives. Prior to the start of testing it is necessary to assure the conformity of the test-article (aircraft or engine configuration) to that identified in the FAA -approved compliance demonstration test plans.
(7) Compliance demonstration reports will be submitted to the FAA for review and comment and subsequent approval prior to type certification approval.
(i) Evaluation of Operational and Maintenance Aspects. The FAA has established Aircraft Evaluation Groups (AEG), located at the product- accountable Directorates. The AEG are responsible for the operational and maintenance aspects of the type certification process. The AEG will be invited to participate in the familiarization meeting by the FAA Project Manager, and will generate issue papers as appropriate to the type design. Compliance with AEG requirements is not necessary at the time of the issuance of the United States Type Certificate, but to avoid operational suitability problems, applicants will be encouraged to complete AEG requirements early in the project.
C2.3 Supplemental Application Instructions for United States Supplemental Type Certificates. (Reference Section III, Paragraph 3.0.3).
(a) The STC process is described in FAA Order 8110.4, Type Certification. The FAA will issue an STC when compliance with the applicable United States airworthiness requirements has been verified and a compliance statement has been made by CASA.
(b) CASA will send the STC application and required information to the FAA Office responsible for the FAA Type Certificate of the product.
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 C-5 Appendix A to the Implementation Procedures for Airworthiness contains a list of addresses for FAA Offices.
C2.4 Supplemental Application Instructions for FAA Letters of TSO Design Approval. (Reference Section III, Paragraph 3.0.5). CASA should forward applications for letters of TSO design approval to the FAA Los Angeles ACO at the address indicated in Appendix A to the Implementation Procedures for Airworthiness.
C2.5 Supplemental Application Instructions for CASA Letters of ATSO Approval. (Reference Section III, Paragraph 3.0.6). The FAA ACO should forward applications for CASA Letters of ATSO Approval to the CASA Airworthiness and Engineering Branch at the address indicated in Appendix A to the Implementation Procedures for Airworthiness.
C2.6 A listing and details of ATSOs are available on CASA's website at www.casa . gov.au.
C3 SUPPLEMENTAL INFORMATION ON PRODUCTION AND SURVEILLANCE ACTIVITIES
C3.1 Surveillance of Production Approval Holders. (Reference Section III, Paragraph 3.1.1).
(a) FAA production approval and supplier surveillance programs are described in FAA Order 8120.2, Production Approval and Certificate Management Procedures, Advisory Circular 21-20, Supplier Surveillance Procedures, and FAA Order 8100.7, Aircraft Certification Systems Evaluation Program.
(b) CASA production approval and supplier surveillance programs are described in CASA's Surveillance Procedures for CASR Part 21- Production Approval holders and Authorised Persons.
C3.2 Supplier Surveillance - Outside the Exporting Country. (Reference Section III, Paragraph 3.1.4).
(a) The FAA or CASA may seek assistance from a third country civil airworthiness authority at the supplier's location in the undertaking of FAA or CASA regulatory surveillance and oversight functions of suppliers to production approval holders of the exporting country. This should only be done when an arrangement for technical assistance has been formalized between the FAA or CASA and the civil airworthiness authority of the third country.
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 C-6 (b) The production approval holder will not be allowed to use a supplier in a country where the implementing authority of the production approval holder is denied unimpeded access, by either the supplier or the supplier's civil airworthiness authority, to the supplier's facility to perform surveillance activities. The production approval holder will also not be allowed to use a supplier located in a country if that country denies entry to the implementing authority of the production approval holder.
C4 SUPPLEMENTAL INSTRUCTIONS ON EXPORT AIRWORTHINESS APPROVALS
C4.1 General. (Reference Section 111, Paragraph 3.2.0).
(a) For the FAA, Export Certificates of Airworthiness (FAA Form 8130-4) are issued for completed aircraft, aircraft engines, and propellers. Authorized Release Certificates (Airworthiness Approval Tags, FAA Form 8130-3) are issued by the FAA for appliances and parts. For CASA, Export Certificates of Airworthiness (CASA Form 723) are issued for completed aircraft. Authorized Release Certificates (CASA Form 917) are issued for aircraft engines, propellers, new parts (including modification and/or replacement parts), and appliances.
(b) When a used aircraft produced in the United States or Australia is to be imported into the other country from a third country, the implementing authority of the country of manufacture will, upon request, assist the importing authority in obtaining information regarding the configuration of the aircraft at the time it left the manufacturer. The FAA and CASA will also provide, upon request, information regarding subsequent installations on the aircraft that have been approved by either the FAA or CASA as the exporting authority. (Reference Section III, Paragraphs 3.2.1.4, 3.2.1.5, 3.2.2.3, 3.2.2.4, and 3.2.2.5).
C4.2 Supplemental Instructions for FAA Acceptance of CASA Export Certificates of Airworthiness and Authorized Release Certificates. (Reference Section III, Paragraph 3.2.1).
(a) The FAA's requirements and procedures for import are described in 14 CFR part 21, FAA Order 8130.2, Airworthiness Certification of Aircraft and Related Products, and Advisory Circular 21-23, Airworthiness Certification of Civil Aircraft, Engines, Propellers, and Related Products Imported to the United States.
(b) CASA's process for issuing export certificates is described in CASR Part 21, Subpart L, Certificates of Airworthiness and Special Flight Permits Manual, and Advisory Circular 21-17, Export Airworthiness Approvals.
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 C-7 (c) New Aircraft. (Reference Section III Paragraph 3.2.1.0(b)). The appropriate documentation will contain the following statement "The [INSERT AIRCRAFT MODEL] covered by this certificate conforms to the type design approved under United States Type Certificate Number [INSERT TYPE CERTIFICATE NUMBER AND TCDS REVISION LEVEL], and is found to be in a condition for safe operation," and/or any other "import requirements" text as specified in the United States Type Certificate Data Sheet.
(d) New Engines and Propellers. (Reference Section III Paragraph 3.2.1.1(b)). The appropriate documentation will contain the following statement: "The [INSERT ENGINE/PROPELLER MODEL as appropriate] covered by this certificate conforms to the type design approved under United States Type Certificate Number [INSERT TYPE CERTIFICATE NUMBER AND TCDS REVISION LEVEL], and is found to be in a condition for safe operation and has undergone a final operational check," and/or any other "import requirements" text as specified in the FAA Type Certificate Data Sheet.
(e) Used Aircraft for Which a Design Approval Has Been Granted by the FAA. (Reference Section III Paragraph 3.2.1.4). The FAA may request inspection and maintenance records which include, but are not limited to: the original or certified true copy of the Export Certificate of Airworthiness issued by CASA; records which verify that all overhauls, major changes, and major repairs were accomplished in accordance with approved data; and maintenance records and log entries which substantiate that the used aircraft has been properly maintained throughout its service life to the requirements of an approved maintenance program. The appropriate export documentation will contain the statement in paragraph C4.2(c) above.
(f) Notification of Exceptions on Export Documents. (Reference Section III Paragraph 3.2.1.5). CASA should notify the FAA's geographic- responsible Manufacturing Inspection Office (MIO). Addresses for all FAA MIOs are listed in Appendix A to the Implementation Procedures for Airworthiness.
C4.3 Supplemental Instructions for CASA Acceptance of FAA Export Certificates of Airworthiness and Authorized Release Certificates. (Reference Section III Paragraph 3.2.2).
(a) CASA's requirements and procedures for import are described in CASR Part 21, the Type Certification Procedures Manual, Advisory Circular 21-22, Approval of Imported Engines, Propellers, Materials, Parts and Appliances, Advisory Circular 21-30, Type Acceptance Certificates for Imported Aircraft.
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 C-8 (b) The FAA's process for issuing export certificates is described in 14 CFR part 21 and FAA Order 8130.2, Airworthiness Certification of Aircraft and Related Products, FAA Order 8130.21, Procedures for Completion and Use of the Authorized Release Certificate, FAA Form 8130-3, Airworthiness Approval Tag, and FAA Advisory Circular 21-2, Export Airworthiness Approval Procedures.
(c) New Aircraft, Aircraft Engines, and Propellers. (Reference Section III, Paragraph 3.2.2.0(b)).
(1) For aircraft, the appropriate documentation will contain the following statement: "The [INSERT MODEL] covered by the certificate conforms to the type design approved under FAA Type Certificate Number [INSERT TYPE CERTIFICATE NUMBER AND TCDS REVISION LEVEL], and is found to be in a condition for safe operation."
(2) For aircraft engines and propellers, the appropriate documentation will contain the following statement: "The [INSERT AIRCRAFT ENGINE OR PROPELLER] covered by this certificate conforms to the type design approved under FAA Type Certificate Number [INSERT TYPE CERTIFICATE NUMBER AND TCDS REVISION LEVEL], is found to be in a ,condition for safe operation and has undergone a final operational check."
(d) Used Aircraft for Which a Design Approval Has Been Granted by CASA, or for Which CASA has Issued a Type Acceptance Certificate. (Reference Section III, Paragraph 3.2.2.3 and 3.2.2.4). CASA may request inspection and maintenance records which include, but are not limited to: the original or certified true copy of the Export Certificate of Airworthiness issued by the FAA; verifying records which ensure that all overhauls, major changes, and major repairs were accomplished in accordance with approved data; and maintenance records and log entries which substantiate that the used aircraft has been properly maintained throughout its service life to the requirements of an approved maintenance program. The appropriate export documentation will contain the statement in paragraph C4.3(c)(1) above.
C5 SUPPLEMENTAL POST DESIGN APPROVAL INSTRUCTIONS
C5.1 SUPPLEMENTAL INSTRUCTIONS REGARDING CONTINUED AIRWORTHINESS
(a) Supplemental Instructions for Reporting of Malfunctions, Failures, and Defects ( MF&D). (Reference Section III Paragraph 3.3.0.1).
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 C-9 (1) Upon request, the implementing authority of each country will provide the following information for the products, parts, and appliances exported to the other country:
(i) Reports of MF&D and accidents/incidents;
(ii) Status of investigations into MF&D and accidents/incidents;
(iii) Copies of conclusions reached in its investigation into MF&D; and
(iv) Copies of conclusions reached in investigations into accidents/incidents in accordance with Annex 13 to the Chicago Convention.
(2) The FAA and CASA, as importing authorities, jointly determine to perform the following functions:
(i) Advising the exporting authority of MF&D and accidents/incidents which are believed to be potentially unsafe conditions occurring on the products and appliances which are imported from the country of the exporting authority.
(ii) Supporting the exporting authority in investigations of unsafe conditions and their occurrences on the imported aircraft.
(iii) Advising the exporting authority, if as a result of investigations made by the importing authority into MF&D and accidents/incidents, it has determined that it will make corrective actions mandatory.
(3) Copies of United States MF&D reports are available from the FAA Mike Monroney Aeronautical Center, Delegation and Airworthiness Programs Branch, AIR-140. Copies of United States MF&D reports are also available on the Mike Monroney Aeronautical Center Internet web site at http://av-info.faa.gov/sdrx. Copies of Australian MF&D reports are available from the Airworthiness and Engineering Branch(See Appendix A to the Implementation Procedures for Airworthiness).
(b) Unsafe Condition and Mandatory Continuing Airworthiness Actions. (Reference Section III Par 3.3.0.2).
(1) Each country's implementing authority, the FAA (under 14 CFR part 39) and CASA (under CASR Part 39) will perform the following functions
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 C-10 for the products, appliances, and parts for which it is the State of Design (exporting authority):
(i) Ensuring the mandatory continuing airworthiness action includes the following:
a. Make, model, and serial numbers of affected aircraft, aircraft engines, propellers, appliances, and parts;
b. Description of the unsafe condition, reasons for the mandatory action, and its impact on the overall aircraft and continued operation;
c. Description of the cause of the unsafe condition (e.g., stress corrosion, fatigue, design problem, quality control, unapproved part);
d. The means by which the unsafe condition was detected and, if resulting from in-service experience, the number of occurrences; and
e. Corrective actions and corresponding compliance times, with a list of the relevant manufacturer's service information including reference number, revision number and date.
Ensuring that the following information is provided to the other implementing authority as part of the mandatory continuing airworthiness action or directly from the approval holder:
a. An estimate of the number of aircraft world-wide needing corrective action;
b. A statement on the availability of parts; and
c. An estimate of the number of labor hours and the cost of parts required for the corrective actions.
Issuing a revised or superseding mandatory continuing airworthiness action whenever the exporting authority finds any previously issued mandatory continuing airworthiness action was incomplete or inadequate to fully correct the unsafe condition.
(iv) Notifying the importing authority of the unsafe condition and the necessary corrective actions by submitting a copy of the mandatory continuing airworthiness action at the time of
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 C-11 publication to the appropriate address. Additionally, for Australian products, CASA should arrange for copies of all relevant service bulletins referenced in the mandatory action, as well as other supporting documentation, to be forwarded to the appropriate focal point in the product- responsible FAA Directorate as listed in Appendix A to the Implementation Procedures for Airworthiness.
(v) In the case of emergency airworthiness information, the exporting authority should ensure special handling so that the importing authority is notified immediately.
(vi) Advising and assisting the importing authority in defining the appropriate actions for the importing authority to take in the issuance of its own mandatory continuing airworthiness action.
(vii) Providing sufficient information to the importing authority for its use in making determinations as to the acceptability of alternative means of compliance to mandatory continuing airworthiness actions.
(2) The countries' implementing authorities may disagree as to the finding of an unsafe condition. In that case, the importing authority will consult with the implementing authority of the State of Design (exporting authority) prior to issuing its own airworthiness directive. CASA's coordination should be with the FAA Product Directorate if a decision to pursue a unilateral airworthiness directive is made.
(3) Each country's importing authority will respond quickly to the issuance of a mandatory continuing airworthiness action by the exporting authority in deciding whether to issue its own similar mandatory continuing airworthiness action addressing all unsafe conditions on affected products or appliances certified, approved or otherwise accepted by the importing authority.
C5.2 SUPPLEMENTAL INSTRUCTIONS REGARDING POST DESIGN APPROVAL DESIGN CHANGES (Ref Section III Paragraph 3.3.1).
(a) Procedures for Changes to a United States Type Certificate.
(1) CASA will notify the FAA whenever the certification basis of a proposed change includes a requirement where the FAA may exercise discretion in making the finding. This includes findings of equivalent level of safety, additional technical conditions, special conditions, and other requirements where the FAA exercises its judgment in making the finding.
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 C-12 (2) Major changes to a type certificated design for products identified in Section II paragraph 2.1.2 of the Implementation Procedures for Airworthiness which are not great enough to require new application for a TC may also be approved through the issuance of a United States STC. Procedures for the issuance of a United States STC are found in Section III paragraph 3.0.3 of the Implementation Procedures for Airworthiness.
(3) Minor design changes made by the TC holder will be considered approved by the FAA upon approval by CASA under its normal procedures.
(4) As specified in 14 CFR § 21.93, for the purpose of complying with 14 CFR part 34, each voluntary change in the type design of an airplane or engine that may increase fuel venting or exhaust emissions is an "emissions change," requiring further demonstration of compliance. Likewise, for the purpose of complying with 14 CFR part 36, each voluntary change in the type design of an aircraft that may increase the noise levels of that aircraft is an "acoustical change", requiring further demonstration of compliance.
(b) Procedures for Changes to an Australian Type Acceptance Certificate (TAC). The TAC references to the FAA Type Certificate, Type Certificate Data Sheet , and any changes , other than the addition of a new model , to these documents automatically form part of the TAC.
(c) Procedures for Changes to a Supplemental Type Certificate. As CASA automatically accepts FAA STCs without issuing a corresponding CASA document, it follows that changes to FAA STCs are also accepted. Where unique situations may occur, the FAA will consult with CASA on the specific process to be applied.
(d) Procedures for Changes to a Flight Manual . The FAA and CASA may delegate the review and signature of revisions to flight manuals, supplements and appendices, on behalf of each other, in order to facilitate their timely approval. Minor revisions will be reviewed by the exporting authority on behalf of the importing authority, and the exporting authority will ensure that the data meets the importing authority's requirements. Significant revisions will be submitted to the importing authority for review and acceptance before any signature on behalf of the importing authority. For an individual certification project, the exporting authority should consult with the importing authority when it decides which revisions are significant and which are minor.
(e) FAA Noise and Emissions Requirements for Changes to a Type Design (TC/STC) by Any Person. For the purpose of complying with 14 CFR part 34, each voluntary change in the type design of an airplane or engine that may increase fuel venting or exhaust emissions is an
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 C-13 "emissions change," requiring further demonstration of compliance. Likewise, for the purpose of complying with 14 CFR part 36, each voluntary change in the type design of an aircraft that may increase the noise levels of that aircraft is an "acoustical change," requiring further demonstration of compliance. The FAA retains all findings of acoustical or emissions changes under 14 CFR § 21.93(b) and (c).
C5.3 SUPPLEMENTAL INSTRUCTIONS RELATED TO APPROVAL OF DESIGN DATA USED TO SUPPORT REPAIRS (Reference Section III Paragraph 3.3.2).
(a) FAA as Exporting Authority.
(1) Design data used in support of major repairs are approved in accordance with FAA Order 8110.4, Type Certification Process, and FAA Order 8110.37, Designated Engineering Representative (DER) Guidance Handbook. Minor repairs are made in accordance with "acceptable" data, in accordance with 14 CFR part 43.
(2) FAA-approved design data used in support of major repairs are supplied on FAA Form 8110-3, 8100-9, or FAA Form 337.
(b) CASA as Exporting Authority.
(1) Design data used in support of repairs are approved in accordance with Civil Aviation Order (CAO) 100.6 by CASA, or by individuals with a design approval authorization (CAR35), acting within an approved organization (CAR30).
(2) When exporting a used transport category airplane where the United States is the State of Design, CASA will provide the following certifying statement along with the airplane maintenance records:
"The data identified in this document have been examined and were approved under the authority of the Civil Aviation Safety Authority of Australia. Additional maintenance requirements that must be incorporated into the aircraft maintenance program are identified within the approved data."
C5.4 SUPPLEMENTAL INSTRUCTIONS FOR ADMINISTRATION OF DESIGN APPROVALS
(a) Transfer of a United States TC or STC to a Person Located in Australia . (Reference Section III , Paragraph 3.3.3.0).
(1) Upon notification of a transfer by a United States TC or STC holder to a person in Australia , the FAA office that issued the TC or STC will
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 C-14 notify CASA and establish procedures to transfer the ICAO State of Design responsibilities for the TC or STC to CASA.
(2) If a corresponding CASA TC already exists for the product, the transfer of ICAO State of Design responsibilities will apply to all models listed on that CASA TO. For any FAA-certificated model not listed on the CASA TO, the FAA will, if requested, provide support to establish acceptance of the additional model as showing compliance to the applicable CASA certification requirements. As appropriate, this support would include a statement of compliance from the FAA that the model meets CASA's certification requirements. Upon acceptance, CASA will place the additional model on the CASA TO.
(3) If a corresponding CASA STC already exists for the changed product, the transfer will apply to the model listed on that CASA STC.
(4) If the transferee of the TC or STC applies for a CASA TC or STC, the FAA will provide support to establish acceptance of the FAA TC or STC as showing compliance to the applicable certification requirements of CASA. As appropriate, this support would include a statement of compliance from the FAA that the product meets CASA's certification requirements . Upon acceptance, CASA will issue the CASA TC or STC, as appropriate.
(5) The transfer of the ICAO State of Design responsibilities for the TC or STC to CASA is considered complete when CASA confirms that all necessary data has been transferred to the new holder, and the new holder is able to perform the responsibilities required of a TC or STC holder.
(6) The FAA will reissue a TC or STC in the name of the transferee after the CASA TC or STC issuance, unless the new holder does not wish to maintain FAA approval. Also, for STCs, the FAA will only reissue the STC when it is for an Australian product that is eligible for import into Australia. If the transferee does not wish to maintain FAA approval, the FAA will not reissue the TC or STC.
(7) For TC transfers , if the transferee does not hold and does not apply for a CASA TO, or if the transferee's CASA TC covers only some models covered by the FAA TC and the transferee does not apply for an additional approval , the FAA will not transfer ICAO State of Design responsibilities for the applicable models to CASA. The FAA will continue to fulfill State of Design responsibilities for those models only as long as an undue burden is not placed on the FAA.
(8) For STC transfers, if CASA has not issued the corresponding TC for the product being changed, or if the transferee does not hold and does
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 C-15 not apply for a CASA STC for the same design change , the FAA will not transfer ICAO State of Design responsibilities for the applicable models to CASA. The FAA will continue to fulfill ICAO State of Design responsibilities for the STC only as long as an undue burden is not placed on the FAA.
(b) Transfer of a CASA TC or STC to a Person Located in the United States . ( Reference Section III , Paragraph 3.3.3.1).
(1) Upon notification of a transfer by an Australian TC or STC holder to a person in the United States , CASA will notify the FAA Office responsible for the new holder and establish procedures to transfer the ICAO State of Design responsibilities for the TC or STC to the FAA.
(2) If a corresponding United States TC already exists for the product, the transfer of ICAO State of Design responsibilities will apply to all models listed on the United States TO. For any CASA certificated model not listed on the FAA TO, CASA will , if requested , provide support to establish acceptance of the additional model as showing compliance to the applicable FAA certification requirements . As appropriate , this support would include a statement of compliance from CASA that the model meets the United States certification requirements . Upon acceptance the FAA will place the additional model on the FAA TO.
(3) If a corresponding United States STC already exists for the changed product, the transfer will apply to the model listed on that FAA STC.
(4) If the transferee of the TC or STC applies for an FAA TC or STC, CASA will provide support to establish acceptance of the CASA TC or STC as showing compliance to the applicable certification requirements of the FAA. As appropriate, this support would include a statement of compliance from CASA that the product meets the FAA's certification requirements . Upon acceptance the FAA will issue the FAA TC or STC, as appropriate.
(5) The transfer of the ICAO State of Design responsibilities for the TC or STC to the FAA is considered complete when the FAA confirms that all necessary data has been transferred to the new holder, and the new holder is able to perform the responsibilities required of a TC or STC holder.
(6) CASA will reissue a TC or STC in the name of the transferee after the FAA TC or STC issuance, unless the new holder does not wish to maintain CASA approval.
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 C-16 (7) For TC transfers, if the transferee does not hold and does not apply for an FAA TO, or if the transferee's FAA TC covers only some models covered by the CASA TC and the transferee does not apply for an additional approval, CASA will not transfer ICAO State of Design responsibilities for the applicable models to the FAA. CASA will continue to fulfill State of Design responsibilities for those models only as long as an undue burden is not placed on CASA.
(8) For STC transfers, if the FAA has not issued the corresponding TC for the product being changed, or if the transferee does not hold and does not apply for a United States STC for the same design change, CASA will not transfer ICAO State of Design responsibilities for the applicable models to the FAA. CASA will continue to fulfill ICAO State of Design responsibilities for the STC only as long as an undue burden is not placed on CASA.
C6 TECHNICAL ASSISTANCE REQUESTS BETWEEN AUTHORITIES
C6.1 Witnessing of Tests During Design Approval. (Reference Section IV, paragraph 4.0(b)).
(a) The implementing authority of the country in which the design approval applicant is located will make the written request for witnessing of tests.
(b) Approval of the applicant's test plans, test procedures, test specimens, and hardware configuration remains the responsibility of the implementing authority of the country in which the design approval applicant is located. The applicant will be required to establish the conformity of each test article prior to the conduct of the test.
(c) Requests for witnessing of tests will be specific enough to provide for identification of the location, timing, and nature of the test to be witnessed. The requesting implementing authority will provide an approved test plan at least two weeks prior to each scheduled test.
(d) CASA requests for witnessing of tests will be sent to the appropriate FAA ACO . For tests associated with a current CASA or FAA validation program , the requests will be sent to the FAA ACO responsible for the United States applicant. For tests associated with an Australian certification program only, the requests will be sent to the FAA ACO which has geographic responsibility for the location where the tests will take place. FAA ACOs are listed in Appendix A to the Implementation Procedures for Airworthiness . CASA's requests will be sent by letter or facsimile. The FAA requests for witnessing of tests will be sent by letter or facsimile to the appropriate CASA address, as listed in Appendix A to the Implementation Procedures for Airworthiness.
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 C-17 (e) Upon completion of test witnessing on behalf of the requesting implementing authority, the implementing authority that receives the request will send a report stating that the test was conducted in accordance with approved test plans and confirming the test results, as well as any other documentation as notified by the requesting implementing authority.
C6.2 Conformity Inspections During Design Approval. (Reference Section IV, paragraph 4.0(b)).
(a) Requests for conformity inspections will be limited to prototype parts that are of such complexity that they are not inspectable by the manufacturer or the requesting implementing authority prior to installation in the final product. Conformity inspections may require the development of a working procedure based on their complexity. At the discretion of the implementing authority in receipt of such requests, conformity inspections may be delegated to authorized designees or delegated organizations.
(b) CASA requests for conformity inspections will be sent to the appropriate FAA Office. Conformity inspection requests associated with a current CASA or FAA validation program will be sent to the FAA ACO responsible for the United States applicant. Conformity inspection requests associated with an Australian certification program only will be sent to the FAA Directorate Manufacturing Inspection Office which has geographic responsibility for the State in which the conformity inspection will take place. FAA Offices are listed in Appendix A to the Implementation Procedures for Airworthiness. CASA's requests will be sent by letter or facsimile. FAA requests for conformity inspection will be sent on a completed FAA Request for Conformity form, to the appropriate CASA address, as listed in Appendix A to the Implementation Procedures for Airworthiness.
(c) Upon completion of all conformity inspections conducted on behalf of the requesting implementing authority , the FAA or CASA will complete and return all documentation to the requesting implementing authority, as notified . The implementing authority of the country in which the supplier is located will note all deviations from the requirements notified by the applicant's implementing authority on the conformity inspection record for the particular part. Any nonconformity described as a deviation will be brought to the attention of the FAA or CASA for evaluation and disposition. The FAA or CASA will obtain a report stating the disposition required on each deviation before an FAA Authorized Release Certificate or CASA Statement of Compliance form is issued.
(d) Neither conformity determinations on prototype parts, nor inspections on production parts, will be construed as being an export airworthiness approval, since a conformity determination does not constitute an
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 C-18 airworthiness determination. Airworthiness determinations remain the responsibility of the design/production approval holder and the implementing authority of the country in which the holder is located.
C6.3 Protection of Proprietary Data. (Ref Section IV, paragraph 4.2.0) Subject to their domestic laws, the FAA and CASA will not copy, release, or show proprietary data obtained from either implementing authority to anyone other than an FAA or CASA employee without written consent of the design approval holder or other data submitter. This written consent should be obtained by the FAA or CASA from the design approval holder through the implementing authority of the country in which the holder is located and will be provided to the other implementing authority.
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 C-19 APPENDIX D List of Special Arrangements
1. Name of Special Arrangement: Date of Issue:
2. Name of Special Arrangement:
Date of Issue:
Implementation Procedures for Airworthiness Revision 1 - 7 Mayl 2010 D-1 APPENDIX E List of Acronyms
ACO Aircraft Certification Office (FAA.)
AEG Aircraft Evaluations Group (FAA)
AFM Aircraft Flight Manual
APMA Australian Parts Manufacturer Approval
ATSO Australian Technical Standard Order
CAO Civil Aviation Order (CASA)
CASA Civil Aviation Safety Authority of Australia
CAR Civil Aviation Regulations 1988 (Australia)
CASR Civil Aviation Safety Regulations 1998 (Australia)
CFR Code of Federal Regulations (U.S.)
CS Certification Specification (EASA)
DER Designated Engineering Representative (FAA)
FAA Federal Aviation Administration (U.S.)
FOI Freedom of Information (Australia)
FOIA Freedom of Information Act (U.S.)
ICAO International Civil Aviation Organization
MF&D Malfunctions, Failures, and Defects
MIO Manufacturing Inspection Office
MMEL Master Minimum Equipment List
MRB Maintenance Review Board
SPM Surveillance Procedures Manual (CASA)
STC Supplemental Type Certificate
TAC Type Acceptance Certificate (Australia)
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 E-1 TC Type Certificate
TCDS Type Certificate Data Sheet
TSO Technical Standard Order (FAA)
VLA Very Light Aircraft
Implementation Procedures for Airworthiness Revision 1 - 7 May 2010 E-2 REGULATION IMPACT STATEMENT
Amendments to the Implementation Procedures for Airworthiness Covering Design Approval, Production Activities, Export Airworthiness Approval, Post Design Approval Activities, and Technical Assistance between Authorities, done at Gold Coast on 26 September 2005 [2006] ATS 17 [2010] ATNIF 30
Introduction
1. This is a Regulation Impact Statement (RIS) for amendments to the Implementation Procedures for Airworthiness (IPA) established under the Agreement on the Promotion of Aviation Safety between the Government of Australia and the Government of the United States of America, better known as the Bilateral Aviation Safety Agreement (BASA).
2. The BASA is a technical cooperation agreement on safety oversight which facilitates recognition of aviation safety certification between the United States and Australia . It is made up of two parts : an umbrella Agreement known as the Executive Agreement (EA) and a series of Implementation Procedures (IPs) on specific topics. Both the EA and all the IPs are treaty level documents.
3. The EA was negotiated on behalf of the United States by the Federal Aviation Administration (FAA), in consultation with the Department of State and on behalf of the Government of Australia by the then Department of Transport and Regional Services (DOTARS), in consultation with the Department of Foreign Affairs and Trade (DFAT), Office of International Law (OIL) and the Civil Aviation Safety Authority (CASA). The IPA was negotiated on behalf of the United States by the FAA and on behalf of the Government of Australia by CASA, in consultation with DOTARS, DFAT and OIL.
4. The EA was signed in Canberra on 21 June 2005 by the Hon John Anderson MP, the former Deputy Prime Minister and Minister for Transport and Regional Services and Mr William A. Stanton, the United States Charge d'Affaires ad interim. The Implementation Procedures for Airworthiness (IPA) was signed on 26 September 2005 by the Hon Warren Truss, the then Minister for Transport and Regional Services and Ms Nancy Graham, the FAA Regional Director for Asia and Pacific Region.
5. The EA provides the framework for developing the IPs which gives practical effect to the BASA. These procedures establish binding working arrangements which allow for the mutual acceptance of certifications and approvals issued by CASA and the FAA. The EA is the culmination of negotiations between the United States and Australia which took place over a number of years.
6. The BASA establishes a mechanism through which the United States will acknowledge certification and approval issued by CASA, thereby reducing the need for duplication of processes in both States. This IPA is the first set of procedures negotiated under the BASA. The Problem
7. Australian Parts Manufacturers Approval (APMA) is a safety certification process administered by CASA which permits Australian manufacturers of aeronautical parts and appliances to manufacture and trade within Australia aircraft; • engines, • propellers, • materials, • parts, • processes and • appliances.
8. Australian manufacturers seeking an APMA submit an extensive array of data and compliance statements to CASA, upon which certification is either granted or denied.
9. However, CASA certified parts manufactured in Australia which are currently exported to the United States have to also obtain separate recognition from the FAA before being eligible for export to the United States.
10. This dual process is standard around the world, unless some form of mutual recognition agreement exists which effectively recognises the Australian certification standards as being equivalent to those of the receiving country. Through regulation, CASA already accepts FAA equivalent certification. The current lack of US acceptance of CASA certification has made it difficult for Australian parts manufacturers to expand in this market, which may cause lost export opportunities and jobs for Australians.
11. Due to time and resource constraints a comprehensive audit by the FAA of what they considered to be a sufficient number of Australian manufacturers was not able to be conducted in a timely manner during the original BASA negotiations. Furthermore there were some APMA processes that the United States was not comfortable with and thought warranted further investigation and improvement. As negotiations around the BASA had been in train for some time by this stage, it was agreed by both parties to proceed with the agreement omitting APMA rather than delay it any further.
12. Since the BASA was signed in 2005, CASA has established a formal oversight and audit program for all manufacturing approval holders (including APMA holders) and made significant structural and process changes to the manufacturing oversight section within the organisation. The FAA has since assessed these changes, as well as the entirety of Australian processes, legislation, policies and procedures relating to APMA and found them to be satisfactory. This included on-site audits by FAA technical personnel at several Australian manufacturers in August 2007.
13. The primary purpose of the amendments to the IPA is to enable CASA-granted APMA processes for certain aircraft parts to be accepted and recognised by the FAA. Under this proposal, Australian-made new and replacement parts for all products that are eligible for installation in an aircraft which has been granted a FAA design approval and conform to FAA-approved design data will be accepted by the FAA. This will be regardless of the state of design of the aircraft or product in which the replacement part is being installed. The CASA-granted APMA will be sufficient and the manufacturer will not have to obtain an equivalent, additional approval in the United States.
14. As both Australia's largest market for aircraft parts and largest point of origin for imported parts (see Table 1), the restrictions on Australian parts recognition within the United States is believed to pose significant obstacles for the viability of Australian aviation design, manufacturing and maintenance businesses which have the potential to service the global market.
Table 1- Value of 2008/2009 Aircraft Manufacturing Exports/Imports Exports Top Ten Countries 2008/2009 Imports Top Ten Countries 2008/2009 of Destination Value $M of Origin Value $M
United States of America 579 United States of America 1055 France 134 France 1352 New Zealand 114 United Kingdom 341 United Kingdom 66 Canada 140 Singapore 54 Brazil 122 Canada 34 Germany 44 German 29 Italy 33 Papua New Guinea 26 Singapore 33 Hong Kong 23 Netherlands 23 China 15 Japan 20 Source: ABS Special DATA Service 2009 - ANZSIC Code 2824- Aircraft Manufacturing
15. As part of the review of the IPA for the inclusion of the technical requirements for recognition of the APMA process, it was discovered that there were some errors, out of date information and inconsistent use of terms in the existing text. The amendment provides an opportunity to address these issues.
16. There are also additional opportunities for enhanced recognition of CASA certification which have been identified. These include FAA validation of CASA Supplemental Type Certificates (STC) for a number of products and parts (including products for which the State of Design is not the United States or Australia) and FAA acceptance of CASA approved repair data. The technical work for this has commenced but it might be some time before further amendment to the IPA is agreed.
Objective
17. The overall objective of the BASA and its associated IPs is to provide more efficient and effective safety regulation, oversight and associated processes. The IPA amendments outline the detailed technical processes which CASA and the FAA will undertake in recognising each other's processes when certifying, approving and overseeing the airworthiness of aeronautical parts. Consequently, these proposed amendments to the IPA will result in the reduction of costs to Australian parts manufacturers who wish to export to the United States.
Options
18. Australia currently has a range of aviation safety related agreements and arrangements with a number of nations.
19. Through treaty-level agreements such as the BASA, the regulatory parties agree that each others' safety framework and oversight processes are of equivalent standard, or exceed their own. In practice, this means that such agreements bind the two parties to a much greater extent than arrangements and usually cover a range of aviation activities.
20. An IP negotiated under the BASA is the US-preferred method of concluding a technical cooperation agreement. It establishes a mechanism for the development of binding agreements in a range of aviation safety certification and licensing areas on an ongoing basis which are also easily amendable, but does not necessitate the need for the United States to make changes to its domestic regulations.
21. The Australian Government is seeking to improve export opportunities for aviation manufacturers without compromising safety by negotiating bilateral arrangements relating to aircraft certification standards. The proposed amendments to the IPA seek to expand the scope of Australian certification through the inclusion of APMA. The proposed amendments to the IPA will mean that only one approval process is required for Australian manufacturers in order to gain access to the US market. If an Australian manufacturer wishes to sell their products or parts in the United States at present, they need to obtain APMA approval in Australia, as well as the equivalent approval in the United States. Such an approval would require a comprehensive initial audit by the FAA and then ongoing onsite yearly audits (at the manufacturer's cost) in order to ensure the manufacturer's ongoing compliance with FAA rules. Under current arrangements a CASA-granted APMA is not sufficient. At present there are no known Australian manufacturers with both CASA and FAA approvals as the cost is far too prohibitive.
Impacts
22. Consistent with the DFAT policy, the Government seeks to pursue new trade opportunities and greater access to overseas markets for Australian businesses.
23. In line with this emphasis on trade, the proposed inclusion of APMA in the BASA will remove impediments to Australian aeronautical parts manufacturers gaining access to the US market by introducing FAA acceptance of CASA certification while maintaining safety.
24. Greater access to the US market by Australian parts manufacturers will foster economies of scale, generate cost efficiency and develop business capability. Greater productivity by Australian manufacturers will in turn develop an enhanced level of competition in the global marketplace; stimulate exports, creating less reliance on imports and produce Australian jobs. The regulatory proposal will not restrict competition or impose additional costs on businesses.
25. Under current arrangements, Australian manufacturers have to apply for separate recognition of their Australian certificated products when importing into the United States, adding time and cost while diminishing the competitiveness of products. The proposed amendments to the IPA are necessary to remove or minimise the duplication of the certification process so that Australian certification of aerospace products may be accepted in the United States, as this is the only mechanism for securing the required FAA recognition.
26. The purpose of the proposed amendments to the IPA is to define the civil aeronautical products, parts and appliances eligible for import into the United States and Australia, in addition to those already accepted under the existing IPA. This will allow recognition by the FAA of APMA for Australian designed and manufactured aircraft and civil aeronautical parts, including both aircraft engines and propellers. There are also a number of minor amendments to the IPA that ,update information and terminology and correct some inconsistencies that were not detected in the first iteration of the document. These are administrative amendments only.
Consultation
27. The Government places a high priority on consultation with business and the community, to ensure that trade policy objectives developed by the Government sufficiently reflect the views, concerns and ambitions of the relevant industry sector and the Australian public. 28. The aerospace manufacturing sector comprises several hundred small to medium enterprises spread over a wide range of specialist and technical businesses that are either independent or form part of the critical supply chain to the prime companies and assembly operations.
29. The latest statistical data shows that the industry is mostly concentrated in NSW (38.56%), Victoria (24.40%) and Queensland (23.87%). The rest states and territories comprise for the remaining 13.17%. (ABS Data ANZSIC Code 28224- Aircraft Manufacturing 2008/09).
30. Consultation processes associated with the original IPA in 2005, which at the time included recognition of APMA, found that no respondents opposed the proposed agreement. Indications are that relevant small businesses anticipated savings in certification costs allied with opportunities for increased markets. It is concluded that only positive impacts on business could be anticipated in the future.
31. In September 2009 he Department of Infrastructure, Transport, Regional Development and Local Government and CASA invited public, industry and state and territory governments to comment on the proposed amendments. While there were only a small number of respondents (six), all responses were supportive of the proposal.
32. Although data is not available to prepare a full economic analysis of impacts of the amendments, the resultant streamlining of processes for gaining US certification will undoubtedly reduce costs for those Australian manufacturers seeking to export aviation parts into the United States. It will also increase the competiveness of those parts in respect of current US manufacturers which are not required to undertake duplicated processes.
Conclusion and Recommended Option
33. Despite Australia's emerging capacity to develop and produce world class aerospace technologies and products, the aerospace industry is facing significant challenges in its position in the global market. The proposed amendments to the IPA have the potential to greatly benefit Australia by reducing the regulatory hurdles in relation to the safety certification associated with the manufacture and export of Australian aeronautical products and parts to the United States.
34. The proposed inclusion of APMA in the IPA will provide a means of enhancing the competitiveness of exported Australian aeronautical parts.
35. As amendment to the IPA is the only mechanism currently available for securing US recognition of CASA's certification, it is recommended that the proposed amendment be made.
36. This amendment process also provides the opportunity to update and correct the text of the IPA.
Implementation and Review
37. No change to Australian legislation or process is required to implement the amendments. As noted previously, CASA already recognises US equivalent certification through existing regulations.
38. Under the terms of the EA, the IPA is able to be modified and extended after consultation between the agencies. It is expected that further amendment will be agreed in respect of specific processes, such as recognition of CASA approved repair data, when both implementing agencies are satisfied that equivalency exists. At that time a supporting RIS will be prepared. Aviation Environment Branch Aviation and Airports Business Division Department of Infrastructure, Transport, Regional Development and Local Government
27 May 2010 National Interest Analysis [2010] ATNIA 29
with attachment on consultation
Amendments to the Implementation Procedures for Airworthiness Covering Design Approval, Production Activities, Export Airworthiness Approval, Post Design Approval Activities, and Technical Assistance between Authorities, done at Gold Coast on 26 September 2005 [20061 ATS 17
[2010) ATNIF 30
Regulation Impact Statement NATIONAL INTEREST ANALYSIS: CATEGORY 1 TREATY
SUMMARY PAGE
Amendments to the Implementation Procedures for Airworthiness Covering Design Approval, Production Activities , Export Airworthiness Approval, Post Design Approval Activities, and Technical Assistance between Authorities, done at Gold Coast on 26 September 2005 [2006] ATS 17 [2010] ATNIF 30
Nature and timing of proposed treaty action
1. It is proposed to bring into force a number of amendments to the Implementation Procedures for Airworthiness (IPA) under the Agreement on the Promotion ofAviation Safety between the Government ofAustralia and the Government of the United States ofAmerica, better known as the Bilateral Aviation Safety Agreement (BASA).
2. The BASA is a technical cooperation agreement on safety oversight which facilitates recognition of aviation safety certification between the United States and Australia. It is made up of two parts: an umbrella Agreement known as the Executive Agreement (EA) and a series of Implementation Procedures (IPs) on specific topics. Both the EA and all the IPs are treaty level documents.
3. The IPA is the first of a number of technical IPs developed under Article 4 of the EA.
4. The IPA defines the civil aeronautical products, parts and appliances eligible for import into the United States and Australia and the procedures for their import. The IPA was signed on 26 September 2005 and entered into force on 28 November 2006.
5. Article 6 of the EA also specifies that IPs shall enter into force on the date Australia advises the United States that its domestic requirements necessary for entry into force of the IP have been completed. Subject to the recommendations of the Joint Standing Committee on Treaties, Australia intends to notify the United States as soon as practicable after the tabling period so as to bring into force the proposed IPA amendments.
Overview and national interest summary
6. The purpose of the IPA is to set out the civil aeronautical products, parts and appliances eligible for import into the United States and to define the safety oversight requirements and activities between the implementing authorities for the import and continued support of those civil aeronautical products.
7. The IPA assists in providing new trade opportunities through easier access to US markets for Australian manufacturers and exporters of aeronautical products and services. It aids in reducing costs imposed on the aviation industry by duplicate safety technical inspections, evaluations and testing. The proposed amendments will further enhance these opportunities by the incorporation of the Civil Aviation Safety Authority's (CASA's) Australian Manufacturers Parts Approval (APMA) process. This will enable recognition by the US Federal Aviation Administration (FAA) of CASA-certified Australian manufactured products, parts and appliances. Reasons for Australia to take the proposed treaty action
8. The IPA amendments will strengthen bilateral cooperation in a variety of areas including: design approval activities; export airworthiness approval activities; and technical assistance between authorities.
9. The negotiation of the IPA amendments is consistent with the Government's trade policy, which seeks to pursue new trade opportunities and provide greater access to overseas markets for Australian business. These amendments are also consistent with commitments contained in the National Aviation Policy White Paper, launched in December 2009, in which the Australian Government undertook to "continue to seek opportunities to achieve greater recognition of Australia's safety system and acceptance of CASA's certification by other aviation authorities" (p.1 13).
10. The proposed IPA amendments have potential benefits for Australia by facilitating the export of Australian aeronautical products and services. Certification by CASA through the APMA process permits Australian manufacturers of aeronautical parts and appliances to manufacture and trade aircraft engines, propellers, materials, parts and appliances within Australia. Australian manufacturers seeking an APMA submit an extensive array of data and compliance statements to CASA, upon which certification is granted. The current arrangement for Australian designed and produced parts to be certified for import into the United States is a two-stage process. An Australian manufacturer must be granted certification from CASA, then obtain recognition from the FAA. This process repeats much of the work undertaken in receiving an Australian approval, further increasing timeframes and costs involved in getting the part onto the international market. The proposed amendments will streamline this process.
11. Representatives from the FAA conducted a comprehensive review of Australia' s legislation, procedures, policies and methods relating to APMA in 2007 and found CASA's certification meets FAA requirements for recognition.
12. Revised text has now been agreed and both the Australian and the United States Governments are willing to set in place FAA acceptance of CASA's certification of aeronautical parts.
13. Through Australian regulations, CASA already accepts the FAA equivalent certification. The proposed amendments therefore address an imbalance in requirements for Australian export to the United States when compared to the United States' exports to Australia.
14. Enhanced access to the US market by Australian parts manufacturers will foster economies of scale, generate cost efficiency and develop business capability. Greater productivity by Australian manufacturers will in turn develop a higher level of competition in the global marketplace; stimulate exports, creating less reliance on imports; and create Australian jobs.
15. Additionally, the proposed amendments will assist with implementing the IPA more generally through correction of identified errors, inconsistencies in the use of terms and outdated information. Obligations
16. Section I of the IPA covers general obligations arising from the IPA and provides definitions.
17. Paragraph 1.0 of Section I details how Article 4 of the EA provides for the Government of Australia and the Government of the United States (the Parties) to be bound by the IPA, once the IPA has entered into force in accordance with Article 6 of the EA.
18. Under Paragraph 1.2 the Australian and US Governments agree that their respective implementing authorities shall give the same validity to a certification made by the other Party's implementing authority as they would if it had been made by their own implementing authority.
19. Also, each Party agrees that when a finding is made by the other Party's implementing authority in accordance with the laws and regulations of the other Party and in accordance with the IPA, that finding is to be given the same validity as if it were made by their own implementing authority.
20. Each Party agrees that findings by the other Party's implementing authority made pursuant to the IPA through aircraft certification systems are to be given the same validity as those made directly by their own implementing authority.
21. Australia and the United States agree that their importing and exporting authorities shall keep each other informed in a timely manner of significant changes within their aircraft certification systems, as outlined in Paragraph 1.3.0.
22. Accordingly, upon notice of changes by one implementing authority, the other implementing authority may request a meeting to review the need for amendment of the IPA.
23. Section II of the IPA covers the scope of the Implementing Procedures in relation to products, parts and appliances.
24. Australia and the United States shall accept Export Certificates of Airworthiness for the import of products, parts and appliances made in the country of the exporting authority as detailed under Paragraphs 2.1.0 and 2.1.2 of Section II.
25. Australia and the United States shall also accept Authorized Release Certificates for the import of some products, parts and appliances made in the country of the exporting authority as detailed under Paragraph 2.1.1 and Paragraph 2.1.3.
26. In accordance with Paragraph 2.1.4 Australia and the United States shall accept standard parts for all products, parts and appliances covered under the IPA when they conform to established specifications.
27. As outlined in paragraph 2.3.0, Australia shall accept the following items as the basis of Civil Aviation Safety Authority (CASA) Design Approval: type certificates and amended certificates for products for which the United States is the state of design; Technical Standard Order authorization; and other approved major design changes to CASA-approved designs for products and appliances for which the United States is also the State of Design. Paragraph 2.3.2 outlines equivalent, reciprocal obligations for the United States.
28. Paragraph 2.3.1 outlines Australia's obligation to accept (without further investigation) specific US Design Approvals. Paragraph 2.3.3 outlines equivalent, reciprocal obligations for the United States and introduces the proposed amendment for the United States to accept CASA Design Approvals for APMA. The proposed amendment to Table 2 specifies which products, appliances and parts will be eligible for import into the United States as covered by APMA.
29. Under Section III of the IPA, agreed Australian and US working procedures for design approval, production and surveillance activities, export airworthiness approval and post design approval are as outlined in Paragraphs 3.0, 3.1, 3.2 and 3.3.
30. Section IV makes provision for each Party to provide technical assistance to the other. When technical assistance is provided each Party's implementing authority shall use its own policies and procedures. Types of assistance may include but are not limited to Determination of Compliance and Surveillance and Oversight.
31. Under Paragraph 4.2.0 of Section IV, both Parties recognize that data supplied by an approval holder is likely to be protected by intellectual property laws and the implementing authorities of each Party will need to protect the confidentiality of any proprietary data.
32. As detailed under Paragraphs 4.2.1 and 4.2.2, where there is a Freedom of Information (FOI) request that refers to a CASA approval holder located in the United States, CASA will ask the US Federal Aviation Administration (FAA) to contact the approval holder to obtain permission for release of information or justification for any objection to the release of information. Despite any such objection, CASA may disclose information in accordance with the provisions of the FOI Act. The United States shall treat any FOI issues in a similar manner.
33. In accordance with Section V of the IPA, the Parties recognize that special arrangements may be necessary to respond to situations that fall under the scope of the IPs but are not specifically addressed. The special arrangements developed by the Parties' implementing authorities are to be listed in Appendix D of the IPA.
Implementation
34. Article 2 of the EA states the Government of Australia has designated the CASA as its implementing authority. For a particular technical area, the Government of Australia may designate another authority which is authorised under Australian law to perform that function as the relevant implementing authority for that technical area.
35. No amendments to current legislation are required as Australia already accepts US certification for the items covered by the IPA amendments. There will be no change to the existing roles of the Commonwealth Government and the State and Territory Governments as a result of implementation action. Costs
36. The proposed amendments to the IPA impose no additional costs on manufacturers, exporters or on the State or Territory or Commonwealth Governments. On the contrary, the proposed amendments will remove or reduce processes and costs to Australian aviation/aerospace manufacturers seeking access to the US market due to the automatic acceptance of CASA certification by the FAA.
Regulation Impact Statement
37. The regulatory amendment will not restrict competition or impose additional cost on business. Please refer to the Regulation Impact Statement which accompanies this National Interest Analysis.
Future treaty action
38. Article 7 of the EA provides for amendment to the IPA at any time by the written agreement of the Parties. Amendments will be subject to Australia's domestic treaty procedures.
39. Additional opportunities for enhanced recognition of CASA certification have been identified. These include FAA validation of CASA Supplemental Type Certificates (STC) for a number of products and parts (including products for which the State of Design is not the United States or Australia) and FAA acceptance of CASA approved repair data. The technical work for this has commenced but it expected it is will be some time before further amendment to the IPA is agreed.
40. Australia's treaty procedures will be followed to finalise and implement such future amendments to the IPA.
Withdrawal or denunciation
41. Article 8 of the EA provides that the IPA may be terminated in accordance with the termination provisions that are stipulated within the IPA.
42. Paragraph 1.8 of the IPA notes that either Party may terminate the IPA 6 months from the date of written notification to the other Party. Any activities conducted under the IPA prior to termination will remain valid.
43. In the event that the EA is terminated, the IPA executed in accordance with the EA shall also cease to have effect as of the date of its termination.
44. Any notification of withdrawal from the treaty by Australia will be subject to Australia's domestic treaty procedures.
Contact details
Aviation Environment Branch Aviation and Airports Business Division. Department of Infrastructure, Transport, Regional Development and Local Government ATTACHMENT ON CONSULTATION
Amendments to the Implementation Procedures for Airworthiness Covering Design Approval, Production Activities, Export Airworthiness Approval, Post Design Approval Activities, and Technical Assistance between Authorities, done at Gold Coast on 26 September 2005 [2006] ATS 17 [2010] ATNIF 30
CONSULTATION.
45. The Australian Government Department of Infrastructure, Transport, Regional Development and Local Government (Department of Infrastructure) has consulted with relevant aviation stakeholders and Commonwealth and State/Territory Departments and Agencies as part of the consultative process for a number of proposed amendments to the IPA under the Agreement on the Promotion of Aviation Safety (also known as the Bilateral Aviation Safety Agreement - BASA) between Australia and the United States.
46. Consultation processes associated with the original IPA in 2005, which at the time included recognition of APMA, found that no respondents opposed the proposed agreement although two commented that existing obligations entered into by the US Government should be protected. Indications are that relevant small businesses anticipated savings in certification costs allied with opportunities for increased markets. It was concluded that only positive impacts on business could be anticipated in the future.
47. On 5 September 2009, the Department of Infrastructure published an Invitation to Comment notice in The Weekend Australian which directed interested parties to the Department of Infrastructure and CASA web sites to obtain a Discussion Paper outlining the proposed amendments to the IPA. Interested parties were invited to comment on the content and value of the proposed amendments. Infrastructure allowed one week for comment with written submissions required by midnight 13 September 2009.
48. In conjunction with the public advertisement and website promotion, targeted emails were sent to relevant parties and individuals with an interest in the amendments, directing them to the information published on the Department of Infrastructure and CASA websites. These were:
® Aircraft Owners and Pilots Association (AOPA) ® Australian Industry Group ® Aviation Australia ® Australian Licensed Aircraft Engineering Association (ALAEA) ® Aviation Maintenance, Repair and Overhaul business Association (AMROBA) ® BAE Systems Australia ® Gippsland Aeronautics ® John Cameron Aviation • Qantas • Raytheon • Regional Aviation Association of Australia (RAAA) • Regional Express • Virgin Blue
Commonwealth and State/Territory Departments consultation included:
• Business and Industry Development - Chief Minister's Department - Australian Capital Territory • Department of Infrastructure, Energy & Resources - Tasmania • Department of Industry, Innovation and Regional Development - Victoria • Department of Employment, Industry Development and Innovation - Queensland • Department of State and Regional Development - New South Wales • Department of Trade and Economic Development - South Australia • Department of Transport - Western Australia • Trade and Marketing - Tourism Western Australia • Department of Business and Employment - Northern Territory
General Public consultation included:
• Advertisement under Public Notices - The Weekend Australian on 5 September 2009.
• Topic Introduction and Discussion Paper on Infrastructure's website
Responses
49. While the number of respondents was low (seven), submissions received expressed support for the proposed amendments, emphasizing that such initiatives have the potential to strengthen aviation business in the long term by simplifying processes and reducing costs for Australian manufacturers. DEPARTMENT OF FOREIGN AFFAIRS AND TRADE
CANBERRA
UNIVERSAL POSTAL UNION:
EIGHTH ADDITIONAL PROTOCOL TO THE CONSTITUTION OF 10 JULY 1964, AS AMENDED; CONVENTION AND FINAL PROTOCOL; FIRST ADDITIONAL PROTOCOL TO THE GENERAL REGULATIONS; POSTAL PAYMENT SERVICES AGREEMENT.
DONE AT GENEVA ON 12 AUGUST 2008
Not yet in force
[2010] ATNIF 35 Universal Postal Union
Eighth Additional Protocol to the Constitution of the Universal Postal Union First Additional Protocol to the General Regulations of the Universal Postal Union
Universal Postal Convention Postal Payment Services Agreement Constitution of the Universal Postal Union General Regulations of the Universal Postal Union
Berne 2008 Note on the printing of the texts adopted by the 24th Congress - 2008 reproduced in this volume.
Bold type appearing in the texts of the Eighth Additional Protocol to the Constitution, the First Additional Protocol to the General Regulations, the Rules of Procedure of Congresses, the Convention, the Constitution and the General Regulations indicates amendments with respect to the Acts adopted by the 2004 Bucharest Congress.
As the Postal Payment Services Agreement submitted to, and adopted by, the 24th Congress is a completely recast version replacing the old Postal Payment Services Agreement, this text is printed in normal type.
The declarations made on signature of the Acts, the Constitution of the Universal Postal Union adopted at Vienna in 1964 and amended by the 1969 Tokyo, 1974 Lausanne, 1984 Hamburg, 1989 Washington, 1994 Seoul, 1999 Beijing, 2004 Bucharest and 24th Congress - 2008 Additional Protocols, and the General Regulations adopted at Bucharest in 2004 and amended by the First Additional Protocol (24th Congress - 2008), are reproduced in this volume for information purposes, but do not form part of the Acts signed at Geneva. Constitution, Additional Protocol
Eighth Additional Protocol to the Constitution of the Universal Postal Union
Contents
Article 1. (art. This amended) Definitions II. (art. 4 amended) Exceptional relations III. (art. 8 amended) Restricted Unions. Special Agreements IV. (art. 11 amended) Accession or admission to the Union. Procedure V. (art. 22 amended) Acts of the Union VI. (art. 25 amended) Signature, authentication, ratification and other forms of approval of the Acts of the Union VII. (art. 29 amended) Presentation of proposals VIII. (art. 32 amended) Arbitration IX. Accession to the Additional Protocol and to the other Acts of the Union X. Entry into force and duration of the Additional Protocol to the Constitution of the Universal Postal Union
3 Constitution, Additional Protocol
Eighth Additional Protocol to the Constitution of the Universal Postal Union
The plenipotentiaries of the governments of the member countries of the Universal Postal Union, met in Congress at Geneva, in view of article 30.2 of the Constitution of the Universal Postal Union concluded at Vienna on 10 July 1964, have adopted, subject to ratification, the following amendments to that Constitution.
Article I (Article This amended) Definitions
1 For the purposes of the Acts of the Universal Postal Union, the following terms shall have the meanings defined below: 1.1 Postal service: all postal services whose scope is determined by the bodies of the Union. The main obligations of postal services are to satisfy certain social and economic objectives of member countries, by ensuring the collection, sorting, transmission and delivery of postal items. 1.2 Member country: a country that fulfils the conditions of article 2 of the Constitution. 1.3 Single postal territory (one and the same postal territory): the obligation upon the contracting parties to the UPU Acts to provide for the reciprocal exchange of letter-post items, including freedom of transit, and to treat postal items in transit from other countries like their own postal items, without discrimination. 1.4 Freedom of transit: obligation for an intermediate member country to ensure the transport of postal items passed on to it in transit for another member country, providing similar treatment to that given to domestic items. 1.5 Letter-post item: items described in the Convention. 1.6 International postal service: postal operations or services regulated by. the Acts; set of these operations or services. 1.7 Designated operator: any governmental or non -governmental entity officially designated by the member country to operate postal services and to fulfil the related obligations arising out of the Acts of the Union on its territory. 1.8 Reservation: an exemption clause whereby a member country purports to exclude or to modify the legal effect of a clause of an Act, other than the Constitution and the General Regulations , in its application to that member country. Any reservation shall be compatible with the object and purpose of Union as defined in the preamble and article 1 of the Constitution . It must be duly justified and approved by the majority required for approval of the Act concerned , and inserted in the Final Protocol thereto.
4 Constitution, Additional Protocol
Article II (Article 4 amended) Exceptional relations
Member countries whose designated operators provide a service with territories not included in the Union are bound to act as intermediaries for other member countries . The provisions of the Convention and its Regulations shall be applicable to such exceptional relations.
Article III (Article 8 amended) Restricted Unions. Special Agreements
1 Member countries, or their designated operators if the legislation of those member countries so permits, may establish Restricted Unions and make Special Agreements concerning the international postal service, provided always that they do not introduce provisions less favourable to the public than those provided for by the Acts to which the member countries concerned are parties.
2 Restricted Unions may send observers to Congresses, conferences and meetings of the Union, to the Council of Administration and to the Postal Operations Council.
3 The Union may send observers to Congresses, conferences and meetings of Restricted Unions.
Article IV (Article 11 amended) Accession or admission to the Union. Procedure
1 Any member of the United Nations may accede to the Union.
2 Any sovereign country which is not a member of the United Nations may apply for admission as a member country of the Union.
3 Accession or application for admission to the Union must entail a formal declaration of accession to the Constitution and to the obligatory Acts of the Union. It shall be addressed by the government of the country concerned to the Director General of the International Bureau, who shall notify the accession or consult the member countries on the application for admission, as the case may be.
4 A country which is not a member of the United Nations shall be deemed to be admitted as a member country if its application is approved by at least two thirds of the member countries of the Union. Member countries which have not replied within a period of four months counting from the date of the consultation shall be considered as having abstained.
5 Accession or admission to membership shall be notified by the Director General of the International Bureau to the governments of member countries. It shall take effect from the date of such notification.
Article V (Article 22 amended) Acts of the Union
1 The Constitution shall be the basic Act of the Union. It shall contain the organic rules of the Union and shall not be subject to reservations.
5 Constitution, Additional Protocol
2 The General Regulations shall embody those provisions which ensure the application of the Constitution and the working of the Union. They shall be binding on all member countries and shall not be subject to reservations.
3 The Universal Postal Convention, the Letter Post Regulations and the Parcel Post Regulations shall embody the rules applicable throughout the international postal service and the provisions concerning the letter-post and postal parcels services. These Acts shall be binding on all member countries. Member countries shall ensure that their designated operators fulfil the obligations arising from the Convention and its Regulations.
4 The Agreements of the Union, and their Regulations, shall regulate the services other than those of the letter post and postal parcels between those member countries which are parties to them. They shall be binding on those member countries only. Signatory member countries shall ensure that their designated operators fulfil the obligations arising from the Agreements and their Regulations.
5 The Regulations, which shall contain the rules of application necessary for the imple- mentation of the Convention and of the Agreements, shall be drawn up by the Postal Operations Council, bearing in mind the decisions taken by Congress.
6 The Final Protocols annexed to the Acts of the Union referred to in paragraphs 3, 4 and 5 shall contain the reservations to those Acts.
Article VI (Article 25 amended) Signature, authentication, ratification and other forms of approval of the Acts of the Union
1 The Acts of the Union arising from the Congress shall be signed by the plenipotentiaries of the member countries.
2 The Regulations shall be authenticated by the Chairman and the Secretary General of the Postal Operations Council.
3 The Constitution shall be ratified as soon as possible by the signatory countries.
4 Approval of the Acts of the Union other than the Constitution shall be governed by the constitutional regulations of each signatory country.
5 When a member country does not ratify the Constitution or does not approve the other Acts which it has signed, the Constitution and other Acts shall be no less valid for the other member countries that have ratified or approved them.
Article VII (Article 29 amended) Presentation of proposals
1 A member country shall have the right to present, either to Congress or between Congresses, proposals concerning the Acts of the Union to which it is a party.
2 However, proposals concerning the Constitution and the General Regulations may be submitted only to Congress.
3 Moreover, proposals concerning the Regulations shall be submitted direct to the Postal Operations Council but must first be transmitted by the International Bureau to all member countries and all designated operators.
6 Constitution, Additional Protocol
Article VIII (Article 32 amended) Arbitration
In the event of a dispute between two or more member countries concerning the interpretation of the Acts of the Union or the responsibility imposed on a member country by the application of those Acts, the question at issue shall be settled by arbitration.
Article IX Accession to the Additional Protocol and to the other Acts of the Union
1 Member countries which have not signed the present Protocol may accede to it at any time.
2 Member countries which are party to the Acts renewed by Congress but which have not signed them shall accede thereto as soon as possible.
3 Instruments of accession relating to the cases set forth in paragraphs 1 and 2 shall be sent to the Director General of the International Bureau, who shall notify the governments of the member countries of their deposit.
Article X Entry into force and duration of the Additional Protocol to the Constitution of the Universal Postal Union
This Additional Protocol shall come into force on 1 January 2010 and shall remain in force for an indefinite period.
In witness whereof the plenipotentiaries of the governments of the member countries have drawn up this Additional Protocol, which shall have the same force and the same validity as if its provisions were inserted in the text of the Constitution itself, and they have signed it in a single original which shall be deposited with the Director General of the International Bureau. A copy thereof shall be delivered to each party by the International Bureau of the Universal Postal Union.
Done at Geneva, 12 August 2008.
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First Additional Protocol to the General Regulations of the Universal Postal Union
Contents
Article 1. (art. 101bis new) Functions of Congress II. (art. 102 amended) Composition, functioning and meetings of the Council of Administration III. (art. 103 amended) Information on the activities of the Council of Administration IV. (art. 104 amended) Composition, functioning and meetings of the Postal Operations Council V. (art. 105 amended) Information on the activities of the Postal Operations Council VI. (art. 106 amended) Composition, functioning and meetings of the Consultative Committee VII. (art. 107 amended) Information on the activities of the Consultative Committee VIII. (art. 110 amended) Languages used for documentation, for debates and for official correspondence IX. (art. 112 amended) Duties of the Director General X. (art. 114 amended) Secretariat of the Union's bodies XI. (art. 116 amended) Information. Opinions. Requests for interpretation and amendment of the Acts. Inquiries. Role in the settlement of accounts XII. (art. 118 amended) Forms supplied by the International Bureau XIII. (art. 119 amended) Acts of Restricted Unions and Special Agreements XIV. (art. 121 amended) Biennial report on the work of the Union XV. (art. 122 amended) Procedure for submitting proposals to Congress XVI. (art. 123 amended) Procedure for submitting proposals to the Postal Operations Council concerning the preparation of new Regulations in the light of decisions taken by Congress XVII. (art. 124 amended) Procedure for submitting proposals between Congresses XVIII. (art. 125 amended) Consideration of proposals between Congresses XIX. (art. 126 amended) Notification of decisions adopted between Congresses XX. (art. 128 amended) Fixing and regulation of the expenditure of the Union XXI. (art. 130 amended) Contribution classes XXII. (art. 131 amended) Payment for supplies from the International Bureau XXIII. (art. 132 amended) Arbitration procedure XXIV. (art. 135 amended) Amendment, entry into force and duration of the General Regulations XXV. Accession to the Additional Protocol XXVI. Entry into force and duration of the Additional Protocol to the General Regulations
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First Additional Protocol to the General Regulations of the Universal Postal Union
The plenipotentiaries of the governments of the member countries of the Universal Postal Union, met in Congress at Geneva, in view of article 22.2 of the Constitution concluded at Vienna on 10 July 1964, have, by common consent and subject to article 25.4 of the Constitution, adopted the following amendments to the General Regulations.
Article I (Article lOlbis) Functions of Congress
1 On the basis of proposals by member countries , the Council of Administration and the Postal Operations Council, Congress shall: 1.1 determine the general policies for achieving the object and purpose of the Union set out in the Preamble and article 1 of the Constitution; 1.2 consider and adopt, where appropriate, proposals for amendments to the Constitution , General Regulations , Convention and Agreements submitted by member countries and the Councils, in accordance with article 29 of the Constitution and article 122 of the General Regulations; 1.3 set the date for the entry into force of the Acts; 1.4 adopt its Rules of Procedure and the amendments to those Rules; 1.5 consider the comprehensive reports on the work of the Council of Administration, the Postal Operations Council and the Consultative Committee, covering the period from the previous Congress , presented by these respective bodies in accordance with articles 103, 105 and 107 of the General Regulations; 1.6 adopt the Union 's strategy; 1.7 fix the maximum amount of the Union 's expenditure in accordance with article 21 of the Constitution; 1.8 elect the member countries to sit on the Council of Administration and the Postal Operations Council; 1.9 elect the Director General and Deputy Director General; 1.10 set in a resolution the ceiling of the costs to be borne by the Union for the produc- tion of documents in Chinese , German, Portuguese and Russian.
2 Congress, as the supreme body of the Union , shall deal with such other questions concerning postal services.
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Article II (Article 102 amended) Composition, functioning and meetings of the Council of Administration (Const 17)
1 The Council of Administration shall consist of forty-one members who shall exercise their functions during the period between two successive Congresses.
2 The chairmanship shall devolve by right on the host member country of Congress. If that member country waives this right, it shall become a de jure member and, as a result, the geographical group to which it belongs shall have at its disposal an additional seat, to which the restrictive provisions of paragraph 3 shall not apply. In that case, the Council of Administration shall elect to the chairmanship one of the member countries belonging to the geographical group of the host member country.
3 The forty other members of the Council of Administration shall be elected by Congress on the basis of an equitable geographical distribution. At least a half of the membership shall be renewed at each Congress; no member may be chosen by three successive Congresses.
4 Each member of the Council of Administration shall appoint its representative, who shall be competent in postal matters.
5 The office of member of the Council of Administration shall be unpaid. The operational expenses of this Council shall be borne by the Union. 6 The Council of Administration shall have the following functions: 6.1 to supervise the activities of the Union between Congresses, ensuring compliance with the decisions of Congress, studying questions with respect to governmental policies on postal issues, and taking account of international regulatory developments such as those relating to trade in services and to competition; 6.2 to consider and approve, within the framework of its competence, any action considered necessary to safeguard and enhance the quality of and to modernize the international postal service; 6.3 to promote, coordinate and supervise all forms of postal technical assistance within the framework of international technical cooperation; 6.4 to consider and approve the biennial Programme and Budget and the accounts of the Union; 6.5 to authorize the ceiling of expenditure to be exceeded, if circumstances so require, in accordance with article 128.3 to 5; 6.6 to lay down the Financial Regulations of the Union; 6.7 to lay down the rules governing the Reserve Fund; 6.8 to lay down the rules governing the Special Fund; 6.9 to lay down the rules governing the Special Activities Fund; 6.10 to lay down the rules governing the Voluntary Fund; 6.11 to provide control over the activities of the International Bureau; 6.12 to authorize election of a lower contribution class, if it is so requested, in accordance with the conditions set out in article 130.6; 6.13 to authorize a change of geographical group if it is so requested by a member country, taking into account the views expressed by the member countries which are members of the geographical groups concerned; 6.14 to lay down the Staff Regulations and the conditions of service of the elected officials;
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6.15 to create or abolish International Bureau posts taking into account the restrictions imposed by the expenditure ceiling fixed; 6.16 to lay down the Regulations of the Social Fund; 6.17 to approve the biennial report on the work of the Union and the biennial Financial Operating Reports prepared by the International Bureau and where appropriate to furnish observations on them;
6.18 to decide on the contacts to be established with member countries in order to carry out its functions; 6.19 after consulting the Postal Operations Council, to decide on the contacts to be estab- lished with the organizations which are not de jure observers, to consider and approve the reports by the International Bureau on UPU relations with other international bodies and to take the decisions which it considers appropriate on the conduct of such relations and the action to be taken on them; to designate in due course, after consulting the Postal Operations Council and the Secretary General, the international organizations, associations, enterprises and qualified persons to be invited to be represented at specific meetings of Congress and its Committees when this is in the interest of the Union or the work of Congress and to instruct the Director General to issue the necessary invitations; 6.20 to establish principles, as may be considered necessary, for the Postal Operations Council to take into account in its study of questions with major financial repercussions (charges, terminal dues, transit charges, basic airmail conveyance rates and the posting abroad of letter-post items), to follow closely the study of these questions, and to review and approve, for conformity with the aforementioned principles, Postal Operations Council proposals relating to these questions; 6.21 to study, at the request of Congress, the Postal Operations Council or member countries , administrative, legislative and legal problems concerning the Union or the international postal service; it shall be for the Council of Administration to decide, in the above-mentioned fields, whether it is expedient to undertake the studies requested by member countries between Congresses; 6.22 to formulate proposals which shall be submitted for the approval either of Congress or of member countries in accordance. with article 125; 6.23 to approve, within the framework of its competence, the recommendations of the Postal Operations Council for the adoption, if necessary, of regulations or of a new procedure until such time as Congress takes a decision in the matter; 6.24 to consider the annual report prepared by the Postal Operations Council and any proposals submitted by the Council; 6.25 to submit subjects for study to the Postal Operations Council for examination in accordance with article 104.9.16; 6.26 to designate the member country where the next Congress is to be held in the case provided for in article 101.4; 6.27 to determine in due course and after consulting the Postal Operations Council, the number of Committees required to carry out the work of Congress and to specify their functions; 6.28 to designate, after consulting the Postal Operations Council and subject to the approval of Congress, the member countries prepared: - to assume the vice-chairmanships of Congress and the chairman-ships and vice- chairmanships of the Committees, taking as much account as possible of the equitable geographical distribution of the member countries; and - to sit on the restricted Committees of Congress;
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6.29 to review and approve, in consultation with the Postal Operations Council , the draft Strategy for presentation to Congress; - 6.30 to approve the four-yearly report, prepared by the International Bureau in consultation with the POC , on the performance of member countries in respect of the execution of the Union Strategy approved by the preceding Congress, for submission to the following Congress; 6.31 to establish the framework for the organization of the Consultative Committee and concur in the organization of the Consultative Committee in accordance with the provi- sions of article 106; 6.32 to establish criteria for membership of the Consultative Committee and to approve or reject applications for membership in accordance with those criteria, ensuring that action on the applications is accomplished through an expedited process between meetings of the Council of Administration; 6.33 to designate those of its members that will serve as members of the Consultative Committee; 6.34 to receive and discuss reports and recommendations from the Consultative Committee and to consider recommendations from the Consultative Committee for submission to Congress.
7 At its first meeting, which shall be convened by the Chairman of Congress, the Council of Administration shall elect four Vice-Chairmen from among its members and draw up its Rules of Procedure.
8 On convocation by its Chairman, the Council of Administration shall meet in principle once a year, at Union headquarters.
9 The Chairman, the Vice-Chairmen and the Committee Chairmen of the Council of Administration shall form the Management Committee. This Committee shall prepare and direct the work of each session of the Council of Administration. It shall approve, on behalf of the Council of Administration, the biennial report prepared by the International Bureau on the work of the Union and it shall take on any other task which the Council of Administration decides to assign to it or the need for which arises in the course of the strategic planning process.
10 The travel expenses of the representative of each of the members of the Council of Administration participating in its meetings shall be borne by his member country. However, the representative of each of the member countries classified as developing or least developed countries according to the lists established by the United Nations shall, except for meetings which take place during Congress , be entitled to reimbursement of the cost of either an economy class return air ticket or first class return rail ticket, or expenses incurred for travel by any other means, subject to the condition that the amount does not exceed the price of the economy class return air ticket. The same entitlement shall be granted to each member of its Committees, Working Parties or other bodies when these meet outside Congress and the sessions of the Council.
11 The Chairman of the Postal Operations Council shall represent that body at meetings of the Council of Administration on the agenda of which there are questions of interest to the body which he directs.
12 The Chairman of the Consultative Committee shall represent it at meetings of the Council of Administration when the agenda contains questions of interest to the Consultative Committee.
13 To ensure effective liaison between the work of the two bodies, the Postal Operations Council may designate representatives to attend Council of Administration meetings as observers.
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14 The member country in which the Council of Administration meets shall be invited to take part in the meetings in the capacity of observer, if it is not a member of the Council of Administration.
15 The Council of Administration may invite any international body, any representative of an association or enterprise, or any qualified person whom it wishes to associate with its work to its meetings, without the right to vote. It may also invite, under the same conditions, one or more member countries concerned with questions on its agenda.
16 If they so request, the following observers may participate in the plenary sessions and Committee meetings of the Council of Administration, without the right to vote: 16.1 members of the Postal Operations Council; 16.2 members of the Consultative Committee; 16.3 intergovernmental organizations interested in the work of the Council of Administration; 16.4 other member countries of the Union.
17 For logistical reasons, the Council of Administration may limit the number of attendees per observer participating. It may also limit their right to speak during the debates.
18 The members of the Council of Administration shall take an active part in its work. Observers may, at their request, be allowed to cooperate in the studies undertaken, subject to such conditions as the Council may establish to ensure the efficiency and effectiveness of its work. They may also be invited to chair Working Parties and Project Teams when their experience or expertise justifies it. The participation of observers shall be carried out without additional expense for the Union.
19 In exceptional circumstances, observers may be excluded from a meeting or a portion of a meeting or may have their right to receive documents restricted if the confidentiality of the subject of the meeting or document so requires. This restriction may be decided on a case-by-case basis by any body concerned or its Chair. The case-by-case situations shall be reported to the Council of Administration and to the Postal Operations Council when matters of interest to the Postal Operations Council are concerned. If it considers this necessary, the Council of Administration may subsequently review restrictions, in consultation with the Postal Operations Council where appropriate.
Article III (Article 103 amended) Information on the activities of the Council of Administration
1 After each session, the Council of Administration shall inform the member countries, their designated operators , the Restricted Unions and the members of the Consultative Committee about its activities by sending them, inter alia, a summary record and its resolutions and decisions.
2 The Council of Administration shall make to Congress a comprehensive report on its work and send it to the member countries, their designated operators and the members of the Consultative Committee at least two months before the opening of Congress.
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Article IV (Article 104 amended) Composition, functioning and meetings of the Postal Operations Council (Const 18)
1 The Postal Operations Council shall consist of forty members who shall exercise their functions during the period between successive Congresses.
2 The members of the Postal Operations Council shall be elected by Congress on the basis of qualified geographical distribution. Twenty-four seats shall be reserved for developing member countries and sixteen seats for developed member countries. At least one third of the members shall be renewed at each Congress.
3 Each member of the Postal Operations Council shall appoint its representative, who shall have responsibilities for delivering services mentioned in the Acts of the Union.
4 The operational expenses of the Postal Operations Council shall be borne by the Union. Its members shall not receive any payment. Travelling and living expenses incurred by representatives of member countries participating in the Postal Operations Council shall be borne by these member countries . However, the representative of each of the member countries considered to be disadvantaged according to the lists established by the United Nations shall, except for meetings which take place during Congress, be entitled to reimbursement of the price of an economy class return air ticket or first class return rail ticket, or expenses incurred for travel by any other means, subject to the condition that the amount does not exceed the price of the economy class return air ticket.
5 At its first meeting, which shall be convened and opened by the Chairman of Congress, the Postal Operations Council shall choose from among its members a Chairman, a Vice- Chairman, and the Committee Chairmen.
6 The Postal Operations Council shall draw up its Rules of Procedure.
7 In principle, the Postal Operations Council shall meet every year at Union headquarters. The date and place of the meeting shall be fixed by its Chairman in agreement with the Chairman of the Council of Administration and the Director General of the International Bureau.
8 The Chairman, the Vice-Chairman and the Committee Chairmen of the Postal Operations Council shall form the Management Committee. This Committee shall prepare and direct the work of each meeting of the Postal Operations Council and take on all the tasks which the latter decides to assign to it or the need for which arises in the course of the strategic planning process.
9 The functions of the Postal Operations Council shall be the following: 9.1 to conduct the study of the most important operational, commercial, technical, economic and technical cooperation problems which are of interest to all member countries or their designated operators , including questions with major financial repercussions (charges, terminal dues, transit charges, airmail conveyance rates, parcel-post rates, and the posting abroad of letter-post items), and to prepare information, opinions and recommendations for action on them; 9.2 to revise the Regulations of the Union within six months following the end of the Congress unless the latter decides otherwise; in case of urgent necessity, the Postal Operations Council may also amend the said Regulations at other sessions; in both cases, the Operations Council shall be subject to Council of Administration guidance on matters of fundamental policy and principle; 9.3 to coordinate practical measures for the development and improvement of international postal services;
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9.4 to take, subject to Council of Administration approval within the framework of the latter's competence, any action considered necessary to safeguard and enhance the quality of and to modernize the international postal service;
9.5 to formulate proposals which shall be submitted for the approval either of Congress or of member countries in accordance with article 125; the approval of the Council of Administration is required when these proposals concern questions within the latter's competence; 9.6 to examine, at the request of a member country, any proposal which that member country forwards to the International Bureau under article 124, to prepare observations on it and to instruct the International Bureau to annex these observations to the proposal before submitting it for approval to the member countries;
9.7 to recommend, if necessary, and where appropriate after approval by the Council of Administration and consultation of all the member countries , the adoption of regulations or of a new procedure until such time as Congress takes a decision in the matter; 9.8 to prepare and issue, in the form of recommendations to member countries and their designated operators, standards for technological, operational and other processes within its competence where uniformity of practice is essential; it shall similarly issue, as required, amendments to standards it has already set;
9.9 to provide input to the Council of Administration for the development of the draft Strategy to be submitted to Congress;
9.10 to approve those parts of the biennial report on the work of the Union prepared by the International Bureau which concern the responsibilities and functions of the Postal Operations Council; 9.11 to decide on the contacts to be established with member countries and their designated operators in order to carry out its functions; 9.12 to study teaching and vocational training problems of interest to member countries and their designated operators as well as to the new and developing countries;
9.13 to take the necessary steps to study and publicize the experiments and progress made by certain member countries and their designated operators in the technical, operational, economic and vocational training fields of interest to the postal services;
9.14 to study the present position and needs of the postal services in the new and developing countries and to prepare appropriate recommendations on ways and means of improving the postal services in those countries;
9.15 to take, in consultation with the Council of Administration, appropriate steps in the sphere of technical cooperation with all member countries of the Union and their designated operators and in particular with the new and developing countries and their designated operators; 9.16 to examine any other questions submitted to it by a member of the Postal Operations Council, by the Council of Administration or by any member country or designated operator; 9.17 to receive and discuss reports as well as recommendations from the Consultative Committee and, when matters of interest to the Postal Operations Council are involved, to examine and comment on recommendations from the Consultative Committee for submission to Congress; 9.18 to designate those of its members that will serve as members of the Consultative Committee.
10 On the basis of the Union Strategy adopted by Congress and, in particular the part relating to the strategies of the Permanent Bodies of the Union, the Postal Operations Council shall, at its first session after Congress, prepare a draft basic work programme, containing a
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number of tactics aimed at implementing strategies. This basic work programme, which shall include a limited number of projects on topical subjects of common interest, shall be revised annually in the light of new realities and priorities.
11 In order to ensure effective liaison between the work of the two bodies, the Council of Administration may designate representatives to attend Postal Operations Council meetings as observers.
12 If they so request, the following observers may participate in the plenary sessions and Committee meetings of the Postal Operations Council, without the right to vote: 12.1 members of the Council of Administration; 12.2 members of the Consultative Committee; 12.3 intergovernmental organizations interested in the work of the Postal Operations Council; 12.4 other member countries of the Union.
13 For logistical reasons, the Postal Operations Council may limit the number of attendees per observer participating. It may also limit their right to speak during the debates.
14 The members of the Postal Operations Council shall take an active part in its work. Observers may, at their request, be allowed to cooperate in the studies undertaken, subject to such conditions as the Council may establish to ensure the efficiency and effectiveness of its work. They may also be invited to chair Working Parties and Project Teams when their experience or expertise justifies it. The participation of observers shall be carried out without additional expense for the Union.
15 In exceptional circumstances observers may be excluded from a meeting or a portion of a meeting or may have their right to receive documents restricted if the confidentiality of the subject of the meeting or document so requires. This restriction may be decided on a case-by-case basis by any body concerned or its Chair. The case-by-case situations shall be reported to the Council of Administration and to the Postal Operations Council. If it considers this necessary, the Council of Administration may, in consultation with the Postal Operations Council, subsequently review restrictions where appropriate.
16 The Chairman of the Consultative Committee shall represent that organization at meetings of the Postal Operations Council when the agenda contains questions of interest to the Consultative Committee.
17 The Postal Operations Council may invite the following to take part in its meetings without the right to vote: 17.1 any international body or any qualified person whom it wishes to associate with its work; 17.2 any member country not belonging to the Postal Operations Council; 17.3 any association or enterprise that it wishes to consult with respect to its work.
Article V (Article 105 amended) Information on the activities of the Postal Operations Council
1 After each session, the Postal Operations Council shall inform the member countries, their designated operators, the Restricted Unions and the members of the Consultative Committee about its activities by sending them, inter alia, a summary record and its resolutions and decisions.
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2 The Postal Operations Council shall prepare for the Council of Administration an annual report on its work.
3 The Postal Operations Council shall make to Congress a comprehensive report on its work and send it to the member countries, their designated operators and the members of the Consultative Committee at least two months before the opening of Congress.
Article VI (Article 106 amended) Composition, functioning and meetings of the Consultative Committee
1 The aim of the Consultative Committee shall be to represent the interests of the wider international postal sector, and to provide a framework for effective dialogue between stake- holders. It shall consist of non-governmental organizations representing customers, delivery service providers, organizations of workers, suppliers of goods and services to the postal services sector and like organizations of individuals and companies which have an interest in supporting the mission and objectives of the Union . Where such organizations are registered, they must be registered in a member country of the Union. The Council of Administration and the Postal Operations council shall designate the members of their respective Councils as members of the Consultative Committee. Apart from members designated by the Council of Administration and the Postal Operation Council, membership in the Consultative Committee shall be determined through a process of application and acceptance established by the Council of Administration, carried out in accordance with article 102.6.31,
2 Each member of the Consultative Committee shall appoint its own representative.
3 The operational costs of the Consultative Committee shall be shared by the Union and members of the Committee as determined by the Council of Administration.
4 The members of the Consultative Committee shall not receive remuneration or any other compensation.
5 The Consultative Committee shall reorganize itself after each Congress in accordance with the framework established by the Council of Administration. The Chairman of the Council of Administration shall preside at the organizational meeting of the Consultative Committee, which shall elect its Chairman at that meeting.
6 The Consultative Committee shall determine its internal organization and shall draw up its own rules of procedure, taking into account the general principles of the Union and subject to the concurrence of the Council of Administration after having consulted the Postal Operations Council.
7 The Consultative Committee shall meet twice annually. In principle, the meetings will be held at Union headquarters at the same time as meetings of the Council of Administration and the Postal Operations Council. The date and location of each meeting shall be fixed by the Chairman of the Consultative Committee in agreement with the Chairmen of the Council of Administration and the Postal Operations Council and the Director General of the International Bureau.
8 The Consultative Committee shall establish its own programme within the framework of the following functions:
8.1 to examine documents and reports of the Council of Administration and the Postal Operations Council. In exceptional circumstances, the right to receive certain texts and documents may be restricted if the confidentiality of the subject of the meeting or document so requires. This restriction may be decided on a case-by-case basis by any body concerned or its Chairman. The case-by-case situations shall be reported to the
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Council of Administration, and to the Postal Operations Council when matters of interest to the Postal Operations Council are concerned. If it considers this necessary, the Council of Administration may subsequently review restrictions, in consultation with the Postal Operations Council, where appropriate; 8.2 to conduct studies of and debate issues of importance to the Consultative Committee's members; 8.3 to consider issues affecting the postal services sector and issue reports on such issues; 8.4 to provide input to the work of the Council of Administration and the Postal Operations Council, including submitting reports and recommendations and giving opinions at the request of the two Councils; 8.5 to make recommendations to Congress, subject to the approval of the Council of Administration and, when matters of interest to the Postal Operations Council are involved, subject to examination and comment by the Postal Operations Council.
9 The Chairman of the Council of Administration and the Chairman of the Postal Operations Council shall represent those bodies at meetings of the Consultative Committee when the agenda of such meetings contains questions of interest to those bodies.
10 In order to ensure effective liaison with the bodies of the Union, the Consultative Committee may designate representatives to attend meetings of Congress, the Council of Administration, and the Postal Operations Council, and their respective Committees, as observers without the right to vote.
11 If they so request, members of the Consultative Committee may attend plenary sessions and Committee meetings of the Council of Administration and the Postal Operations Council in accordance with articles 102.16 and 104.12. They may also participate in the work of project teams and working groups under terms established under articles 102.18 and 104.14. Members of the Consultative Committee may attend Congress as observers without the right to vote.
12 If they so request, the following observers may participate in the sessions of the Consultative Committee, without the right to vote: 12.1 members of the Postal Operations Council and the Council of Administration; 12.2 intergovernmental organizations interested in the work of the Consultative Committee; 12.3 Restricted Unions; 12.4 other member countries of the Union.
13 For logistical reasons, the Consultative Committee may limit the number of attendees per observer participating. It may also limit their right to speak during the debates.
14 In exceptional circumstances observers may be excluded from a meeting or a portion of a meeting or may have their right to receive documents restricted if the confidentiality of the subject of the meeting or document so requires. This restriction may be decided on a case-by-case basis by any body concerned or its Chair. The case-by-case situations shall be reported to the Council of Administration and to the Postal Operations Council when matters of interest to the Postal Operations Council are concerned. If it considers this necessary, the Council of Administration may subsequently review restrictions, in consultation with the Postal Operations Council where appropriate.
15 The International Bureau, under the responsibility of the Director General, shall provide the secretariat for the Consultative Committee.
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Article VII (Article 107 amended) Information on the activities of the Consultative Committee
1 After each session, the Consultative Committee shall inform the Council of Administration and the Postal Operations Council of its activities by sending to the Chairmen of those bodies, inter alia, a summary record of its meetings and its recommendations and views.
2 The Consultative Committee shall make to the Council of Administration an annual activity report, with a copy to the Postal Operations Council. This report shall be included in the documentation of the Council of Administration that is provided to Union member countries, to their designated operators and to the Restricted Unions, in accordance with article 103.
3 The Consultative Committee shall make to Congress a comprehensive report on its work and send it to the member countries and their designated operators at least two months before the opening of Congress.
Article VIII (Article 110 amended) Languages used for documentation, for debates and for official correspondence
1 For the documentation of the Union, the French, English, Arabic and Spanish languages shall be used. The Chinese, German, Portuguese and Russian languages shall also be used provided that only the most important basic documentation is produced in these languages. Other languages may also be used on condition that the member countries which have made the request shall bear all of the costs involved.
2 The member country or countries which have requested a language other than the official language constitute a language group.
3 Documentation shall be published by the International Bureau in the official language and in the languages of the duly constituted language groups, either directly or through the intermediary of the regional offices of those groups in conformity with the procedures agreed with the International Bureau. Publication in the different languages shall be effected in accordance with a common standard.
4 Documentation published directly by the International Bureau shall, as far as possible, be distributed simultaneously in the different languages requested.
5 Correspondence between the member countries or their designated operators and the International Bureau and between the latter and outside entities may be exchanged in any language for which the International Bureau has available a translation service.
6 The costs of translation into any language, including those resulting from the application of paragraph 5, shall be borne by the language group which has asked for that language. The member countries using the official language shall pay, in respect of the translation of non-official documents, a lump-sum contribution, the amount of which per contribution unit shall be the same as that borne by the member countries using the other International Bureau working language. All other costs involved in the supply of documents shall be borne by the Union. The ceiling of the costs to be borne by the Union for the production of documents in Chinese, German, Portuguese and Russian shall be fixed by a Congress resolution.
7 The costs to be borne by a language group shall be divided among the members of that group in proportion to their contributions to the expenses of the Union. These costs may be divided among the members of the language group according to another system, provided that the
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member countries concerned agree to it and inform the International Bureau of their decision through the intermediary of the spokesman of the group.
8 The International Bureau shall give effect to any change in the choice of language. requested by a member country after a period which shall not exceed two years.
9 For the discussions at meetings of the Union's bodies, the French, English, Spanish and Russian languages shall be admissible, by means of a system of interpretation - with or without electronic equipment - the choice being left to the judgment of the organizers of the meeting after consultation with the Director General of the International Bureau and the member countries concerned.
10 Other languages shall likewise be admissible for the discussions and meetings mentioned in paragraph 9.
11 Delegations using other languages shall arrange for simultaneous interpretation into one of the languages mentioned in paragraph 9, either by the system indicated in the same paragraph, when the necessary technical modifications can be made, or by individual interpreters.
12 The costs of the interpretation services shall be shared among the member countries using the same language in proportion to their contributions to the expenses of the Union. However, the costs of installing and maintaining the technical equipment shall be borne by the Union.
13 Member countries and/or their designated operators may come to an understanding about the language to be used for official correspondence in their relations with one another. In the absence of such an understanding the language to be used shall be French
Article IX (Article 112 amended) Duties of the Director General
1 The Director General shall organize, administer and direct the International Bureau, of which he is the legal representative. He shall be empowered to classify posts in grades G 1 to D 2 and to appoint and promote officials in those grades. For appointments in grades P 1 to D 2, he shall consider the professional qualifications of the candidates recommended by the member countries of which the candidates are nationals or in which they exercise their professional activities, taking into account equitable geographical distribution with respect to continents and languages. D 2 posts shall as far as possible be filled by candidates from different regions and from regions other than those from which the Director General and Deputy Director General originate, bearing in mind the paramount consideration of the efficiency of the International Bureau. In the case of posts requiring special qualifications, the Director General may seek applications from outside. He shall also consider, for the appointment of a new official, that, in principle, persons occupying grade D 2, D 1 and P 5 posts must be nationals of different member countries of the Union. For the promotion of an official of the International Bureau to grades D 2, D 1 and P 5, he shall not be bound to apply that principle. Moreover, the requirements of equitable geographical and language distribution shall rank behind merit in the recruitment process. The Director General shall inform the Council of Administration once a year of appointments and promotions in grades P 4 to D 2.
2 The Director General shall have the following duties: 2.1 to act as depositary of the Acts of the Union and as intermediary in the procedure of accession and admission to and withdrawal from the Union; 2.2 to notify the decisions taken by Congress to all the Governments of member countries;
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2.3 to notify all member countries and their designated operators of the Regulations drawn up or revised by the Postal Operations Council; 2.4 to prepare the draft annual budget of the Union at the lowest possible level consistent with the requirements of the Union and to submit it in due course to the Council of Administration for consideration; to communicate the budget to the member countries of the Union after approval by the Council of Administration and to execute it; 2.5 to execute the specific activities requested by the bodies of the Union and those assigned to him by the Acts; 2.6 to take action to achieve the objectives set by the bodies of the Union, within the framework of the established policy and the funds available; 2.7 to submit suggestions and proposals to the Council of Administration or to the Postal Operations Council; 2.8 following the close of Congress, to submit proposals to the Postal Operations Council concerning changes to the Regulations required as a result of Congress decisions, in accordance with the Rules of Procedure of the Postal Operations Council; 2.9 to prepare, for the Council of Administration and on the basis of directives issued by the Councils, the draft Strategy to be submitted to Congress; 2.10 to prepare , for approval by the Council of Administration , a four-yearly report on the member countries ' performance in respect of the Union Strategy approved by the preceding Congress, which will be submitted to the following Congress; 2.11 to ensure the representation of the Union; 2.12 to act as an intermediary in relations between: - the UPU and the Restricted Unions; - the UPU and the United Nations; the UPU and the international organizations whose activities are of interest to the Union; the UPU and the international organizations or the associations or enterprises that the bodies of the Union wish to consult or associate with their work; 2.13 to assume the duties of Secretary General of the bodies of the Union and supervise in this capacity and taking into account the special provisions of these General Regulations, in particular: - the preparation and organization of the work of the Union's bodies; - the preparation, production and distribution of documents, reports and minutes; - the functioning of the secretariat at meetings of the Union's bodies; 2.14 to attend the meetings of the bodies of the Union and take part in the discussions without the right to vote, with the possibility of being represented.
Article X (Article 114 amended) Secretariat of the Union's bodies (Const 14, 15, 17, 18)
The secretariat of the Union's bodies shall be provided by the International Bureau under the responsibility of the Director General. It shall send all the documents published on the occasion of each session to the member countries of the body and their designated operators, to member countries and their designated operators which, while not members of the body, cooperate in the studies undertaken, to the Restricted Unions and to other member countries and their designated operators which ask for them.
22 General Regulations, Additional Protocol
Article XI (Article 116 amended) Information. Opinions. Requests for interpretation and amendment of the Acts. Inquiries. Role in the settlement of accounts (Const 20; Gen Regs 124, 125, 126)
1 The International Bureau shall be at all times at the disposal of the Council of Administration, the Postal Operations Council and member countries and their designated operators for the purpose of supplying them with any necessary information on questions relating to the service.
2 In particular it shall collect, collate, publish and distribute all kinds of information of interest to the international postal service, give an opinion, at the request of the parties involved, on questions in dispute, act on requests for interpretation and amendment of the Acts of the Union and, in general, carry out such studies and editorial or documentary work as are assigned to it by those Acts or as may be referred to it in the interest of the Union.
3 It shall also conduct inquiries requested by member countries and their designated operators to obtain the views of other member countries and their designated operators on a particular question. The result of an inquiry shall not have the status of a vote and shall not be formally binding.
4 It may act as a clearing house in the settlement of accounts of all kinds relating to the postal service.
Article XII (Article 118 amended) Forms supplied by the International Bureau (Const 20)
The International Bureau shall be responsible for arranging the manufacture of international reply coupons and for supplying them, at cost, to member countries or their designated operators ordering them.
Article XIII (Article 119 amended) Acts of Restricted Unions and Special Agreements (Const 8)
1 Two copies of the Acts of Restricted Unions and of Special Agreements concluded under article 8 of the Constitution shall be sent to the International Bureau by the offices of such Unions, or failing that, by one of the contracting parties.
2 The International Bureau shall see that the Acts of Restricted Unions and Special Agreements do not include conditions less favourable to the public than those which are provided for in the Acts of the Union and shall inform member countries and their designated operators of the existence of such Unions and Agreements. The International Bureau shall notify the Council of Administration of any irregularity discovered through applying this provision.
Article XIV (Article 121 amended) Biennial report on the work of the Union (Const 20; Gen Regs 102.6.17)
The International Bureau shall make a biennial report on the work of the Union, which shall be sent, after approval by the Council of Administration, to member countries and their designated operators , the Restricted Unions and the United Nations.
23 General Regulations, Additional Protocol
Article XV (Article 122 amended) Procedure for submitting proposals to Congress (Const 29)
1 Subject to the exceptions provided for in paragraphs 2 and 5, the following procedure shall govern the submission of proposals of all kinds to Congress by member countries: a proposals which reach the International Bureau at least six months before the date fixed for Congress shall be accepted; b no drafting proposal shall be accepted during the period of six months preceding the date fixed for Congress; c proposals of substance which reach the International Bureau in the interval between six and four months before the date fixed for Congress shall not be accepted unless they are supported by at least two member countries; d proposals of substance which reach the International Bureau in the interval between four and two months preceding the date fixed for Congress shall not be accepted unless they are supported by at least eight member countries ; proposals which arrive after that time shall no longer be accepted; e declarations of support shall reach the International Bureau within the same period as the proposals to which they refer.
2 Proposals concerning the Constitution or the General Regulations shall reach the International Bureau not later than six months before the opening of Congress; any received after that date but before the opening of Congress shall not be considered unless Congress so decides by a majority of two thirds of the countries represented at Congress and unless the conditions laid down in paragraph 1 are fulfilled.
3 Every proposal shall, as a rule, have only one aim and contain only the changes justified by that aim. Similarly, each proposal liable to lead to significant costs for the Union shall be accompanied by an indication of its financial impact, prepared by the member country submitting the proposal in consultation with the International Bureau, so that the financial resources needed for its implementation can be determined.
4 Drafting proposals shall be headed "Drafting proposal" by the member countries which submit them and shall be published by the International Bureau under a number followed by the letter R. Proposals which do not bear this indication but which, in the opinion of the International Bureau, deal only with drafting points shall be published with an appropriate annotation; the International Bureau shall draw up a list of these proposals for Congress.
5 The procedure prescribed in paragraphs 1 and 4 shall not apply either to proposals concerning the Rules of Procedure of Congresses or to amendments to proposals already made.
Article XVI (Article 123 amended) Procedure for submitting proposals to the Postal Operations Council concerning the preparation of new Regulations in the light of decisions taken by Congress
1 The Regulations of the Universal Postal Convention and the Postal Payment Services Agreement shall be drawn up by the Postal Operations Council in the light of the decisions taken by Congress.
2 Proposals that are consequential on proposed amendments to the Convention or Postal Payment Services Agreement shall be submitted to the International Bureau simultaneously with the Congress proposals to which they relate. They may be submitted by a single member country
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without the support of other member countries. Such proposals shall be distributed to all member countries no later than one month prior to Congress.
3 Other proposals concerning the Regulations for consideration by the Postal Operations Council in its preparation of the new Regulations within the six months following Congress shall be submitted to the International Bureau at least two months prior to Congress.
4 Proposals concerning changes to the Regulations required as a result of Congress decisions that are submitted by member countries must reach the International Bureau no later than two months before the opening of the Postal Operations Council. Such proposals shall be distributed to all member countries and their designated operators no later than one month prior to the opening of the Postal Operations Council.
Article XVII (Article 124 amended) Procedure for submitting proposals between Congresses (Const 29; Gen Regs 116)
1 To be eligible for consideration every proposal concerning the Convention or the Agreements submitted by a member country between Congresses shall be supported by at least two other member countries . Such proposals shall lapse if the International Bureau does not receive, at the same time, the necessary number of declarations of support.
2 These proposals shall be sent to other member countries through the intermediary of the International Bureau.
3 Proposals concerning the Regulations shall not require support but shall not be considered by the Postal Operations Council unless the latter agrees to the urgent necessity.
Article XVIII (Article 125 amended) Consideration of proposals between Congresses (Const 29; Gen Regs 116, 124)
1 Every proposal concerning the Convention, the Agreements and their Final Protocols shall be subject to the following procedure: where a member country has sent a proposal to the International Bureau, the latter shall forward it to all member countries for examination. They shall be allowed a period of two months in which to examine the proposal and forward any observations to the International Bureau. Amendments shall not be admissible. Once these two months have elapsed, the International Bureau shall forward to member countries all the observations it has received and invite each member country to vote for or against the proposal. Member countries that have not sent in their vote within a period of two months shall be considered to have abstained. The aforementioned periods shall be reckoned from the dates of the International Bureau circulars.
2 Proposals for amending the Regulations shall be dealt with by the Postal Operations Council.
3 If the proposal relates to an Agreement or its Final Protocol, only the member countries which are parties to that Agreement may take part in the procedure described in paragraph 1.
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Article XIX (Article 126 amended) Notification of decisions adopted between Congresses (Const 29; Gen Regs 124, 125)
1 Amendments made to the Convention, the Agreements and the Final Protocols to those Acts shall be sanctioned by notification thereof to the governments of member countries by the Director General of the International Bureau.
2 Amendments made to the Regulations and their Final Protocols by the Postal Operations Council shall be communicated to member countries and their designated operators by the International Bureau. The same shall apply to the interpretations referred to in article 36.3.2 of the Convention and in the corresponding provisions of the Agreements.
Article XX (Article 128 amended) Fixing and regulation of the expenditure of the Union (Const 22)
1 Subject to the provisions of paragraphs 2 to 6, the annual expenditure relating to the activities of bodies of the Union may not exceed the following sums for 2009 and subsequent years: 37,000,000 Swiss francs for the years 2009 and 2010 , and 37,235 , 000 Swiss francs for the years 2011 and 2012 . The basic limit for 2012 shall also apply to the following years in case the Congress scheduled for 2012 is postponed.
2 The expenditure relating to the convening of the next Congress (travelling expenses of the secretariat, transport charges, cost of installing simultaneous interpretation equipment, cost of reproducing documents during the Congress, etc.) shall not exceed the limit of 2,900,000 Swiss francs.
3 The Council of Administration shall be authorized to exceed the limits laid down in paragraphs 1 and 2 to take account of increases in salary scales, pension contributions or allowances, including post adjustments, approved by the United Nations for application to its staff working in Geneva.
4 The Council of Administration shall also be authorized to adjust, each year, the amount of expenditure other than that relating to staff on the basis of the Swiss consumer price index.
5 Notwithstanding paragraph 1, the Council of Administration, or in case of extreme urgency, the Director General, may authorize the prescribed limits to be exceeded to meet the cost of major and unforeseen repairs to the International Bureau building, provided however that the amount of the increase does not exceed 125,000 Swiss francs per annum.
6 If the credits authorized in paragraphs 1 and 2 prove inadequate to ensure the smooth running of the Union, these limits may only be exceeded with the approval of the majority of the member countries of the Union. Any consultation shall include a complete description of the facts justifying such a request.
7 Countries which accede to the Union or are admitted to the status of members of the Union as well as those which leave the Union shall pay their contributions for the whole of the year during which their admission or withdrawal becomes effective.
8 Member countries shall pay their contributions to the Union's annual expenditure in advance on the basis of the budget laid down by the Council of Administration. These contributions shall be paid not later than the first day of the financial year to which the budget refers. After that date, the sums due shall be chargeable with interest in favour of the Union at the rate of 6% per annum from the fourth month.
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9 Where the arrears of mandatory contributions, not including interest, owed to the Union by a member country are equal to or more than the amount of the contributions of that member country for the preceding two financial years, such member country may irrevocably assign to the Union all or part of the credits owed it by other member countries, in accordance with the arrangements laid down by the Council of Administration. The conditions of this assignment of credit shall be determined by agreement reached between the member country, its debtors/ creditors and the Union.
10 A member country which, for legal or other reasons, cannot make such assignment shall undertake to conclude a schedule for the amortization of its arrears.
11 Other than in exceptional circumstances, recovery of arrears of mandatory contributions owed to the Union may not extend over more than ten years.
12 In exceptional circumstances, the Council of Administration may release a member coun- try from all or part of the interest owed if that country has paid the full capital amount of its debts in arrears.
13 A member country may also be released, within the framework of an amortization schedule approved by the Council of Administration for its accounts in arrears, from all or part of the interest accumulated or to accrue; such release shall, however, be subject to the full and punctual execution of the amortization schedule within an agreed period of ten years at most.
14 To cover shortfalls in Union financing, a Reserve Fund shall be established the amount of which shall be fixed by the Council of Administration. This Fund shall be maintained primarily from budget surpluses. It may also be used to balance the budget or to reduce the amount of member countries' contributions.
15 As regards temporary financing shortfalls, the Government of the Swiss Confederation shall make the necessary short-term advances, on conditions which are to be fixed by mutual agreement. That Government shall supervise, without charge, book-keeping and accounting of the International Bureau within the limits of the credits fixed by Congress.
16 The provisions under paragraphs 9, 10, 11 , 12 and 13 apply by analogy to the translation costs billed by the International Bureau to member countries belonging to the language groups.
Article XXI (Article 130 amended) Contribution classes (Const 21; Gen Regs 115, 128)
1 Member countries shall contribute to defraying Union expenses according to the contribution class to which they belong. These classes shall be the following: class of 50 units; class of 45 units; class of 40 units; class of 35 units; class of 30 units; class of 25 units; class of 20 units; class of 15 units; class of 10 units; class of 5 units; class of 3 units; class of 1 unit;
27 General Regulations, Additional Protocol
class of 0.5 unit, reserved for the least advanced countries as listed by the United Nations and for other countries designated by the Council of Administration.
2 Notwithstanding the contribution classes listed in paragraph 1, any member country may elect to contribute a higher number of units than that corresponding to the contribution class to which it belongs , for a minimum term equivalent to the period between Congresses. The announcement of a change shall be made at the latest at Congress . At the end of the period between Congresses , the member country shall return automatically to its original number of contribution units unless it decides to maintain its contribution of a higher number of units . The payment of additional contributions shall increase the expenditure accordingly.
3 Member countries shall be included in one of the above-mentioned contribution classes upon their admission or accession to the Union in accordance with the procedure laid down in article 21.4 of the Constitution.
4 Member countries may subsequently be placed in a lower contribution class, on condition that the change request is sent to the International Bureau at least two months before the opening of Congress. Congress shall give a non-binding opinion on these requests for a change in contribution class. The member country shall be free to decide whether to follow the opinion of Congress . The final decision of the member country shall be transmitted to the International Bureau Secretariat before the end of Congress . This change request shall take effect on the date of the entry into force of the financial provisions drawn up by Congress. Member countries that have not made known their wish to change contribution class within the required time shall remain in the class to which they belonged up to that time.
5 Member countries may not insist on being lowered more than one class at a time.
6 Nevertheless, in exceptional circumstances such as natural disasters necessitating international aid programmes, the Council of Administration may authorize a temporary reduc- tion in contribution class once between two Congresses when so requested by a member country if the said member establishes that it can no longer maintain its contribution at the class originally chosen. In the same circumstances, the Council of Administration may also authorize a temporary reduction for the non-least developed countries already in the class of 1 unit by placing them in the class of 0.5 unit.
7 The temporary reduction in contribution class in application of paragraph 6 may be authorized by the Council of Administration for a maximum period of two years or up to the next Congress, whichever is earlier. On expiry of the specified period, the country concerned shall automatically revert to its original contribution class.
8 Notwithstanding paragraphs 4 and 5, changes to a higher class shall not be subject to any restriction.
Article XXII (Article 131 amended) Payment for supplies from the International Bureau (Gen Regs 118)
Supplies provided by the International Bureau to member countries and their designated operators against payment shall be paid for in the shortest possible time and at the latest within six months from the first day of the month following that in which the account is sent by the Bureau. After that period the sums due shall be chargeable with interest in favour of the Union at the rate of 5% per annum reckoned from the date of expiry of that period.
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Article XXIII (Article 132 amended) Arbitration procedure (Const 32)
1 If.a dispute has to be settled by arbitration, each of the member countries party to the case shall select a member country not directly involved in the dispute. When several member countries make common cause, they shall count only as a single member country for the purposes of this provision.
2 If one of the member countries party to the case does not act on a proposal for arbitration within a period of six months from the date of its sending, the International Bureau, if so requested, shall itself call upon the defaulting member country to appoint an arbitrator or shall itself appoint one ex officio.
3 The parties to the case may agree to appoint a single arbitrator which may be the International Bureau.
4 The decision of the arbitrators shall be taken by a majority of votes.
5 In the event of a tie the arbitrators shall select another member country, not involved in the dispute either, to settle the matter. Should they fail to agree on the choice, this member country shall be appointed by the International Bureau from among member countries not proposed by the arbitrators.
6 If the dispute concerns one of the Agreements, the arbitrators may be appointed only from among the member countries that are parties to that Agreement.
7 If a dispute has to be settled by arbitration between designated operators, the operators concerned shall ask their member countries to act in accordance with the procedure provided for in paragraphs 1 to 6.
Article XXIV (Article 135 amended) Amendment, entry into force and duration of the General Regulations
The amendments adopted by a Congress shall be the subject of an additional protocol and, unless that Congress decides otherwise , shall come into effect at the same time as the other Acts renewed in the course of the same Congress.
These General Regulations shall come into force on 1 January 2006 and shall remain in force for an indefinite period.
Article XXV Accession to the Additional Protocol
Member countries which have not signed the present Protocol may accede to it at any time. The relevant instruments of accession shall be deposited with the Director General of the International Bureau, who shall notify the governments of the member countries of their deposit.
Article XXVI Entry into force and duration of the Additional Protocol to the General Regulations
This Additional Protocol shall come into force on 1 January 2010 and shall remain in force for an indefinite period.
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In witness whereof the plenipotentiaries of the governments of the member countries have drawn up this Additional Protocol, which shall have the same force and the same validity as if its provisions were inserted in the text of the General Regulations itself, and they have signed it in a single original which shall be deposited with the Director General of the International Bureau. A copy thereof shall be delivered to each party by the International Bureau of the Universal Postal Union.
Done at Geneva, 12 August 2008.
30 Convention
Universal Postal Convention
Table of contents
Part I
Rules applicable in common throughout the international postal service
Sole chapter
General provisions
Article 1 Definitions 2 Designation of the entity or entities responsible for fulfilling the obligations arising from adherence to the Convention 3 Universal postal service 4 Freedom of transit 5 Ownership of postal items. Withdrawal from the post. Alteration or correction of address. Redirection. Return to sender of undeliverable items 6 Charges 7 Exemption from postal charges 8 Postage stamps 9 Postal security 10 Sustainable development 11 Violations
Part II
Rules applicable to letter post and postal parcels
Chapter 1
Provision of services
12 Basic services 13 Supplementary services
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14 Electronic mail, EMS, integrated logistics and new services 15 Items not admitted. Prohibitions 16 Admissible radioactive materials and infectious substances 17 Inquiries 18 Customs control. Customs duty and other fees 19 Exchange of closed mails with military units 20 Quality of service standards and targets
Chapter 2
Liability
21 Liability of designated operators . Indemnities 22 Non-liability of member countries and designated operators 23 Sender's liability 24 Payment of indemnity 25 Possible recovery of the indemnity from the sender or the addressee
Chapter 3
Provisions specific to letter post
26 Posting abroad of letter-post items
Part III
Remuneration
Chapter 1
Provisions specific to letter post
27 Terminal dues. General provisions 28 Terminal dues. Provisions applicable to mail flows between designated operators of countries in the target system 29 Terminal dues. Provisions applicable to flows to, from and between designated operators of countries in the transitional system 30 Quality of Service Fund 31 Transit charges
Chapter 2
Other provisions
32 Basic rates and provisions concerning air conveyance dues 33 Parcel post land and sea rates 34 Authority of the Postal Operations Council to fix charges and rates
32 Convention
Part IV
Final provisions
35 Conditions of approval of proposals concerning the Convention and the Regulations 36 Reservations at Congress 37 Entry into force and duration of the Convention
33 Convention
Final Protocol to the Universal Postal Convention
Article 1. Ownership of postal items. Withdrawal from the post. Alteration or correction of address II. Charges III. Exception to the exemption of literature for the blind from postal charges IV. Basic services V. Advice of delivery VI. International business reply service (IBRS) VII. Prohibitions (letter post) VIII. Prohibitions (postal parcels) IX. Admissible radioactive materials and biological materials X. Articles subject to customs duty XI. Inquiries XII. Presentation-to- Customs charge XIII. Posting abroad of letter-post items XIV. Exceptional inward land rates XV. Special tariffs
34 Convention
Universal Postal Convention
The undersigned, plenipotentiaries of the governments of the member countries of the Union, hav- ing regard to article 22.3 of the Constitution of the Universal Postal Union concluded at Vienna on 10 July 1964, have by common consent and subject to article 25.4 of the Constitution drawn up in this Convention the rules applicable throughout the international postal service.
Part I
Rules applicable in common throughout the international postal service
Sole chapter
General provisions
Article 1 Definitions
1 For the purposes of the Universal Postal Convention, the following terms shall have the meanings defined below: 1.1 parcel: item conveyed under the conditions of the Convention and the Parcel Post Regulations; 1.2 closed mail: labelled bag or set of bags or other receptacles sealed with or without lead, containing postal items; 1.3 misrouted mails: receptacles received at an office of exchange other than the one mentioned on the (bag) label; 1.4 missent items : items received at an office of exchange meant for an office of exchange in another member country; 1.5 postal item: generic term referring to anything dispatched by the Post's services (letter post, parcel post, money orders, etc.); 1.6 transit charges: remuneration for services rendered by a carrier in the country crossed (designated operator , other service or combination of the two) in respect of the land, sea and/or air transit of mails; 1.7 terminal dues: remuneration owed to the designated operator of the country of destination by the designated operator of the dispatching country in compensation for the costs incurred in the country of destination for letter-post items received;
35 Convention
1.8 designated operator: any governmental or non-governmental entity officially desig- nated by the member country to operate postal services and to fulfil the related obligations arising out of the Acts of the Union on its territory; 1.9 small packet : item conveyed under the conditions of the Convention and the Letter Post Regulations;
1.10 inward land rate: remuneration owed to the designated operator of the country of destination by the designated operator of the dispatching country in compensation for the costs incurred in the country of destination for parcels received; 1.11 transit land rate: remuneration owed for services rendered by a carrier in the country crossed (designated operator, other service or combination of the two) in respect of the land and/or air transit of parcels through its territory; 1.12 sea rate: remuneration owed for services rendered by a carrier (designated operator, other service or a combination of the two) participating in the sea conveyance of parcels; 1.13 universal postal service: the permanent provision of quality basic postal services at all points in a member country's territory, for all customers, at affordable prices; 1.14 transit a decouvert: open transit through an intermediate country, of items whose num- ber or weight does not justify the make-up of closed mails for the destination country.
Article 2 Designation of the entity or entities responsible for fulfilling the obligations arising from adher- ence to the Convention
1 Member countries shall notify the International Bureau, within six months of the end of Congress, of the name and address of the governmental body responsible for overseeing postal affairs. Within six months of the end of Congress, member countries shall also provide the International Bureau with the name and address of the operator or operators officially designated to operate postal services and to fulfil the obligations arising from the Acts of the Union on their territory. Between Congresses, changes in the governmental bodies and the officially designated operators shall be notified to the International Bureau as soon as possible.
Article 3 Universal postal service
1 In order to support the concept of the single postal territory of the Union, member countries shall ensure that all users/customers enjoy the right to a universal postal service involving the permanent provision of quality basic postal services at all points in their territory, at affordable prices.
2 With this aim in view, member countries shall set forth, within the framework of their national postal legislation or by other customary means, the scope of the postal services offered and the requirement for quality and affordable prices, taking into account both the needs of the population and their national conditions.
3 Member countries shall ensure that the offers of postal services and quality standards will be achieved by the operators responsible for providing the universal postal service.
4 Member countries shall ensure that the universal postal service is provided on a viable basis, thus guaranteeing its sustainability.
36 Convention
Article 4 Freedom of transit
1 The principle of the freedom of transit is set forth in article 1 of the Constitution. It shall carry with it the obligation for each member country to ensure that its designated operators forward, always by the quickest routes and the most secure means which they use for their own items, closed mails and a decouvert letter-post items which are passed to them by another desig- nated operator. This principle shall also apply to missent items and misrouted mails.
2 Member countries which do not participate in the exchange of letters containing infec- tious substances or radioactive substances shall have the option of not admitting these items in transit a decouvert through their territory. The same shall apply to letter-post items other than letters, postcards and literature for the blind. It shall also apply to printed papers, periodicals, magazines, small packets and M bags the content of which does not satisfy the legal requirements governing the conditions of their publication or circulation in the country crossed.
3 Freedom of transit for postal parcels to be forwarded by land and sea routes shall be limited to the territory of the countries taking part in this service.
4 Freedom of transit for air parcels shall be guaranteed throughout the territory of the Union. However, member countries which do not operate the postal parcels service shall not be required to forward air parcels by surface.
5 If a member country fails to observe the provisions regarding freedom of transit, other member countries may discontinue their postal service with that member country.
Article 5 Ownership of postal items. Withdrawal from the post. Alteration or correction of address. Redirec- tion. Return to sender of undeliverable items
1 A postal item shall remain the property of the sender until it is delivered to the rightful owner, except when the item has been seized in pursuance of the legislation of the country of ori- gin or destination and, in case of application of article 15.2.1.1 or 15.3, in accordance with the legislation of the country of transit.
2 The sender of a postal item may have it withdrawn from the post or have its address altered or corrected. The charges and other conditions are laid down in the Regulations.
3 Member countries shall ensure that their designated operators redirect postal items if an addressee has changed his address, and return undeliverable items to the sender. The charges and other conditions are laid down in the Regulations.
Article 6 Charges
1 The charges for the various international postal and special services shall be set by the member countries or their designated operators, depending on national legislation , in accor- dance with the principles set out in the Convention and its Regulations. They shall in principle be related to the costs of providing these services.
2 The member country of origin or its designated operator , depending on national legislation, shall fix the postage charges for the conveyance of letter- and parcel-post items. The postage charges shall cover delivery of the items to the place of address provided that this delivery service is operated in the country of destination for the items in question.
37 Convention
3 The charges collected, including those laid down for guideline purposes in the Acts, shall be at least equal to those collected on internal service items presenting the same characteristics (category, quantity, handling time, etc.).
4 Member countries or their designated operators , depending on national legislation, shall be authorized to exceed any guideline charges appearing in the Acts.
5 Above the minimum level of charges laid down in 3, member countries or their designated operators may allow reduced charges based on their national legislation for letter- post items and parcels posted in the territory of the member country. They may, for instance, give preferential rates to major users of the Post.
6 No postal charge of any kind may be collected from customers other than those provided for in the Acts.
7 Except where otherwise provided in the Acts, each designated operator shall retain the charges which it has collected.
Article 7 Exemption from postal charges
1 Principle 1.1 Cases of exemption from postal charges, as meaning exemption from postal prepayment, shall be expressly laid down by the Convention. Nonetheless, the Regulations may pro- vide for both exemption from postal prepayment and exemption from payment of transit, charges, terminal dues and inward rates for letter-post items and postal parcels relating to the postal service sent by member countries , designated operators and Restricted Unions. Furthermore, letter-post items and postal parcels sent by the UPU International Bureau to Restricted Unions , member countries and designated operators shall be considered to be items relating to the postal service and shall be exempted from all postal charges. However, the member country of origin or its designated operator shall have the option of collecting air surcharges on the latter items.
2 Prisoners of war and civilian internees 2.1 Letter-post items, postal parcels and postal financial services items addressed to or sent by prisoners of war, either direct or through the offices mentioned in the Regulations of the Convention and of the Postal Payment Services Agreement, shall be exempt from all postal charges, with the exception of air surcharges. Belligerents apprehended and interned in a neutral country shall be classed with prisoners of war proper so far as the application of the foregoing provisions is concerned. 2.2 The provisions set out under 2.1 shall also apply to letter-post items, postal parcels and postal financial services items originating in other countries and addressed to or sent by civilian internees as defined by the Geneva Convention of 12 August 1949 relative to the protection of civilian persons in time of war, either direct or through the offices mentioned in the Regulations of the Convention and of the Postal Payment Services Agreement. 2.3 The offices mentioned in the Regulations of the Convention and of the Postal Payment Services Agreement shall also enjoy exemption from postal charges in respect of letter- post items, postal parcels and postal financial services items which concern the persons referred to under 2.1 and 2.2, which they send or receive, either direct or as intermedi- aries. 2.4 Parcels shall be admitted free of postage up to a weight of 5 kilogrammes. The weight limit shall be increased to 10 kilogrammes in the case of parcels the contents of which
38 Convention
cannot be split up and of parcels addressed to a camp or the prisoners' representatives there ("hommes de confiance") for distribution to the prisoners.
2.5 In the accounting between designated operators , rates shall not be allocated for service parcels and for prisoner-of-war and civilian internee parcels, apart from the air conveyance dues applicable to air parcels.
3 Literature for the blind
3.1 Literature for the blind shall be exempt from all postal charges, with the exception of air surcharges.
Article 8 Postage stamps
1 The term "postage stamp" shall be protected under the present Convention and shall be reserved exclusively for stamps which comply with the conditions of this article and of the Regulations.
2 Postage stamps:
2.1 shall be issued and put into circulation solely under the authority of the member country or territory, in conformity with the Acts of the Union;
2.2 are a manifestation of sovereignty and constitute proof of prepayment of the postage corresponding to their intrinsic value when affixed to postal items, in conformity with the Acts of the Union;
2.3 must be in circulation, for postal prepayment or for philatelic purposes, in the member country or territory of issue, according to its national legislation; 2.4 must be accessible to all citizens within the member country or territory of issue.
3 Postage stamps comprise:
3.1 the name of the member country or territory of issue , in roman letters'; 3.2 the face value, expressed:
3.2.1 in principle , in the official currency of the country or territory of issue , or as a let- ter or symbol; 3.2.2 through other identifying characteristics.
4 Emblems of state, official control marks and logos of intergovernmental organizations featuring on postage stamps shall be protected within the meaning of the Paris Convention for the Protection of Industrial Property.
5 The subjects and designs of postage stamps shall: 5.1 be in keeping with the spirit of the Preamble to the UPU Constitution and with decisions taken by the Union's bodies;
5.2 be closely linked to the cultural identity of the member country or territory, or contrib- ute to the dissemination of culture or to maintaining peace;
5.3 have, when commemorating leading figures or events not native to the member country or territory, a close bearing on the country or territory in question; 5.4 be devoid of political character or of any topic of an offensive nature in respect of a per- son or a country;
1 An exception shall be granted to Great Britain , the country which invented the postage stamp.
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5.5 be of major significance to the member country or territory.
6 Postal prepayment impressions, franking machine impressions and impressions made by a printing press or another printing or stamping process in accordance with the UPU Acts may be used only with the authorization of the member country or territory.
Article 9 Postal security
1 Member countries and their designated operators shall adopt and implement a pro- active security strategy at all levels of postal operations to maintain and enhance the confidence of the general public in the postal services, in the interests of all officials involved. This strategy shall include the exchange of information on maintaining the safe and secure transport and tran- sit of mails between member countries and their designated operators.
Article 10 Sustainable development
Member countries and/or their designated operators shall adopt and implement a proactive sustainable development strategy focusing on environmental, social and economic action at all levels of postal operations and promote sustainable development awareness in the postal ser- vices.
Article 11 Violations
1 Postal items 1.1 Member countries shall undertake to adopt the necessary measures to prevent, prosecute and punish any person found guilty of the following: 1.1.1 the insertion in postal items of narcotics and psychotropic substances, as well as explosive, flammable or other dangerous substances, where their insertion has not been expressly authorized by the Convention; 1.1.2 the insertion in postal items of objects of a paedophilic nature or of a pornographic nature using children.
2 Means of postal prepayment and postal payment itself 2.1 Member countries shall undertake to adopt the necessary measures to prevent, prosecute and punish any violations concerning the means of postal prepayment set out in this Convention, such as: 2.1.1 postage stamps, in circulation or withdrawn from circulation; 2.1.2 prepayment impressions; 2.1.3 impressions of franking machines or printing presses; 2.1.4 international reply coupons. 2.2 In this Convention, violations concerning means of postal prepayment refer to any of the acts outlined below committed with the intention of obtaining illegitimate gain for oneself or for a third party. The following acts shall be punished: 2.2.1 any act of falsifying, imitating or counterfeiting any means of postal prepayment, or any illegal or unlawful act linked to the unauthorized manufacturing of such items;
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2.2.2 any act of using, circulating, marketing, distributing, disseminating, transporting, exhibiting, showing, or publicizing any means of postal prepayment which has been falsified, imitated or counterfeited; 2.2.3 any act of using or circulating, for postal purposes, any means of postal prepayment which has already been used; 2.2.4 any attempt to commit any of these violations.
3 Reciprocity
3.1 As regards sanctions, no distinction shall be made between the acts outlined in 2, irrespective of whether national or foreign means of postal prepayment are involved; this provision shall not be subject to any legal or conventional condition of reciprocity.
Part II
Rules applicable to letter post and postal parcels
Chapter 1
Provision of services
Article 12 Basic services
1 Member countries shall ensure that their designated operators accept, handle, con- vey and deliver letter-post items.
2 Letter-post items are:
2.1 priority items and non-priority items , up to 2 kilogrammes; 2.2 letters, postcards, printed papers and small packets, up to 2 kilogrammes; 2.3 literature for the blind, up to 7 kilogrammes;
2.4 special bags containing newspapers, periodicals , books and similar printed documenta- tion for the same addressee at the same address called "M bags ", up to 30 kilogrammes.
3 Letter-post items shall be classified on the basis either of the speed of treatment of the items or of the contents of the items in accordance with the Letter Post Regulations.
4 Higher weight limits than those indicated in paragraph 2 apply optionally for certain letter-post item categories under the conditions specified in the Letter Post Regulations.
5 Subject to paragraph 8, member countries shall also ensure that their designated operators accept, handle , convey and deliver postal parcels up to 20 kilogrammes, either as laid down in the Convention, or, in the case of outward parcels and after bilateral agreement, by any other means which is more advantageous to their customers.
6 Weight limits higher than 20 kilogrammes apply optionally for certain parcel-post catego- ries under the conditions specified in the Parcel Post Regulations.
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7 Any member country whose designated operator does not undertake the conveyance of parcels may arrange for the provisions of the Convention to be implemented by transport compa- nies. It may, at the same time, limit this service to parcels originating in or addressed to places served by these companies.
8 Notwithstanding paragraph 5, member countries which, prior to 1 January 2001 were not parties to the Postal Parcels Agreement shall not be obliged to provide the postal parcels ser- vice.
Article 13 Supplementary services
1 Member countries shall ensure the provision of the following mandatory supplementary services: 1.1 registration service for outbound priority and airmail letter-post items; 1.2 registration service for outbound non-priority and surface letter-post items to destinations for which there is no priority or airmail service;
1.3 registration service for all inbound letter-post items.
2 The provision of a registration service for outbound non-priority and surface letter-post items to destinations for which there is a priority or airmail service shall be optional.
3 Member countries or their designated operators may provide the following optional supplementary services in relations between those designated operators which agreed to provide the service: 3.1 insurance for letter-post items and parcels; 3.2 recorded delivery for letter-post items; 3.3 cash-on-delivery service for letter-post items and parcels; 3.4 express delivery service for letter-post items and parcels; 3.5 delivery to the addressee in person of registered, recorded delivery or insured letter-post items; 3.6 free of charges and fees service for letter-post items and parcels; 3.7 fragile and cumbersome parcels services; 3.8 consignment service for collective items from one consignor sent abroad.
4 The following three supplementary services have both mandatory and optional parts: 4.1 international business reply service (IBRS), which is basically optional. All member countries or their designated operators shall, however, be obliged to operate the IBRS "return" service; 4.2 international reply coupons, which shall be exchangeable in any member country. The sale of international reply coupons is, however, optional;
4.3 advice of delivery for registered and recorded delivery letter-post items, parcels and insured items. All member countries or their designated operators shall admit incom- ing advices of delivery. The provision of an outward advice of delivery service is, however, optional.
The description of these services and their charges are set out in the Regulations.
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6 Where the service features below are subject to special charges in the domestic service, designated operators shall be authorized to collect the same charges for international items, under the conditions described in the Regulations: 6.1 delivery for small packets weighing over 500 grammes; 6.2 letter-post items posted after the latest time of posting; 6.3 items posted outside normal counter opening hours; 6.4 collection at sender's address; 6.5 withdrawal of a letter-post item outside normal counter opening hours; 6.6 poste restante; 6.7 storage for letter-post items weighing over 500 grammes, and for parcels; 6.8 delivery of parcels, in response to the advice of arrival; 6.9 cover against risks of force majeure.
Article 14 Electronic mail, EMS, integrated logistics and new services
1 Member countries or designated operators may agree with each other to participate in the following services, which are described in the Regulations: 1.1 electronic mail, which is a postal service involving the electronic transmission of mes- sages; designated operators may enhance electronic mail by offering registered electronic mail, which supplements electronic mail by providing proof of sending, proof of delivery and a secure communication channel between authenticated users;
1.2 EMS, which is a postal express service for documents and merchandise, and shall when- ever possible be the quickest postal service by physical means. This service may be pro- vided on the basis of the EMS Standard Multilateral Agreement or by bilateral agreement; 1.3 integrated logistics, which is a service that responds fully to customers' logistical require- ments and includes the phases before and after the physical transmission of goods and documents;
1.4 the electronic postal certification mark, which provides evidentiary proof of an elec- tronic event, in a given form, at a given time, and involving one or more parties.
2 Member countries or designated operators may by mutual consent create a new ser- vice not expressly provided for in the Acts of the Union. Charges for a new service shall be laid down by each designated operator concerned, having regard to the expenses of operating the service.
Article 15 Items not admitted. Prohibitions
1 General 1.1 Items not fulfilling the conditions laid down in the Convention and the Regulations shall not be admitted. Items sent in furtherance of a fraudulent act or with the intention of avoiding full payment of the appropriate charges shall not be admitted. 1.2 Exceptions to the prohibitions contained in this article are set out in the Regulations.
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1.3 All member countries or their designated operators shall have the option of extending the prohibitions contained in this article, which may be applied immediately upon their inclusion in the relevant compendium.
2 Prohibitions in all categories of items 2.1 The insertion of the articles referred to below shall be prohibited in all categories of items: 2.1.1 narcotics and psychotropic substances, as defined by the International Narcotics Control Board , or other illicit drugs which are prohibited in the country of destina- tion; 2.1.2 obscene or immoral articles; 2.1.3 counterfeit and pirated articles; 2.1.4 other articles the importation or circulation of which is prohibited in the country of destination; 2.1.5 articles which, by their nature or their packing, may expose officials or the general public to danger, or soil or damage other items, postal equipment or third-party property;
2.1.6 documents having the character of current and personal correspondence exchanged between persons other than the sender and the addressee or persons living with them;
3 Explosive, flammable or radioactive materials and dangerous goods 3.1 The insertion of explosive, flammable or other dangerous goods as well as radioactive materials shall be prohibited in all categories of items. 3.2 The insertion of replica and inert explosive devices and military ordnance , includ- ing replica and inert grenades , inert shells and the like, shall be prohibited in all categories of items. 3.3 Exceptionally, the following dangerous goods shall be admitted: 3.3.1 the radioactive materials sent in letter-post items and postal parcels mentioned in arti- cle 16.1; 3.3.2 the infectious substances sent in letter-post items and postal parcels mentioned in article 16.2.
4 Live animals 4.1 Live animals shall be prohibited in all categories of items. 4.2 Exceptionally, the following shall be admitted in letter-post items other than insured items: 4.2.1 bees, leeches and silk-worms; 4.2.2 parasites and destroyers of noxious insects intended for the control of those insects and exchanged between officially recognized institutions;
4.2.3 flies of the family Drosophilidae for biomedical research exchanged between officially recognized institutions. 4.3 Exceptionally, the following shall be admitted in parcels: 4.3.1 live animals whose conveyance by post is authorized by the postal regulations of the countries concerned.
5 Insertion of correspondence in parcels 5.1 The insertion of the articles mentioned below shall be prohibited in postal parcels: 5.1.1 correspondence, with the exception of archived materials , exchanged between persons other than the sender and the addressee or persons living with them.
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6 Coins, bank notes and other valuable articles 6.1 It shall be prohibited to insert coins, bank notes, currency notes or securities of any kind payable to bearer, travellers' cheques, platinum, gold or silver, whether manufactured or not, precious stones, jewels or other valuable articles: 6.1.1 in uninsured letter-post items; 6.1.1.1 however, if the national legislation of the countries of origin and destination permits this, such articles may be sent in a closed envelope as registered items; 6.1.2 in uninsured parcels; except where permitted by the national legislation of the countries of origin and destination; 6.1.3 in uninsured parcels exchanged between two countries which admit insured parcels; 6.1.3.1 in addition, any member country or designated operator may prohibit the enclosure of gold bullion in insured or uninsured parcels originating from or addressed to its territory or sent in transit a decouvert across its territory; it may limit the actual value of these items.
7 Printed papers and literature for the blind 7.1 Printed papers and literature for the blind: 7.1.1 shall nor bear any inscription or contain any item of correspondence; 7.1.2 shall not contain any postage stamp or form of prepayment, whether cancelled or not, or any paper representing a monetary value, except in cases where the item contains as an enclosure a card, envelope or wrapper bearing the printed address of the sender of the item or his agent in the country of posting or destination of the original item, which is prepaid for return.
8 Treatment of items wrongly admitted 8.1 The treatment of items wrongly admitted is set out in the Regulations. However, items containing articles mentioned in 2.1.1, 2.1.2 , 3.1 and 3 .2 shall in no circumstances be forwarded to their destination, delivered to the addressees or returned to origin. In the case of articles mentioned in 2.1.1 , 3.1 and 3 .2 discovered while in transit, such items shall be handled in accordance with the national legislation of the country of transit.
Article 16 Admissible radioactive materials and infectious substances
1 Radioactive materials shall be admitted in letter-post items and parcels in relations between member countries which have declared their willingness to admit them either recipro- cally or in one direction only under the following conditions: 1.1 radioactive materials shall be made up and packed in accordance with the respective provisions of the Regulations; 1.2 when they are sent in letter-post items, they shall be subject to the tariff for priority items or the tariff for letters and registration; 1.3 radioactive materials contained in letter-post items or postal parcels shall be forwarded by the quickest route, normally by air, subject to payment of the corresponding sur- charges; 1.4 radioactive materials may be posted only by duly authorized senders.
2 Infectious substances, with the exception of category A infectious substances affecting humans (UN 2814 ) and affecting animals (UN 2900) shall be admitted in letter-post items and postal parcels , under the following conditions:
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2.1 Category B infectious substances (UN 3373) may be exchanged by mail only between officially recognized senders, as determined by their competent authority. These dangerous goods may be acceptable in mail, subject to the national and international legislation in force and the current edition of the United Nations Recommendations on the Transport of Dangerous Goods, as promulgated by the International Civil Aviation Organization (ICAO). 2.2 Category B infectious substances (UN 3373) must be handled , packed and labelled in accordance with the provisions listed in the Letter Post Regulations and Parcel Post Regulations . These items shall be subject to the tariff for priority items or the tariff for registered letters. An additional charge for the handling of these items shall be allowed. 2.3 Exempt patient specimens (human or animal) may be exchanged by mail only between officially recognized senders determined by their competent authority. These materials may be acceptable in mail, subject to the national and interna- tional legislation in force and the current edition of the United Nations Recommendations on the Transport of Dangerous Goods, as promulgated by the ICAO. 2.4 Exempt patient specimens (human or animal) must be handled, packed and labelled in accordance with the provisions listed in the Letter Post Regulations. These items shall be subject to the tariff for priority items or to the tariff for registered letters. An additional charge for the handling of these items is allowed.
2.5 Admission of infectious substances and exempt patient specimens (human or ani- mal) shall be restricted to member countries that have declared their willingness to admit such items, whether reciprocally or in one direction only. 2.6 Permissible infectious substances and exempt patient specimens (human or animal) shall be forwarded by the quickest route, normally by air, subject to the payment of the corresponding air surcharges , and shall be given priority in delivery.
Article 17 Inquiries
1 Each designated operator shall be bound to accept inquiries relating to parcels or registered , insured or recorded delivery items posted in its own service or that of any other designated operator , provided that the inquiries are presented within a period of six months from the day after that on which the item was posted. The transmission of inquiries shall be made by priority mail, by EMS or by electronic means. The period of six months shall concern relations between claimants and designated operators and shall not include the transmission of inquiries between designated operators.
2 Inquiries shall be entertained under the conditions laid down in the Regulations.
3 Inquiries shall be free of charge. However, additional costs caused by a request for transmission by EMS shall, in principle, be borne by the person making the request.
Article 18 Customs control. Customs duty and other fees
1 The designated operators of the countries of origin and destination shall be authorized to submit items to customs control, according to the legislation of those countries.
2 Items submitted to customs control may be subjected to a presentation-to-Customs charge, the guideline amount of which is set in the Regulations. This charge shall only be col-
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lected for the submission to Customs and customs clearance of items which have attracted cus- toms charges or any other similar charge.
3 Designated operators which are authorized to clear items through the Customs on behalf of customers may charge customers a customs clearance fee based on the actual costs. This fee may be charged for all items declared at Customs according to national legislation, including those exempt from customs duty. Customers shall be clearly informed in advance about the required fee.
4 Designated operators shall be authorized to collect from the senders or addressees of items, as the case may be, the customs duty and all other fees which may be due.
Article 19 Exchange of closed mails with military units
1 Closed letter-post mails may be exchanged through the intermediary of the land, sea or air services of other countries: 1.1 between the post offices of any member country and the commanding officers of military units placed at the disposal of the United Nations; 1.2 between the commanding officers of such military units; 1.3 between the post offices of any member country and the commanding officers of naval, air or army units, warships or military aircraft of the same country stationed abroad; 1.4 between the commanding officers of naval, air or army units, warships or military aircraft. of the same country.
2 Letter-post items enclosed in the mails referred to under 1 shall be confined to items addressed to or sent by members of military units or the officers and crews of the ships or aircraft to or from which the mails are forwarded. The rates and conditions of dispatch applicable to them shall be fixed, according to its regulations, by the designated operator of the member country which has made the military unit available or to which the ships or aircraft belong.
3 In the absence of special agreement, the designated operator of the member country which has made the military unit available or to which the warships or military aircraft belong shall be liable to the designated operators concerned for the transit charges for the mails, the terminal dues and the air conveyance dues.
Article 20 Quality of service standards and targets
1 Member countries or their designated operators shall establish and publish delivery standards and targets for their inward letter-post items and parcels.
2 These standards and targets , increased by the time normally required for customs clear- ance, shall be no less favourable than those applied to comparable items in their domestic service.
3 Member countries or their designated operators of origin shall also establish and pub- lish end-to-end standards for priority and airmail letter-post items as well as for parcels and economy/ surface parcels.
4 Member countries or their designated operators shall measure the application of qual- ity of service standards.
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Chapter 2
Liability
Article 21 Liability of designated operators . Indemnities
1 General 1.1 Except for the cases provided for in article 22, designated operators shall be liable for: 1.1.1 the loss of, theft from or damage to registered items, ordinary parcels and insured items; 1.1.2 the loss of recorded delivery items; 1.1.3 the return of registered items, insured items and ordinary parcels on which the rea- son for non-delivery is not given. 1.2 Designated operators shall not be liable for items other than those mentioned in 1.1.1 and 1.1.2. 1.3 In any other case not provided for in this Convention, designated operators shall not be liable. 1.4 When the loss of or total damage to registered items, ordinary parcels and insured items is due to a case of force majeure for which indemnity is not payable, the sender shall be entitled to repayment of the charges paid for posting the item , with the exception of the insurance charge. 1.5 The amounts of indemnity to be paid shall not exceed the amounts mentioned in the Letter Post Regulations and the Parcel Post Regulations. 1.6 In cases of liability, consequential losses or loss of profits shall not be taken into account in the indemnity to be paid. 1.7 All provisions regarding liability of designated operators shall be strict, binding and complete. Designated operators shall in no case, even in case of severe fault, be liable above the limits provided for in the Convention and the Regulations.
2 Registered items 2.1 If a registered item is lost, totally rifled or totally damaged, the sender shall be entitled to an indemnity set in the Letter Post Regulations. If the sender has claimed an amount less than the amount set in the Letter Post Regulations , designated operators may pay that lower amount and shall receive reimbursement on this basis from any other designated operators involved. 2.2 If a registered item is partially rifled or partially damaged, the sender is entitled to an indemnity corresponding, in principle, to the actual value of the theft or damage.
3 Recorded delivery items 3.1 If a recorded delivery item is lost, totally rifled or totally damaged, the sender shall be entitled to refund of the charges paid for posting the item only.
4 Ordinary parcels 4.1 If a parcel is lost, totally rifled or totally damaged, the sender shall be entitled to an indemnity of an amount set in the Parcel Post Regulations. If the sender has claimed an amount less than the amount set in the Parcel Post Regulations, designated operators may pay that lower amount and shall receive reimbursement on this basis from any other designated operators involved.
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4.2 If a parcel is partially rifled or partially damaged, the sender shall be entitled to an indemnity corresponding, in principle, to the actual value of the theft or damage. 4.3 Designated operators may agree to apply, in their reciprocal relations, the amount per parcel set in the Parcel Post Regulations, regardless of the weight.
5 Insured items 5.1 If an insured item is lost, totally rifled or totally damaged, the sender shall be entitled to an indemnity corresponding, in principle, to the insured value in SDRs. 5.2 If an insured item is partially rifled or partially damaged, the sender shall be entitled to an indemnity corresponding, in principle, to the actual value of the theft or damage. It may, however, in no case exceed the amount of the insured value in SDRs.
6 If a registered or insured letter -post item is returned and the reason for non- delivery is not given , the sender shall be entitled to a refund of the charges paid for posting the item only.
7 If a parcel is returned and the reason for non-delivery is not given , the sender shall be entitled to a refund of the charges paid by the sender for posting the parcel in the coun- try of origin and the expenses occasioned by the return of the parcel from the country of destination.
8 In the cases mentioned in 2, 4 and 5, the indemnity shall be calculated according to the current price, converted into SDRs, of articles or goods of the same kind at the place and time at which the item was accepted for conveyance. Failing a current price, the indemnity shall be calcu- lated according to the ordinary value of articles or goods whose value is assessed on the same basis.
9 When an indemnity is due for the loss of, total theft from or total damage to a registered item, ordinary parcel or insured item, the sender, or the addressee, as the case may be, shall also be entitled to repayment of the charges and fees paid for posting the item with the exception of the registration or insurance charge. The same shall apply to registered items, ordinary parcels or insured items refused by the addressee because of their bad condition if that is attributable to the postal service and involves its liability.
10 Notwithstanding the provisions set out under 2, 4 and 5, the addressee shall be entitled to the indemnity after delivery of a rifled or damaged registered item, ordinary parcel or insured item.
11 The designated operator of origin shall have the option of paying senders in its country the indemnities prescribed by its national legislation for registered items and uninsured parcels, provided that they are not lower than those laid down in 2.1 and 4.1. The same shall apply to the designated operator of destination when the indemnity is paid to the addressee. However, the amounts laid down in 2.1 and 4.1 shall remain applicable.
11.1 in the event of recourse against the designated operator liable; or 11.2 if the sender waives his rights in favour of the addressee or vice versa.
12 Reservations concerning the exceeding of deadlines for inquiries and payment of indemnity to designated operators , including the periods and conditions fixed in the Regulations, shall not be made, except in the event of bilateral agreement.
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Article 22 Non-liability of member countries and designated operators
1 Designated operators shall cease to be liable for registered items, recorded delivery items, parcels and insured items which they have delivered according to the conditions laid down in their regulations for items of the same kind. Liability shall, however, be maintained: 1.1 when theft or damage is discovered either prior to or at the time of delivery of the item; 1.2 when, internal regulations permitting, the addressee, or the sender if it is returned to origin, makes reservations on taking delivery of a rifled or damaged item; 1.3 when, internal regulations permitting, the registered item was delivered to a private mail- box and the addressee declares that he did not receive the item; 1.4 when the addressee or, in the case of return to origin, the sender of a parcel or of an insured item, although having given a proper discharge, notifies the designated operator that delivered the item without delay that he has found theft or damage. He shall fur- nish proof that such theft or damage did not occur after delivery. The term "without delay" shall be interpreted according to national law.
2 Member countries and designated operators shall not be liable: 2.1 in cases of force majeure, subject to article 13.6.9; 2.2 when they cannot account for items owing to the destruction of official records by force majeure, provided that proof of their liability has not been otherwise produced; 2.3 when such loss, theft or damage has been caused by the fault or negligence of the sender or arises from the nature of the contents; 2.4 in the case of items that fall within the prohibitions specified in article 15; 2.5 when the items have been seized under the legislation of the country of destination, as notified by the member country or designated operator of that country; 2.6 in the case of insured items which have been fraudulently insured for a sum greater than the actual value of the contents; 2.7 when the sender has made no inquiry within six months from the day after that on which the item was posted; 2.8 in the case of prisoner-of-war or civilian internee parcels; 2.9 when the sender's actions may be suspected of fraudulent intent, aimed at receiving compensation.
3 Member countries and designated operators shall accept no liability for customs declarations in whatever form these are made or for decisions taken by the Customs on examina- tion of items submitted to customs control.
Article 23 Sender's liability
1 The sender of an item shall be liable for injuries caused to postal officials and for any damage caused to other postal items and postal equipment, as a result of the dispatch of articles not acceptable for conveyance or the non-observance of the conditions of acceptance.
2 In the case of damage to other postal items, the sender shall be liable for each item dam- aged within the same limits as designated operators.
3 The sender shall remain liable even if the office of posting accepts such an item.
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4 However, where the conditions of acceptance have been observed by the sender, the sender shall not be liable, in so far as there has been fault or negligence in handling the item on the part of designated operators or carriers, after acceptance.
Article 24 Payment of indemnity
1 Subject to the right of recourse against the designated operator which is liable, the obligation to pay the indemnity and to refund the charges and fees shall rest either with the designated operator of origin or with the designated operator of destination.
2 The sender may waive his rights to the indemnity in favour of the addressee. Conversely, the addressee may waive his rights in favour of the sender. The sender or the addressee may authorize a third party to receive the indemnity if internal legislation allows this.
Article 25 Possible recovery of the indemnity from the sender or the addressee
1 If, after payment of the indemnity, a registered item, a parcel or an insured item or part of the contents previously considered as lost is found, the sender or the addressee, as the case may be, shall be advised that the item is being held at his disposal for a period of three months on repayment of the amount of the indemnity paid. At the same time he shall be asked to whom the item is to be delivered. In the event of refusal or failure to reply within the prescribed period, the same approach shall be made to the addressee or the sender as the case may be, granting that person the same period to reply.
2 If the sender and the addressee refuse to take delivery of the item or do not reply within the period provided for in paragraph 1, it shall become the property of the designated operator or, where appropriate, designated operators which bore the loss.
3 In the case of subsequent discovery of an insured item the contents of which are found to be of less value than the amount of the indemnity paid, the sender or the addressee, as the case may be, shall repay the amount of this indemnity against return of the item, without prejudice to the consequences of fraudulent insurance.
Chapter 3
Provisions specific to letter post
Article 26 Posting abroad of letter-post items
1 A designated operator shall not be bound to forward or deliver to the addressee letter- post items which senders residing in the territory of its member country post or cause to be posted in a foreign country with the object of profiting by the more favourable rate conditions there.
2 The provisions set out under 1 shall be applied without distinction both to letter-post items made up in the sender's country of residence and then carried across the frontier and to letter-post items made up in a foreign country.
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3 The designated operator of destination may claim from the sender and, failing this, from the designated operator of posting, payment of the internal rates. If neither the sender nor the designated operator of posting agrees to pay these rates within a time limit set by the desig- nated operator of destination, the latter may either return the items to the designated operator of posting and shall be entitled to claim reimbursement of the redirection costs, or handle them in accordance with its national legislation.
4 A designated operator shall not be bound to forward or deliver to the addressees letter- post items which senders post or cause to be posted in large quantities in a country other than the country where they reside if the amount of terminal dues to be received is lower than the sum that would have been received if the mail had been posted in the country where the senders reside. The designated operator of destination may claim from the designated operator of posting pay- ment commensurate with the costs incurred and which may not exceed the higher of the following two amounts: either 80% of the domestic tariff for equivalent items, or the rates applicable pursuant to articles 28.3 to 28.7 or 29.7, as appropriate . If the designated operator of post- ing does not agree to pay the amount claimed within a time limit set by the designated operator of destination, the designated operator of destination may either return the items to the desig- nated operator of posting and shall be entitled to claim reimbursement of the redirection costs, or handle them in accordance with its national legislation.
Part III
Remuneration
Chapter 1
Provisions specific to letter post
Article 27 Terminal dues. General provisions
1 Subject to exemptions provided in the Regulations, each designated operator which receives letter-post items from another designated operator shall have the right to collect from the dispatching designated operator a payment for the costs incurred for the international mail received.
2 For the application of the provisions concerning the payment of terminal dues by their designated operators, countries and territories shall be classified in accordance with the lists drawn up for this purpose by Congress in its resolution C 18/2008 , as follows: 2.1 countries and territories in the target system prior to 2010; 2.2 countries and territories in the target system as of 2010 and 2012 (new target sys- tem countries); 2.3 countries and territories in the transitional system.
3 The provisions of the present Convention concerning the payment of terminal dues are transitional arrangements, moving towards a country-specific payment system at the end of the transition period.
4 Access to domestic services. Direct access
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4.1 In principle , each designated operator shall make available to the other designated operators all the rates, terms and conditions offered in its domestic service on conditions identical to those proposed to its national customers. It shall be up to the designated operator of destination to decide whether the terms and conditions of direct access have been met by the designated operator of origin. 4.2 Designated operators of countries in the target system shall make available to other designated operators the rates , terms and conditions offered in their domestic service , on conditions identical to those proposed to their national customers. 4.3 Designated operators of new target system countries may opt not to make available to other designated operators the rates , terms and conditions offered in their domestic service on conditions identical to those proposed to their national customers . Those designated operators may, however , opt to make available to a limited number of designated operators the application of domestic conditions, on a reciprocal basis, for a trial period of two years .. After that period , they must choose either to cease making available the application of domestic conditions or to continue to make their own domestic conditions available to all designated operators. However , if designated operators of new target system countries ask designated operators of target system countries for the application of domestic conditions , they must make available to all designated operators the rates, terms and conditions offered in their domestic service on conditions identical to those proposed to their national customers. 4.4 Designated operators of countries in the transitional system may opt not to make available to other designated operators the application of domestic conditions. They may, however, opt to make available to a limited number of designated operators the application of domestic conditions, on a reciprocal basis , for a trial period of two years . After that period, they must choose either to cease making available the application of domestic conditions or to continue to make their own domestic conditions available to all designated operators.
5 Terminal dues remuneration shall be based on quality of service performance in the country of destination. The Postal Operations Council shall therefore be authorized to supplement the remuneration in articles 28 and 29 to encourage participation in monitoring systems and to reward designated operators for reaching their quality targets. The Postal Operations Council may also fix penalties in case of insufficient quality, but the remuneration shall not be less than the minimum remuneration according to articles 28 and 29.
6 Any designated operator may waive wholly or in part the payment provided for under 1.
7 For M bags , the terminal dues rate to be applied shall be 0.793 SDR per kilogramme. M bags weighing less than 5 kilogrammes shall be considered as weighing 5 kilogrammes for terminal dues payment purposes.
8 For registered items there shall be an additional payment of 0.55 SDR per item for 2010 and 2011 and 0.6 SDR for 2012 and 2013 . For insured items, there shall be an addi- tional payment of 1.1 SDR per item for 2010 and 2011 and 1.2 SDR for 2012 and 2013. The Postal Operations Council shall be authorized to supplement remuneration for these and other supplementary services where the services provided contain additional features to be specified in the Letter Post Regulations.
9 Any designated operator may, by bilateral or multilateral agreement, apply other pay- ment systems for the settlement of terminal dues accounts.
10 Designated operators may exchange non-priority mail on an optional basis by applying a 10% discount to the priority terminal dues rate.
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11 Designated operators may exchange format -separated mail on an optional basis at a discounted terminal dues rate.
12 The provisions applicable between designated operators of countries in the target system shall apply to any designated operator of a country in the transitional system which declares that it wishes to join the target system . The Postal Operations Council may set transitional measures in the Letter Post Regulations. The full provisions of the target system may apply to any new target designated operator that declares that it wishes to apply such full provisions without transitional measures.
Article 28 Terminal dues. Provisions applicable to mail flows between designated operators of countries in the target system
1 Payment for letter-post items, including bulk mail but excluding M bags and IBRS items, shall be established on the basis of the application of the rates per item and per kilogramme reflecting the handling costs in the country of destination; these costs must be related to the domestic tariffs. The rates shall be calculated in accordance with the conditions specified in the Letter Post Regulations.
2 Payment for IBRS items shall be as described in the Letter Post Regulations.
3 The rates per item and per kilogramme shall be calculated on the basis of a percentage of the charge for a 20-gramme priority letter in the domestic service, which shall be 70% for countries in the target system prior to 2010 and 100% for countries entering the target system from 2010 or 2012 (new target system countries).
4 The Postal Operations Council will conduct a study of the cost of handling inbound mail during 2009 and 2010. If this study reveals a percentage different from the 70% set out under paragraph 3, the POC shall consider whether to change the percentage of the charge for a 20-gramme priority letter for the years 2012 and 2013.
5 From the charge used for the calculation in paragraph 3 above, 50% of the VAT or other taxes shall be excluded for the years 2010 and 2011 , and 100% for the years 2012 and 2013.
6 The rates applied for flows between countries in the target system prior to 2010 may not be higher than:
6.1 for the year 2010 , 0.253 SDR per item and 1.980 SDR per kilogramme;
6.2 for the year 2011 , 0.263 SDR per item and 2.059 SDR per kilogramme;
6.3 for the year 2012 , 0.274 SDR per item and 2.141 SDR per kilogramme;
6.4 for the year 2013 , 0.285 SDR per item and 2.227 SDR per kilogramme.
7 The rates applied for flows between countries in the target system prior to 2010 may not be lower than the rates in 2009 , prior to application of the quality of service link. The rates may also not be lower than:
7.1 for the year 2010 , 0.165 SDR per item and 1.669 SDR per kilogramme;
7.2 for the year 2011 , 0.169 SDR per item and 1.709 SDR per kilogramme;
7.3 for the year 2012 , 0.173 SDR per item and 1.750 SDR per kilogramme;
7.4 for the year 2013 , 0.177 SDR per item and 1.792 SDR per kilogramme.
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8 The rates applied for flows to , from or between new target system countries, other than for bulk mail, shall be:
8.1 for the year 2010 : 0.155 SDR per item and 1 . 562 SDR per kilogramme;
8.2 for the year 2011 : 0.159 SDR per item and 1.610 SDR per kilogramme; 8.3 for the year 2012: 0.164 SDR per item and 1 . 648 SDR per kilogramme; 8.4 for the year 2013 : 0.168 SDR per item and 1 . 702 SDR per kilogramme.
9 The payment for bulk mail shall be established by applying the rates per item and per kilogramme .provided for in article 28 , paragraphs 3 to 7.
10 For registered or insured items not carrying a barcoded identifier or carrying a barcoded identifier that is not compliant with UPU Technical Standard S10, there shall be a further additional payment of 0.5 SDR per item unless otherwise bilaterally agreed.
11 No reservations may be made to this article, except within the framework of a bilateral agreement.
Article 29 Terminal dues. Provisions applicable to mail flows to, from and between designated operators of countries in the transitional system
1 In preparation for the entry into the target system of the designated operators of countries in the terminal dues transitional system , payment for letter-post items , including bulk mail but excluding M bags and IBRS items , shall be established on the basis of yearly increases of 2.8 % on the adjusted 2009 rates , using the worldwide average of 14.64 items per kilogramme.
2 Payment for IBRS items shall be as described in the Letter Post Regulations.
3 The rates applied for flows to, from and between countries in the transitional system shall be:
3.1 for the year 2010 : 0.155 SDR per item and 1 . 562 SDR per kilogramme; 3.2 for the year 2011 : 0.159 SDR per item and 1 . 610 SDR per kilogramme; 3.3 for the year 2012: 0.164 SDR per item and 1 . 648 SDR per kilogramme; 3.4 for the year 2013 : 0.168 SDR per item and 1 . 702 SDR per kilogramme.
4 For flows below 100 tonnes a year , the per kilogramme and per item components shall be converted into a total rate per kilogramme on the basis of a worldwide average of 14.64 items per kilogramme . The following rates shall apply: 4.1 for the year 2010 : 3.831 SDR per kilogramme; 4.2 for the year 2011 : 3.938 SDR per kilogramme; 4.3 for the year 2012 : 4.049 SDR per kilogramme; 4.4 for the year 2013 : 4.162 SDR per kilogramme.
5 For mail flows over 100 tonnes per year, the flat rate per kilogramme listed above shall be applied if neither the origin designated operator nor the destination designated operator requests the revision mechanism in order to revise the rate on the basis of the actual number of items per kilogramme , rather than the worldwide average . The sampling for the revision mechanism shall be applied in accordance with the conditions specified in the Letter Post Regulations.
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6 The downward revision of the total rate in paragraph 4 may not be invoked by a country in the target system against a country in the transitional system unless the latter asks for a revision in the opposite direction.
7 The payment for bulk mail to designated operators of countries in the target system shall be established by applying the rates per item and per kilogramme provided for in article 28. For bulk mail received, designated operators in the transitional system may request payment according to paragraph 3.
8 No reservations may be made to this article, except within the framework of a bilateral agreement.
Article 30 Quality of Service Fund
1 Terminal dues payable by all countries and territories to the countries classified by Congress as group 5 countries for terminal dues and the Quality of Service Fund (QSF), except for M bags, IBRS items and bulk mail items, shall be increased by 20% of the rates given in article 29 for payment into the Quality of Service Fund (QSF) for improving the quality of service in group 5 countries . There shall be no such payment from one group 5 country to another group 5 country.
2 Terminal dues, except for M bags, IBRS items and bulk mail items, payable by countries and territories classified by Congress as group 1 countries to the countries classified by Congress as group 4 countries shall be increased by 10% of the rates given in article 29 , for payment into the QSF for improving the quality of service in group 4 countries.
3 As of 1 January 2012, terminal dues, except in respect of M bags, IBRS items and bulk mail items, payable by countries and territories classified by Congress as group 2 countries to the countries classified by Congress as group 4 countries shall be increased by 10% of the rates given in article 29 , for payment into the QSF for improving the quality of service in group 4 countries.
4 Terminal dues , except in respect of M bags , IBRS items and bulk mail items, payable by countries and territories classified by Congress as group 1 countries which were in the target system prior to 2010 to the countries classified by Congress as group 3 countries shall be increased by 8% of the rates given in article 29, for payment into the QSF for improving the quality of service in group 3 countries.
5 Terminal dues, except in respect of M bags, IBRS items and bulk mail items, payable by countries and territories classified by Congress as group 1 countries which will join the target system in 2010 to the countries classified by Congress as group 3 countries shall be increased by 4% of the rates given in article 29, for payment into the QSF for improving the quality of service in group 3 countries.
6 As of 1 January 2012 , terminal dues , except in respect of M bags, IBRS items and bulk mail items , payable by countries and territories classified by Congress as group 2 countries to the countries classified by Congress as group 3 countries shall be increased by 4% of the rates given in article 29, for payment into the QSF for improving the quality of service in group 3 countries.
7 Terminal dues , except in respect of M bags, IBRS items and bulk mail items, payable by countries and territories classified by Congress as group 1 countries to the countries classified by Congress as group 2 countries which benefited from an 8 % increase prior to 2010 , shall be increased in 2010 and 2011 by 4% of the rates given in article 29,
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and in 2012 and 2013 by 2% of the rates given in article 28.8, for payment into the QSF for improving the quality of service in group 2 countries.
8 Terminal dues, except in respect of M bags, IBRS items and bulk mail items, payable by countries and territories classified by Congress as group 1 countries to the countries classified by Congress as group 2 countries which benefited from a 1% increase prior to 2010 shall be increased in 2010 and 2011 by 1% of the rates given in article 29, for payment into the QSF for improving the quality of service in group 2 countries.
9 The combined terminal dues payable into the QSF for improving the quality of service of countries in groups 2, 3, 4 and 5 shall be subject to a minimum of 12,565 SDR per annum for each beneficiary country . The additional funds needed for reaching this minimum amount shall be invoiced , in proportion to the volumes exchanged, to the countries in the target system prior to 2010.
10 Regional projects should in particular promote the implementation of UPU quality of service improvement programmes and the introduction of cost accounting systems in developing countries. The Postal Operations Council shall adopt, in 2010 at the latest, procedures for financing these projects.
Article 31 Transit charges
1 Closed mails and a decouvert transit items exchanged between two designated operators or between two offices of the same member country by means of the services of one or more other designated operators (third party services) shall be subject to the payment of transit charges. The latter shall constitute remuneration for the services rendered in respect of land transit, sea transit and air transit. This principle shall also apply to missent items and misrouted mails.
Chapter 2
Other provisions
Article 32 Basic rates and provisions concerning air conveyance dues
1 The basic rate applicable to the settlement of accounts between designated operators in respect of air conveyance shall be approved by the Postal Operations Council. It shall be calculated by the International Bureau according to the formula specified in the Letter Post Regulations.
2 The calculation of air conveyance dues on closed dispatches, priority items, airmail items and air parcels sent in transit a decouvert, missent items and misrouted mails , as well as the relevant methods of accounting, are described in the Letter Post and Parcel Post Regulations.
3 The air conveyance dues for the whole distance flown shall be borne: 3.1 in the case of closed mails, by the designated operator of the country of origin of the mails, including when these mails transit via one or more intermediate designated operators;
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3.2 in the case of priority items and airmail items in transit a decouvert, including missent items, by the designated operator which forwards the items to another designated operator.
4 These same regulations shall be applicable to items exempted from land and sea transit charges if they are conveyed by air.
5 Each designated operator of destination which provides air conveyance of international mail within its country shall be entitled to reimbursement of the additional costs incurred for such conveyance provided that the weighted average distance of the sectors flown exceeds 300 kilometres. The Postal Operations Council may replace the weighted average distance by other relevant criteria. Unless agreement has been reached that no charge should be made, the dues shall be uniform for all priority mails and airmails originating abroad whether or not this mail is reforwarded by air.
6 However, where the terminal dues levied by the designated operator of destination are based specifically on costs or on domestic rates, no additional reimbursement for internal air conveyance shall be made.
7 The designated operator of destination shall exclude, for the purpose of calculating the weighted average distance, the weight of all mails for which the terminal dues calculation has been based specifically on costs or on the domestic rates of the designated operator of destination.
Article 33 Parcel post land and sea rates
1 Parcels exchanged between two designated operators shall be subject to inward land rates calculated by combining the base rate per parcel and base rate per kilogramme laid down in the Regulations. 1.1 Bearing in mind the above base rates, designated operators may, in addition, be authorized to claim supplementary rates per parcel and per kilogramme in accordance with provisions laid down in the Regulations. 1.2 The rates mentioned in 1 and 1.1 shall be payable by the designated operator of the country of origin, unless the Parcel Post Regulations provide for exceptions to this principle. 1.3 The inward land rates shall be uniform for the whole of the territory of each country.
2 Parcels exchanged between two designated operators or between two offices of the same country by means of the land services of one or more other designated operators shall be subject to the transit land rates, payable to the designated operators which take part in the routeing on land, laid down in the Regulations, according to the distance step applicable. 2.1 For parcels in transit a decouvert, intermediate designated operators shall be authorized to claim the single rate per item laid down in the Regulations. 2.2 Transit land rates shall be payable by the designated operator of the country of origin unless the Parcel Post Regulations provide for exceptions to this principle.
3 Any designated operator which participates in the sea conveyance of parcels shall be authorized to claim sea rates. These rates shall be payable by the designated operator of the country of origin, unless the Parcel Post Regulations provide for exceptions to this principle. 3.1 For each sea conveyance used, the sea rate shall be laid down in the Parcel Post Regulations according to the distance step applicable.
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3.2 Designated operators may increase by 50% at most the sea rate calculated in accordance with 3.1. On the other hand, they may reduce it as they wish.
Article 34 Authority of the POC to fix charges and rates
1 The Postal Operations Council shall have the authority to fix the following rates and charges, which are payable by designated operators in accordance with the conditions shown in the Regulations: 1.1 transit charges for the handling and conveyance of letter mails through one or more intermediary countries; 1.2 basic rates and air conveyance dues for the carriage of mail by air; 1.3 inward land rates for the handling of inward parcels; 1.4 transit land rates for the handling and conveyance of parcels through an intermediary country; 1.5 sea rates for the conveyance of parcels by sea.
2 Any revision made, in accordance with a methodology that ensures equitable remunera- tion for designated operators performing the services, must be based on reliable and representative economic and financial data. Any change decided upon shall enter into force at a date set by the Postal Operations Council.
Part IV
Final provisions
Article 35 Conditions for approval of proposals concerning the Convention and the Regulations
1 To become effective, proposals submitted to Congress relating to this Convention must be approved by a majority of the member countries present and voting which have the right to vote. At least half of the member countries represented at Congress and having the right to vote shall be present at the time of voting.
2 To become effective, proposals relating to the Letter Post Regulations and the Parcel Post Regulations must be approved by a majority of the members of the Postal Operations Council having the right to vote.
3 To become effective, proposals introduced between Congresses relating to this Convention and to its Final Protocol must obtain: 3.1 two thirds of the votes, at least one half of the member countries of the Union which have the right to vote having taken part in the vote, if they involve amendments; 3.2 a majority of the votes if they involve interpretation of the provisions.
4 Notwithstanding the provisions under 3.1, any member country whose national legisla- tion is as yet incompatible with the proposed amendment may, within ninety days from the date of notification of the latter, make a written declaration to the Director General of the International Bureau stating that it is unable to accept the amendment.
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Article 36 Reservations at Congress
1 Any reservation which is incompatible with the object and purpose of the Union shall not be permitted.
2 As a general rule, any member country whose views are not shared by other member countries shall endeavour, as far as possible, to conform to the opinion of the majority. Reservations should be made only in cases of absolute necessity, and proper reasons given.
3 Reservations to any article of the present Convention shall be submitted to Congress as a Congress proposal written in one of the working languages of the International Bureau and in accordance with the relevant provisions of the Rules of Procedure of Congresses.
4 To become effective, proposals concerning reservations must be approved by whatever majority is required for amendment of the article to which the reservation relates.
5 In principle, reservations shall be applied on a reciprocal basis between the reserving member country and the other member countries.
6 Reservations to the present Convention shall be inserted in the Final Protocol to the present Convention, on the basis of proposals approved by Congress.
Article 37 Entry into force and duration of the Convention
1 This Convention shall come into force on 1 January 2010 and shall remain in operation until the entry into force of the Acts of the next Congress.
In witness whereof the plenipotentiaries of the Governments of the member countries have signed this Convention in a single original which shall be deposited with the Director General of the International Bureau. A copy thereof shall be delivered to each party by the International Bureau of the Universal Postal Union.
Done at Geneva , 12 August 2008
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Final Protocol to the Universal Postal Convention
At the moment of proceeding to signature of the Universal Postal Convention concluded this day, the undersigned plenipotentiaries have agreed the following:
Article I Ownership of postal items. Withdrawal from the post. Alteration or correction of address
1 The provisions in article 5.1 and 2 shall not apply to Antigua and Barbuda, Bahrain, Barbados, Belize, Botswana, Brunei Darussalam, Canada, Hong Kong, China, Dominica, Egypt, Fiji, Gambia, United Kingdom of Great Britain and Northern Ireland, Overseas Dependent Territories of the United Kingdom, Grenada, Guyana, Ireland, Jamaica, Kenya, Kiribati, Kuwait, Lesotho, Malawi, Malaysia, Mauritius, Nauru, New Zealand, Nigeria, Papua New Guinea, Saint Christopher and Nevis, Saint Lucia, Saint Vincent and the Grenadines, Samoa, Seychelles, Sierra Leone, Singapore, Solomon Islands, Swaziland, Tanzania (United Rep.), Trinidad and Tobago, Tuvalu, Uganda, Vanuatu and Zambia.
2 Nor shall article 5.1 and 2 apply to Austria, Denmark and Iran (Islamic Rep.), whose internal legislation does not allow withdrawal from the Post or alteration of the address of correspondence, at the request of the sender, from the time when the addressee has been informed of the arrival of an item addressed to him.
3 Article 5.1 shall not apply to Australia, Ghana and Zimbabwe.
4 Article 5.2 shall not apply to Bahamas, Belgium , the Dem. People's Rep. of Korea, Iraq and Myanmar, whose legislation does not permit withdrawal from the post or alteration of address of letter-post items at the sender's request.
5 Article 5.2 shall not apply to the United States of America.
6 Article 5.2 shall apply to Australia only in so far as that article is consistent with its domestic legislation.
7 Notwithstanding article 5.2, Dem. Rep. of the Congo, El Salvador, Panama (Rep.), Philippines and Venezuela shall be authorized not to return postal parcels after the addressee has requested their clearance by Customs, since this is incompatible with those countries' customs legislation.
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Article II Charges
1 Notwithstanding article 6, Australia , Canada and New Zealand shall be authorized to collect postal charges other than those provided for in the Regulations, when such charges are consistent with the legislation of their countries.
Article III Exception to the exemption of literature for the blind from postal charges
1 Notwithstanding article 7, Indonesia , Saint Vincent and the Grenadines and Turkey, which do not concede exemption from postal charges to literature for the blind in their internal service, may collect the postage and charges for special services which may not, however, exceed those in their internal service.
2 Notwithstanding article 7, Australia , Austria, Canada, Germany, United Kingdom of Great Britain and Northern Ireland, Japan, Switzerland and United States of America may collect the charges for special services which are applied to literature for the blind in their internal service.
Article IV Basic services
1 Notwithstanding the provisions of article 12, Australia does not agree to the extension of basic services to include postal parcels.
2 The provisions of article 12.2.4 shall not apply to Great Britain, whose national legislation requires a lower weight limit. Health and safety legislation in Great Britain limits the weight of mail bags to 20 kilogrammes.
3 Notwithstanding article 12.2.4 , Kazakhstan and Uzbekistan shall be authorized to limit to 20 kilogrammes the maximum weight of inward and outward M bags.
Article V Advice of delivery
1 Canada shall be authorized not to apply article 13.4.3, as regards parcels, given that it does not offer the advice of delivery service for parcels in its internal service.
Article VI International business reply service (IBRS)
1 Notwithstanding article 13.4.1, Bulgaria (Rep.) shall provide the international business reply service after negotiations with the member country concerned.
Article VII Prohibitions (letter post)
1 Exceptionally , Dem. People 's Rep . of Korea and Lebanon shall not accept registered items containing coins, bank notes, securities of any kind payable to bearer, travellers' cheques, platinum, gold or silver whether manufactured or not, precious stones, jewels or other valuable articles. They shall not be strictly bound by the provisions of the Letter Post Regulations with
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regard to their liability in cases of theft or damage, or where items containing articles made of glass or fragile articles are concerned.
2 Exceptionally, Bolivia, China (People's Rep.), excluding Hong Kong Special Administrative Region, Iraq, Nepal, Pakistan, Saudi Arabia, Sudan and Viet Nam shall not accept registered items containing coins, bank notes, currency notes or securities of any kind payable to bearer, travellers' cheques, platinum, gold or silver whether manufactured or not, precious stones, jewels or other valuable articles.
3 Myanmar reserves the right not to accept insured items containing the valuable articles listed in article 15.5, as this is contrary to its internal regulations.
4 Nepal does not accept registered items or insured items containing currency notes or coins, except by special agreement to that effect.
5 Uzbekistan does not accept registered or insured items containing coins, bank notes, cheques, postage stamps or foreign currency and shall accept no liability in cases of loss of or damage to such items.
6 Iran (Islamic Rep .) does not accept items containing articles contrary to the principles of the Islamic religion.
7 The Philippines reserves the right not to accept any kind of letter post (ordinary, registered or insured) containing coins, currency notes or securities of any kind payable to bearer, travellers' cheques, platinum, gold or silver, whether manufactured or not, precious stones or other valuable articles.
8 Australia does not accept postal items of any kind containing bullion or bank notes. In addition, it does not accept registered items for delivery in Australia, or items in transit a decouvert, containing valuables such as jewellery, precious metals, precious or semi-precious stones, securities, coins or any form of negotiable financial instrument. It declines all liability for items posted which are not in compliance with this reservation.
9 China (People 's Rep .), excluding Hong Kong Special Administrative Region, shall not accept insured items containing coins, bank notes, currency notes or securities of any kind payable to bearer and travellers' cheques in accordance with its internal regulations.
10 Latvia and Mongolia reserve the right not to accept, in accordance with their national legislation, ordinary, registered or insured mail containing coins, bank notes, securities payable to bearer and travellers' cheques.
11 Brazil reserves the right not to accept ordinary, registered or insured mail containing coins, bank notes in circulation or securities of any kind payable to bearer.
12 Viet Nam reserves the right not to accept letters containing articles or goods.
13 Indonesia does not accept registered or insured items containing coins, bank notes, cheques, postage stamps , foreign currency , or any kind of securities payable to bearer for delivery in Indonesia, and shall accept no liability in cases of loss of or damage to such items.
14 Kyrgyzstan reserves the right not to accept letter-post items (ordinary, registered, insured, small packets) containing coins, currency notes or securities of any kind payable to bearer, travellers' cheques , platinum, gold or silver, whether manufactured or not, pre- cious stones , jewels or other valuable articles , and shall accept no liability in cases of loss of or damage to such items.
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15 Kazakhstan shall not accept registered or insured items containing coins, bank- notes, credit notes or any securities payable to bearer, cheques , precious metals whether manufactured or not, precious stones, jewels and other valuable articles or foreign cur- rency, and shall accept no liability in cases of loss of or damage to such items.
16 Moldova and the Russian Federation do not accept registered or insured items containing bank notes in circulation , securities (cheques) of any kind payable to bearer or foreign currency , and shall accept no liability in cases of loss of or damage to such items.
Article VIII Prohibitions (postal parcels)
1 Myanmar and Zambia shall be authorized not to accept insured parcels containing the valuable articles covered in article 15.6.1.3.1, since this is contrary to their internal regulations.
2 Exceptionally , Lebanon and Sudan shall not accept parcels containing coins, currency notes or securities of any kind payable to bearer, travellers' cheques, platinum, gold or silver whether manufactured or not, precious stones or other valuable articles, or containing liquids or easily liquefiable elements or articles made of glass or similar or fragile articles. They shall not be bound by the relevant provisions of the Parcel Post Regulations.
3 Brazil shall be authorized not to accept insured parcels containing coins and currency notes in circulation, as well as any securities payable to bearer, since this is contrary to its internal regulations.
4 Ghana shall be authorized not to accept insured parcels containing coins and currency notes in circulation, since this is contrary to its internal regulations.
5 In addition to the articles listed in article 15, Saudi Arabia shall be authorized not to accept parcels containing coins, currency notes or securities of any kind payable to bearer, travellers' cheques, platinum, gold or silver, whether manufactured or not, precious stones or other valuable articles. Nor does it accept parcels containing medicines of any kind unless they are accompanied by a medical prescription issued by a competent official authority, products designed for extinguishing fires, chemical liquids or articles contrary to the principles of the Islamic religion.
6 In addition to the articles referred to in article 15, Oman does not accept items containing: 6.1 medicines of any sort unless they are accompanied by a medical prescription issued by a competent official authority; 6.2 fire-extinguishing products or chemical liquids; 6.3 articles contrary to the principles of the Islamic religion.
7 In addition to the articles listed in article 15, Iran (Islamic Rep .) shall be authorized not to accept parcels containing articles contrary to the principles of the Islamic religion.
3 The Philippines shall be authorized not to accept any kind of parcel containing coins, currency notes or securities of any kind payable to bearer, travellers' cheques, platinum, gold or silver whether manufactured or not, precious stones or other valuable articles, or containing liquids or easily liquefiable elements or articles made of glass or similar or fragile articles.
9 Australia does not accept postal items of any kind containing bullion or bank notes.
10 China (People's Rep .) shall not accept ordinary parcels containing coins, currency notes or securities of any kind payable to bearer, travellers' cheques, platinum, gold or silver, whether
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manufactured or not, precious stones or other valuable articles. Furthermore, with the exception of the Hong Kong Special Administrative Region, insured parcels containing coins, currency notes or securities of any kind payable to bearer and travellers' cheques shall not be accepted.
11 Mongolia reserves the right not to accept, in accordance with its national legislation, parcels containing coins, bank notes, securities payable to bearer and travellers' cheques.
12 Latvia does not accept ordinary and insured parcels containing coins, bank notes, securities (cheques) of any kind payable to bearer or foreign currency, and shall accept no liability in cases of loss of or damage to such items.
13 Moldova , the Russian Federation , Ukraine and Uzbekistan do not accept ordinary or insured parcels containing bank notes in circulation, securities (cheques) of any kind pay- able to bearer or foreign currency , and shall accept no liability in cases of loss of or damage to such items.
14 Kazakhstan does not accept ordinary or insured parcels containing coins, bank notes, credit notes or any securities payable to bearer, cheques , precious metals, whether manufactured or not, precious stones, jewels and other valuable articles or foreign cur- rency, and shall accept no liability in cases of loss of or damage to such items.
Article IX Admissible radioactive materials and infectious substances
1 Notwithstanding the provisions of article 16, Mongolia reserves the right not to accept, in accordance with its national legislation , postal items containing any radioactive materials or infectious substances.
Article X Articles subject to customs duty
1 With reference to article 15, Bangladesh and El Salvador do not accept insured items containing articles subject to customs duty.
2 With reference to article 15, Afghanistan, Albania, Azerbaijan, Belarus, Cambodia, Chile, Colombia, Cuba, Dem. People's Rep. of Korea, El Salvador, Estonia, Italy, Kazakhstan , Latvia, Moldova, Nepal, Peru, Russian Federation , San Marino, Turkmenistan, Ukraine, Uzbekistan and Venezuela do not accept ordinary and registered letters containing articles subject to customs duty.
3 With reference to article 15, Benin , Burkina Faso, Cote d'Ivoire (Rep.), Djibouti, Mali and Mauritania do not accept ordinary letters containing articles subject to customs duty.
4 Notwithstanding the provisions set out under 1 to 3, the sending of serums, vaccines and urgently required medicaments which are difficult to procure shall be permitted in all cases.
Article XI Inquiries
1 Notwithstanding article 17.3, Bulgaria (Rep.), Cape Verde, Chad, Dem. People's Rep. of Korea, Egypt, Gabon, Overseas Dependent Territories of the United Kingdom, Greece, Iran (Islamic Rep.), Kyrgyzstan, Mongolia, Myanmar, Philippines, Saudi Arabia, Sudan, Syrian Arab Rep., Turkmenistan, Ukraine, Uzbekistan and Zambia reserve the right to collect from customers charges on inquiries lodged in respect of letter-post items.
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2 Notwithstanding article 17.3, Argentina , Austria, Azerbaijan, Lithuania , Moldova and Slovakia reserve the right to collect a special charge when, on completion of the investigation conducted in response to the inquiry, it emerges that the latter was unjustified.
3 Afghanistan , Bulgaria (Rep.), Cape Verde, Congo (Rep.), Egypt, Gabon, Iran (Islamic Rep.), Kyrgyzstan, Mongolia, Myanmar, Saudi Arabia, Sudan, Suriname, Syrian Arab Rep., Turkmenistan, Ukraine, Uzbekistan and Zambia reserve the right to collect an inquiry charge from customers in respect of parcels.
4 Notwithstanding article 17.3, Brazil, Panama (Rep.) and the United States of America reserve the right to collect a charge from customers for inquiries lodged in respect of letter-post items and parcels posted in countries which apply that type of charge in accordance with paragraphs 1 to 3 of this article.
Article XII Presentation-to-Customs charge
1 Gabon reserves the right to collect a presentation-to-Customs charge from customers.
2 Congo (Rep.) and Zambia reserve the right to collect a presentation-to-Customs charge from customers in respect of parcels.
Article XIII Posting abroad of letter-post items
1 Australia , Austria, United Kingdom of Great Britain and Northern Ireland, Greece, New Zealand and United States of America reserve the right to impose a charge, equivalent to the cost of the work it incurs, on any designated operator which, under the provisions of article 26.4, sends to it items for disposal which were not originally dispatched as postal items by their services.
2 Notwithstanding article 26.4, Canada reserves the right to collect from the designated operator of origin such amount as will ensure recovery of not less than the costs incurred by it in the handling of such items.
3 Article 26.4 allows the designated operator of destination to claim, from the designated operator of posting, appropriate remuneration for delivering letter-post items posted abroad in large quantities. Australia and the United Kingdom of Great Britain and Northern Ireland reserve the right to limit any such payment to the appropriate domestic tariff for equivalent items in the country of destination.
4 Article 26.4 allows the designated operator of destination to claim, from the designated operator of posting, appropriate remuneration for delivering letter-post items posted abroad in large quantities. The following member countries reserve the right to limit any such payment to the limits authorized in the Regulations for bulk mail: Bahamas, Barbados, Brunei Darussalam, China (People's Rep.), United Kingdom of Great Britain and Northern Ireland, Overseas Dependent Territories of the United Kingdom, Grenada, Guyana, India, Malaysia, Nepal, Netherlands, Netherlands Antilles and Aruba, New Zealand, Saint Lucia, Saint Vincent and the Grenadines, Singapore, Sri Lanka, Suriname, Thailand and United States of America.
5 Notwithstanding the reservations under 4, the following member countries reserve the right to apply in full the provisions of article 26 of the Convention to mail received from Union member countries: Argentina, Austria, Benin, Brazil, Burkina Faso, Cameroon, Cote d'Ivoire (Rep.), Cyprus, Denmark, Egypt, France, Germany, Greece, Guinea, Israel, Italy, Japan, Jordan,
66 Convention, Final Protocol
Lebanon, Luxembourg, Mali, Mauritania, Monaco, Morocco, Norway, Portugal, Saudi Arabia, Senegal, Syrian Arab Rep. and Togo.
6 In application of article 26.4 Germany reserves the right to request the mailing country to grant compensation of the amount it would receive from the country of which the sender is resident.
7 Notwithstanding the reservations made under article XIII, China (People's Rep.) reserves the right to limit any payment for delivering letter-post items posted abroad in large quantities to the limits authorized in the UPU Convention and Letter Post Regulations for bulk mail.
Article XIV Exceptional inward land rates
1 Notwithstanding article 33, Afghanistan reserves the right to collect an additional exceptional inward land rate of 7.50 SDR per parcel.
Article XV Special tariffs
1 Belgium , Norway and United States of America may collect higher. land rates for air parcels than for surface parcels.
2 Lebanon shall be authorized to collect for parcels up to 1 kilogramme the charge applicable to parcels over 1 and up to 3 kilogrammes.
3 Panama (Rep.) shall be authorized to collect 0.20 SDR per kilogramme for surface airlifted (S.A.L.) parcels in transit.
In witness whereof, the plenipotentiaries below have drawn up this Protocol which shall have the same force and the same validity as if its provisions were inserted in the text of the Convention itself, and they have signed it in a single original which shall be deposited with the Director General of the International Bureau. A copy thereof shall be delivered to each party by the International Bureau of the Universal Postal Union.
Done at Geneva, 12 August 2008.
67 Postal Payment Services Agreement
Postal Payment Services Agreement
Table of contents
Part I
Common principles applying to the postal payment services
Chapter I
General provisions
Article 1 Scope of the Agreement 2 Definitions 3 Designation of the operator 4 Functions of member countries 5 Operational functions 6 Ownership of postal payment services funds 7 Prevention of money laundering, terrorist funding and financial crime 8 Confidentiality 9 Technological neutrality
Chapter II
General principles and quality of service
10 General principles 11 Quality of service
Chapter III
Principles for electronic data interchange
12 Interoperability 13 Ensuring the security of electronic exchanges 14 Track and trace
68 Postal Payment Services Agreement
Part II
Rules governing the postal payment services
Chapter I
Processing of postal payment orders
15 Deposit, entry and transmission of postal payment orders 16 Checking and release of funds 17 Maximum amount 18 Reimbursement
Chapter II
Inquiries and liability
19 Inquiries 20 Liability of designated operators with regard to users 21 Obligations and liability of designated operators to each other 22 Non-liability of designated operators 23 Reservations regarding liability
Chapter III
Financial relations
24 Accounting and financial rules 25 Settlement and clearing
Part III
Transitional and final provisions
26 Reservations at Congress 27 Final provisions 28 Entry into force and duration of the Postal Payment Services Agreement
69 Postal Payment Services Agreement
Postal Payment Services Agreement
The undersigned, plenipotentiaries of the Governments of the member countries of the Union, in provision with article 22.4 of the Constitution of the Universal Postal Union concluded at Vienna on 10 July 1964, have, by common consent and subject to article 25.4 of the Constitution, drawn up the following Agreement, which is in line with the principles of the Constitution to implement a secure and accessible postal payment service adapted to the greatest number of users on the basis of systems enabling the interoperability of designated operators' networks.
Part I
Common principles applying to the postal payment services
Chapter I
General provisions
Article 1 Scope of the Agreement
1 Each member country shall ensure on a best effort basis that at least one of the following postal payment services is provided on its territory: 1.1 Money order in cash: the sender hands over funds at the service access point of the designated operator and asks for the full amount to be paid to the payee in cash, with no deductions. 1.2 Outpayment money order: the sender gives instructions for his account held by the designated operator to be debited and asks for the payee to be paid the full amount in cash, with no deductions. 1.3 Inpayment money order: the sender hands over funds at the service access point of the designated operator and asks for them to be paid into the payee's account, with no deductions. 1.4 Postal transfer: the sender gives instructions for his account held by the designated operator to be debited and asks for the payee's account with the paying designated operator to be credited with the equivalent amount, with no deductions.
2 The Regulations shall define the procedures for executing the present Agreement.
70 Postal Payment Services Agreement
Article 2 Definitions
1 Competent authority - any national authority of a member country which, by virtue of the powers conferred on it by the law or regulations, supervises the activities of the designated operator or of the persons referred to in the present article. The competent authority may contact the administrative or legal authorities engaged in combating money laundering and terrorist financing, and in particular the national financial intelligence unit and the oversight authorities.
2 Instalment - partial advance payment made by the issuing designated operator to the paying designated operator to ease the cash situation of the paying designated operator's postal payment services.
3 Money laundering - the conversion or transfer of funds in the knowledge that these funds are derived from a criminal activity or participation in such activity, with the aim of hiding or dis- guising the illegal origins of the funds or of helping any person having participated in such activ- ity to escape the legal consequences of his action; money laundering shall be considered as such when the activities producing funds to be laundered are liable to prosecution in the territory of another member country or a third country.
4 Ring-fencing - the compulsory separation of users' funds from those of the designated operator which prevents the use of users' funds for purposes other than the execution of postal payment service operations.
5 Clearing house - within the framework of multilateral exchanges, a clearing house han- dles mutual debts and claims arising from services provided by one operator to another. Its role is to put to account exchanges between operators that are settled through a settlement bank, and to take the necessary steps in the event of settlement irregularities.
6 Clearing - a system enabling the number of payments to be made to be kept to a mini- mum by drawing up a periodic debit and credit balance for the parties involved. Clearing involves two stages: determining the bilateral balances and, by adding these balances, calculating the overall position of each entity with regard to the entire community in order to carry out only one settlement based on the debtor or creditor position of the entity in question.
7 Concentration account - an aggregation of funds from various sources combined into one account.
8 Liaison account - giro account opened reciprocally by designated operators as part of bilateral relations, by means of which mutual debts and credits are settled.
9 Criminal activity - any type of participation in, or perpetration of, a crime or misdemean- our, as defined by the national legislation.
10 Security deposit - amount deposited, in the form of cash or securities, to guarantee pay- ments between designated operators.
11 Payee - natural or legal person designated by the sender as the beneficiary of the money order or postal giro transfer.
12 Third currency - intermediate currency used in cases of non-convertibility between two currencies or for clearing/ settlement of accounts.
13 Due diligence in relation to users - general obligation on the part of designated operators, comprising the following duties:
71 Postal Payment Services Agreement
identifying users; - obtaining information on the purpose of the postal payment order; monitoring postal payment orders; checking that the information concerning users is up to date; reporting suspicious transactions to the competent authorities.
14 Electronic data relating to postal payment orders - data transmitted by electronic' means, from one designated operator to another, relating to the execution of postal payment orders, inquiries, alteration or correction of addresses or reimbursement; these data are either entered by designated operators, or generated automatically by their information system, and indicate a change in the status of the postal payment order or of the order request.
15 Personal data - personal identification data referring to the sender or the payee, which may be used only for the purpose for which they were collected.
16 Postal data - data needed for the routeing and tracking of a postal payment order or for statistical purposes, as well as for the centralized clearing system.
17 Electronic data interchange (EDI) - computer-to-computer exchange of data concerning operations, by means of networks and standard formats compatible with the Union system.
18 Sender - natural or legal person that gives the designated operator the order to execute a postal payment service in accordance with the Acts of the Union.
19 Terrorist financing - covers the financing of acts of terrorism, of terrorists and of terrorist organizations.
20 Users' funds - sums delivered by the sender to the issuing designated operator in cash, or debited to the sender's account written up in the books of the issuing designated operator, or by any other secure method of electronic banking, placed at the disposal of the issuing designated operator or any other financial operator by the sender, to be paid to a payee specified by the sender in accordance with the present Agreement and its Regulations.
21 Currency of issue - currency of the country of destination or third currency authorized by the destination country in which the postal payment order is issued.
22 Issuing designated operator - designated operator which transmits a postal payment order to the paying designated operator, in accordance with the Acts of the Union.
23 Paying designated operator - designated operator responsible for executing the postal payment order in the destination country, in accordance with the Acts of the Union.
24 Validity period - period of time during which the postal payment order may be executed or cancelled.
25 Service access point - physical or virtual place where the user may deposit or receive a postal payment order.
26 Remuneration - sum owed by the issuing designated operator to the paying designated operator for payment to the payee.
27 Revocability - the ability of the sender to recall his postal payment order (money order or transfer) up to the moment of payment, or at the end of the validity period if payment has not been made.
72 Postal Payment Services Agreement
28 Counterparty risk - risk that one of the parties to a contract will default, leading to loss or liquidity risk.
29 Liquidity risk - risk that a settlement system participant or a counterpart is temporarily unable to fulfil an obligation in its entirety at the required time.
30 Reporting of suspicious transaction - obligation of the designated operator, based on the national legislation and Union resolutions, to provide its competent national authorities with information on suspicious transactions.
31- Track and trace - system that enables the progress of postal payment order to be moni- tored and its location and status to be identified at any time.
32 Price - amount paid by the sender to the issuing designated operator for a postal pay- ment service.
33 Suspicious transaction - single or repeated postal payment order or request for reim- bursement relating to a postal payment order linked to a money-laundering or terrorist financing offence.
34 User - natural or legal person, sender or payee, that uses the postal payment services in accordance with the present Agreement.
Article 3 Designation of the operator
1 Member countries shall notify the International Bureau, within six months of the end of Congress, of the name and address of the governmental body responsible for overseeing postal payment services. Within six months of the end of Congress, member countries shall also provide the International Bureau with the name and address of the operator(s) officially designated to operate the postal payment services by means of its (their) network and to fulfil the obligations arising from the Acts of the Union on its (their) territory. Between Congresses, changes concerning the governmental bodies and the officially designated operators shall be notified to the International Bureau as soon as possible.
2 Designated operators shall provide the postal payment services in accordance with the present Agreement.
Article 4 Functions of member countries
1 Member countries shall take the necessary steps towards ensuring the continuity of the postal payment services in the event of default by their designated operator(s), without prejudice to the liability of that (those) operator(s) towards other designated operators by virtue of the Acts of the Union.
2 In the event of the default of its designated operator, a member country shall inform, through the International Bureau, the other member countries party to the Agreement: 2.1 of the suspension of its postal payment services, from the date indicated and until further notice; 2.2 of the measures taken to re-establish its services under the responsibility of any new designated operator.
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Article 5 Operational functions
1 The designated operators shall be responsible for the execution of postal payment ser- vices vis-a-vis other operators and users.
2 They shall be accountable for risks such as operational risks, liquidity risks, and counterparty risks, in accordance with the national legislation.
3 In order to implement the postal payment services whose provision is entrusted to them by their respective member country, designated operators shall conclude bilateral or multilateral agreements with the designated operators of their choice.
Article 6 Ownership of postal payment services funds
1 Any sum of money, delivered in cash or debited to an account for the execution of a postal payment order, shall belong to the sender until such time as it is paid to the payee or credited to the payee's account.
2 During the validity period of the postal payment order, the sender may recall it up until its payment to the payee or until it is credited to the payee's account.
Article 7 Prevention of money laundering, terrorist funding and financial crime
1 Designated operators shall take all necessary steps to fulfil their obligations stemming from national and international legislation aimed at combating money laundering, terrorist fund- ing and financial crime.
2 They should inform their country's competent authorities of suspicious transactions, in accordance with national laws and regulations.
3 The Regulations shall set out the detailed obligations of designated operators in respect of user identification, due diligence and the procedures for implementing regulations against money laundering, terrorist funding and financial crime.
Article 8 Confidentiality
1 Designated operators shall ensure the confidentiality of, and the use of, personal data in accordance with national legislation and, where applicable, international obligations, and the Regulations. The provision of this article shall not restrict the provision of personal data on the request based on each member country's national laws.
2 The data required to execute the postal payment order shall be confidential.
3 For statistical purposes, and possibly also for the purpose of quality of service measure- ment and centralized clearing, designated operators shall be required to provide the International Bureau of the Universal Postal Union with postal data at least once a year. The International Bureau shall treat all individual postal data in confidence.
74 Postal Payment Services Agreement
Article 9 Technological neutrality
1 The exchange of data necessary for the provision of the services defined in this Agreement shall be governed by the principle of technological neutrality, which means that the provision of these services does not depend on the use of a particular technology.
2 The procedures for executing postal payment orders, including the conditions for deposit- ing, entering, dispatching, paying and reimbursing orders and for processing inquiries, and the time limit for making the funds available to the payee, may vary according to the technology used for transmitting the order.
3 Postal payment services may be provided on the basis of a combination of different tech- nologies.
Chapter II
General principles and quality of service
Article 10 General principles
1 Accessibility via the network 1.1 The postal payment services shall be provided by the designated operators via their net- work(s) and/or via any other partner network in order to ensure accessibility to these services for the greatest number. 1.2 All users shall have access to postal payment services regardless of any contractual or commercial relationship existing with the designated operator.
2 Separation of funds
2.1 Users' funds shall be ring-fenced . These funds and the flows that they generate shall be separate from operators ' other funds and flows, particularly their own funds. 2.2 Settlements relating to remuneration between designated operators are separate from settlements relating to users' funds.
3 Currency of issue and currency of payment in respect of postal payment orders 3.1 The amount of the postal payment order shall be expressed and paid in the currency of the destination country or in any other currency authorized by the destination country.
4 Non-repudiability
4.1 The transmission of postal payment orders by electronic means shall be subject to the principle of non-repudiability, in the sense that the issuing designated operator shall not question the existence of these orders and the paying designated operator shall not deny receipt of the orders, insofar as the message conforms to the applicable technical stan- dards.
4.2 The non-repudiability of electronic postal payment orders shall be ensured by technologi- cal means, regardless of the system used by the designated operators.
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5 Execution of postal payment orders 5.1 Postal payment orders transmitted between designated operators must be executed, sub- ject to the provisions of the present Agreement and the national legislation.
5.2 In the designated operators' network, the sum delivered to the issuing designated opera- tor by the sender shall be the same as the-sum paid to the payee by the paying desig- nated operator. 5.3 Payment to the payee shall not be conditional on receipt by the paying designated opera- tor of the corresponding funds from the sender. It shall be made subject to the fulfilment by the issuing designated operator of its obligations towards the paying designated operator regarding instalments or the provision of a liaison account.
6 Setting of rates 6.1 The issuing designated operator shall set the price of postal payment services. 6.2 Charges may be added to this price for any optional or supplementary service required by the sender.
7 Exemption from charges 7.1 The provisions of the Universal Postal Convention concerning exemption from postal charges on postal items intended for prisoners of war and civil internees may apply to the postal payment service items for this category of payee.
8 Remuneration of the paying designated operator 8.1 The paying designated operator shall be remunerated by the issuing designated operator for the execution of postal payment orders.
9 Intervals for settlement between designated operators 9.1 The frequency of settlement between designated operators of sums paid or credited to a payee on behalf of a sender may be different from that in respect of the settlement of remuneration between designated operators. Sums paid or credited shall be settled at least once a month.
10 Obligation to inform users 10.1 Users shall be entitled to the following information, which shall be published and made available to all senders: conditions covering the provision of postal payment services, prices, charges, exchange rates and arrangements, conditions of implementation of liability, and the addresses of information and inquiry services.
10.2 Access to this information shall be provided free of charge.
Article 11 Quality of service
1 Designated operators may decide to identify postal payment services by means of a collective brand.
76 Postal Payment Services Agreement
Chapter III
Principles for electronic data interchange
Article 12 Interoperability
1 Networks
1.1 In order to exchange the data needed to execute postal payment services between all designated operators, and to monitor quality of service, designated operators shall use the Union's electronic data (EDI) exchange system or any other system ensuring the interoperability of the postal payment services in accordance with this Agreement.
Article 13 Ensuring the security of electronic exchanges
1 Designated operators shall be responsible for the proper functioning of their equipment.
2 The electronic transmission of data shall be made secure in order to ensure the authenticity and integrity of the data transmitted.
3 Designated operators shall make transactions secure, in accordance with international standards.
Article 14 Track and trace
1 The systems used by designated operators shall permit the monitoring of the processing of the order and its revocation by the sender, until such time as the corresponding amount is paid to the payee or credited to the payee's account, or, if appropriate, reimbursed to the sender.
Part II
Rules governing the postal payment services
Chapter I
Processing of postal payment orders
Article 15 Deposit, entry and transmission of postal payment orders
1 The conditions for depositing, entering and transmitting postal payment orders are set out in the Regulations.
2 The period of validity for postal payment orders may not be extended and is set in the Regulations.
77 Postal Payment Services Agreement
Article 16 Checking and release of funds
1 After confirming the payee's identity in accordance with national legislation and the accu- racy of the information he has provided, the designated operator shall make the payment in cash. For an inpayment order or a transfer, this payment shall be credited to the payee's account.
2 The time limits for release of the funds shall be established in the bilateral and multilat- eral agreements between designated operators.
Article 17 Maximum amount
1 Designated operators shall inform the International Bureau of the Universal Postal Union of the maximum amounts for sending or receipt set according to their national legislation.
Article 18 Reimbursement
1 Extent of reimbursement
1.1 Reimbursement within the framework of the postal payment services shall cover the full amount of the postal payment order in the currency of the issuing country. The amount to be reimbursed shall be equal to the amount paid by the sender or to the amount charged to his account. The price of the postal payment service shall be added to the amount reimbursed in the event of an error made by a designated operator.
Chapter II
Inquiries and liability
Article 19 Inquiries
1 Inquiries shall be entertained within a period of six months from the day after that on which the postal payment order was accepted.
2 Designated operators, subject to their national legislation, shall have the right to collect from customers charges on inquiries in regard to postal payment orders.
Article 20 Liability of designated operators with regard to users
1 Treatment of funds
1.1 The issuing designated operator shall be accountable to the sender for the sums handed over at the counter or debited to the sender's account until the postal payment order has been duly paid or the payee's account credited, or until the funds have been reimbursed to the sender in the form of cash or as a credit to his account.
78 Postal Payment Services Agreement
Article 21 Obligations and liability of designated operators to each other
1 Each designated operator shall be liable for its own errors.
2 The conditions and extent of liability are set out in the Regulations.
Article 22 Non-liability of designated operators
1 Designated operators shall not be liable: 1.1 in cases of delay in the execution of the service; 1.2 when they cannot account for the execution of a postal payment order owing to the destruction of postal payment service, data by force majeure, unless proof of their liability is otherwise produced; 1.3 when the damage has been caused by the fault or negligence of the sender, particularly concerning his responsibility to provide correct information in support of his postal pay- ment order, including the fact that the funds remitted are from a legitimate source and that the postal payment order is for a legitimate purpose; 1.4 if the funds remitted are seized; 1.5 in the case of prisoner-of-war or civilian internee funds; 1.6 when the user has made no inquiry within the period set in the Regulations; 1.7 when the time allowed for recourse in respect of postal payment services in the issuing country has expired.
Article 23 Reservations regarding liability
1 No reservations may be made to the provisions regarding liability prescribed in arti- cles 20 to 22, other than in case of a bilateral agreement.
Chapter III
Financial relations
Article 24 Accounting and financial rules
1 Accounting rules 1.1 Designated operators shall comply with the accounting rules defined in the Regulations.
79 Postal Payment Services Agreement
2 Preparation of monthly and general accounts 2.1 The paying designated operator shall prepare for each issuing designated operator a monthly account showing the sums paid for postal payment orders. The monthly accounts shall be incorporated, at the same intervals, in a general offset account includ- ing instalments and giving rise to a balance.
3 Instalment 3.1 In case of an imbalance in exchanges between designated operators, an instalment shall be paid by the issuing designated operator to the paying designated operator, at least once a month, at the beginning of the settlement period. In cases where increasing the frequency of settle- ment of exchanges reduces the period to less than a week, operators can agree to waive this instalment.
4 Concentration account 4.1 In principle, each designated operator shall have one concentration account for users' funds. These funds shall be used solely for settling orders paid to the payees or for reim- bursing non-executed orders to senders. 4.2 Any instalments paid by the issuing designated operator shall be credited to the concentration account for the paying designated operator. These instalments shall be used exclusively for payments to payees.
5 Security deposit 5.1 The payment of a security deposit may be required in accordance with the conditions provided for in the Regulations.
Article 25 Settlement and clearing
1 Centralized settlement 1.1 Settlements between designated operators may pass through a central clearing house, in accordance with the procedures set out in the Regulations and shall be carried out from the designated operators' concentration accounts.
2 Bilateral settlement 2.1 Billing on the basis of the general account balance 2.1.1 In general, designated operators that are not members of a centralized clearing system shall settle accounts on the basis of the balance of the general account.
2.2 Liaison account 2.2.1 Where designated operators have a giro institution, they may each open a liaison account by means of which shall be settled their mutual debts and claims resulting from postal payment services. 2.2.2 Where the paying designated operator does not have a giro system, the liaison account may be opened with another financial institution. 2.3 Currency of settlement 2.3.1 Settlements shall be carried out in the currency of the destination country or in a third currency agreed between the designated operators.
80 Postal Payment Services Agreement
Part III
Transitional and final provisions
Article 26 Reservations at Congress
1 Any reservation which is incompatible with the object and purpose of the Union shall not be permitted.
2 As a general rule, any member country whose views are not shared by other member countries should endeavour, as far as possible, to conform to the opinion of the majority. Reser- vations shall be made only in cases of absolute necessity, and shall be duly justified.
3 Any reservation to an article of the present Agreement shall be submitted to Congress as a Congress proposal written in one of the working languages of the International Bureau and in accordance with the relevant provisions of the Rules of Procedure of Congresses.
4 To become effective, any proposal concerning reservations must be approved by whatever majority is required for amendment of the article to which the reservation relates.
5 In principle, reservations shall be applied on a reciprocal basis between the reserving member country and the other member countries.
6 . Reservations to the present Agreement shall be inserted in its Final Protocol on the basis of proposals approved by Congress.
Article 27 Final provisions
1 The Convention shall be applicable, where appropriate, by analogy, in all cases not expressly governed by this Agreement.
2 Article 4 of the Constitution shall not apply to this Agreement.
3 Conditions for approval of proposals concerning this Agreement and the Regulations 3.1 To become effective, proposals submitted to Congress relating to this Agreement must be approved by a majority of the member countries present and voting which are parties to the Agreement and which have the right to vote. At least half of these member countries represented at Congress and having the right to vote shall be present at the time of vot- ing. 3.2 To become effective, proposals relating to the Regulations of the present Agreement must be approved by a majority of the members of the Postal Operations Council which are parties to the Agreement and which have the right to vote. 3.3 To become effective, proposals introduced between two Congresses relating to this Agreement must obtain: 3.3.1 two thirds of the votes, with at least one half of the member countries which are parties to the Agreement and have the right to vote having taken part in the vote, if they involve the addition of new provisions;
81 Postal Payment Services Agreement
3.3.2 a majority of the votes, with at least one half of the member countries which are parties to the Agreement and have the right to vote having taken part in the vote, if they involve amendments to the provisions of this Agreement; 3.3.3 a majority of the votes, if they involve interpretation of the provisions of this Agreement. 3.4 Notwithstanding the provisions under 3.3.1, any member country whose national legisla- tion is as yet incompatible with the proposed addition may, within 90 days from the date of notification of the latter, make a written declaration to the Director General of the International Bureau stating that it is unable to accept this addition.
Article 28 Entry into force and duration of the Postal Payment Services Agreement
1 This Agreement shall come into force on 1 January 2010 and shall remain in operation until the entry into force of the Acts of the next Congress.
In witness whereof, the plenipotentiaries of the governments of the contracting countries have signed this Agreement in a single original which shall be deposited with the Director General of the International Bureau. A copy thereof shall be delivered to each party by the International Bureau of the Universal Postal Union.
Done at Geneva, 12 August 2008.
82 Constitution
Constitution of the Universal Postal Union
(amended by the 1969 Tokyo, 1974 Lausanne, 1984 Hamburg, 1989 Washington, 1994 Seoul, 1999 Beijing, 2004 Bucharest and 24th Congress - 2008 Additional Protocolsl)
Table of contents
Preamble
Section I
Organic provisions
Chapter I
General
Article 1 Scope and objectives of the Union This Definitions 2 Members of the Union 3 Jurisdiction of the Union 4 Exceptional relations 5 Seat of the Union 6 Official language of the Union 7 Monetary unit 8 Restricted Unions. Special Agreements 9 Relations with the United Nations 10 Relations with international organizations
1 For the 1969 Tokyo Additional Protocol, see the documents of that Congress, volume III, pages 9 to 12. For the Second Additional Protocol (Lausanne 1974), see the documents of that Congress, volume III, pages 23 to 25. For the Third Additional Protocol (Hamburg 1984), see the documents of that Congress, volume III, pages 25 to 28. For the Fourth Additional Protocol (Washington 1989), see the documents of that Congress, volume III/ 1, pages 27 to 32. For the Fifth Additional Protocol (Seoul 1994), see the documents of that Congress, volume III, pages 25 to 29. For the Sixth Additional Protocol (Beijing 1999), see pages A 3 to A 6 of the brochure published in Berne in 1999. For the Seventh Additional Protocol (Bucharest 2004), see pages 3 to 7 of the brochure published in Berne in 2004. For the Eighth Additional Protocol (24th Congress - 2008), see pages xx to xx of the present brochure.
83 Constitution
Chapter II
Accession or admission to the Union. Withdrawal from the Union
11 Accession or admission to the Union. Procedure 12 Withdrawal from the Union. Procedure
Chapter III
Organization of the Union
13 Bodies of the Union 14 Congress 15 Extraordinary Congresses 16 Administrative Conferences (deleted) 17 Council of Administration 18 Postal Operations Council 19 Special Committees (deleted) 20 International Bureau
Chapter IV
Finances of the Union
21 Expenditure of the Union. Contributions of member countries
Section II
Acts of the Union
Chapter I
General
22 Acts of the Union 23 Application of the Acts of the Union to territories for whose international relations a member country is responsible 24 National legislation
84 Constitution
Chapter II
Acceptance and denunciation of the Acts of the Union
25 Signature, authentication, ratification and other forms of approval of the Acts of the Union 26 Notification of ratifications and other forms of approval of the Acts of the Union 27 Accession to the Agreements 28 Denunciation of an Agreement
Chapter III
Amendment of the Acts of the Union
29 Presentation of proposals 30 Amendment of the Constitution 31 Amendment of the General Regulations, the Convention and the Agreements
Chapter IV
Settlement of disputes
32 ' Arbitration
Section III
Final provisions
33 Coming into operation and duration of the Constitution
85 Constitution
Constitution of the Universal Postal Union
(amended by the 1969 Tokyo, 1974 Lausanne, 1984 Hamburg, 1989 Washington, 1994 Seoul, 1999 Beijing, 2004 Bucharest and 24th Congress - 2008 Additional Protocols)
Preamble'
With a view to developing communications between peoples by the efficient operation of the postal services, and to contributing to the attainment of the noble aims of international collaboration in the cultural, social and economic fields, the plenipotentiaries of the governments of the con- tracting countries have, subject to ratification, adopted this Constitution.
The mission of the Union is to stimulate the lasting development of efficient and accessible universal postal services of quality in order to facilitate communication between the inhabitants of the world by:
guaranteeing the free circulation of postal items over a single postal territory composed of interconnected networks; encouraging the adoption of fair common standards and the use of technology; ensuring cooperation and interaction among stakeholders; promoting effective technical cooperation; ensuring the satisfaction of customers' changing needs.
1 Amended by the 2004 Bucharest Congress.
86 Section I
Organic provisions
Chapter I
General
Article 1 Scope and objectives of the Union
1 The countries adopting this Constitution shall comprise, under the title of the Universal Postal Union, a single postal territory for the reciprocal exchange of letter-post items. Freedom of transit shall be guaranteed throughout the entire territory of the Union.
2 The aim of the Union shall be to secure the organization and improvement of the postal services and to promote in this sphere the development of international collaboration.
3 The Union shall take part, as far as possible, in postal technical assistance sought by its member countries.
Article Ibis' Definitions
1 For the purpose of the Acts of the Universal Postal Union, the following terms shall have the meanings defined below: 1.1 Postal service: all postal services, whose scope is determined by the bodies of the Union. The main obligations of postal services are to satisfy certain social and economic objec- tives of member countries, by ensuring the collection, sorting, transmission and delivery of postal items. 1.2 Member country: a country that fulfils the conditions of article 2 of the Constitution. 1.3 Single postal territory (one and the same postal territory): the obligation upon the contracting parties to the UPU Acts to provide for the reciprocal exchange of letter-post items, including freedom of transit, and to treat postal items in transit from other coun- tries like their own postal items, without discrimination. 1.4 Freedom of transit: obligation for an intermediate member country to ensure the transport of postal items passed on to it in transit for another member country2, pro- viding similar treatment to that given to domestic items. 1.5 Letter-post item: items described in the Convention. 1.6 International postal service: postal operations or services regulated by the Acts; set of these operations or services. 1.6bis Designated operator: any governmental or non -governmental entity officially designated by the member country to operate postal services and to fulfil the related obligations arising out of the Acts of the Union on its territory.2 1.6ter Reservation : an exemption clause whereby a member country purports to exclude or to modify the legal effect of a clause of an Act, other than the Constitution and
1 Introduced by the 2004 Bucharest Congress. 2 Amended by the 24th Congress - 2008.
87 Constitution
the General Regulations, in its application to that member country. Any reserva- tion shall be compatible with the object and purpose of Union as defined in the pre- amble and article 1 of the Constitution . It must be duly justified and approved by the majority required for approval of the Act concerned , and inserted in the Final Protocol thereto.'
Article 2 Members of the Union
Member countries of the Union shall be: a countries which have membership status at the date on which the Constitution comes into force; b countries admitted to membership in accordance with article 11.
Article 3 Jurisdiction of the Union
The Union shall have within its jurisdiction: a the territories of member countries; b post offices set up by member countries in territories not included in the Union; c territories which, without being members of the Union, are included in it because from the postal point of view they are dependent on member countries.
Article 4 Exceptional relations
Member countries whose designated operators provide a service with territories not included in the Union are bound to act as intermediaries for other member countries .' The provisions of the Convention and its Regulations shall be applicable to such exceptional relations.
Article 5 Seat of the Union
The seat of the Union and of its permanent organs shall be at Berne.
Article 6 Official language of the Union
The official language of the Union shall be French.
Article 72 Monetary unit
The monetary unit used in the Acts of the Union shall be the accounting unit of the International Monetary Fund (IMF).
1 Amended by the 24th Congress - 2008. 2 Amended by the 1989 Washington Congress.
88 Article 8 Restricted Unions. Special Agreements
1 Member countries, or their designated operators if the legislation of those member' countries so permits, may establish Restricted Unions and make Special Agreements concerning the international postal service, provided always that they do not introduce provisions less favourable to the public than those provided for by the Acts to which the member countries concerned are parties.
2 Restricted Unions may send observers to Congresses, conferences and meetings of the Union, to the Council of Administration and to the Postal Operations Council.2
3 The Union may send observers to Congresses, conferences and meetings of Restricted Unions.
Article 9 Relations with the United Nations
The relations between the Union and the United Nations shall be governed by the Agreements whose texts are annexed to this Constitution.
Article 10 Relations with international organizations
In order to secure close cooperation in the international postal sphere, the Union may collaborate with international organizations having related interests and activities.
Chapter II
Accession or admission to the Union. Withdrawal from the Union
Article 113 Accession or admission to the Union. Procedure
1 Any member of the United Nations may accede to the Union.
2 Any sovereign country which is not a member of the United Nations may apply for admission as a member country of the Union.
3 Accession or application for admission to the Union must entail a formal declaration of accession to the Constitution and to the obligatory Acts of the Union. It shall be addressed by the government of the country concerned to the Director General of the International Bureau, who shall notify the accession or consult the member countries on the application for admission, as the case may be.
4 A country which is not a member of the United Nations shall be deemed to be admitted as a member country if its application is approved by at least two thirds of the member countries
1 Amended by the 24th Congress - 2008. 2 Amended by the 1969 Tokyo and 1994 Seoul Congresses. 3 Amended by the 1969 Tokyo and 1989 Washington Congresses.
89 Constitution
of the Union. Member countries which have not replied within a period of four months counting from the date of the consultation ' shall be considered as having abstained.
5 Accession or admission to membership shall be notified by the Director General of the International Bureau to the governments of member countries. It shall take effect from the date of such notification.
Article 122 Withdrawal from the Union. Procedure
1 Each member country may withdraw from the Union by notice of denunciation of the Constitution given by the government of the country concerned to the Director General of the International Bureau and by him to the governments of member countries.
2 . Withdrawal from the Union shall become effective one year after the day on which the notice of denunciation provided for in paragraph 1 is received by the Director General of the International Bureau.
Chapter III
Organization of the Union
Article 133 Bodies of the Union
1 The Union's bodies shall be Congress, the Council of Administration, the Postal Opera- tions Council and the International Bureau.
2 The Union's permanent bodies shall be the Council of Administration, the Postal Operations Council and the International Bureau.
Article 14 Congress
1 Congress shall be the supreme body of the Union.
2 Congress shall consist of the representatives of member countries,
Article 15 Extraordinary Congresses
An Extraordinary Congress may be convened at the request or with the consent of at least two thirds of the member countries of the Union.
1 Amended by the 24th Congress - 2008. 2 Amended by the 1989 Washington Congress. 3 Amended by the 1969 Tokyo, 1984 Hamburg and 1994 Seoul Congresses.
90 Article 16 Administrative Conferences
(Deleted.)'
Article 172 Council of Administration
1 Between Congresses the Council of Administration (CA) shall ensure the continuity of the work of the Union in accordance with the provisions of the Acts of the Union.
2 Members of the Council of Administration shall carry out their functions in the name and in the interests of the Union.
Article 183 Postal Operations Council
The Postal Operations Council (POC) shall be responsible for operational, commercial, technical and economic questions concerning the postal service.
Article 19 Special Committees
(Deleted.)4
Article 205 International Bureau
A central office operating at the seat of the Union under the title of the International Bureau of the Universal Postal Union, directed by a Director General and placed under the control of the Council of Administration, shall serve as an organ of execution, support, liaison, information and consultation.
1 By the 1984 Hamburg Congress. 2 Amended by the 1994 Seoul Congress. 3 Amended by the 1969 Tokyo and 1994 Seoul Congresses. 4 By the 1984 Hamburg Congress. 5 Amended by the 1984 Hamburg and 1994 Seoul Congresses.
91 Constitution
Chapter IV
Finances of the Union
Article 211 Expenditure of the Union. Contributions of member countries
1 Each Congress shall fix the maximum amount which: a the expenditure of the Union may reach annually; b the expenditure relating to the organization of the next Congress may reach.
2 The maximum amount for expenditure referred to in paragraph 1 may be exceeded if circumstances so require, provided that the relevant provisions of the General Regulations are observed.
3 The expenses of the Union, including where applicable the expenditure envisaged in paragraph 2, shall be jointly borne by the member countries of the Union. For this purpose, each member country shall choose the contribution class in which it intends to be included. The contribution classes shall be laid down in the General Regulations.
4 In the case of accession or admission to the Union under article 11, the country con- cerned shall freely choose the contribution class into which it wishes to be placed for the purpose of apportioning the expenses of the Union.
Section II
Acts of the Union
Chapter I
General
Article 22 Acts of the Union
1 The Constitution shall be the basic Act of the Union. It shall contain the organic rules of the Union and shall not be subject to reservations.2
2 The General Regulations shall embody those provisions which ensure the application of the Constitution and the working of the Union. They shall be binding on all member countries and shall not be subject to reservations.2
1 Amended by the 1969 Tokyo, 1974 Lausanne and 1989 Washington Congresses. 2 Amended by the 2004 Bucharest Congress.
92 3 The Universal Postal Convention, the Letter Post Regulations and the Parcel Post Regulations shall embody the rules applicable throughout the international postal service and the provisions concerning the letter-post and postal parcels services. These Acts shall be binding on all member countries.' Member countries shall ensure that their designated operators fulfil the obligations arising from the Convention and its Regulations.2
4 The Agreements of the Union, and their Regulations, shall regulate the services other than those of the letter post and postal parcels between those member countries which are parties to them. They shall be binding on those member countries only. Signatory member countries shall ensure that their designated operators fulfil the obligations arising from the Agreements and their Regulations.2
5 The Regulations, which shall contain the rules of application necessary for the implementation of the Convention and of the Agreements, shall be drawn up by the Postal Operations Council, bearing in mind the decisions taken by Congress.3
6 The Final Protocols annexed to the Acts of the Union referred to in paragraphs 3, 4 and 5 shall contain the reservations to those Acts.
Article 234 Application of the Acts of the Union to territories for whose international relations a member country is responsible
1 Any country may declare at any time that its acceptance of the Acts of the Union includes all the territories for whose international relations it is responsible, or certain of them only.
2 The declaration provided for in paragraph 1 must be addressed to the Director General of the International Bureau.
3 Any member country may at any time address to the Director General of the International Bureau a notification of its intention to denounce the application of those Acts of the Union in respect of which it has made the declaration provided for in paragraph 1. Such notifica- tion shall take effect one year after the date of its receipt by the Director General of the International Bureau.
4 The declarations and notifications provided for in paragraphs 1 and 3 shall be communi- cated to member countries by the Director General of the International Bureau.
5 Paragraphs 1 to 4 shall not apply to territories having the status of a member of the Union and for whose international relations a member country is responsible.
Article 24 National legislation
The provisions of the Acts of the Union shall not derogate from the legislation of any member country in respect of anything which is not expressly provided for by those Acts.
1 Amended by the 1999 Beijing Congress. 2 Amended by the 24th Congress - 2008. 3 Amended by the 1989 Washington, 1994 Seoul and 1999 Beijing Congresses. 4 Amended by the 1989 Washington Congress.
93 Constitution
Chapter II
Acceptance and denunciation of the Acts of the Union
Article 251 Signature, authentication, ratification and other forms of approval of the Acts of the Union
1 The Acts of the Union arising from the Congress shall be signed by the plenipotentiaries of the member countries.
2 The Regulations shall be authenticated by the Chairman and the Secretary General of the Postal Operations Council.2
3 The Constitution shall be ratified as soon as possible by the signatory countries.
4 Approval of the Acts of the Union other than the Constitution shall be governed by the constitutional regulations of each signatory country.
5 When a member3 country does not ratify the Constitution or does not approve the other Acts which it has signed, the Constitution and other Acts shall be no less valid for the other member3 countries that have ratified or approved them.
Article 264 Notification of ratifications and other forms of approval of the Acts of the Union
The instruments of ratification of the Constitution and the Additional Protocols thereto and, where appropriate, of approval of the other Acts of the Union shall be deposited as soon as possible with the Director General of the International Bureau who shall notify the governments of the member countries of their deposit.
Article 27 Accession to the Agreements
1 Member countries may, at any time, accede to one or more of the Agreements provided for in article 22.4.
2 Accession of member countries to the Agreements shall be notified in accordance with article 11.3.
Article 28 Denunciation of an Agreement
Each member country may cease being a party to one or more of the Agreements, under the conditions laid down in article 12.
1 Amended by the 1989 Washington and 1994 Seoul Congresses. 2 Amended by the 1999 Beijing Congress. 3 Amended by the 24th Congress - 2008. 4 Amended by the 1969 Tokyo and 1989 Washington Congresses.
94 Chapter III
Amendment of the Acts of the Union
Article 29 Presentation of proposals
1 A 1 member country shall have the right to present, either to Congress or between Congresses , proposals concerning the Acts of the Union to which it is a party.
2 However, proposals concerning the Constitution and the General Regulations may be submitted only to Congress.
3 Moreover, proposals concerning the Regulations shall be submitted direct to the Postal Operations Council but must first be transmitted by the International Bureau to all member countries and all designated operators. 1, 2
Article 30 Amendment of the Constitution
1 To be adopted, proposals submitted to Congress and relating to this Constitution must be approved by at least two thirds of the member countries of the Union having the right to vote.3
2 Amendments adopted by a Congress shall form the subject of an additional protocol and, unless that Congress decides otherwise, shall enter into force at the same time as the Acts renewed in the course of the same Congress. They shall be ratified as soon as possible by member countries and the instruments of such ratification shall be dealt with in accordance with the procedure laid down in article 26.
Article 314 Amendment of the General Regulations, the Convention and the Agreements
1 The General Regulations, the Convention and the Agreements shall define the conditions to be fulfilled for the approval of proposals which concern them.
2 The Convention and the Agreements referred to in paragraph 1 shall enter into force simultaneously and shall have the same duration. As from the day fixed by Congress for the entry into force of these Acts, the corresponding Acts of the preceding Congress shall be abrogated.3
1 Amended by the 24th Congress - 2008. 2 Amended by the 1999 Beijing Congress and 24th Congress - 2008. 3 Amended by the 2004 Bucharest Congress. 4 Amended by the 1984 Hamburg Congress.
95 Constitution
Chapter IV
Settlement of disputes
Article 32 Arbitration
In the event of a dispute between two or more member countries ' concerning the interpretation of the Acts of the Union or the responsibility imposed on a member country' by the application of those Acts, the question at issue shall be settled by arbitration.
Section III
Final provisions
Article 33 Coming into operation and duration of the Constitution
This Constitution shall come into operation on 1 January 1966 and shall remain in force for an indefinite period.
In witness whereof, the plenipotentiaries of the Governments of the contracting countries have signed this Constitution in a single original which shall be deposited in the archives of the Government of the country in which the seat of the Union is situated. A copy thereof shall be delivered to each party by the International Bureau of the Universal Postal Union.2
Done at Vienna, 10 July 1964.
1 Amended by the 24th Congress - 2008. 2 Amended by the 2004 Bucharest Congress.
96 General Regulations
General Regulations of the Universal Postal Union
(amended by the First Additional Protocol of the 24th Congress - 2008)
Table of contents
Chapter I
Functioning of the Union's bodies
Art 101 Organization and convening of Congresses and Extraordinary Congresses 101bis Functions of Congress 102 Composition, functioning and meetings of the Council of Administration 103 Information on the activities of the Council of Administration 104 Composition, functioning and meetings of the Postal Operations Council 105 Information on the activities of the Postal Operations Council 106 Composition, functioning and meetings of the Consultative Committee 107 Information on the activities of the Consultative Committee 108 Rules of Procedure of Congresses 109 Working languages of the International Bureau 110 Languages used for documentation, for debates and for official correspondence
Chapter II
International Bureau
111 Election of the Director General and Deputy Director General of the International Bureau 112 Duties of the Director General 113 Duties of the Deputy Director General 114 Secretariat of the Union's bodies 115 List of member countries 116 Information. Opinions. Requests for interpretation and amendment of the Acts. Inquiries. Role in the settlement of accounts 117 Technical cooperation 118 Forms supplied by the International Bureau 119 Acts of Restricted Unions and Special Agreements
97 General Regulations
120 Union periodical 121 Biennial report on the work of the Union
Chapter III
Procedure for the submission and consideration of proposals
122 Procedure for submitting proposals to Congress 123 Procedure for submitting proposals to the Postal Operations Council concerning the preparation of new Regulations in the light of decisions taken by Congress 124 Procedure for submitting proposals between Congresses 125 Consideration of proposals between Congresses 126 Notification of decisions adopted between Congresses 127 Entry into force of the Regulations and of the other decisions adopted between Congresses
Chapter IV
Finance
128 Fixing and regulation of the expenditure of the Union 129 Automatic sanctions 130 Contribution classes 131 Payment for supplies from the International Bureau
Chapter V
Arbitration
132 Arbitration procedure
Chapter VI
Final provisions
133 Conditions for approval of proposals concerning the General Regulations 134 Proposals concerning the Agreements with the United Nations 135 Amendment, entry into force and duration of the General Regulations
98 General Regulations
General Regulations of the Universal Postal. Union
(amended by the First Additional Protocol of the 24th Congress - 2008)
The undersigned plenipotentiaries of the Governments of member countries of the Union, having regard to article 22.2, of the Constitution of the Universal Postal Union, concluded at Vienna on 10 July 1964, have, by common consent, and subject to article 25.4, of the Constitution, drawn up in these General Regulations the following provisions securing the application of the Constitution and the functioning of the Union.
Chapter I
Functioning of the Union's bodies
Article 101 Organization and convening of Congresses and Extraordinary Congresses (Const. 14, 15)
1 The representatives of member countries shall meet in Congress not later than four years after the end of the year during which the preceding Congress took place.
2 Each member country shall arrange for its representation at Congress by one or more plenipotentiaries furnished by their Government with the necessary powers. It may, if need be, arrange to be represented by the delegation of another member country. Nevertheless it shall be understood that a delegation may represent only one member country other than its own.
3 In debates, each member country shall be entitled to one vote, subject to the sanctions provided for in article 129.
4 In principle, each Congress shall designate the country in which the next Congress will be held. If that designation proves inapplicable, the Council of Administration shall be authorized to designate the country where Congress is to meet, after consultation with the latter country.
5 After consultation with the International Bureau, the host Government shall fix the definitive date and the precise locality of Congress. In principle one year before that date the host Government shall send an invitation to the Government of each member country of the Union. This invitation may be sent direct or through the intermediary of another Government or through the Director General of the International Bureau.
6 When a Congress has to be convened without a host Government, the International Bureau, with the agreement of the Council of Administration and after consultation with the Government of the Swiss Confederation, shall take the necessary steps to convene and organize the Congress in the country in which the seat of the Union is situated. In this event the International Bureau shall perform the functions of the host Government.
99 General Regulations
7 The meeting place of an Extraordinary Congress shall be fixed, after consultation with the International Bureau, by the member countries which have initiated that Congress.
8 Paragraphs 2 to 6 shall be applicable by analogy to Extraordinary Congresses.
Article lOlbis Functions of Congress
1 On the basis of proposals by member countries , the Council of Administration and the Postal Operations Council, Congress shall: 1.1 determine the general policies for achieving the object and purpose of the Union set out in the Preamble and article 1 of the Constitution; 1.2 consider and adopt , where appropriate , proposals for amendments to the Constitution, General Regulations, Convention and Agreements submitted by member countries and the Councils , in accordance with article 29 of the Constitution and article 122 of the General Regulations; 1.3 set the date for the entry into force of the Acts; 1.4 adopt its Rules of Procedure and the amendments to those Rules; 1.5 consider the comprehensive reports on the work of the Council of Administration, the Postal Operations Council and the Consultative Committee, covering the period from the previous Congress , presented by these respective bodies in accordance with articles 103, 105 and 107 of the General Regulations; 1.6 adopt the Union 's strategy; 1.7 fix the maximum amount of the Union 's expenditure in accordance with article 21 of the Constitution; 1.8 elect the member countries to sit on the Council of Administration and the Postal Operations Council; 1.9 elect the Director General and Deputy Director General; 1.10 set in a resolution the ceiling of the costs to be borne by the Union for the production of documents in Chinese , German , Portuguese and Russian.
2 Congress , as the supreme body of the Union , shall deal with such other questions concerning postal services.
Article 102 Composition, functioning and meetings of the Council of Administration (Const 17)
1 The Council of Administration shall consist of forty-one members who shall exercise their functions during the period between two successive Congresses.
2 The chairmanship shall devolve by right on the host member country of Congress. If that member country waives this right, it shall become a de jure member and, as a result, the geographical group to which it belongs shall have at its disposal an additional seat, to which the restrictive provisions of paragraph 3 shall not apply. In that case, the Council of Administration shall elect to the chairmanship one of the member countries belonging to the geographical group of the host member country.
3 The forty other members of the Council of Administration shall be elected by Congress on the basis of an equitable geographical distribution. At least a half of the membership shall be renewed at each Congress; no member may be chosen by three successive Congresses.
100 General Regulations
4 Each member of the Council of Administration shall appoint its representative, who shall be competent in postal matters.
5 The office of member of the Council of Administration shall be unpaid. The operational expenses of this Council shall be borne by the Union.
6 The Council of Administration shall have the following functions: 6.1 to supervise the activities of the Union between Congresses, ensuring compliance with the decisions of Congress, studying questions with respect to governmental policies on postal issues, and taking account of international regulatory developments such as those relating to trade in services and to competition; 6.2 to consider and approve, within the framework of its competence, any action considered necessary to safeguard and enhance the quality of and to modernize the international postal service; 6.3 to promote, coordinate and supervise all forms of postal technical assistance within the framework of international technical cooperation; 6.4 to consider and approve the biennial Programme and Budget and the accounts of the Union; 6.5 to authorize the ceiling of expenditure to be exceeded, if circumstances so require, in accordance with article 128.3 to 5; 6.6 to lay down the Financial Regulations of the Union; 6.7 to lay down the rules governing the Reserve Fund; 6.8 to lay down the rules governing the Special Fund; 6.9 to lay down the rules governing the Special Activities Fund; 6.10 to lay down the rules governing the Voluntary Fund; 6.11 to provide control over the activities of the International Bureau; 6.12 to authorize election of a lower contribution class, if it is so requested, in accordance with the conditions set out in article 130.6; 6.13 to authorize a change of geographical group if it is so requested by a member country, taking into account the views expressed by the member countries which are members of the geographical groups concerned; 6.14 to lay down the Staff Regulations and the conditions of service of the elected officials; 6.15 to create or abolish International Bureau posts taking into account the restrictions imposed by the expenditure ceiling fixed; 6.16 to lay down the Regulations of the Social Fund; 6.17 to approve the biennial report on the work of the Union and the biennial Financial Operating Reports prepared by the International Bureau and where appropriate to furnish observations on them; 6.18 to decide on the contacts to be established with member countries in order to carry out its functions; 6.19 after consulting the Postal Operations Council, to decide on the contacts to be estab- lished with the organizations which are not de jure observers, to consider and approve the reports by the International Bureau on UPU relations with other international bodies and to take the decisions which it considers appropriate on the conduct of such relations and the action to be taken on them; to designate in due course, after consulting the Postal Operations Council and the Secretary General, the international organizations, associations, enterprises and qualified persons to be invited to be represented at specific
101 General Regulations
meetings of Congress and its Committees when this is in the interest of the Union or the work of Congress and to instruct the Director General to issue the necessary invitations; 6.20 to establish principles, as may be considered necessary, for the Postal Operations Council to take into account in its study of questions with major financial repercussions (charges, terminal dues, transit charges, basic airmail conveyance rates and the posting abroad of letter-post items), to follow closely the study of these questions, and to review and approve, for conformity with the aforementioned principles, Postal Operations Council proposals relating to.these questions;
6.21 to study, at the request of Congress, the Postal Operations Council or member countries, administrative, legislative and legal problems concerning the Union or the international postal service; it shall be for the Council of Administration to decide, in the above- mentioned fields, whether it is expedient to undertake the studies requested by member countries between Congresses; 6.22 to formulate proposals which shall be submitted for the approval either of Congress or of member countries in accordance with article 125; 6.23 to approve, within the framework of its competence, the recommendations of the Postal Operations Council for the adoption, if necessary, of regulations or of a new procedure until such time as Congress takes a decision in the matter; 6.24 to consider the annual report prepared by the Postal Operations Council and any proposals submitted by the Council; 6.25 to submit subjects for study to the Postal Operations Council for examination in accordance with article 104.9.16; 6.26 to designate the member country where the next Congress is to be held in the case provided for in article .101.4; 6.27 to determine in due course and after consulting the Postal Operations Council, the number of Committees required to carry out the work of Congress and to specify their functions; 6.28 to designate, after consulting the Postal Operations Council and subject to the approval of Congress, the member countries prepared: - to assume the vice-chairmanships of Congress and the chairman-ships and vice- chairmanships of the Committees, taking as much account as possible of the equitable geographical distribution of the member countries; and - to sit on the restricted Committees of Congress;
6.29 to review and approve, in consultation with the Postal Operations Council, the draft Strategy for presentation to Congress ; 6.30 to approve the four-yearly report, prepared by the International Bureau in consultation with the POC , on the performance of member countries in respect of the execution of the Union Strategy approved by the preceding Congress, for submission to the following Congress; 6.31 to establish the framework for the organization of the Consultative Committee and concur in the organization of the Consultative Committee in accordance with the provi- sions of article 106; 6.32 to establish criteria for membership of the Consultative Committee and to approve or reject applications for membership in accordance with those criteria, ensuring that action on the applications is accomplished through an expedited process between meetings of the Council of Administration;
6.33 to designate those of its members that will serve as members of the Consultative Committee;
102 General Regulations
6.34 to receive and discuss reports and recommendations from the Consultative Committee and to consider recommendations from the Consultative Committee for submission to Congress.
7 At its first meeting, which shall be convened by the Chairman of Congress, the Council of Administration shall elect four Vice-Chairmen from among its members and draw up its Rules of Procedure.
8 On convocation by its Chairman, the Council of Administration shall meet in principle once a year, at Union headquarters.
9 The Chairman, the Vice-Chairmen and the Committee Chairmen of the Council of Administration shall form the Management Committee. This Committee shall prepare and direct the work of each session of the Council of Administration. It shall approve, on behalf of the Council of Administration, the biennial report prepared by the International Bureau on the work of the Union and it shall take on any other task which the Council of Administration decides to assign to it or the need for which arises in the course of the strategic planning process.
10 The travel expenses of the representative of each of the members of the Council of Administration participating in its meetings shall be borne by his member country . However, the representative of each of the member countries classified as developing or least developed countries according to the lists established by the United Nations shall, except for meetings which take place during Congress, be entitled to reimbursement of the cost of either an economy class return air ticket or first class return rail ticket, or expenses incurred for travel by any other means, subject to the condition that the amount does not exceed the price of the economy class return air ticket. The same entitlement shall be granted to each member of its Committees, Working Parties or other bodies when these meet outside Congress and the sessions of the Council.
11 The Chairman of the Postal Operations Council shall represent that body at meetings of the Council of Administration on the agenda of which there are questions of interest to the body which he directs.
12 The Chairman of the Consultative Committee shall represent it at meetings of the Council of Administration when the agenda contains questions of interest to the Consultative Committee.
13 To ensure effective liaison between the work of the two bodies, the Postal Operations Council may designate representatives to attend Council of Administration meetings as observers.
14 The member country in which the Council of Administration meets shall be invited to take part in the meetings in the capacity of observer, if it is not a member of the Council of Administration.
15 The Council of Administration may invite any international body, any representative of an association or enterprise, or any qualified person whom it wishes to associate with its work to its meetings, without the right to vote. It may also invite, under the same conditions, one or more member countries concerned with questions on its agenda.
16 If they so request, the following observers may participate in the plenary sessions and Committee meetings of the Council of Administration, without the right to vote: 16.1 members of the Postal Operations Council; 16.2 members of the Consultative Committee; 16.3 intergovernmental organizations interested in the work of the Council of Administration; 16.4 other member countries of the Union.
103 General Regulations
17 For logistical reasons, the Council of Administration may limit the number of attendees per observer participating. It may also limit their right to speak during the debates.
18 The members of the Council of Administration shall take an active part in its work. Observers may, at their request, be allowed to cooperate in the studies undertaken, subject to such conditions as the Council may establish to ensure the efficiency and effectiveness of its work. They may also be invited to chair Working Parties and Project Teams when their experience or expertise justifies it. The participation of observers shall be carried out without additional expense for the Union.
19 In exceptional circumstances, observers may be excluded from a meeting or a portion of a meeting or may have their right to receive documents restricted if the confidentiality of the subject of the meeting or document so requires. This restriction may be decided on a case-by-case basis by any body concerned or its Chair. The case-by-case situations shall be reported to the Council of Administration and to the Postal Operations Council when matters of interest to the Postal Operations Council are concerned. If it considers this necessary, the Council of Administration may subsequently review restrictions, in consultation with the Postal Operations Council where appropriate.
Article 103 Information on the activities of the Council of Administration
1 After each session, the Council of Administration shall inform the member countries, their designated operators , the Restricted Unions and the members of the Consultative Committee about its activities by sending them, inter alia, a summary record and its resolutions and decisions.
2 The Council of Administration shall make to Congress a comprehensive report on its work and send it to the member countries, their designated operators and the members of the Consultative Committee at least two months before the opening of Congress.
Article 104 Composition, functioning and meetings of the Postal Operations Council (Const 18)
1 The Postal Operations Council shall consist of forty members who shall exercise their functions during the period between successive Congresses.
2 The members of the Postal Operations Council shall be elected by Congress on the basis of qualified geographical distribution. Twenty-four seats shall be reserved for developing member countries and sixteen seats for developed member countries. At least one third of the members shall be renewed at each Congress.
3 Each member of the Postal Operations Council shall appoint its representative, who shall have responsibilities for delivering services mentioned in the Acts of the Union.
4 The operational expenses of the Postal Operations Council shall be borne by the Union. Its members shall not receive any payment. Travelling and living expenses incurred by representatives of member countries participating in the Postal Operations Council shall be borne by these member countries . However, the representative of each of the member countries considered to be disadvantaged according to the lists established by the United Nations shall, except for meetings which take place during Congress, be entitled to reimbursement of the price of an economy class return air ticket or first class return rail ticket, or expenses incurred for travel by any other means, subject to the condition that the amount does not exceed the price of the economy class return air ticket.
104 General Regulations
5 At its first meeting, which shall be convened and opened by the Chairman of Congress, the Postal Operations Council shall choose from among its members a Chairman, a Vice- Chairman, and the Committee Chairmen.
6 The Postal Operations Council shall draw up its Rules of Procedure.
7 In principle, the Postal Operations Council shall meet every year at Union headquarters. The date and place of the meeting shall be fixed by its Chairman in agreement with the Chairman of the Council of Administration and the Director General of the International Bureau.
8 The Chairman, the Vice-Chairman and the Committee Chairmen of the Postal Operations Council shall form the Management Committee. This Committee shall prepare and direct the work of each meeting of the Postal Operations Council and take on all the tasks which the latter decides to assign to it or the need for which arises in the course of the strategic planning process.
9 The functions of the Postal Operations Council shall be the following: 9.1 to conduct the study of the most important operational, commercial, technical, economic and technical cooperation problems which are of interest to all member countries or their designated operators , including questions with major financial repercussions (charges, terminal dues, transit charges, airmail conveyance rates, parcel-post rates, and the posting abroad of letter-post items), and to prepare information, opinions and recommendations for action on them; 9.2 to revise the Regulations of the Union within six months following the end of the Congress unless the latter decides otherwise; in case of urgent necessity, the Postal Operations Council may also amend the said Regulations at other sessions; in both cases, the Operations Council shall be subject to Council of Administration guidance on matters of fundamental policy and principle; 9.3 to coordinate practical measures for the development and improvement of international postal services; 9.4 to take, subject to Council of Administration approval within the framework of the latter's competence, any action considered necessary to safeguard and enhance the quality of and to modernize the international postal service; 9.5 to formulate proposals which shall be submitted for the approval either of Congress or of member countries in accordance with article 125; the approval of the Council of Administration is required when these proposals concern questions within the latter's competence; 9.6 to examine, at the request of a member country, any proposal which that member country forwards to the International Bureau under article 124, to prepare observations on it and to instruct the International Bureau to annex these observations to the proposal before submitting it for approval to the member countries; 9.7 to recommend, if necessary, and where appropriate after approval by the Council of Administration and consultation of all the member countries, the adoption of regulations or of a new procedure until such time as Congress takes a decision in the matter; 9.8 to prepare and issue, in the form of recommendations to member countries and their designated operators , standards for technological, operational and other processes within its competence where uniformity of practice is essential; it shall similarly issue, as required, amendments to standards it has already set; 9.9 to provide input to the Council of Administration for the development of the draft Strategy to be submitted to Congress;
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9.10 to approve those parts of the biennial report on the work of the Union prepared by the International Bureau which concern the responsibilities and functions of the Postal Operations Council; 9.11 to decide on the contacts to be established with member countries and their designated operators in order to carry out its functions; 9.12 to study teaching and vocational training problems of interest to member countries and their designated operators as well as to the new and developing countries; 9.13 to take the necessary steps to study and publicize the experiments and progress made by certain member countries and their designated operators in the technical, operational, economic and vocational training fields of interest to the postal services; 9.14 to study the present position and needs of the postal services in the new and developing countries and to prepare appropriate recommendations on ways and means of improving the postal services in those countries; 9.15 to take, in consultation with the Council of Administration, appropriate steps in the sphere of technical cooperation with all member countries of the Union and their designated operators and in particular with the new and developing countries and their designated operators; 9.16 to examine any other questions submitted to it by a member of the Postal Operations Council, by the Council of Administration or by any member country or designated operator; 9.17 to receive and discuss reports as well as recommendations from the Consultative Committee and, when matters of interest to the Postal Operations Council are involved, to examine and comment on recommendations from the Consultative Committee for submission to Congress; 9.18 to designate those of its members that will serve as members of the Consultative Committee.
10 On the basis of the Union Strategy adopted by Congress and, in particular the part relating to the strategies of the Permanent Bodies of the Union, the Postal Operations Council shall, at its first session after Congress, prepare a draft basic work programme, containing a number of tactics aimed at implementing strategies. This basic work programme, which shall include a limited number of projects on topical subjects of common interest, shall be revised annually in the light of new realities and priorities.
-11 In order to ensure effective liaison between the work of the two bodies, the Council of Administration may designate representatives to attend Postal Operations Council meetings as observers.
12 If they so request, the following observers may participate in the plenary sessions and Committee meetings of the Postal Operations Council, without the right to vote: 12.1 members of the Council of Administration; 12.2 members of the Consultative Committee; 12.3 intergovernmental organizations interested in the work of the Postal Operations Council; 12.4 other member countries of the Union.
13 For logistical reasons, the Postal Operations Council may limit the number of attendees per observer participating. It may also limit their right to speak during the debates.
14 The members of the Postal Operations Council shall take an active part in its work. Observers may, at their request, be allowed to cooperate in the studies undertaken, subject to such conditions as the Council may establish to ensure the efficiency and effectiveness of its work.
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They may also be invited to chair Working Parties and Project Teams when their experience or expertise justifies it. The participation of observers shall be carried out without additional expense for the Union.
15 In exceptional circumstances observers may be excluded from a meeting or a portion of a meeting or may have their right to receive documents restricted if the confidentiality of the subject of the meeting or document so requires. This restriction may be decided on a case-by-case basis by any body concerned or its Chair. The case-by-case situations shall be reported to the Council of Administration and to the Postal Operations Council. If it considers this necessary, the Council of Administration may, in consultation with the Postal Operations Council, subsequently review restrictions where appropriate.
16 The Chairman of the Consultative Committee shall represent that organization at meetings of the Postal Operations Council when the agenda contains questions of interest to the Consultative Committee.
17 The Postal Operations Council may invite the following to take part in its meetings without the right to vote: 17.1 any international body or any qualified person whom it wishes to associate with its work; 17.2 any member country not belonging to the Postal Operations Council; 17.3 any association or enterprise that it wishes to consult with respect to its work.
Article 105 Information on the activities of the Postal Operations Council
1 After each session, the Postal Operations Council shall inform the member countries, their designated operators , the Restricted Unions and the members of the Consultative Committee about its activities by sending them, inter alia, a summary record and its resolutions and decisions.
2 The Postal Operations Council shall prepare for the Council of Administration an annual report on its work.
3 The Postal Operations Council shall make to Congress a comprehensive report on its work and send it to the member countries, their designated operators and the members of the Consultative Committee at least two months before the opening of Congress.
Article 106 Composition, functioning and meetings of the Consultative Committee
1 The aim of the Consultative Committee shall be to represent the interests of the wider international postal sector, and to provide a framework for effective dialogue between stakeholders. It shall consist of non-governmental organizations representing customers, delivery service providers, organizations of workers, suppliers of goods and services to the postal services sector and like organizations of individuals and companies which have an interest in supporting the mission and objectives of the Union . Where such organizations are registered, they must be registered in a member country of the Union. The Council of Administration and the Postal Operations council shall designate the members of their respective Councils as members of the Consultative Committee. Apart from members designated by the Council of Administration and the Postal Operation Council, membership in the Consultative Committee shall be determined through a process of application and acceptance established by the Council of Administration, carried out in accordance with article 102.6.3 1.
Each member of the Consultative Committee shall appoint its own representative.
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3 The operational costs of the Consultative Committee shall be shared by the Union and members of the Committee as determined by the Council of Administration.
4 The members of the Consultative Committee shall not receive remuneration or any other compensation.
5 The Consultative Committee shall reorganize itself after each Congress in accordance with the framework established by the Council of Administration. The Chairman of the Council of Administration shall preside at the organizational meeting of the Consultative Committee, which shall elect its Chairman at that meeting.
6 The Consultative Committee shall determine its internal organization and shall draw up its own rules of procedure, taking into account the general principles of the Union and subject to the concurrence of the Council of Administration after having consulted the Postal Operations Council.
7 The Consultative Committee shall meet twice annually. In principle, the meetings will be held at Union headquarters at the same time as meetings of the Council of Administration and the Postal Operations Council. The date and location of each meeting shall be fixed by the Chairman of the Consultative Committee in agreement with the Chairmen of the Council of Administration and the Postal Operations Council and the Director General of the International Bureau.
8 The Consultative Committee shall establish its own programme within the framework of the following functions:
8.1 to examine documents and reports of the Council of Administration and the Postal Operations Council. In exceptional circumstances, the right to receive certain texts and documents may be restricted if the confidentiality of the subject of the meeting or document so requires. This restriction may be decided on a case-by-case basis by any body concerned or its Chairman. The case-by-case situations shall be reported to the Council of Administration, and to the Postal Operations Council when matters of interest to the Postal Operations Council are concerned. If it considers this necessary, the Council of Administration may subsequently review restrictions, in consultation with the Postal Operations Council, where appropriate; 8.2 to conduct studies of and debate issues of importance to the Consultative Committee's members;
8.3 to consider issues affecting the postal services sector and issue reports on such issues; 8.4 to provide input to the work of the Council of Administration and the Postal Operations Council, including submitting reports and recommendations and giving opinions at the request of the two Councils;
8.5 to make recommendations to Congress, subject to the approval of the Council of Administration and, when matters of interest to the Postal Operations Council are involved, subject to examination and comment by the Postal Operations Council.
9 The Chairman of the Council of Administration and the Chairman of the Postal Operations Council shall represent those bodies at meetings of the Consultative Committee when the agenda of such meetings contains questions of interest to those bodies.
10 In order to ensure effective liaison with the bodies of the Union, the Consultative Committee may designate representatives to attend meetings of Congress, the Council of Administration, and the Postal Operations Council, and their respective Committees, as observers without the right to vote.
11 If they so request, members of the Consultative Committee may attend plenary sessions and Committee meetings of the Council of Administration and the Postal Operations Council in
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accordance with articles 102.16 and 104.12. They may also participate in the work of project teams and working groups under terms established under articles 102.18 and 104.14. Members of the Consultative Committee may attend Congress as observers without the right to vote.
12 If they so request, the following observers may participate in the sessions of the Consultative Committee, without the right to vote: 12.1 members of the Postal Operations Council and the Council of Administration; 12.2 intergovernmental organizations interested in the work of the Consultative Committee; 12.3 Restricted Unions; 12.4 other member countries of the Union.
13 For logistical reasons, the Consultative Committee may limit the number of attendees per observer participating. It may also limit their right to speak during the debates.
14 In exceptional circumstances observers may be excluded from a meeting or a portion of a meeting or may have their right to receive documents restricted if the confidentiality of the subject of the meeting or document so requires. This restriction may be decided on a case-by-case basis by any body concerned or its Chair. The case-by-case situations shall be reported to the Council of Administration and to the Postal Operations Council when matters of interest to the Postal Operations Council are concerned. If it considers this necessary, the Council of Administration may subsequently review restrictions, in consultation with the Postal Operations Council where appropriate.
15 The International Bureau, under the responsibility of the Director General, shall provide the secretariat for the Consultative Committee.
Article 107 Information on the activities of the Consultative Committee
1 After each session, the Consultative Committee shall inform the Council of Administration and the Postal Operations Council of its activities by sending to the Chairmen of those bodies, inter alia, a summary record of its meetings and its recommendations and views.
2 The Consultative Committee shall make to the Council of Administration an annual activity report, with a copy to the Postal Operations Council. This report shall be included in the documentation of the Council of Administration that is provided to Union member countries, to their designated operators and to the Restricted Unions, in accordance with article 103.
3 The Consultative Committee shall make to Congress a comprehensive report on its work and send it to the member countries and their designated operators at least two months before the opening of Congress.
Article 108 Rules of Procedure of Congresses (Const. 14)
1 For the organization of its work and the conduct of its debates, Congress shall apply the Rules of Procedure of Congresses.
2 Each Congress may amend these Rules under the conditions laid down in the Rules of Procedure themselves.
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Article 109 Working languages of the International Bureau
The working languages of the International Bureau shall be French and English.
Article 110 Languages used for documentation, for debates and for official correspondence
1 For the documentation of the Union, the French, English, Arabic and Spanish languages shall be used. The Chinese, German, Portuguese and Russian languages shall also be used provided that only the most important basic documentation is produced in these languages. Other languages may also be used on condition that the member countries which have made the request shall bear all of the costs involved.
2 The member country or countries which have requested a language other than the official language constitute a language group.
3 Documentation shall be published by the International Bureau in the official language and in the languages of the duly constituted language groups, either directly or through the intermediary of the regional offices of those groups in conformity with the procedures agreed with the International Bureau. Publication in the different languages shall be effected in accordance with a common standard.
4 Documentation published directly by the International Bureau shall, as far as possible, be distributed simultaneously in the different languages requested. .
5 Correspondence between the member countries or their designated operators and the International Bureau and between the latter and outside entities may be exchanged in any language for which the International Bureau has available a translation service.
6 The costs of translation into any language, including those resulting from the application of paragraph 5, shall be borne by the language group which has asked for that language. The member countries using the official language shall pay, in respect of the translation of non-official documents, a lump-sum contribution, the amount of which per contribution unit shall be the same as that borne by the member countries using the other International Bureau working language. All other costs involved in the supply of documents shall be borne by the Union. The ceiling of the costs to be borne by the Union for the production of documents in Chinese, German, Portuguese and Russian shall be fixed by a Congress resolution.
7 The costs to be borne by a language group shall be divided among the members of that group in proportion to their contributions to the expenses of the Union. These costs may be divided among the members of the language group according to another system, provided that the member countries concerned agree to it and inform the International Bureau of their decision through the intermediary of the spokesman of the group.
8 The International Bureau shall give effect to any change in the choice of language requested by a member country after a period which shall not exceed two years.
9 For the discussions at meetings of the Union's bodies, the French, English, Spanish and Russian languages shall be admissible, by means of a system of interpretation - with or without electronic equipment - the choice being left to the judgment of the organizers of the meeting after consultation with the Director General of the International Bureau and the member countries concerned.
10 Other languages shall likewise be admissible for the discussions and meetings mentioned in paragraph 9.
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11 Delegations using other languages shall arrange for simultaneous interpretation into one of the languages mentioned in paragraph 9, either by the system indicated in the same paragraph, when the necessary technical modifications can be made, or by individual interpreters.
12 The costs of the interpretation services shall be shared among the member countries using the same language in proportion to their contributions to the expenses of the Union. However, the costs of installing and maintaining the technical equipment shall be borne by the Union.
13 Member countries and/or their designated operators may come to an understanding about the language to be used for official correspondence in their relations with one another. In the absence of such an understanding the language to be used shall be French.
Chapter II
International Bureau
Article 111 Election of the Director General and Deputy Director General of the International Bureau
1 The Director General and the Deputy Director General of the International Bureau shall be elected by Congress for the period between two successive Congresses, the minimum duration of their term of office being four years. Their term of office shall be renewable once only. Unless Congress decides otherwise, the date on which they take up their duties shall be fixed at 1 January of the year following that in which Congress is held.
2 At least seven months before the opening of Congress, the Director General of the International Bureau shall send a memorandum to the Governments of member countries inviting them to submit their applications, if any, for the posts of Director General and Deputy Director General and indicating at the same time whether the Director General and Deputy Director General in office are interested in a renewal of their initial term of office. The applications, accompanied by a curriculum vitae, must reach the International Bureau at least two months before the opening of Congress. The candidates must be nationals of the member countries which put them forward. The International Bureau shall prepare the election documents for Congress. The election of the Director General and that of the Deputy Director General shall take place by secret ballot, the first election being for the post of Director General.
3 If the post of Director General falls vacant, the Deputy Director General shall take over the functions of Director General until the expiry of the latter's term of office; he shall be eligible for election to that post and shall automatically be accepted as a candidate, provided that his initial term of office as Deputy Director General has not already been renewed once by the preceding Congress and that he declares his interest in being considered as a candidate for the post of Director General.
4 If the posts of Director General and Deputy Director General fall vacant at the same time, the Council of Administration shall elect, on the basis of the applications received following notification of the vacancies, a Deputy Director General for the period extending up to the next Congress. With regard to the submission of applications, paragraph 2 shall apply by analogy.
5 If the post of Deputy Director General falls vacant, the Council of Administration shall, on the proposal of the Director General, instruct one of the grade D 2 Directors at the International Bureau to take over the functions of Deputy Director General until the following Congress.
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Article 112 Duties of the Director General
1 The Director General shall organize, administer and direct the International Bureau, of which he is the legal representative. He shall be empowered to classify posts in grades G 1 to D 2 and to appoint and promote officials in those grades. For appointments in grades P 1 to D 2, he shall consider the professional qualifications of the candidates recommended by the member countries of which the candidates are nationals or in which they exercise their professional activities, taking into account equitable geographical distribution with respect to continents and languages. D 2 posts shall as far as possible be filled by candidates from different regions and from regions other than those from which the Director General and Deputy Director General originate, bearing in mind the paramount consideration of the efficiency of the International Bureau. In the case of posts requiring special qualifications, the Director General may seek applications from outside. He shall also consider, for the appointment of a new official, that, in principle, persons occupying grade D 2, D 1 and P 5 posts must be nationals of different member countries of the Union. For the promotion of an official of the International Bureau to grades D 2, D 1 and P 5, he shall not be bound to apply that principle. Moreover, the requirements of equitable geographical and language distribution shall rank behind merit in the recruitment process. The Director General shall inform the Council of Administration once a year of appointments and promotions in grades P 4 to D 2.
2 The Director General shall have the following duties: 2.1 to act as depositary of the Acts of the Union and as intermediary in the procedure of accession and admission to and withdrawal from the Union; 2.2 to notify the decisions taken by Congress to all the Governments of member countries; 2.3 to notify all member countries and their designated operators of the Regulations drawn up or revised by the Postal Operations Council;
2.4 to prepare the draft annual budget of the Union at the lowest possible level consistent with the requirements of the Union and to submit it in due course to the Council of Administration for consideration; to communicate the budget to the member countries of the Union after approval by the Council of Administration and to execute it;
2.5 to execute the specific activities requested by the bodies of the Union and those assigned to him by the Acts; 2.6 to take action to achieve the objectives set by the bodies of the Union, within the framework of the established policy and the funds available; 2.7 to submit suggestions and proposals to the Council of Administration or to the Postal Operations Council; 2.8 following the close of Congress, to submit proposals to the Postal Operations Council concerning changes to the Regulations required as a result of Congress decisions, in accordance with the Rules of Procedure of the Postal Operations Council;
2.9 to prepare, for the Council of Administration and on the basis of directives issued by the Councils , the draft Strategy to be submitted to Congress; 2.10 to prepare , for approval by the Council of Administration , a four-yearly report on the member countries ' performance in respect of the Union Strategy approved by the preceding Congress , which will be submitted to the following Congress; 2.11 to ensure the representation of the Union; 2.12 to act as an intermediary in relations between: - the UPU and the Restricted Unions; - the UPU and the United Nations;
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the UPU and the international organizations whose activities are of interest to the Union; the' UPU and the international organizations or the associations or enterprises that the bodies of the Union wish to consult or associate with their work; 2.13 to assume the duties of Secretary General of the bodies of the Union and supervise in this capacity and taking into account the special provisions of these General Regulations, in particular: - the preparation and organization of the work of the Union's bodies; - the preparation, production and distribution of documents, reports and minutes; - the functioning of the secretariat at meetings of the Union's bodies; 2.14 to attend the meetings of the bodies of the Union and take part in the discussions without the right to vote, with the possibility of being represented.
Article 113 Duties of the Deputy Director General
1 The Deputy Director General shall assist the Director General and shall be responsible to him.
2 If the Director General is absent or prevented from discharging his duties, the Deputy Director General shall exercise his functions. The same shall apply in the case of a vacancy in the post of Director General as mentioned in article 111.3.
Article 114 Secretariat of the Union's bodies (Const 14, 15, 17, 18)
The secretariat of the Union's bodies shall be provided by the International Bureau under the responsibility of the Director General. It shall send all the documents published on the occasion of each session to the member countries of the body and their designated operators, to member countries and their designated operators which, while not members of the body, cooperate in the studies undertaken, to the Restricted Unions and to other member countries and their designated operators which ask for them.
Article 115 List of member countries (Const. 2)
The International Bureau shall prepare and keep up to date the list of member countries of the Union showing therein their contribution class, their geographical group and their position with respect to the Acts of the Union.
Article 116 Information. Opinions. Requests for interpretation and amendment of the Acts. Inquiries. Role in the settlement of accounts (Const 20; Gen Regs 124, 125, 126)
1 The International Bureau shall be at all times at the disposal of the Council of Administration, the Postal Operations Council and member countries and their designated operators for the purpose of supplying them with any necessary information on questions relating to the service.
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2 In particular it shall collect, collate, publish and distribute all kinds of information of interest to the international postal service, give an opinion, at the request of the parties involved, on questions in dispute, act on requests for interpretation and amendment of the Acts of the Union and, in general, carry out such studies and editorial or documentary work as are assigned to it by those Acts or as may be referred to it in the interest of the Union.
3 It shall also conduct inquiries requested by member countries and their designated operators to obtain the views of other member countries and their designated operators on a particular question. The result of an inquiry shall not have the status of a vote and shall not be formally binding.
4 It may act as a clearing house in the settlement of accounts of all kinds relating to the postal service.
Article 117 Technical cooperation (Const. 1)
The International Bureau shall develop postal technical assistance in all its forms within the framework of international technical cooperation.
Article 118 Forms supplied by the International Bureau (Const 20)
The International Bureau shall be responsible for arranging the manufacture of international reply coupons and for supplying them, at cost, to member countries or their designated operators ordering them.
Article 119 Acts of Restricted Unions and Special Agreements (Const 8)
1 Two copies of the Acts of Restricted Unions and of Special Agreements concluded under article 8 of the Constitution shall be sent to the International Bureau by the offices of such Unions, or failing that, by one of the contracting parties.
2 The International Bureau shall see that the Acts of Restricted Unions and Special Agreements do not include conditions less favourable to the public than those which are provided for in the Acts of the Union and shall inform member countries and their designated operators of the existence of such Unions and Agreements. The International Bureau shall notify the Council of Administration of any irregularity discovered through applying this provision.
Article 120 Union periodical
The International Bureau shall publish, with the aid of the documents made available to it, a periodical in Arabic, Chinese, English, French, German, Russian and Spanish.
Article 121 Biennial report on the work of the Union (Const. 20; Gen Regs 102.6.17)
The International Bureau shall make a biennial report on the work of the Union, which shall be sent, after approval by the Council of Administration , to member countries and their designated operators , the Restricted Unions and the United Nations.
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Chapter III
Procedure for the submission and consideration of proposals
Article 122 Procedure for submitting proposals to Congress (Const 29)
1 Subject to the exceptions provided for in paragraphs 2 and 5, the following procedure shall govern the submission of proposals of all kinds to Congress by member countries: a proposals which reach the International Bureau at least six months before the date fixed for Congress shall be accepted; b no drafting proposal shall be accepted during the period of six months preceding the date fixed for Congress; c proposals of substance which reach the International Bureau in the interval between six and four months before the date fixed for Congress shall not be accepted unless they are supported by at least two member countries; d proposals of substance which reach the International Bureau in the interval between four and two months preceding the date fixed for Congress shall not be accepted unless they are supported by at least eight member countries ; proposals which arrive after that time shall no longer be accepted; e declarations of support shall reach the International Bureau within the same period as the proposals to which they refer.
2 Proposals concerning the Constitution or the General Regulations shall reach the International Bureau not later than six months before the opening of Congress; any received after that date but before the opening of Congress shall not be considered unless Congress so decides by a majority of two thirds of the countries represented at Congress and unless the conditions laid down in paragraph 1 are fulfilled.
3 Every proposal shall, as a rule, have only one aim and contain only the changes justified by that aim. Similarly, each proposal liable to lead to significant costs for the Union shall be accompanied by an indication of its financial impact , prepared by the member country submitting the proposal in consultation with the International Bureau , so that the financial resources needed for its implementation can be determined.
4 Drafting proposals shall be headed "Drafting proposal" by the member countries which submit them and shall be published by the International Bureau under a number followed by the letter R. Proposals which do not bear this indication but which, in the opinion of the International Bureau, deal only with drafting points shall be published with an appropriate annotation; the International Bureau shall draw up a list of these proposals for Congress.
5 The procedure prescribed in paragraphs 1 and 4 shall not apply either to proposals concerning the Rules of Procedure of Congresses or to amendments to proposals already made.
Article 123 Procedure for submitting proposals to the Postal Operations Council concerning the preparation of new Regulations in the light of decisions taken by Congress
1 The Regulations of the Universal Postal Convention and the Postal Payment Services Agreement shall be drawn up by the Postal Operations Council in the light of the decisions taken by Congress.
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2 Proposals that are consequential on proposed amendments to the Convention or Postal Payment Services Agreement shall be submitted to the International Bureau simultaneously with the Congress proposals to which they relate. They may be submitted by a single member country without the support of other member countries. Such proposals shall be distributed to all member countries no later than one month prior to Congress.
3 Other proposals concerning the Regulations for consideration by the Postal Operations Council in its preparation of the new Regulations within the six months following Congress shall be submitted to the International Bureau at least two months prior to Congress.
4 Proposals concerning changes to the Regulations required as a result of Congress decisions that are submitted by member countries must reach the International Bureau no later than two months before the opening of the Postal Operations Council. Such proposals shall be distributed to all member countries and their designated operators no later than one month prior to the opening of the Postal Operations Council.
Article 124 Procedure for submitting proposals between Congresses (Const 29; Gen Regs 116)
1 To be eligible for consideration every proposal concerning the Convention or the Agreements submitted by a member country between Congresses shall be supported by at least two other member countries . Such proposals shall lapse if the International Bureau does not receive, at the same time, the necessary number of declarations of support.
2 These proposals shall be sent to other member countries through the intermediary of the International Bureau.
3 Proposals concerning the Regulations shall not require support but shall not be considered by the Postal Operations Council unless the latter agrees to the urgent necessity.
Article 125 Consideration of proposals between Congresses (Const 29; Gen Regs 116, 124)
1 Every proposal concerning the Convention, the Agreements and their Final Protocols shall be subject to the following procedure: where a member country has sent a proposal to the International Bureau, the latter shall forward it to all member countries for examination. They shall be allowed a period of two months in which to examine the proposal and forward any observations to the International Bureau. Amendments shall not be admissible. Once these two months have elapsed, the International Bureau shall forward to member countries all the observations it has received and invite each member country to vote for or against the proposal. Member countries that have not sent in their vote within a period of two months shall be considered to have abstained. The aforementioned periods shall be reckoned from the dates of the International Bureau circulars.
2 Proposals for amending the Regulations shall be dealt with by the Postal Operations Council.
3 If the proposal relates to an Agreement or its Final Protocol, only the member countries which are parties to that Agreement may take part in the procedure described in paragraph 1.
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Article 126 Notification of decisions adopted between Congresses (Const. 29; Gen. Regs 124, 125)
1 Amendments made to the Convention, the Agreements and the Final Protocols to those Acts shall be sanctioned by notification thereof to the governments of member countries by the Director General of the International Bureau.
2 Amendments made to the Regulations and their Final Protocols by the Postal Operations Council shall be communicated to member countries and their designated operators by the International Bureau. The same shall apply to the interpretations referred to in article 36.3.2 of the Convention and in the corresponding provisions of the Agreements.
Article 127 Entry into force of the Regulations and of the other decisions adopted between Congresses
1 The Regulations shall come into force on the same date and shall have the same duration as the Acts laid down by Congress.
2 Subject to paragraph 1, decisions on amending the Acts of the Union which are adopted between Congresses shall not take effect until at least three months after their notification.
Chapter IV
Finance
Article 128 Fixing and regulation of the expenditure of the Union (Const 22)
1 Subject to the provisions of paragraphs 2 to 6, the annual expenditure relating to the activities of bodies of the Union may not exceed the following sums for 2009 and subsequent years: 37,000,000 Swiss francs for the years 2009 and 2010, and 37,235,000 Swiss francs for the years 2011 and 2012 . The basic limit for 2012 shall also apply to the following years in case the Congress scheduled for 2012 is postponed.
2 The expenditure relating to the convening of the next Congress (travelling expenses of the secretariat, transport charges, cost of installing simultaneous interpretation equipment, cost of reproducing documents during the Congress, etc.) shall not exceed the limit of 2,900,000 Swiss francs.
3 The Council of Administration shall be authorized to exceed the limits laid down in paragraphs 1 and 2 to take account of increases in salary scales, pension contributions or allowances, including post adjustments, approved by the United Nations for application to its staff working in Geneva.
4 The Council of Administration shall also be authorized to adjust, each year, the amount of expenditure other than that relating to staff on the basis of the Swiss consumer price index.
5 Notwithstanding paragraph 1, the Council of Administration, or in case of extreme urgency, the Director General, may authorize the prescribed limits to be exceeded to meet the cost of major and unforeseen repairs to the International Bureau building, provided however that the amount of the increase does not exceed 125,000 Swiss francs per annum.
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6 If the credits authorized in paragraphs 1 and 2 prove inadequate to ensure the smooth running of the Union, these limits may only be exceeded with the approval of the majority of the member countries of the Union. Any consultation shall include a complete description of the facts justifying such a request.
7 Countries which accede to the Union or are admitted to the status of members of the Union as well as those which leave the Union shall pay their contributions for the whole of the year during which their admission or withdrawal becomes effective.
8 Member countries shall pay their contributions to the Union's annual expenditure in advance on the basis of the budget laid down by the Council of Administration. These contributions shall be paid not later than the first day of the financial year to which the budget refers. After that date, the sums due shall be chargeable with interest in favour of the Union at the rate of 6% per annum from the fourth month.
9 Where the arrears of mandatory contributions, not including interest, owed to the Union by a member country are equal to or more than the amount of the contributions of that member country for the preceding two financial years, such member country may irrevocably assign -to the Union all or part of the credits owed it by other member countries, in accordance with the arrangements laid down by the Council of Administration. The conditions of this assignment of credit shall be determined by agreement reached between the member country, its debtors/ creditors and the Union.
10 A member country which, for legal or other reasons, cannot make such assignment shall undertake to conclude a schedule for the amortization of its arrears.
11 Other than in exceptional circumstances, recovery of arrears of mandatory contributions owed to the Union may not extend over more than ten years.
12 In exceptional circumstances, the Council of Administration may release a member coun- try from all or part of the interest owed if that country has paid the full capital amount of its debts in arrears.
13 A member country may also be released, within the framework of an amortization schedule approved by the Council of Administration for its accounts in arrears, from all or part of the interest accumulated or to accrue; such release shall, however, be subject to the full and punctual execution of the amortization schedule within an agreed period of ten years at most.
14 To cover shortfalls in Union financing, a Reserve Fund shall be established the amount of which shall be fixed by the Council of Administration. This Fund shall be maintained primarily from budget surpluses. It may also be used to balance the budget or to reduce the amount of member countries' contributions.
15 As regards temporary financing shortfalls, the Government of the Swiss Confederation shall make the necessary short-term advances, on conditions which are to be fixed by mutual agreement. That Government shall supervise, without charge, book-keeping and accounting of the International Bureau within the limits of the credits fixed by Congress.
15bis The provisions under paragraphs 9, 10, 11, 12 and 13 apply by analogy to the translation costs billed by the International Bureau to member countries belonging to the language groups.
118 General Regulations
Article 129 Automatic sanctions
1 Any member country unable to make the assignment provided for in article 128.9 and which does not agree to submit to an amortization schedule proposed by the International Bureau in accordance with article 128.10, or which does not comply with such a schedule shall automatically lose its right to vote at Congress and at meetings of the Council of Administration and the Postal Operations Council and shall no longer be eligible for membership of these two Councils.
2 Automatic sanctions shall be lifted as a matter of course and with immediate effect as soon as the member country concerned has paid its arrears of mandatory contributions owed to the Union, in capital and interest, or has agreed to submit to a schedule for the amortization of the arrears.
Article 130 Contribution classes (Const 21; Gen Regs 115, 128)
1 Member countries shall contribute to defraying Union expenses according to the contribution class to which they belong. These classes shall be the following: class of 50 units; class of 45 units; class of 40 units; class of 35 units; class of 30 units; class of 25 units; class of 20 units; class of 15 units; class of 10 units; class of 5 units; class of 3 units; class of 1 unit; class of 0.5 unit, reserved for the least advanced countries as listed by the United Nations and for other countries designated by the Council of Administration.
2 Notwithstanding the contribution classes listed in paragraph 1, any member country may elect to contribute a higher number of units than that corresponding to the contribution class to which it belongs, for a minimum term equivalent to the period between Congresses. The announcement of a change shall be made at the latest at Congress . At the end of the period between Congresses , the member country shall return automatically to its original number of contribution units unless it decides to maintain its contribution of a higher number of units. The payment of additional contributions shall increase the expenditure accordingly.
3 Member countries shall be included in one of the above-mentioned contribution classes upon their admission or accession to the Union in accordance with the procedure laid down in article 21.4 of the Constitution.
4 Member countries may subsequently be placed in a lower contribution class, on condition that the change request is sent to the International Bureau at least two months before the opening of Congress . Congress shall give a non -binding opinion on these requests for a change in contribution class . The member country shall be free to decide whether to follow the opinion of Congress . The final decision of the member country shall be transmitted to the International Bureau Secretariat before the end of Congress. This change request shall take effect on the date of the entry into force of the financial provisions drawn up by Congress.
119 General Regulations
Member countries that have not made known their wish to change contribution class within the required time shall remain in the class to which they belonged up to that time.
5 Member countries may not insist on being lowered more than one class at a time.
6 Nevertheless, in exceptional circumstances such as natural disasters necessitating international aid programmes, the Council of Administration may authorize a temporary reduc- tion in contribution class once between two Congresses when so requested by a member country if the said member establishes that it can no longer maintain its contribution at the class originally chosen. In the same circumstances, the Council of Administration may also authorize a temporary reduction for the non-least developed countries already in the class of 1 unit by placing them in the class of 0.5 unit.
7 The temporary reduction in contribution class in application of paragraph 6 may be authorized by the Council of Administration for a maximum period of two years or up to the next Congress, whichever is earlier. On expiry of the specified period, the country concerned shall automatically revert to its original contribution class.
8 Notwithstanding paragraphs 4 and 5, changes to a higher class shall not be subject to any restriction.
Article 131 Payment for supplies from the International Bureau (Gen Regs 118)
Supplies provided by the International Bureau to member countries and their designated operators against payment shall be paid for in the shortest possible time and at the latest within six months from the first day of the month following that in which the account is sent by the Bureau. After that period the sums due shall be chargeable with interest in favour of the Union at the rate of 5% per annum reckoned from the date of expiry of that period.
Chapter V
Arbitration
Article 132 Arbitration procedure (Const 32)
1 If a dispute has to be settled by arbitration, each of the member countries party to the case shall select a member country not directly involved in the dispute. When several member countries make common cause, they shall count only as a single member country for the purposes of this provision.
2 If one of the member countries party to the case does not act on a proposal for arbitration within a period of six months from the date of its sending , the International Bureau, if so requested, shall itself call upon the defaulting member country to appoint an arbitrator or shall itself appoint one ex officio.
3 The parties to the case may agree to appoint a single arbitrator which may be the International Bureau.
4 The decision of the arbitrators shall be taken by a majority of votes.
120 General Regulations
5 In the event of a tie the arbitrators shall select another member country , not involved in the dispute either, to settle the matter. Should they fail to agree on the choice, this member country shall be appointed by the International Bureau from among member countries not proposed by the arbitrators.
6 If the dispute concerns one of the Agreements, the arbitrators may be appointed only from among the member countries that are parties to that Agreement.
6bis If a dispute has to be settled by arbitration between designated operators, the operators concerned shall ask their member countries to act in accordance with the procedure provided for in paragraphs 1 to 6.
Chapter VI
Final provisions
Article 133 Conditions for approval of proposals concerning the General Regulations
To become effective, proposals submitted to Congress relating to these General Regulations shall be approved by a majority of the member countries represented at Congress and having the right to vote. At least two thirds of the member countries of the Union having the right to vote shall be present at the time of voting.
Article 134 Proposals concerning the Agreements with the United Nations (Const. 9)
The conditions of approval referred to in article 133 shall apply equally to proposals designed to amend the Agreements concluded between the Universal Postal Union and the United Nations, in so far as those Agreements do not lay down conditions for the amendment of the provisions they contain.
Article 135 Amendment, entry into force and duration of the General Regulations
Amendments adopted by a Congress shall form the subject of an additional protocol and, unless that Congress decides otherwise, shall enter into force at the same time as the Acts renewed in the course of the same Congress.
These General Regulations shall come into force on 1 January 2006 and shall remain in force for an indefinite period.
In witness whereof the plenipotentiaries of the Governments of the member countries have signed these General Regulations in a single original which shall be deposited with the Director General of the International Bureau. A copy thereof shall be delivered to each party by the International Bureau of the Universal Postal Union.
Done at Bucharest, 5 October 2004.
121 National Interest Analysis [20101 ATNIA 13 with attachment on consultation
Universal Postal Union: Eighth Additional Protocol to the Constitution of 10 July 1964, as amended; Convention, and Final Protocol; First Additional Protocol to the General Regulations and the Postal Payment Services Agreement, done at Geneva on 12 August 2008
[2010] ATNIF 35 NATIONAL INTEREST ANALYSIS: CATEGORY 2 TREATY SUMMARY PAGE Universal Postal Union: Eighth Additional Protocol to the Constitution of 10 July 1964, as amended; Convention, and Final Protocol; First Additional Protocol to the General Regulations and the Postal Payment Services Agreement, done at Geneva on 12 August 2008 [2010] ATNIF 35
Nature and timing of proposed action
1. The proposed binding treaty action is accession by Australia to the Eighth Additional Protocol to the Constitution of the Universal Postal Union (UPU), the amendments to the Universal Postal Convention (the Convention), the Final Protocol to the Convention, the First Additional Protocol to the General Regulations and to the Postal Payment Services Agreement (PPSA) of the UPU.
2. These instruments were incorporated into the Acts of the 24th Congress of the UPU at Geneva on 12 August 2008. Australia has elected to accede to the Acts, subject to consideration by the Joint Standing Committee on Treaties (JSCOT), by depositing an Instrument of Accession with the International Bureau of the UPU in accordance with Article IX of the Eighth Additional Protocol.
3. Article IX(1) of the Eighth Additional Protocol requires that member countries which have not signed this Protocol may accede to it at any time. Article IX(2) of the Eighth Additional Protocol requires that the Acts renewed by the 24th Congress be acceded to by member countries as soon as possible following conclusion of the Congress. Article 25(4) of the Constitution states that approval of the Acts, other than the Constitution, shall be governed by the constitutional regulations of each signatory country and Article 31(2) provides that the Acts enter into force as from the day fixed by Congress. The Acts came into force generally on 1 January 20 10. They will come into force for Australia on the date provided in the Instrument of Accession.
Overview and national interest summary
4. The UPU is a specialised agency of the United Nations. It provides the basis for the exchange of international mail by establishing a single postal territory for the reciprocal exchange of international postal articles and helps to develop and maintain international postal services. Australia has been a member of the UPU since 1907.
5. With 191 member countries, the UPU is the primary forum for cooperation between postal- sector players and helps to ensure a truly universal network of up-to-date products and services. The UPU fulfils an advisory, mediating and liaison role and provides technical assistance where needed. It establishes the rules for international mail exchanges and makes recommendations to stimulate growth in mail volumes and improve quality of service for customers.
6. The proposed accession to the Acts of the UPU will provide the basis for Australia to participate actively in the development of a more efficient and effective international postal service. Reasons for Australia to Take the Proposed Action
7. The UPU is the key international agency responsible for formulating and setting the rules for the flow of international mail. It provides the basis for the exchange of international mail and aims to foster the sustainable development of quality, universal, efficient and accessible postal services. The UPU provides information regarding international postal standards, technical systems, performance measures and service developments to `designated operators' of member countries (Australia's designated operator is Australia Post). Participation in the UPU allows Australia and Australia Post to have input to the conduct of the UPU's affairs and the operation of international post.
8. The primary governing bodies of the UPU are the Council of Administration (CA) and the Postal Operations Council (POC). The CA consists of 41 member countries and meets to ensure continuity of the UPU's work between Congresses, supervises its activities and studies regulatory, administrative, legislative and legal issues. Australia has been a member of the CA on numerous occasions in the past and has been recognised as an active member state. Australia will be eligible for re-election to the CA at the 25th Congress in 2012. The membership of the POC comprises elected designated (postal) operators of member countries.
9. The proposed accession to Acts of the 24th Congress will allow Australia to continue to participate in the international postal reform process directed to the ongoing development of a more efficient and effective international postal service.
10. Not taking this treaty action would reflect negatively on Australia's commitment to the UPU, especially as Australia has been a leading advocate for reform of the international postal system.
Obligations
11. The UPU is constituted by three treaty-level instruments which are binding on all members: the Constitution, the General Regulations and the Convention. The Constitution is the basic act of the UPU. It contains the fundamental rules that provide the legal foundation of the UPU. Pursuant to Article 33, the Constitution remains in force indefinitely. Pursuant to Article 30, amendments to the Constitution are effected by means of an Additional Protocol adopted by a Congress - the Eighth Additional Protocol (done at the 24t" Congress) therefore amends the Constitution.
12. The General Regulations implement the Constitution and contain provisions for the operation of the UPU . They set out the rules regarding the composition, functioning and meetings of the major bodies of the UPU. The General Regulations also remain in force for an indefinite period and amendments are effected by an Additional Protocol. The amendments to the General Regulations adopted at the 24th Congress are contained in the First Additional Protocol to the General Regulations.
13. The Convention comprises the operational rules applicable throughout the international postal service and provisions concerning the letter post and parcel post services . Technically, the UPU Convention does not constitute a continuous Agreement remaining in force indefinitely, but only remains in operation until the next Congress , at which time the Congress approves the entire Convention, including any amendments , afresh. The approval of the Convention by the 24th Congress therefore constitutes the creation of a new treaty - although its content is merely the Convention agreed to at the 23d Congress and already in force, as amended by the changes agreed to at the 24th Congress.
14. The UPU has also established a number of other treaty-level Agreements which regulate services other than those of letter-post between the countries that choose to become Parties to them. The PPSA is one such Agreement. Australia is not currently a Party to the PPSA. However, Australia will be able to become a Party to the PPSA by acceding to the Acts of the 24th Congress. The PPSA provides the basis for the implementation of a secure and accessible postal payment service adapted to the greatest number of users on the basis of systems enabling the interoperability of designated operators' networks. A more detailed explanation concerning the proposal for Australia to become a Party to the PPSA is at paragraphs 31 to 33 below.
Changes to the Constitution
15. The major change to the Constitution is the universal replacement of the term `postal administration' with `designated operator' and/or `member country' in order to define more clearly the specific responsibilities of governments and designated operators in the provision of the universal postal service. The definition of `designated operator' covers "any governmental or non-governmental entity officially designated by the member country to operate postal services and to fulfil the related obligations arising out of the Acts of the Union on its territory".
16. A definition of what constitutes a `reservation' was also inserted at `Article i bis- Definitions' - to ensure a common interpretation by all stakeholders.
Changes to the General Regulations
17. The First Additional Protocol also replaces the term `postal administration' with `designated operator' and/or `member country' throughout the General Regulations. The key substantive amendment in the First Additional Protocol is the insertion of a new Article 10 Ibis in the General Regulations, which sets out the functions of the Congress. It also updates the functions of the CA and the POC and the duties of the Director-General, to include reference to their respective roles in the preparation of the four-yearly Union Strategy for consideration by the Congress and their contribution to the four-yearly report on the member countries' performance in respect of that Strategy. There are also a number of technical amendments relating to financial procedures.
18. The First Additional Protocol amends Article 135 of the General Regulations to provide that amendments to the General Regulations shall be the subject of an additional protocol and (unless Congress decides otherwise) will come into effect simultaneously with amendments to the Convention and Agreements and have the same duration.
Changes to the Universal Postal Convention and Final Protocol
19. Article 1 of the Convention has been amended to include a definition of `designated operator' and apply the principles elaborated above in respect of the universal replacement of the term `postal administration' with `designated operator' and/or `member country' in order to define more clearly the specific responsibilities of governments and designated operators in the provision of the universal postal service throughout the Convention and Final Protocol. The Article also introduces definitions for other terms to ensure common interpretations (including for `parcel', `small packet', `misrouted mails' and `missent items'). 20. Article 8, which imposes obligations regarding character, purpose, subjects and designs of postage stamps and postal payment impressions and the protection of intellectual property rights, has been amended to underscore the notion of member state sovereignty in relation to issuance, administration and circulation of stamps.
21. Article 10 has been amended to revise the provisions relating to the environment and refocus the purpose of the Article to address directly the more contemporaneous issue of `sustainable development'. The revised provisions provide clarification of member countries' responsibilities with regard to sustainable development and the need to engage strategies which focus on "environmental, social and economic action" across all aspects of postal operations. The amendments also seek to ensure the promotion of sustainable development awareness within the postal sector. Australia Post already has an environment management system and should be able to adapt its approach with little difficulty.
22. Article 14 has been amended to incorporate new cross-border interoperable `Eproducts' and services and will serve to support postal operators in extending their trusted third Party role to the field of electronic postal services. The Article recognises that `designated operators' may choose to enhance electronic mail by offering `registered electronic mail'; which provides proof of sending and of delivery and a secure communication channel between authenticated users.
23. Article 15, which addresses prohibited mail items, has been expanded to provide that narcotics and psychotropic substances, as defined by the International Narcotics Control Board (INCB) or other illicit drugs which are prohibited in the country of destination are included within prohibitions, as are counterfeit and pirated articles, replica and inert explosive devices and military ordnance. While the INCB defines the types of substances under international control they do not adequately capture all of the illicit drugs or controlled substances which are prohibited in many UPU member countries, hence the need to refer to `country of destination'. In relation to replica and inert explosive devices and military ordnance, the new provisions align the text of the UPU Regulations with those of the UN Sub-Committee of Experts on the Transport of Dangerous Goods, the International Civil Aviation Organisation (ICAO) Technical Instructions and the International Air Transport Association (IATA) Dangerous Goods Regulations.
24. Article 16, which addresses the admissibility of radioactive materials and infectious substances, has also been amended in order to ensure alignment between UPU Regulations and those of the UN Sub-Committee of Experts on the Transport of Dangerous Goods, the ICAO Technical Instructions and the IATA Dangerous Goods Regulations.
25. Article 17 provides that the acceptance of inquiries about the non-receipt of ordinary letter- post items will no longer be mandatory. The amendments to this Article provide that postal administrations remain bound to accept inquiries only in respect of parcels, registered, insured or recorded delivery items. Such inquiries are also required to be made by priority mail, Express Mail Service or by electronic means within a period of six months from the day after the day the item was posted.
26. Article 21, which addresses designated operator liability in relation to lost, totally or partially `rifled', or totally or partially damaged postal items, has been expanded to provide for the refund of charges for unexplained non-delivery of parcels or registered or insured items. Such charges can include expenses occasioned by the return of the parcel from the country of destination. Additionally, reservations concerning the exceeding of deadlines for inquiries and indemnity payments are not permitted except in the event of bilateral agreement. 27. Article 26 of the Convention as agreed at Bucharest in 2004 Reciprocity applicable to reservations concerning liability - has been deleted as a result of the changes made to Article 21.
28. Articles 27, 28 and 29, which address the matter of terminal dues, have been further amended to reflect the continuing development of the terminal dues system. Terminal dues are the dues which one national postal service provider collects from another for the delivery of its international letter-post mail (items up to 2kg in mass).
29. The current terminal dues system has two subsystems: a target system applicable to industrialised countries and a transition system intended for developing countries. The aim is to develop a country-specific terminal dues system before the end of the transition period in 2014. Ten new countries will join the target system in 2010 and a further 22 in 2012. Rates applying for both systems will increase marginally and a previous pricing anomaly which provided the basis for arbitrage has been removed. Based on 2009 volumes and mail characteristics but allowing for foreign exchange movements, the revised terminal dues rates will result in a net cost increase to Australia Post of approximately $1.5 million in 2010 over 2009.
30. In line with changes to the provisions addressing terminal dues, changes have also been made to Article 30 - Quality of Service Fund (QSF). The QSF is a fund designed to help developing nations improve their postal infrastructure and quality of service.
Postal Payment Services Agreement
31. The UPU 24th Congress adopted the PPSA, which comprises one of the Acts of the 24th Congress and is only binding on member countries which become a Party to it (Article 22 of the Constitution and Article V(4) of the Eighth Additional Protocol). The PPSA establishes a multilateral framework to facilitate the exchange of money transfers between postal operators (including international funds transfers), especially electronically.
32. Australia Post has tested the revised technical elements of the funds transfer system embodied within the PPSA framework on a bilateral basis between Australia Post and China Post and the system has proved market competitive. However, before being granted access internationally, Australia must be a Party to the PPSA which it is not currently. Australia Post currently provides international funds transfers by way of its agency service for Western Union. However, access to the PPSA framework would increase the services Australia Post could provide and introduce an element of product competition. Accordingly, it is likely that any new postal funds transfer service offered internationally with other posts by way of the UPU service would be offered at different price points and service levels to that provided by the Western Union service. This is the case in France, where La Poste, which played a central role in the realisation of the new PPSA, offers both Western Union and postal international payment services.
33. Australia Post wishes to continue to exercise its power to supply funds transfer services in the international sphere and commends the accession of Australia to the Eighth Additional Protocol to the Constitution of the UPU as a member country of the PPSA. This will enable Australia Post to choose the most effective commercial means of fulfilling its funds transfer powers, allowing it to consider closely the use of UPU-based postal services alongside those of the private sector in meeting the needs of the Australian people and businesses for funds transfer services. It is also possible that the UPU application may provide a practical and economic solution to the transfer of domestic postal money orders to an electronic platform. Reservations to the Acts of the Union
34. Article 22 of the Constitution provides that the Constitution and General Regulations shall not be subject to any form of reservation. Reservations may be made to the Convention, subject to Article 36, which includes the general principles of reciprocity in applying reservations and the scope of reservations. As a general rule, reservations must be applied on a reciprocal basis between the reserving country and other member countries.
35. The Final Protocol to the Convention incorporates reservations lodged by Australia and other UPU members. Australia's reservations include the following Articles: II(1) authorises Australia to collect postal charges other than those provided in the Regulations, when such charges are consistent with Australia's legislation; 111(2) allows Australia to collect charges for special services which are applied to literature for the blind in Australia's internal service; XIII(l) reserves the right of Australia to impose a charge, equivalent to the cost of the work it incurs, on any designated operator which under the provisions of Article 26.4, sends items to Australia for disposal which were not originally dispatched as postal items in the country of origin; and XIII(3) allows Australia the option to limit the payment of delivery for letter-post items to the appropriate domestic tariff for equivalent items in the country of destination.
Implementation
36. The amendments to the Acts of the UPU can be implemented administratively by Australia Post. They will not require any change to the Australian Postal Corporation Act 1989 or related primary legislation.
37. The Australian Government's role in the UPU will not change as a result of the proposed treaty amendments and no action needs to be taken at State or Territory Government level as the Commonwealth has constitutional responsibility for postal services.
Costs
38. As required by Article 21(3) of the UPU Constitution, Australia provides approximately $0.83 million per annum to the UPU regular budget which totals approximately $38.1 million annually. This amount is paid by Australia Post.
39. In addition to Australia's mandatory contribution mentioned above, Australia Post incurs expenses for a range of mandatory and voluntary participatory activities within the framework of the UPU. Such activities include the Telematics Cooperative, the Express Mail Service Cooperative, the Direct Mail Advisory Board and fees for publications and English translation services. These expenses amount to around $0.37 million per annum.
40. Under Article 3 of the Convention, Australia is obliged to provide a universal postal service to ensure all customers enjoy basic postal services to all points in Australia at affordable prices and that this service is provided on a viable basis. Australia Post, as the designated operator for meeting the obligations arising from the UPU Acts, already meets this obligation through its Community Service Obligation (CSO) pursuant to section 27 of the Australian Postal Corporation Act 1989. The cost of meeting the CSO is considered sustainable given the business structure of Australia Post.
41. Additional costs for the implementation of the new UPU Acts as from 1 January 2010 include: the introduction of new terminal dues system and price increases , the proposed changes to the parcel inwards land rates, procedures for internal air conveyance charging and the reimposition of liability provisions for uninsured parcels. In total, these are expected to add some $2 to 3 million to Australia Post's costs in 2010, an amount which Australia Post will be able to cover from existing sources of income.
Regulation Impact Statement
42. It has been determined that a Regulation Impact Statement is not required in relation to the proposed treaty action (Office of Best Practice Regulation reference ID9973).
Future Treaty Action
43. The UPU Congress meets every four years. Pursuant to Article 30 of the Constitution, proposals to change the Constitution must be approved by two thirds of the member states with a right to vote. Any such change will enter into force generally at the same time as the Acts that are renewed in the course of Congress, unless the Congress decides otherwise.
44. Pursuant to Article 133 of the General Regulations , proposals relating to the Regulations shall be accepted if a majority of those represented at Congress with the right to vote agree, provided that at least two thirds of the members of the UPU with a right to vote are present at the time of voting . Entry into force provisions can be determined by the same voting procedure.
45. The Convention can be changed both at and between Congresses. Where the changes are submitted to a Congress , a change shall be adopted where the majority of members present and voting, with a right to vote , agree; provided that half the members represented at Congress and having the right to vote are present at the time of voting.
46. Article 35(3) of the Convention provides that to become effective proposals amending the Convention which are submitted between Congresses must obtain two thirds of the votes provided at least half of member countries which have the right to vote have voted. If the changes involve an interpretation of provisions, a majority of votes is required. The entry into force provisions are determined by the same voting procedure . If a proposed amendment is incompatible with the domestic legislation of a member country it may declare by written declaration that an amendment is unacceptable within 90 days of notification of the amendment. Reservations are also allowed but only where absolutely necessary and only if these are not incompatible with the objects and purpose of the UPU.
47. Any treaty status amendments arising from future UPU Congress meetings will be subject to the domestic treaty process , including consideration by JSCOT, before they enter into force for Australia.
Withdrawal or denunciation
48. Article 12 of the UPU Constitution provides for the voluntary withdrawal of any member country from the UPU. Withdrawal is effected by means of a denunciation of the Constitution given by the Government of the country concerned to the Director-General of the International Bureau of the UPU and by him or her to the Governments of member countries. Withdrawal takes effect one year after the day on which the Director-General receives the notice of denunciation.
49. Withdrawal by Australia would be subject to the domestic treaty process including tabling and consideration by JSCOT. Contact Details
Postal Policy Section Digital Economy Services Division Department of Broadband, Communications and the Digital Economy. ATTACHMENT ON CONSULTATION
Universal Postal Union : Eighth Additional Protocol to the Constitution of 10 July 1964, as amended; Convention, and Final Protocol; First Additional Protocol to the General Regulations and the Postal Payment Services Agreement, done at Geneva on 12 August 2008 [2010] ATNIF 35 CONSULTATION
50. Prior to Congress, the Government consulted both internally (with the Department of The Treasury; the Attorney-General's Department, the Australian Customs Service, the Department of Finance and Administration; the Australian Quarantine and Inspection Service; the Department of Foreign Affairs and Trade, the Australian Agency for International Development, the Department of Environment, Water, Heritage and the Arts, the Department of Infrastructure, Transport, Regional Development and Local Government, the Department of the Prime Minister and Cabinet and the Department of Families, Housing, Community Services and Indigenous Affairs) and externally with Australia Post and Major Mail Users of Australia Ltd.
51. Australia Post was involved in the development of policy positions and was part of the Australian Delegation at Congress. As a consequence, Australia Post was involved directly with those processes which amended previously agreed provisions and/or adopted new provisions of the Acts of the UPU. Through such engagement Australia Post was well aware of any new obligations created by the treaty making process and implications thereof in relation to its business operations overall as well as its statutory service obligations.
52. Consultation with other stakeholders was extensive and each agency received Congress documents and proposals. On consideration of this information no government departments or Major Mail Users of Australia Ltd had objections to the approach taken by the Australian delegation. Comments made by departments consulted were given due consideration in developing pertinent policy positions.
53. Given the Commonwealth's sole responsibility in this area, State and Territory consultation was not undertaken. DEPARTMENT OF FOREIGN AFFAIRS AND TRADE
CANBERRA
AMENDMENTS TO THE
CONVENTION ON THE
INTERNATIONAL MOBILE SATELLITE ORGANIZATION
ADOPTED AT THE TWENTIETH SESSION OF THE ASSEMBLY
Malta, 2 October 2008
Not yet in force
[2010] ATNIF 27 AMENDMENTS TO THE CONVENTION ON THE INTERNATIONAL MOBILE SATELLITE ORGANIZATION ADOPTED AT THE TWENTIETH SESSION OF THE ASSEMBLY
The second paragraph of the Preamble is replaced by the following text:
CONSIDERING ALSO the relevant provisions of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies, concluded on 27 January 1967, and in particular Article 1, which states that outer space shall be used for the benefit and in the interests of all countries,
The fourth and fifth paragraphs of the Preamble are replaced by the following text:
BEARING IN MIND that the International Maritime Satellite Organization (INMARSAT) has, in accordance with its original purpose, established a global mobile satellite communications system for maritime communications, including distress and safety communications capabilities which are specified in the International Convention for the Safety of Life at Sea, 1974, as amended from time to time, and the Radio Regulations specified in the Constitution and the Convention of the International Telecommunication Union, as amended from time to time, as meeting certain radiocommunications requirements of the Global Maritime Distress and Safety System (GMDSS),
RECALLING that INMARSAT has extended its original purpose by providing aeronautical and land mobile satellite communications, including aeronautical satellite communications for air traffic management and aircraft operational control (aeronautical safety services), and is also providing radiodetermination services,
The sixth, seventh and eighth paragraphs of the Preamble are deleted.
The following new text is added as the sixth , seventh, eighth, ninth and tenth paragraphs of the Preamble:
RECALLING FURTHER that in December 1994 the Assembly decided to replace the name "International Maritime Satellite Organization (INMARSAT)" with "International Mobile Satellite Organization (Inmarsat)", and that, although these amendments did not enter formally into force, the name International Mobile Satellite Organization (Inmarsat) was used thereafter, including in the restructuring documentation, RECOGNIZING that, in the restructuring of the International Mobile Satellite Organization, its assets, commercial operations and interests were transferred without restriction to a new commercial company, Inmarsat Ltd., while the continued provision of the GMDSS and adherence to the other public interests by the company have been secured by a mechanism for intergovernmental oversight by the International Mobile Satellite Organization (IMSO),
ACKNOWLEDGING that, by adopting IMO Assembly Resolution A.888(21), "Criteria for the Provision of Mobile-Satellite Communication Systems in the Global Maritime Distress and Safety System (GMDSS)," the International Maritime Organization (IMO) has recognized the need for IMO to have in place criteria against which to evaluate the capabilities and performance of mobile satellite communication systems, as may be notified to IMO by Governments for possible recognition for use in the GMDSS,
ACKNOWLEDGING FURTHER that IMO has developed a "Procedure for the Evaluation and Possible Recognition of Mobile-Satellite Systems Notified for Use in the GMDSS",
ACKNOWLEDGING ALSO the desire of Parties to promote the growth of a pro-competitive market environment in the current and future provision of mobile satellite communications systems services for the GMDSS,
The ninth paragraph of the Preamble is replaced by the following text, as the eleventh paragraph:
AFFIRMING that, under such circumstances, there is a need to ensure continuity in the provision of the GMDSS through intergovernmental oversight,
The following text is added as the twelfth, thirteenth and fourteenth paragraphs of the Preamble:
ACKNOWLEDGING that IMO, through the Maritime Safety Committee (MSC) at its eighty-first session, adopted amendments to Chapter V of the International Convention for the Safety of Life at Sea, 1974 relating to the long-range identification and tracking of ships (LRIT), adopted performance standards and functional requirements for LRIT, and adopted arrangements for the timely establishment of the LRIT system,
AFFIRMING the willingness of Parties that IMSO may assume the functions and duties of the LRIT Co-ordinator, at no cost to Parties, in accordance with decisions of IMO, subject to the terms of this Convention, ACKNOWLEDGING that the MSC, at its eighty-second session, decided to appoint IMSO as the LRIT Co-ordinator and invited IMSO to take whatever action it could in order to ensure the timely implementation of the LRIT system,
Article 1 - Definitions - sub-paragraph (b) is renumbered (c) and is replaced by the following text:
(c) "Provider" means any entity or entities, which, through a mobile satellite communications system recognized by IMO, provides services for the GMDSS.
sub-paragraph (c) is renumbered (d)
sub-paragraph (d) is renumbered (e) and is replaced by the following text:
(e) "Public Services Agreement" means an Agreement executed by the Organization and a Provider, as referred to in Article 5(1).
sub-paragraph (e) is renumbered (b) and is replaced by the following text:
(b) "GMDSS" means the Global Maritime Distress and Safety System as established by IMO.
The following text is included as new sub-paragraphs (f) to (I):
(f) "IMO" means the International Maritime Organization.
(g) "MSC" means the Maritime Safety Committee of IMO.
(h) "LRIT" means the long-range identification and tracking of ships as established by IMO.
(i) "LRIT Services Agreement" means an Agreement executed by the Organization and either an LRIT Data Centre or an LRIT Data Exchange, or other relevant entities, as referred to in Article 7.
U) "LRIT Data Centre" means a national , regional, co-operative or international data centre operating in conformity with requirements adopted by IMO in relation to LRIT. (k) "LRIT Data Exchange " means a data exchange operating in conformity with requirements adopted by IMO in relation to LRIT.
(I) "LRIT Co-ordinator" means the Co-ordinator for the LRIT system appointed by the MSC.
Article 2 - Establishment of the Organization - is replaced by the following text:
The International Mobile Satellite Organization (IMSO), herein referred to as "the Organization", is hereby established.
Article 3 - Purpose - is replaced by the following text:
Article 3
Primary Purpose
(1) The Primary Purpose of the Organization is to ensure the provision, by each Provider, of maritime mobile satellite communications services for the GMDSS according to the legal framework set up by IMO.
(2) In implementing the Primary Purpose set out in paragraph (1), the Organization shall:
(a) act exclusively for peaceful purposes; and
(b) perform the oversight functions in a fair and consistent manner among Providers.
A new Article 4 - Other Functions - is inserted , as follows:
Article 4
Other Functions
(1) Subject to the decision of the Assembly, the Organization may assume functions and/or duties of LRIT Co-ordinator, at no cost to Parties, in accordance with the decisions of IMO. (2) The Organization shall continue to perform the functions and/or duties of LRIT Co-ordinator, subject to the decision of the Assembly. In performing such functions and/or duties, the Organization shall act in a fair and consistent manner.
Article 4 - Implementation of Basic Principles - is replaced by the following new Article 5 - Oversight of the GMDSS and Article 6 - Facilitation
Article 5
Oversight of the GMDSS
(1) The Organization shall execute a Public Services Agreement with each Provider, and shall conclude such other arrangements as may be necessary to enable the Organization to perform its oversight functions, and to report as well as make recommendations, as appropriate.
(2) Oversight of Providers by the Organization shall be based on:
(a) any specific conditions or obligations imposed by IMO during, or at any stage after, the recognition and authorization of the Provider;
(b) relevant international regulations, standards, recommendations, resolutions and procedures relating to the GMDSS;
(c) the relevant Public Services Agreement and any other related arrangements concluded between the Organization and the Provider.
(3) Each Public Services Agreement shall include, inter alia, general provisions, common principles and appropriate obligations for the Provider in accordance with a Reference Public Services Agreement and guidelines developed by the Assembly, including arrangements for the provision of all the information necessary for the Organization to fulfil its purpose, functions and duties, consistent with Article 3.
(4) All Providers shall execute Public Services Agreements which shall also be executed by the Director General on behalf of the Organization. Public Services Agreements shall be approved by the Assembly. The Director General shall circulate the Public Services Agreements to all Parties. Such Agreements shall be considered approved by the Assembly unless more than one-third of the Parties submit written objections to the Director General within three months from the date of circulation. Article 6
Facilitation
(1) Parties shall take appropriate measures, in accordance with national laws, to enable Providers to provide GMDSS services.
(2) The Organization, through existing international and national mechanisms dealing with technical assistance , should seek to assist Providers in their effort to ensure that all areas, where there is a need, are provided with mobile satellite communications services, giving due consideration to the rural and remote areas.
A new Article 7 - LRIT Services Agreements - is inserted , as follows:
Article 7
LRIT Services Agreements
In order to perform its LRIT Co-ordinator functions and duties , including recovery of the costs incurred , the Organization may enter into contractual relationships, including LRIT Services Agreements , with LRIT Data Centres, LRIT Data Exchanges, or other relevant entities , on such terms and conditions as may be negotiated by the Director General , subject to oversight by the Assembly.
Article 5 - Structure - is renumbered Article 8 and sub-paragraph (b) thereof is replaced by the following text:
(b) A Directorate, headed by a Director General.
Article 6 - Assembly - Composition and Meetings - is renumbered Article 9 and paragraph (2) thereof is replaced by the following text:
(2) Regular sessions of the Assembly shall be held once every two years. Extraordinary sessions shall be convened upon the request of one-third of the Parties or upon the request of the Director General, or as may be provided for in the Rules of Procedure for the Assembly. Article 7 - Assembly - Procedure - is renumbered Article 10 and paragraph (4) thereof is replaced by the following text:
(4) A quorum for any meeting of the Assembly shall consist of a simple majority of the Parties.
Article 8 - Assembly - Functions - is renumbered Article 11 and sub-paragraphs (a), (b), (d) and (e) thereof are replaced by the following text:
The functions of the Assembly shall be:
(a) to consider and review the purposes, general policy and long term objectives of the Organization and the activities of the Providers which relate to the primary purpose;
(b) to take any steps or procedures necessary to ensure that each Provider carries out its obligation of providing maritime mobile satellite communications services for the GMDSS, including approval of the conclusion, modification and termination of Public Services Agreements;
(d) to decide upon any amendment to this Convention pursuant to Article 20 thereof;
(e) to appoint a Director General under Article 12 and to remove the Director General;
The following new sub-paragraphs (f), (g) and (h) are included:
(f) to endorse the budget proposals of the Director General, and to establish procedures for the review and approval of the budget;
(g) to consider and review the purposes, general policy and long term objectives of the Organization in the performance of the Organization's role as LRIT Co- ordinator, and to take appropriate steps necessary to ensure that the Organization performs its role as LRIT Co-ordinator;
(h) to take any steps or procedures necessary in the negotiation and execution of LRIT Services Agreements and/or contracts, including approval of the conclusion, modification and termination of such Agreements and/or contracts; and sub-paragraph (f) is re-numbered sub-paragraph (i)
Article 9 - Secretariat - is renumbered Article 12 and is replaced by the following title and text:
Article 12
Directorate
(1) The term of appointment of the Director General shall be for four years or such other term as the Assembly decides.
(2) The Director General shall serve for a maximum of two consecutive terms, unless the Assembly decides otherwise.
(3) The Director General shall be the legal representative of the Organization and Chief Executive Officer of the Directorate, and shall be responsible to and under the direction of the Assembly.
(4) The Director General shall, subject to the guidance and instructions of the Assembly, determine the structure, staff levels and standard terms of employment of officials and employees, and consultants and other advisers to the Directorate, and shall appoint the personnel of the Directorate.
(5) The paramount consideration in the appointment of the Director General and other personnel of the Directorate shall be the necessity of ensuring the highest standards of integrity, competency and efficiency.
(6) The Organization shall conclude, with any Party in whose territory the Organization establishes the Directorate, an agreement, to be approved by the Assembly, relating to any facilities, privileges and immunities of the Organization, its Director General, other officers, and representatives of Parties whilst in the territory of the host Government, for the purpose of exercising their functions. The agreement shall terminate if the Directorate is moved from the territory of the host Government.
(7) All Parties, other than a Party which has concluded an agreement referred to in paragraph (6), shall conclude a Protocol on the privileges and immunities of the Organization, its Director General, its staff, of experts performing missions for the Organization and representatives of Parties whilst in the territory of Parties for the purposes of exercising their functions. The Protocol shall be independent of this Convention and shall prescribe the conditions for its termination. Article 10 - Costs - is renumbered Article 13 and is replaced by the following text:
Article 13
Costs
(1) The Organization shall keep separate accounts of costs incurred for GMDSS oversight and LRIT Co-ordinator services. The Organization shall, in the Public Services Agreements, and in the LRIT Services Agreements and/or contracts, as appropriate, arrange for the costs associated with the following to be paid by the Providers and by entities with which the Organization has entered into LRIT Services Agreements and/or contracts:
(a) the operation of the Directorate;
(b) the holding of Assembly sessions and meetings of its subsidiary bodies;
(c) the implementation of measures taken by the Organization in accordance with Article 5 to ensure that the Provider carries out its obligation of providing maritime mobile satellite communications services for the GMDSS; and
(d) the implementation of measures taken by the Organization in accordance with Article 4 in its role as LRIT Co-ordinator.
(2) The costs defined in paragraph (1) shall be apportioned between all Providers and among entities with which the Organization has entered into LRIT Services Agreements and/or contracts, as appropriate, according to rules set up by the Assembly.
(3) No Party shall be obligated to pay for any costs associated with the performance by the Organization of the functions and duties of LRIT Co-ordinator by reason of its status as a Party to this Convention.
(4) Each Party shall meet its own costs of representation at Assembly sessions and meetings of its subsidiary bodies. Article 11 - Liability - is renumbered Article 14 and is replaced by the following text:
Article 14
Liability
Parties are not, in their capacity as such, liable for the acts and obligations of the Organization or the Providers, except in relation to non-Parties or natural or juridical persons they might represent in so far as such liability may follow from treaties in force between the Party and the non-Party concerned. However, the foregoing does not preclude a Party which has been required to pay compensation under such a treaty to a non-Party or to a natural or juridical person it might represent from invoking any rights it may have under that treaty against any other Party.
Article 12 - Legal Personality is renumbered Article 15
Article 13 - Relationship with other International Organizations - is renumbered Article 16
Article 14 - Withdrawal - is renumbered Article 21
Article 15 - Settlement of Disputes - is renumbered Article 17
Article 16 - Consent to be Bound - is renumbered Article 18
Article 17 - Entry into Force - is renumbered Article 19 and paragraph (1) thereof is amended as follows:
(1) This Convention shall enter into force sixty days after the date on which States representing 95 percent of the initial investment shares have become Parties to the Convention. Article 18 -Amendments - is renumbered Article 20 and paragraph (1) thereof is amended as follows:
(1) An amendment to this Convention may be proposed by any Party. The proposed amendment shall be circulated by the Director General to all Parties and to Observers. The Assembly shall consider the proposed amendment not earlier than six months thereafter. This period may in any particular case be reduced by up to three months by a substantive decision of the Assembly. Providers and Observers shall have the right to provide comments and input to Parties concerning the proposed amendment.
Article 19 - Depositary - is renumbered Article 22, and paragraph (1) thereof is replaced by the following text:
(1) The Depositary of this Convention shall be the Secretary-General of IMO.
With respect to the Annex to the Convention:
In the Title and in Articles 1, 5(6) and 5(8), the term "Article 15" is replaced by "Article 17".
In Articles 2, 3(1) and 5(11), the word "Secretariat" is replaced by "Directorate" National Interest Analysis [2010] ATNIA 30
with attachment on consultation
Amendments to the Amended Convention on the International Mobile Satellite Organization adopted at the Twentieth Session of the Assembly, done at Malta on 2 October 2008
[2010] ATNIF 27 NATIONAL INTEREST ANALYSIS: CATEGORY 1 TREATY
SUMMARY PAGE
Amendments to the Amended Convention on the International Mobile Satellite Organization adopted at the Twentieth Session of the Assembly, done at Malta on 2 October 2008 [2010] ATNIF 27
Nature and timing of proposed treaty action
1. The proposed treaty action is to bring into force the proposed 2008 amendments to the Amended Convention on the International Mobile Satellite Organization done in London on 3 September 1976 [2001] ATS 1 I (the Amended Convention). The proposed 2008 amendments were adopted at the Twentieth Session of the Assembly of the International Mobile Satellite Organization (IMSO) at Malta on 2 October 2008.
2. Pursuant to Article 18 of the Amended Convention, the proposed 2008 amendments will enter into force one hundred and twenty days after the Secretary-General of the International Maritime Organization (IMO) has received notices of acceptance from two-thirds of those States which at the time of adoption by the Assembly, were Parties to the Amended Convention. The number of Parties to the Amended Convention at the time of adoption was 93. Therefore, the number of acceptances necessary for entry into force is 62. As at 1 April 2010, none of the 93 Parties to the Amended Convention at the time of adoption had accepted the proposed 2008 amendments. However, one additional State has become a Party to the Amended Convention after 2 October 2008 and has thereby accepted the proposed 2008 Amendments. The IMSO Assembly decided to apply the proposed 2008 amendments provisionally, with effect from 6 October 2008, pending formal ratification by the requisite number of IMSO Parties.
Overview and national interest summary
3. The primary purpose of the proposed 2008 amendments is to effect two changes to IMSO 's role: a) The extension of IMSO's oversight responsibility to all maritime mobile satellite communications service providers for the Global Maritime Distress and Safety System (GMDSS) established by the IMO. GMDSS is the technical, operational and administrative structure for maritime distress and communications worldwide. b) The enhancement of IMSO's role as the Coordinator of the Long Range Identification and Tracking of Ships (LRIT) established by the IMO. LRIT is a system for the global identification and tracking of ships which was established at the 81St Session of IMO's Maritime Safety Committee in response to the growing threat from terrorism.
4. It is in Australia's interest to accept the extension of IMSO's oversight responsibility to all maritime mobile satellite communications service providers, as Australia supports the development of a global and competitive maritime safety system marketplace, as free of distortions as is practicable.
5. Australia has participated in the discussion on LRIT throughout its development and supports the enhancement of IMSO's role as the LRIT Coordinator. The proposed 2008 amendments will improve the audit and oversight of LRIT and maritime safety generally. Reasons for Australia to take the proposed treaty action
6. Australia signed the Convention and Operating Agreement on the International Maritime Satellite Organization on 3 September 1976 [1979] ATS 10 (the Convention) and it entered into force generally and for Australia on 16 July 1979. The Convention originally established: a) a global mobile satellite communications system for maritime communications, including those related to distress and safety of life; and b) an international organisation attracting treaty-based rights and privileges, called the International Maritime Satellite Organization (INMARSAT), to administer and deliver its services.
7. Amendments to the Convention were adopted by INMARSAT on 16 October 1985, 19 January 1989 and 9 December 1994 to formalise expansion of its coverage in response to changing technology and needs. The title of the organization was amended to the International Mobile Satellite Organization (Inmarsat), in part to reflect the expanded coverage.
8. On 24 April 1998 the Inmarsat Assembly agreed to further amendments which provided for a process for the privatisation of Inmarsat. The 1998 amendments entered into force generally and for Australia on 31 July 2001. The new structure now comprises two entities: a) Inmarsat Ltd - a public limited company that took on all the commercial activities of Inmarsat and was completely privatised by the end of 2003; and b) IMSO - an intergovernmental body established to ensure that Inmarsat Ltd continues to meet its public service obligations, including obligations relating to the GMDSS. IMSO is an observer at relevant IMO meetings.
9. The proposed 2008 amendments principally provide for the extension of IMSO's oversight functions to all mobile satellite communications service providers for the GMDSS established by the IMO. This is a direct response to IMO's intention to allow private companies to provide GMDSS services and the need to have criteria in place against which the capabilities and performance of potential providers can be evaluated by an intergovernmental body on behalf of the international maritime community.
10. Increasing IMSO's oversight function to all maritime mobile satellite service providers approved by IMO is consistent with the Government's objective to ensure GMDSS services continue to be available to users who require them and to promote open, fair and transparent competition in the mobile and other satellite services industry.
11. The proposed 2008 amendments also give IMSO the functions and duties of the LRIT Coordinator, following the decision of the IMO Maritime Safety Committee to appoint IMSO as the LRIT Coordinator. This is a new initiative of the IMO Maritime Safety Committee to enhance international efforts to ensure maritime safety and security and to protect the marine environment by requiring all vessels to automatically transmit their identity, position and date/time at six hour intervals. LRIT allows IMO Member States to receive position reports from vessels operating under their flag, vessels seeking entry to a port within their territory, or vessels operating in proximity to the State's coastline. 12. Australia supports the enhancement of IMSO's role as LRIT Coordinator to not only ensure the timely implementation of the LRIT system, but to undertake the audit and oversight functions of LRIT.
Obligations
13. The Australian Maritime Safety Authority (AMSA) established a LRIT system in February 2008 for Australian flagged vessels to which LRIT applies. Under the proposed 2008 amendments the LRIT system established by AMSA will be required to be audited by IMSO for compliance with the performance standard and functional requirements. This is supported by AMSA.
14. The proposed 2008 amendments will not impose any further obligations on Australia. However, these amendments make provision for IMSO's extended oversight role of all GMDSS service providers. In particular Article 1 of the proposed 2008 amendments sets out a range of new and amended definitions relevant to this role. New and amended definitions relevant to IMSO's role as LRIT Coordinator are also included in Article 1.
15. Article 3 of the Amended Convention has been revised to emphasise IMSO's primary purpose of overseeing the provision of services in relation to the GMDSS within 1MO's legal framework. Specific references to other treaties relevant to the GMDSS have been removed from Article 3 of the Amended Convention and additional detail regarding implementation has been streamlined into Article 3(2) and incorporated into new Article 6 (Facilitation).
16. A new Article 4 (Other Functions) has been inserted to establish IMSO's role as LRIT Coordinator, in accordance with IMO decisions.
17. Article 5 provides further detail on IMSO's oversight role. This Article incorporates previous Article 4(1) and further provides that oversight will be based on conditions or obligations imposed by IMO, specific international considerations and Public Service Agreements.
18. Article 7 provides that IMSO may enter into contractual relationships with relevant entities in order to perform its functions and duties.
19. In addition, Article 8 has been renumbered Article 11 and extends the Assembly's functions to include consideration of IMSO's role as LRIT Coordinator and to empower the Assembly to take necessary steps in the negotiation and execution of its contractual relationships.
20. A number of administrative amendments have also been made to the operation of IMSO's Secretariat and other governance issues.
21. These amendments will enable IMSO to audit the compliance of AMSA's LRIT system However, the amendments are not expected to have any particular impact upon Australia.
Implementation
22. No legislative amendments are necessary to implement the proposed 2008 amendments. AMSA has included reference to the proposed amendments concerning LRIT in Marine Orders Part 21 which relate to safety of navigation and emergency procedures. AMSA also provides guidance on the implementation of LRIT through Marine Notices. To ensure early compliance with LRIT, AMSA has put in place a commercial National Data Centre solution to cover the initial set up of the system. Australian -flagged vessels to which LRIT applies have been reporting to this National Data Centre since February 2008.
Costs
23. The proposed 2008 amendments to the Amended Convention will not result in any extra costs or savings for the Government , business or individuals, other than the anticipated costs associated with the auditing of AMSA's LRIT system by IMSO for compliance with the performance standard and functional requirements . These costs are anticipated to be modest and will be absorbed within AMSA' s existing budget.
Regulation Impact Statement
24. The Office of Best Practice Regulation has been consulted and has confirmed that a Regulation Impact Statement is not required.
Future treaty action
25. No future treaty actions arise from the proposed amendments to the Convention. Pursuant to Article 18 of the Amended Convention, amendments to the Amended Convention may be proposed by any Party and shall be circulated to all other Parties for consideration. The Assembly shall consider the amendment not earlier than six months thereafter. If adopted by the Assembly, the amendment will come into force one hundred and twenty days after the Secretary-General of IMO has received notices of acceptance from two-thirds of those States which, at the time of adoption by the Assembly, were Parties.
26. When amendments come into force they are binding only on those States Parties who have accepted them. For any other State, the amendment will come into force on the day the Secretary-General of the IMO receives its notice of acceptance. Any such amendments would be subject to Australia's domestic treaty making process, including tabling and consideration by the Joint Standing Committee on Treaties.
Withdrawal or denunciation
27. Pursuant to Article 14 of the Amended Convention, any Party to the Convention may, by written notification to the Secretary-General of IMO, withdraw voluntarily from IMSO at any time and such withdrawal shall be effective upon receipt by the Secretary-General of IMO of such notification.
Contact details
Maritime Safety, Environment and Liner Shipping Section Infrastructure and Surface Transport Policy Division Department of Infrastructure, Transport, Regional Development and Local Government. ATTACHMENT ON CONSULTATION
Amendments to the Amended Convention on the International Mobile Satellite Organization adopted at the Twentieth Session of the Assembly, done at Malta on 2 October 2008 [2010] ATNIF 27
CONSULTATION
28. State and Territory Governments were consulted through the Commonwealth-State/Territory Standing Committee on Treaties process. Information on the proposed 2008 amendments to the Amended Convention has been included in the quarterly treaties schedule provided to committee representatives. The most recent advice was provided in the March 2009 schedule of multilateral treaties.
29. No further consultation has been undertaken as there is no impact on any individuals or organisations other than the Australian Maritime Safety Authority (AMSA). AMSA is responsible for implementation of the Global Maritime Distress and Safety System (GMDSS) within Australia and is also responsible for the implementation of the Long Range Identification and Tracking (LRIT) of ships. AMSA supports the enhancement of IMSO's role as LRIT Coordinator to not only ensure the timely implementation of the LRIT system, but to undertake the audit and oversight functions of LRIT.
30. Any changes that impact upon the operation of the GMDSS and the LRIT are communicated to stakeholders as required by AMSA through Marine Notices or any necessary changes to regulations. DEPARTMENT OF FOREIGN AFFAIRS A TRADE
CANBERRA
CONVENTION
BETWEEN
THE GOVERNMENT OF AUSTRALIA
AND
THE GOVERNMENT OF THE REPUBLIC OF TURKEY
FOR
THE AVOIDANCE OF DOUBLE TAXATION
WITH RESPECT TO TAXES ON INCOME
AND
THE PREVENTION OF FISCAL EVASION
Not yet in force
[20101 ATNIF 28 CONVENTION BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF THE REPUBLIC OF TURKEY FOR THE AVOIDANCE OF DOUBLE TAXATION WITH RESPECT TO TAXES ON INCOME AND THE PREVENTION OF FISCAL EVASION
The Government of Australia and the Government of the Republic of Turkey,
Desiring to conclude a Convention for the avoidance of double taxation with respect to taxes on income and the prevention of fiscal evasion,
Have agreed as follows:
ARTICLE 1
Persons Covered
This Convention shall apply to persons who are residents of one or both of the Contracting States.
ARTICLE 2
Taxes Covered
1 The existing taxes to which this Convention shall apply are:
(a) in Australia:
the income tax, including the resource rent tax in respect of offshore projects relating to exploration for or exploitation of petroleum resources, imposed under the federal law of Australia;
(b) in Turkey: 2
(i) the income tax; and
(ii) the corporation tax.
2. This Convention shall apply also to any identical or substantially similar taxes which are imposed under the federal law of Australia or the law of Turkey after the date of signature of this Convention in addition to, or in place of, the existing taxes. The competent authorities of the Contracting States shall notify each other of any substantial changes which have been made in the law of their respective States relating to the taxes to which this Convention applies within a reasonable period of time after those changes.
3. For the purposes of Article 26, the taxes to which this Convention shall apply are:
(a) in the case of Australia, taxes of every kind and description imposed under the federal tax laws administered by the Commissioner of Taxation; and
(b) in the case of Turkey, taxes of every kind and description imposed under the tax laws administered by Ministry of Finance.
ARTICLE 3
General Definitions
I For the purposes of this Convention , unless the context otherwise requires:
(a) the term "Australia", when used in a geographical sense, excludes all external territories other than:
(i) the Territory of Norfolk Island;
(ii) the Territory of Christmas Island;
(iii) the Territory of Cocos (Keeling) Islands;
(iv) the Territory of Ashmore and Cartier Islands;
(v) the Territory of Heard Island and McDonald Islands; and
(vi) the Coral Sea Islands Territory, 3
and includes any area adjacent to the territorial limits of Australia (including the Territories specified in this subparagraph) in respect of which there is for the time being in force, consistently with international law, a law of Australia dealing with the exploration for or exploitation of any of the natural resources of the seabed and subsoil of the continental shelf;
(b) the term "Turkey" means the Turkish territory, as well as the (maritime) areas over which it has jurisdiction or sovereign rights for the purpose of exploring and exploiting the natural resources of the seabed and subsoil of the continental shelf in accordance with international law;
(c) the term "Australian tax" means tax imposed by Australia, being tax to which this Convention applies by virtue of paragraphs 1 or 2 of Article 2, but does not include any penalty or interest imposed under the law of Australia relating to its tax;
(d) the term "Turkish tax" means tax imposed by Turkey, being tax to which this Convention applies by virtue of paragraphs 1 or 2 of Article 2, but does not include any penalty or interest imposed under the law of Turkey relating to its tax;
(e) the term "company" means any body corporate or any entity which is treated as a company or body corporate for tax purposes;
(f) the term "competent authority" means, in the case of Australia, the Commissioner of Taxation or an authorised representative of the Commissioner and, in the case of Turkey, the Minister of Finance or an authorised representative of the Minister;
(g) the terms "a Contracting State" and "other Contracting State" mean Australia or Turkey, as the context requires;
(h) the terms "enterprise of a Contracting State" and "enterprise of the other Contracting State" mean respectively an enterprise carried on by a resident of a Contracting State and an enterprise carried on by a resident of the other Contracting State; 4
(i) the term "international traffic" means any transport by a ship or aircraft operated by an enterprise of a Contracting State, except when the ship or aircraft is operated solely from a place or between places in the other Contracting State;
0) the term "Turkish company" means a company which, under the law of Turkey relating to Turkish tax, is a resident of Turkey, and which is not, under the law of Australia relating to Australian tax, a resident of Australia;
(lc) the term "Australian company" means a company which, under the law of Australia relating to Australian tax, is a resident of Australia, and which is not, under the law of Turkey relating to Turkish tax, a resident of Turkey;
(1) the term "national", in relation to a Contracting State, means:
(i) any individual possessing nationality or citizenship of that Contracting State; and
(ii) any company or legal person deriving its status as such from the laws in force in that Contracting State;
(m) the term "person" includes an individual, a company and any other body of persons.
2. As regards the application of the Convention by a Contracting State, any term not defined therein shall, unless the context otherwise requires, have the meaning which it has at that time under the law of that State concerning the taxes to which the Convention applies, any meaning under the applicable tax law of that State prevailing over a meaning given to the term under other law of that State.
ARTICLE 4
Resident
1. For the purposes of this Convention , a person is a resident of a Contracting State:
(a) in the case of Australia, if the person is: 5
(i) an Australian company; or
(ii) any other person (except a company) who, under the law of Australia relating to Australian tax, is a resident of Australia;
(b) in the case of Turkey, if the person is:
(i) a Turkish company; or
(ii) any other person (except a company) who, under the law of Turkey relating to Turkish tax, is a resident of Turkey.
2. The term "resident of a Contracting State" also includes that State and any political subdivision or local authority of that State.
3. A person is not a resident of a Contracting State for the purposes of this Convention if the person is liable to tax in that State in respect only of income from sources in that State.
4. Where by reason of the preceding provisions of this Article a person, being an individual, is a resident of both Contracting States, then the person's status shall be determined as follows:
(a) the individual shall be deemed to be a resident only of the State in which a permanent home is available to that individual; but if a permanent home is available in both States, or in neither of them, that individual shall be deemed to be a resident only of the State with which the individual's personal and economic relations are closer (centre of vital interests);
(b) if the State in which the centre of vital interests is situated cannot be determined, the individual shall be deemed to be a resident only of the State of which that individual is a national;
(c) if the individual is a national of both States or of neither of them, the competent authorities of the Contracting States shall endeavour to resolve the question by mutual agreement. 6
ARTICLE 5
Permanent Establishment
1. For the purposes of this Convention, the term "permanent establishment" means a fixed place of business through which the business of the enterprise is wholly or partly carried on.
2. The term "permanent establishment" includes especially:
(a) a place of management;
(b) a branch;
(c) an office;
(d) a factory;
(e) a workshop;
(f) a mine, an oil or gas well, a quarry or any other place relating to the exploration for or exploitation of natural resources; and
(g) a building site or construction, installation or assembly project which exists for more than 6 months.
3. An enterprise shall be deemed to have a permanent establishment in a Contracting State and to carry on business through that permanent establishment if:
(a) it carries on supervisory activities in that State for more than 6 months in connection with a building site, or a construction, installation or assembly project, which is being undertaken in that State;
(b) substantial equipment is operated in that State by the enterprise for more than 6 months in any 12 month period.
4. An enterprise shall not be deemed to have a permanent establishment merely by reason of: 7
(a) the use of facilities solely for the purpose of storage, display or irregular delivery of goods or merchandise belonging to the enterprise; or
(b) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of storage, display or irregular delivery; or
(c) the maintenance of a stock of goods or merchandise belonging to the enterprise solely for the purpose of processing by another enterprise; or
(d) the maintenance of a fixed place of business solely for the purpose of purchasing goods or merchandise or of collecting information, for the enterprise; or
(e) the maintenance of a fixed place of business solely for the purpose of activities which have a preparatory or auxiliary character for the enterprise, such as advertising or scientific research.
5. Notwithstanding the provisions of paragraph 1, 2, and 3, where an enterprise of a Contracting State performs professional services in the other Contracting State for a period or periods exceeding 183 days in any twelve month period, and these services are performed through one or more individuals who are present and performing such services in that other State, the activities carried on in that other State in performing these services shall be deemed to be carried on through a permanent establishment of the enterprise situated in that other State.
6. Notwithstanding the provisions of paragraphs 1 and 2, where a person - other than an agent of an independent status to whom paragraph 7 applies - is acting in a Contracting State on behalf of an enterprise of the other Contracting State, that enterprise shall be deemed to have a permanent establishment in the first-mentioned Contracting State in respect of any activities which that person undertakes for the enterprise, if such a person:
(a) has, and habitually exercises in that State, an authority to conclude contracts on behalf of the enterprise, unless the person's activities are limited to the purchase of goods or merchandise for the enterprise; or 8
(b) has no such authority, but habitually maintains in the first-mentioned State a stock of goods or merchandise from which the person regularly delivers goods or merchandise on behalf of the enterprise; or
(c) in so acting, manufactures or processes in that State for the enterprise goods or merchandise belonging to the enterprise.
7. An enterprise of a Contracting State shall not be deemed to have a permanent establishment in the other Contracting State merely because it carries on business in that other State through a person who is a broker, general commission agent or any other agent of an independent status and is acting in the ordinary course of the person's business as such a broker or agent.
8. The fact that a company which is a resident of a Contracting State controls or is controlled by a company which is a resident of the other Contracting State, or which carries on business in that other State (whether through a permanent establishment or otherwise), shall not of itself make either company a permanent establishment of the other.
9. The principles set forth in the preceding paragraphs of this Article shall be applied in determining for the purposes of paragraph 6 of Article 11 and paragraph 5 of Article 12 whether there is a permanent establishment outside both Contracting States, and whether an enterprise, not being an enterprise of a Contracting State, has a permanent establishment in a Contracting State.
ARTICLE 6
Income from Real Property
1. Income from real property (including income from agricultural, pastoral or forestry activities on that real property) may be taxed in the Contracting State in which the real property is situated.
2. In this Article, the term "real property":
(a) in the case of Australia, has the meaning which it has under the law of Australia and includes: 9
(i) a lease of land and any other interest in or over land, whether improved or not, including a right to explore for mineral, oil or gas deposits or other natural resources, and a right to mine those deposits or resources; and
(ii) a right to receive variable or fixed payments either as consideration for or in respect of the exploitation of, or the right to explore for or exploit, mineral, oil or gas deposits, quarries or other places of extraction or exploitation of natural resources;
(b) in the case of Turkey, means property which according to the laws of Turkey is immovable property, and includes:
(i) property accessory to immovable property;
(ii) livestock and equipment used in agriculture and forestry (including the breeding and cultivation of fish);
(iii) rights to which the provisions of general law respecting landed property apply; and
(iv) usufruct of immovable property and rights to variable or fixed payments as consideration for the working of, or the right to work, mineral deposits, sources and other natural resources;
(c) does not include ships, boats and aircraft.
3. Any interest or right referred to in paragraph 2 shall be regarded as situated where the land, mineral , oil or gas deposits , quarries, natural resources , immovable property, landed property or sources , as the case may be, are situated or where the exploration may take place.
4. The provisions of paragraph 1 shall apply to income derived from the direct use, letting, or use in any other form of real property.
5. The provisions of paragraphs 1, 3, and 4 shall also apply to income from real property of an enterprise and to income from real property used for the performance of independent personal services. 10
ARTICLE 7
Business Profits
1. The profits of an enterprise of a Contracting State shall be taxable only in that State unless the enterprise carries on business in the other Contracting State through a permanent establishment situated therein. If the enterprise carries on business in that manner, the profits of the enterprise may be taxed in the other State but only so much of them as is attributable to that permanent establishment.
2. Subject to the provisions of paragraph 3, where an enterprise of a Contracting State carries on business in the other Contracting State through a permanent establishment situated therein, there shall in each Contracting State be attributed to that permanent establishment the profits which it might be reasonably expected to make if it were a distinct and separate enterprise engaged in the same or similar activities under the same or similar conditions and dealing wholly independently with the enterprise of which it is a permanent establishment or with other enterprises with which it deals.
3. In determining the profits of a permanent establishment, there shall be allowed as deductions expenses of the enterprise, being expenses which are incurred for the purposes of the permanent establishment (including executive and general administrative expenses so incurred) and which would be deductible if the permanent establishment were an independent entity which paid those expenses, whether incurred in the Contracting State in which the permanent establishment is situated or elsewhere.
4. No profits shall be attributed to a permanent establishment by reason of the mere purchase by that permanent establishment of goods or merchandise for the enterprise.
5. Nothing in this Article shall affect the application of any law of a Contracting State relating to the determination of the tax liability of a person, including determinations in cases where the information available to the competent authority of that State is inadequate to determine the profits to be attributed to a permanent establishment, provided that that law shall be applied, so far as the information available to the competent authority permits, consistently with the principles of this Article. 11
6. Where profits include items of income or gains which are dealt with separately in other Articles of this Convention, then the provisions of those Articles shall not be affected by the provisions of this Article.
7. Nothing in this Article shall affect the operation of any law of a Contracting State relating to tax imposed on profits from insurance with nonresidents provided that if the relevant law in force in either Contracting State at the date of signature of this Convention is varied (otherwise than in minor respects so as not to affect its general character) the Contracting States shall consult with each other with a view to agreeing to any amendment of this paragraph that may be appropriate.
8. Where:
(a) a resident of a Contracting State is beneficially entitled, whether directly or through one or more interposed trust estates, to a share of the business profits of an enterprise carried on in the other Contracting State by the trustee of a trust estate other than a trust estate which is treated as a company for tax purposes; and
(b) in relation to that enterprise, that trustee would, in accordance with the principles of Article 5, have a permanent establishment in that other State, the enterprise carried on by the trustee shall be deemed to be a business carried on in the other State by that resident through a permanent establishment situated therein and that share of business profits shall be attributed to that permanent establishment.
ARTICLE 8
Shipping and Aircraft Operations
1. Profits of an enterprise of a Contracting State derived from the operation of ships or aircraft shall be taxable only in that State.
2. Notwithstanding the provisions of paragraph 1, such profits may be taxed in the other Contracting State to the extent that they are profits derived directly or indirectly from ship or aircraft operations confined solely to places in that other State. 12
3. The provisions of paragraphs 1 and 2 shall also apply to profits from the participation in a pool, a joint business or an international operating agency.
4. For the purposes of this Article, profits derived from the carriage by ships or aircraft of passengers, livestock, mail, goods or merchandise which are shipped in a Contracting State and are discharged at a place in that State shall be treated as profits from ship or aircraft operations confined solely to places in that State.
ARTICLE 9
Associated Enterprises
1. Where:
(a) an enterprise of a Contracting State participates directly or indirectly in the management, control or capital of an enterprise of the other Contracting State; or
(b) the same persons participate directly or indirectly in the management, control or capital of an enterprise of a Contracting State and an enterprise of the other Contracting State, and in either case conditions operate between the two enterprises in their commercial or financial relations which differ from those which might reasonably be expected to operate between independent enterprises dealing wholly independently with one another, then any profits which, but for those conditions, might reasonably have been expected to accrue to one of the enterprises but, by reason of those conditions, have not so accrued, may be included in the profits of that enterprise and taxed accordingly.
2. Nothing in this Article shall affect the application of any law of a Contracting State relating to the determination of the tax liability of a person, including determinations in cases where the information available to the competent authority of that State is inadequate to determine the profits accruing to an enterprise, provided that that law shall be applied, so far as the information available to the competent authority permits, consistently with the principles of this Article. 13
3. Where profits on which an enterprise of a Contracting State has been charged to tax in that State are also included, by virtue of the provisions of paragraph 1 or 2, in the profits of an enterprise of the other Contracting State and charged to tax in that other State, and the profits so included are profits which might reasonably have been expected to have accrued to that enterprise of the other State if the conditions operative between the enterprises had been those which might reasonably have been expected to have operated between independent enterprises dealing wholly independently with one another, then the first-mentioned State shall make an appropriate adjustment to the amount of tax charged therein on those profits, if it agrees with the adjustment made by the other Contracting State. In determining such adjustment, due regard shall be had to the other provisions of this Convention and for this purpose the competent authorities of the Contracting States shall if necessary consult each other.
ARTICLE 10
Dividends
1. Dividends paid by a company which is a resident of a Contracting State to a resident of the other Contracting State may be taxed in that other State.
2. However, such dividends may also be taxed in the Contracting State of which the company paying the dividends is a resident, and according to the law of that State, but if the beneficial owner of the dividends is a resident of the other State the tax so charged shall not exceed:
(a) (i) in the case of dividends paid by a company that is a resident of Australia, 5 per cent of the gross amount of the dividends, where those dividends are paid to a company (other than a partnership) which holds directly at least 10 per cent of the voting power in the company paying the dividends; and
(ii) in the case of dividends paid by a company that is a resident of Turkey, 5 per cent of the gross amount of the dividends which are paid out of profits which have been subjected to the full rate of corporation tax in Turkey, where those dividends are paid to a company (other 14
than a partnership) which holds directly at least 25 per cent of the capital of the company paying the dividends; and
(b) 15 per cent of the gross amount of the dividends in all other cases, provided that if the relevant law in either Contracting State at the date of signature of this Convention is varied, otherwise than in minor respects so as to not affect its general character, the Contracting States shall consult each other with a view to agreeing to any amendment of this paragraph that may be appropriate.
3. The term "dividends" as used in this Article means income from shares or other rights, not being debt-claims, participating in profits, as well as other amounts which are subjected to the same taxation treatment as income from shares by the law of the State of which the company making the distribution is a resident.
4. Profits of a company which is a resident of a Contracting State and which carries on business in the other Contracting State through a permanent establishment situated therein may, after having been taxed in accordance with Article 7, be taxed on the remaining amount in the Contracting State in which the permanent establishment is situated and in accordance with the law of that State, but the tax so charged shall not exceed:
(a) 5 per cent of the remaining amount where profits of the company are subject to the full rate of corporation tax in that State; and
(b) 15 per cent of the remaining amount in all other cases.
5. The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner of the dividends, being a resident of a Contracting State, carries on business in the other Contracting State of which the company paying the dividends is a resident, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the holding in respect of which the dividends are paid is effectively connected with that permanent establishment or fixed base. In such case the provisions of Article 7 or Article 14, as the case may be, shall apply.
6. Subject to paragraph 4, where a company which is a resident of a Contracting State derives profits or income from the other Contracting State, that other State may not impose any tax on the dividends paid by the company, except insofar as such 15
dividends are paid to a resident of that other Contracting State or insofar as the holding in respect of which such dividends are paid is effectively connected with a permanent establishment or a fixed base situated in that other State, nor subject the company's undistributed profits to a tax on the company's undistributed profits, even if the dividends paid or the undistributed profits consist wholly or partly of profits or income arising in such other State.
ARTICLE 11
Interest
1. Interest arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other State.
2. However, that interest may also be taxed in the Contracting State in which it arises and according to the law of that State, but if the beneficial owner of the interest is a resident of the other State the tax so charged shall not exceed 10 per cent of the gross amount of the interest.
3. Interest derived from the investment of official reserve assets by the Government of a Contracting State, its central bank or a bank performing central banking functions in that State shall be exempt from tax in the other Contracting State.
4. The term "interest" in this Article includes interest from Government securities or from bonds or debentures, whether or not secured by mortgage and whether or not carrying a right to participate in profits, interest from any other form of indebtedness and all other income subjected to the same taxation treatment as income from money lent by the law of the Contracting State in which the income arises.
5. The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner of the interest, being a resident of a Contracting State, carries on business in the other Contracting State, in which the interest arises, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the indebtedness in respect of which the interest is paid is effectively connected with that permanent establishment or fixed base. In such case the provisions of Article 7 or Article 14, as the case may be, shall apply. 16
6. Interest shall be deemed to arise in a Contracting State when the payer is a resident of that State. Where, however, the person paying the interest, whether the person is a resident of a Contracting State or not, has in a Contracting State or outside both Contracting States a permanent establishment or fixed base in connection with which the indebtedness on which the interest is paid was incurred, and that interest is borne by that permanent establishment or fixed base, then the interest shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
7. Where, by reason of a special relationship between the payer and the beneficial owner of the interest, or between both of them and some other person, the amount of the interest paid, having regard to the indebtedness for which it is paid, exceeds the amount which might reasonably have been expected to have been agreed upon by the payer and the beneficial owner in the absence of that relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such case the excess part of the amount of the interest paid shall remain taxable according to the law of each Contracting State, due regard being had to the other provisions of this Convention.
ARTICLE 12
Royalties
1. Royalties arising in a Contracting State and paid to a resident of the other Contracting State may be taxed in that other State.
2. However, those royalties may also be taxed in the Contracting State in which they arise and according to the law of that State, but if the beneficial owner of the royalties is a resident of the other State the tax so charged shall not exceed 10 per cent of the gross amount of the royalties.
3. The term "royalties" in this Article means credits or payments of any kind, whether periodical or not, and however described or computed, to the extent to which they are made as consideration for:
(a) the use of, or the right to use, any copyright, patent, design or model, plan, secret formula or process, trademark or other like property or right; or 17
(b) the use of, or the right to use, any industrial, commercial or scientific equipment; or
(c) the supply of scientific, technical, industrial or commercial knowledge or information; or
(d) the supply of any assistance that is ancillary and subsidiary to, and is furnished as a means of enabling the application or enjoyment of, any such property or right as is mentioned in subparagraph (a), any such equipment as is mentioned in subparagraph (b) or any such knowledge or information as is mentioned in subparagraph (c); or
(e) the use of, or the right to use:
(i) motion picture films; or
(ii) films or audio or video tapes or disks, or any other means of image or sound reproduction or transmission for use in connection with television, radio or other broadcasting; or
(f) the use of, or the right to use, some or all of the part of the radiofrequency spectrum specified in a relevant licence; or
(g) total or partial forbearance in respect of the use or supply of any property or right referred to in this paragraph.
4. The provisions of paragraphs 1 and 2 shall not apply if the beneficial owner of the royalties, being a resident of a Contracting State, carries on business in the other Contracting State, in which the royalties arise, through a permanent establishment situated therein, or performs in that other State independent personal services from a fixed base situated therein, and the property or right in respect of which the royalties are paid or credited is effectively connected with that permanent establishment or fixed base. In such case the provisions of Article 7 or Article 14, as the case may be, shall apply.
5. Royalties shall be deemed to arise in a Contracting State when the payer is a resident of that State. Where, however, the person paying the royalties, whether the person is a resident of a Contracting State or not, has in a Contracting State or outside both Contracting States a permanent establishment or fixed base in connection with 18
which the liability to pay the royalties was incurred, and the royalties are borne by the permanent establishment or fixed base, then the royalties shall be deemed to arise in the State in which the permanent establishment or fixed base is situated.
6. Where, by reason of a special relationship between the payer and the beneficial owner of the royalties, or between both of them and some other person, the amount of the royalties paid or credited, having regard to what they are paid or credited for, exceeds the amount which might reasonably have been expected to have been agreed upon by the payer and the beneficial owner in the absence of such relationship, the provisions of this Article shall apply only to the last-mentioned amount. In such case, the excess part of the amount of the royalties paid or credited shall remain taxable according to the law of each Contracting State, due regard being had to the other provisions of this Convention.
ARTICLE 13
Alienation of Property
1. Income, profits or gains derived by a resident of a Contracting State from the alienation of real property referred to in Article 6 and situated in the other Contracting State may be taxed in that other State.
2. Income, profits or gains from the alienation of property, other than real property, that forms part of the business property of a permanent establishment which an enterprise of a Contracting State has in the other Contracting State or pertains to a fixed base available in that other State to a resident of the first-mentioned State for the purpose of performing independent personal services, including income, profits or gains from the alienation of that permanent establishment (alone or with the whole enterprise) or of that fixed base, may be taxed in that other State.
3. Income, profits or gains of an enterprise of a Contracting State from the alienation of ships or aircraft operated by that enterprise in international traffic, or of property (other than real property) pertaining to the operation of such ships or aircraft, shall be taxable only in that Contracting State.
4. Income, profit or gains derived by a resident of a Contracting State from the alienation of any shares or comparable interests deriving more than 50 per cent of the 19
value directly or indirectly from real property situated in the other Contracting State may be taxed in that other State.
5. Gains of a capital nature from the alienation of any property, other than that referred to in the preceding paragraphs, shall be taxable only in the Contracting State of which the alienator is a resident.
6. Notwithstanding the provisions of paragraph 5, gains of a capital nature derived by a resident of Australia from the alienation of shares or similar rights in a Turkish company or bonds issued by a resident of Turkey may be taxed in Turkey, if the period between acquisition and alienation of such shares, rights or bonds does not exceed 2 years.
ARTICLE 14
Independent Personal Services
1. Income derived by an individual-who is a resident of a Contracting State in respect of professional services or other activities of an independent character shall be taxable only in that State. However, such income may also be taxed in the other Contracting State if such services or activities are performed in that other State and:
(a) the individual has a fixed base regularly available in that other State for the purposes of performing those services or activities; or
(b) the individual is present in that other State for the purpose of performing those services or activities for a period or periods exceed in the aggregate 183 days in any 12 month period commencing or ending in the year of income of that other State.
In such circumstances, only so much of the income as is attributable to that fixed base or is derived from the services or activities performed in that other State, as the case may be, may be taxed in that other State.
2. The term "professional services" includes independent scientific, literary, artistic, educational or teaching activities as well as the independent activities of physicians, lawyers, engineers, architects, dentists and accountants. 20
ARTICLE 15
Dependent Personal Services
1. Subject to the provisions of Articles 16, 18, 19 and 20, salaries, wages and other similar remuneration derived by an individual who is a resident of a Contracting State in respect of an employment shall be taxable only in that State unless the employment is exercised in the other Contracting State. If the employment is so exercised, such remuneration as is derived from that exercise may be taxed in that other State.
2. Notwithstanding the provisions of paragraph 1, remuneration derived by an individual who is a resident of a Contracting State in respect of an employment exercised in the other Contracting State shall be taxable only in the first-mentioned State if.
(a) the recipient is present in the other State for a period or periods not exceeding in the aggregate 183 days in any 12 month period commencing or ending in the year of income of that other State; and
(b) the remuneration is paid by, or on behalf of, an employer who is not a resident of that other State; and
(c) the remuneration is not borne by a permanent establishment or a fixed base which the employer has in that other State.
3. Notwithstanding the preceding provisions of this Article, remuneration derived in respect of an employment exercised aboard a ship or aircraft operated in international traffic may be taxed in the Contracting State of which the enterprise is a resident.
ARTICLE 16
Directors' Fees
Directors' fees and other similar payments derived by a resident of a Contracting State in that person's capacity as a member of the board of directors of a company which is a resident of the other Contracting State may be taxed in that other State. 21
ARTICLE 17
Entertainers
1. Notwithstanding the provisions of Articles 14 and 15, income derived by residents of a Contracting State as entertainers (such as theatrical, motion picture, radio or television artistes and musicians and sportspersons) from their personal activities as such exercised in the other Contracting State, may be taxed in that other State.
2. Where income in respect of the personal activities of an entertainer as such accrues not to that entertainer but to another person, that income may, notwithstanding the provisions of Articles 7, 14 and 15, be taxed in the Contracting State in which the activities of the entertainer are exercised.
3. Notwithstanding the provisions of paragraph 1, income derived by an entertainer who is a resident of a Contracting State, from the entertainer's personal activities as such exercised in the other Contracting State, shall be taxable only in the first- mentioned State if the activities in the other State are supported wholly or substantially from the public funds of the first-mentioned State, including any of its political subdivisions or a local authorities.
ARTICLE 18
Pensions and Annuities
1. Subject to the provisions of paragraph 2 of Article 19, pensions, annuities and similar periodic remuneration, paid to a resident of a Contracting State shall be taxable only in that State.
2. The term "annuity" means a stated sum payable periodically at stated times during life or during a specified or ascertainable period of time under an obligation to make the payments in return for adequate and full consideration in money or money's worth.
3. Subject to the provisions of paragraph 2 of Article 19, lump sums in lieu of the right to receive a pension, annuity or other similar periodic remuneration, paid to a 22
resident of a Contracting State shall be taxable only in that State. However, such lump sums (other than an amount paid under a pension scheme to a member of that scheme who is aged 60 years or more) may also be taxed in the other State if they arise in that other State.
4. Any alimony or other maintenance payment arising in a Contracting State and paid to a resident of the other Contracting State shall be taxable only in the first-mentioned State.
ARTICLE 19
Government Service
1. Salaries, wages and other similar remuneration, other than a pension or annuity, paid by a Contracting State or a political subdivision or a local authority of that State to an individual in respect of services rendered in the discharge of governmental functions shall be taxable only in that State. However, such salaries, wages and other similar remuneration shall be taxable only in the other Contracting State if the services are rendered in that other State and the recipient is a resident of that other State who:
(a) is a national of that State; or
(b) did not become a resident of that State solely for the purpose of rendering the services.
2. a) Notwithstanding the provisions of paragraph 1, pensions, annuities or lump sum retirement benefits paid by, or out of funds created by, a Contracting State or a political subdivision or a local authority of that State to an individual in respect of services rendered to that State or subdivision or authority shall be taxable only in that State.
b) However, a pension or annuity referred to in subparagraph (a) shall be taxable only in the other Contracting State if the individual is a resident of, and a national of, that State.
3. The provisions of Articles 15, 16 and 17 shall apply to salaries, wages and other remuneration in respect of services rendered in connection with any trade or business 23
carried on by a Contracting State or a political subdivision or a local authority of that State.
ARTICLE 20
Teachers and Students
1. Where a student who is a resident of a Contracting State or who was a resident of that State immediately before visiting the other Contracting State and who is temporarily present therein solely for the purpose of the student's education, receives payments from sources outside that other State for the purpose of the student's maintenance or education, those payments shall not be taxed in that other State.
2. Where a professor or teacher who is a resident of one of the Contracting States visits the other Contracting State for a period not exceeding 2 years for the purpose of teaching, or carrying out advanced study or research, at a university, college, school or other educational institution therein, any remuneration the person receives for such teaching, advanced study or research shall not be taxed in that other State to the extent to which that remuneration is, or upon the application of this Article will be, subject to tax in the first-mentioned State.
3. Paragraph 2 of this Article shall not apply to remuneration which a professor or teacher receives for conducting research if the research is undertaken primarily for the private benefit of a specific person or persons.
ARTICLE 21
Other Income
1. Items of income of a resident of a Contracting State, wherever arising, not dealt with in the foregoing Articles of this Convention shall be taxable only in that State.
2. The provisions of paragraph 1 shall not apply to income, other than income from real property as defined in paragraph 2 of Article 6, derived by a resident of a Contracting State where that income is effectively connected with a permanent 24
establishment or fixed base situated therein. In such case the provisions of Article 7 or Article 14, as the case may be, shall apply.
3. Notwithstanding the provisions of paragraphs 1 and 2, items of income of a resident of a Contracting State not dealt with in the foregoing Articles of this Convention from sources in the other Contracting State may also be taxed in that other Contracting State.
ARTICLE 22
Source of Income
1. Income, profits or gains derived by a resident of a Contracting State which, under any one or more of Articles 6 to 8, 10 to 17 and 19, may be taxed in the other Contracting State shall, for the purposes of the law of that other Contracting State relating to its tax, be deemed to arise from sources in that other Contracting State.
2. Income, profits or gains derived by a resident of a Contracting State which, under any one or more of Articles 6 to 8, 10 to 17 and 19, may be taxed in the other Contracting State shall, for the purposes of Article 23 and of the law of the first-mentioned Contracting State relating to its tax, be deemed to arise from sources in the other Contracting State.
ARTICLE 23
Methods of Elimination of Double Taxation
1. Subject to the provisions of the law of Australia from time to time in force which relate to the allowance of a credit against Australian tax of tax paid in a country outside Australia (which shall not affect the general principle of this Article), Turkish tax paid under the law of Turkey and in accordance with this Convention, whether directly or by deduction, in respect of income derived by a person who is a resident of Australia from sources in Turkey shall be allowed as a credit against Australian tax payable in respect of that income. 25
2. Subject to the provisions of the law of Turkey from time to time in force which relate to the allowance of a credit against Turkish tax paid in a country outside Turkey (which shall not affect the general principle of this Article), Australian tax paid under the law of Australia and in accordance with this Convention in respect of income derived by a resident of Turkey from sources within Australia shall be allowed as a deduction from the Turkish tax on such income. Such deduction shall not, however, exceed that part of the Turkish tax, as computed before the deduction is given, which is attributable to the income which may be taxed in Australia.
3. Where in accordance with any provision of the Convention income derived by a resident of a Contracting State is exempt from tax in that State, such State may nevertheless, in calculating the amount of tax on the remaining income of such resident, take into account the exempted income.
ARTICLE 24
Non-Discrimination
1. Nationals of a Contracting State shall not be subjected in the other Contracting State to any taxation or any requirement connected therewith, which is other or more burdensome than the taxation and connected requirements to which nationals of that other State in the same circumstances, in particular with respect to residence, are or may be subjected.
2. Subject to the provisions of paragraph 4 of Article 10 of this Convention, the taxation on a permanent establishment which an enterprise of a Contracting State has in the other Contracting State shall not be less favourably levied in that other State than the taxation levied on enterprises of that other State carrying on the same activities in similar circumstances.
3. Except where the provisions of paragraph 1 of Article 9, paragraph 7 of Article 11 or paragraph 6 of Article 12 of this Convention apply, interest, royalties and other disbursements paid by an enterprise of a Contracting State to a resident of the other Contracting State shall for the purpose of determining the taxable profits of such enterprise, be deductible under the same conditions as if they had been paid to a resident of the first-mentioned State. 26
4. Enterprises of a Contracting State, the capital of which is wholly or partly owned or controlled, directly or indirectly, by one or more residents of the other Contracting State, shall not be subjected in the first-mentioned State to any taxation or any requirement connected therewith which is other or more burdensome than the taxation and connected requirements to which other similar enterprises of the first- mentioned State in similar circumstances are or may be subjected.
5. Nothing contained in this Article shall be construed as obliging a Contracting State to grant to individuals who are residents of the other Contracting State any of the personal allowances, reliefs and reductions for tax purposes which are granted to its own residents.
6. This Article shall not apply to any provision of the laws of a Contracting State which:
(a) is designed to prevent the avoidance or evasion of taxes;
(b) does not permit the deferral of tax arising on the transfer of an asset where the subsequent transfer of the asset by the transferee would be beyond the taxing jurisdiction of the Contracting State under its laws;
(c) provides for consolidation of group entities for treatment as a single entity for tax purposes provided that Australian companies that are owned directly or indirectly by residents of Turkey can access such consolidation treatment on the same terms and conditions as other Australian companies;
(d) provides deductions to eligible taxpayers for expenditure on research and development; or
(e) is otherwise agreed to be unaffected by this Article in an Exchange of Notes between the Government of Australia and the Government of the Republic of Turkey.
7. In this Article, provisions of the laws of a Contracting State which are designed to prevent avoidance or evasion of taxes include:
(a) measures designed to address thin capitalisation, dividend stripping and transfer pricing; 27
(b) controlled foreign company, transferor trusts and foreign investment fund rules; and
(c) measures designed to ensure that taxes can be effectively collected and recovered, including conservancy measures.
8. The provisions of this Article shall apply to the taxes which are the subject of this Convention.
ARTICLE 25
Mutual Agreement Procedure
1. Where a person considers that the actions of one or both of the Contracting States result or will result for the person in taxation not in accordance with this Convention, the person may, irrespective of the remedies provided by the domestic law of those States concerning taxes to which this Convention applies, present a case to the competent authority of the Contracting State of which the person is a resident or, if the case comes under paragraph 1 of Article 24, to that of the Contracting State of which the person is a national. The case must be presented within 3 years from the first notification of the action resulting in taxation not in accordance with this Convention.
2. The competent authority shall endeavour, if the claim appears to it to be justified and if it is not itself able to arrive at a satisfactory solution, to resolve the case by mutual agreement with the competent authority of the other Contracting State, with a view to the avoidance of taxation which is not in accordance with this Convention. The agreement reached shall be implemented notwithstanding any time limits in the domestic law of the Contracting States. However, in the case of Turkey, the taxpayer must claim the refund resulting from such mutual agreement within a period of 1 year after the tax administration has notified the taxpayer of the result of the mutual agreement.
3. The competent authorities of the Contracting States shall endeavour to resolve by mutual agreement any difficulties or doubts arising as to the interpretation or application of this Convention. They may also consult together for the elimination of double taxation in cases not provided for in this Convention. 28
4. The competent authorities of the Contracting States may communicate with each other directly for the purpose of giving effect to the provisions of this Convention. When it seems advisable in order to reach a solution to have an oral exchange of opinions, such exchange may take place through a meeting of representatives of the competent authorities of the Contracting States.
5. For purposes of paragraph 3 of Article XXII (Consultation) of the General Agreement on Trade in Services, the Contracting States agree that, notwithstanding that paragraph, any dispute between them as to whether a measure falls within the scope of this Convention may be brought before the Council for Trade in Services, as provided by that paragraph, only with the consent of both Contracting States. Any doubt as to the interpretation of this paragraph shall be resolved under paragraph 3 of this Article or, failing agreement under that procedure, pursuant to any other procedure agreed to by both Contracting States.
ARTICLE 26
Exchange of Information
1. The competent authorities of the Contracting States shall exchange such information as is forseeably relevant for carrying out the provisions of this Convention or to the administration or enforcement of the domestic law concerning taxes referred to in Article 2, insofar as the taxation thereunder is not contrary to the Convention. The exchange of information is not restricted by Article 1.
2. Any information received under paragraph 1 by a Contracting State shall be treated as secret in the same manner as information obtained under the domestic law of that State and shall be disclosed only to persons or authorities (including courts and administrative bodies) concerned with the assessment or collection of, the enforcement or prosecution in respect of, the determination of appeals in relation to, the taxes referred to in paragraph 1, or the oversight of the above. Such persons or authorities shall use the information only for such purposes. They may disclose the information in public court proceedings or in judicial decisions.
3. In no case shall the provisions of paragraphs 1 and 2 be construed so as to impose on a Contracting State the obligation: 29
(a) to carry out administrative measures at variance with the law and administrative practice of that or of the other Contracting State;
(b) to supply information which is not obtainable by the competent authority under the law or in the normal course of the administration of that or of the other Contracting State;
(c) to supply information which would disclose any trade, business, industrial, commercial or professional secret or trade process, or information, the disclosure of which would be contrary to public policy (ordre public).
4. If information is requested by a Contracting State in accordance with this Article, the other Contracting State shall use its information gathering measures to obtain the requested information, even though that other State may not need such information for its own tax purposes. The obligation contained in the preceding sentence is subject to the limitations of paragraph 3 but in no case shall such limitations be construed to permit a Contracting State to decline to supply information solely because it has no domestic interest in such information.
5. In no case shall the provisions of paragraph 3 be construed to permit a Contracting State to decline to supply information solely because the information is held by a bank, other financial institution, nominee or person acting in an agency or a fiduciary capacity or because it relates to ownership interests in a person.
ARTICLE 27
Members of Diplomatic Missions and Consular Posts
Nothing in this Convention shall affect the fiscal privileges of members of diplomatic missions and consular posts under the general rules of international law or under the provisions of special international agreements. 30
ARTICLE 28
Entry into Force
1. The Government of Australia and the Government of the Republic of Turkey shall notify each other in writing through the diplomatic channel of the completion of their respective statutory and constitutional procedures required for the entry into force of this Convention. This Convention shall enter into force on the date of the last notification.
2. This Convention shall have effect:
(a) in Australia:
(i) in respect of withholding tax on income that is derived by a nonresident, in relation to income derived on or after 1 January in the calendar year next following that in which the Convention enters into force;
(ii) in respect of other Australian tax, in relation to income, profits or gains of any year of income beginning on or after 1 July next following that in which the Convention enters into force;
(b) in Turkey:
(i) with regard to taxes withheld at source, in respect of amounts paid or credited on or after 1 January next following the date upon which this Convention enters into force;
(ii) with regard to other taxes, in respect of taxable years beginning on or after 1 January next following the date upon which this Convention enters into force.
ARTICLE 29
Termination
1. This Convention shall continue in effect indefmitely, but either of the Government of Australia and the Government of the Republic of Turkey may terminate the Convention, through the diplomatic channel, by giving written notice of termination at least 6 months before the end of any calendar year beginning after the expiration of 5 years from the date of its entry into force. 31
2. This Convention shall cease to be effective:
(a) in Australia:
(i) in respect of withholding tax on income that is derived by a nonresident, in relation to income derived on or after 1 January in the calendar year next following that in which the notice of termination is given;
(ii) in respect of other Australian tax, in relation to income, profits or gains of any year of income beginning on or after 1 July next following that in which the notice of termination is given;
(b) in Turkey:
(i) with regard to taxes withheld at source, in respect of amounts paid or credited after the end of the calendar year in which such notice is given;
(ii) with regard to other taxes, in respect of taxable years beginning after the end of the calendar year in which such notice is given.
IN WITNESS WHEREOF the undersigned, duly authorised thereto by their respective Governments, have signed this Convention.
DONE at , this day of 2010, in duplicate in the English and Turkish languages, both texts being equally authentic.
For the Government of For the Government of the Australia Republic of Turkey 32
PROTOCOL
TO
THE CONVENTION BETWEEN THE GOVERNMENT OF AUSTRALIA AND THE GOVERNMENT OF THE REPUBLIC OF TURKEY FOR THE AVOIDANCE OF DOUBLE TAXATION AND THE PREVENTION OF FISCAL EVASION WITH RESPECT TO TAXES ON INCOME
The Government of Australia and the Government of the Republic of Turkey,
Having regard to the Convention between the Government of Australia and the Government of the Republic of Turkey for the avoidance of double taxation and the prevention of fiscal evasion with respect to taxes on income signed today at [ ] (the Convention),
Have agreed as follows:
1. In respect of paragraph 3 of Article 7, no account shall be taken in the determination of the profits of a permanent establishment, of amounts paid or charged, (otherwise than towards reimbursement of actual expenses), by the permanent establishment to the head office of the enterprise or any of its other offices, by way of royalties, fees or other similar payments in return for the use of patents or other rights, or by way of commission for specific services performed or for management, or, except in the case of a banking enterprise, by way of interest on money lent by or to the head office of the enterprise or any of its other offices.
2. In respect of paragraphs 3 and 5 of Article 5,
(a) The duration of activities will be determined by aggregating the periods during which activities are carried on in a Contracting State by associated enterprises provided that the activities of the enterprise in that State are connected with the activities carried on in that State by its associate. 33
(b) The period during which two or more associated enterprises are carrying on concurrent activities will be counted only once for the purpose of determining the duration of activities.
(c) Under Article 5, an enterprise shall be deemed to be associated with another enterprise if-
(i) one is controlled directly or indirectly by the other; or
(ii) both are controlled directly or indirectly by the same person or persons.
3. In respect of paragraph 5 of Article 5, it is understood that where an enterprise of a Contracting State undertakes to perform professional services in the other Contracting State and subcontracts all or part of those services to another enterprise, the period during which such services are performed in that other State by that other enterprise shall be regarded as time spent by the first-mentioned enterprise.
4. In respect of Article 8, and for the avoidance of doubt, it is understood that the operation of ships or aircraft referred to in that Article includes non-transport activities, such as dredging, fishing, and surveying and that such activities conducted in a place or places in a Contracting State are to be treated as ship or aircraft operations confined solely to places in that State.
5. For the purposes of Articles 10, 11 and 12, it is understood that dividends, interest or royalties are paid to a resident of a Contracting State where that person is the beneficial owner of such dividends, interest or royalties.
6. In respect of Article 10,
(a) Notwithstanding the rate limit specified in subparagraph (a)(ii) of paragraph 2, Turkey may impose tax on dividends to which that provision applies at a rate not exceeding that specified in subparagraph (b) of that paragraph if such dividends are subject to tax in Australia.
(b) Notwithstanding the rate limit specified in subparagraph (a) of paragraph 4, Turkey may impose tax on amounts to which that provision applies at a rate not exceeding that specified in subparagraph (b) of that paragraph if the 34
profits attributable to a permanent establishment situated in Turkey are subject to tax in Australia.
7. In respect of paragraph 3 of Article 10, it is understood that dividends in the case of Turkey shall include income from "jouissance" shares, "jouissance " rights or founder's shares and income derived from an investment fund or investment trust.
8. In respect of paragraph 3 of Article 18, it is understood that in the case of payments arising in Australia, the term "lump sums in lieu of the right to receive a pension, annuity or other similar periodic remuneration" does not include a departing Australia superannuation payment made to a person who has worked in Australia while visiting on an eligible temporary resident visa.
This Protocol shall form an integral part of the Convention.
IN WITNESS WHEREOF the undersigned, duly authorised thereto by their respective Governments, have signed this Protocol.
DONE at this day of 2010, in duplicate in the English and Turkish languages, both texts being equally authentic.
For the Government of For the Government of the Australia Republic of Turkey National Interest Analysis [20101 ATNIA 31
with attachment on consultation
Convention between the Government of Australia and the Government of the Republic of Turkey for the Avoidance of Double Taxation with Respect to Taxes on Income and the Prevention of Fiscal Evasion , and Protocol, done at Ankara on 28 April 2010
[2010] ATNIF 28
Regulation Impact Statement NATIONAL INTEREST ANALYSIS: CATEGORY 2 TREATY
SUMMARY PAGE
Convention between the Government of Australia and the Government of the Republic of Turkey for the Avoidance of Double Taxation with Respect to Taxes on Income and the Prevention of Fiscal Evasion , and Protocol, done at Ankara on 28 April 2010 [2010] ATNIF 28
Nature and timing of proposed treaty action
1. The proposed treaty action is to bring into force the Convention between the Government of Australia and the Government of the Republic of Turkey for the Avoidance of Double Taxation with Respect to Taxes on Income and the Prevention of Fiscal Evasion, and Protocol (the proposed Convention).
2. The proposed Convention was signed on 28 April 2010. The proposed Convention will enter into force, pursuant to Article 28, on the date of the last notification through the diplomatic channel between the Contracting States confirming that each State has completed their domestic requirements to bring the proposed Convention into force.
3. The provisions of the proposed Convention will take effect in Australia in three stages, namely:
a) In respect of withholding tax, on income derived on or after 1 January in the calendar year following entry into force;
b) In respect of other tax, on income, profits or gains of any year of income beginning on or after 1 July following entry into force; and
c) In respect of administrative provisions, on the date of entry into force.
Overview and national interest summary
4. The key objectives of the proposed Convention are to:
a) Promote closer economic cooperation between Australia and Turkey by reducing taxation barriers caused by the double taxation of income derived by residents of either Contracting State; and
b) Improve the integrity of the tax system by providing a framework through which the tax administrations of Australia and Turkey can prevent international fiscal evasion.
5. The proposed Convention also aims to improve certainty for Australian businesses looking to expand into Turkey and for other Australian taxpayers by establishing an internationally accepted framework for the taxation of cross-border transactions which is based upon the OECD Model Tax Convention on Income and on Capital. 6. In this manner the proposed Convention is expected to promote trade and investment between Australia and Turkey and enhance the taxation arrangements for Australians engaged in cross-border transactions, thereby improving the well-being of the Australian people. Reasons for Australia to take the proposed treaty action
Reducing barriers to bilateral investment and trade 7. The proposed Convention is expected to reduce barriers to bilateral trade and investment, primarily by reducing withholding taxes on dividend, interest and royalty payments between the two countries . Rather than taking unilateral action to reduce withholding taxes under domestic law, Australia has adopted the approach of agreeing to any such reductions on a bilateral basis. This approach ` locks in' the withholding tax limits in both countries, ensuring a steady financial framework for business between the proposed Convention partner countries.
8. In particular, the proposed Convention reduces the Australian dividend withholding tax rate limit from 30 per cent to 5 per cent on inter-corporate dividends where the recipient directly holds at least 10 per cent of the voting power of the Australian company paying the dividend and reduces Turkish dividend withholding tax from 15 per cent to 5 per cent for intercorporate dividends in, respect of direct holdings of at least 25 per cent of capital, where the dividends have been paid out of profits that have been subjected to the full rate of corporation tax in Turkey. A general rate of 15 per cent is to apply in all other cases (Article 10). This will promote direct investment into Australia by reducing tax impediments and thus make Australia a more attractive location for investment by Turkish multinationals. It will also assist in ensuring the competitiveness of Australian investment in Turkey by reducing Turkish withholding tax on dividends received by Australian companies from subsidiaries in Turkey.
9. The proposed Convention reduces interest withholding tax from 15 per cent to 10 per cent on Turkish sourced interest paid to Australian lenders (Article 11). The proposed Convention also exempts interest derived from the investment of official reserve assets by a government , its central bank or a bank performing central banking functions.
10. The proposed Convention reduces Australian royalty withholding tax from 30 per cent to 10 per cent and Turkish royalty withholding tax from 20 per cent to 10 per cent (Article 12). Reduced Turkish withholding taxes on royalty payments are likely to encourage Turkish businesses to source intellectual property from Australia . While the Australian company remains legally liable for tax on royalty income earned in Turkey, contracts will often include provisions (known as `gross up clauses') requiring the Turkish company to absorb this tax. Consequently , lower withholding taxes on royalties are expected to reduce the costs for Turkish businesses of accessing Australian intellectual property. Likewise the lower royalty withholding tax rate is expected to reduce the costs for Australian businesses of accessing Turkish intellectual property.
11. The proposed Convention also provides an agreed basis for determining the allocation of profits within a multinational company and whether the profits on related Party dealings by members of a multinational group operating in both countries reflect the pricing that would be adopted by independent Parties (Articles 7 and 9). Tax treaties are therefore an important tool in dealing with international profit shifting through transfer pricing.
12. More generally, the proposed Convention will provide important benefits to Australians looking to expand their business activities into Turkey . It will establish an internationally accepted framework for the taxation of cross-border transactions , thus reducing investor risk and providing some degree of legal and fiscal certainty - unlike domestic laws which can be amended unilaterally. It also includes rules to prevent tax discrimination against nationals of either Contracting State (Article 24).
Establishing a framework to prevent international fiscal evasion 13. The proposed Convention establishes a framework to prevent international fiscal (tax) evasion through the inclusion of rules to allow the tax administrations to exchange taxpayer information (Article 26). These rules meet the internationally agreed tax standard for exchange of information which was developed by the OECD. This standard has been endorsed by the G20 and the United Nations Committee of Experts on International Cooperation in Tax Matters. This framework will support global action on improving information exchange and transparency.
Compliance and administrative cost reduction benefits 14. The proposed Convention does not impose any greater compliance obligations on the residents of Australia than Australian domestic tax laws would otherwise and in some cases reduces the obligations of Australians operating or investing in Turkey (for example Article 7 concerning business profits). Given this and the fact that the proposed Convention is broadly consistent with international norms, it is expected to reduce compliance costs for those taxpayers with cross-border dealings between the Contracting States.
Obligations
15. Articles 6 to 21 allocate taxing rights in respect of certain types of income between the two countries. To reduce or eliminate double taxation, Australia and Turkey have agreed in certain situations to limit taxing rights over various types of income dealt with under these Articles. For example Articles 10 to 12 impose limits on the rate of tax which may be imposed by the country of source (ie, the country where the payment arises) on dividends, interest or royalties. In the case of pension income, the proposed Convention provides that most pension and retirement annuities and lump sums paid after the age of 60 in lieu of a right to receive a pension, are to be taxed only in the country of residence of the recipient (Article 18). In respect of other lump sum payments, taxing rights are shared between the country of residence and the country of source (Article 18). The proposed Convention also provides an agreed basis for determining the allocation of profits within a multinational company and whether the profits on related Party dealings by members of a multinational group operating in both countries reflect the pricing that would be adopted by independent Parties (Article 9).
16. Article 23 of the proposed Convention sets out a general obligation for both countries to relieve double taxation on cross-border income by permitting tax paid under the other country's laws and in accordance with the proposed Convention, to be allowed as a credit against tax payable in respect of that income under their own laws.
17. Article 24 contains a general non-discrimination principle, requiring each country to treat nationals of the other country no less favourably than it treats its own nationals regarding taxation and any connected requirements. There are general exceptions to this principle to ensure that certain provisions of the laws of Australia and Turkey continue to operate for their intended purpose. The laws that are specifically exempt are those designed to prevent the avoidance or evasion of taxes or that deny certain tax deferrals and those that provide for the consolidation of group entities or aid research or development. However, if necessary the Contracting States may also agree (by an exchange of notes), that other laws are to be exempt from the operation of Article 24.
18. Article 25 establishes procedures for dispute resolution, including a mechanism for taxpayers to present complaints to their country of residence, irrespective of the remedies provided by the domestic laws of those States, where they consider that they have been taxed not in accordance with the proposed Convention. The country receiving a complaint that appears to be justified must endeavour to resolve it, either unilaterally or by mutual agreement with the other country. Difficulties or doubts regarding interpretation or application of the proposed Convention shall be resolved by mutual agreement between the Contracting States. A dispute between the Contracting States which may also involve the application of the General Agreement on Trade in Services may be brought before the Council for Trade in Services by consent of both States.
19. Article 26 provides obligations for the exchange of information between both countries, including a specific obligation to gather and provide information upon request. Article 26(2) imposes an obligation on the country receiving any such information to treat it as secret in the same manner as information obtained under its domestic laws. Article 26(3) allows either country to decline to supply information in certain circumstances. Specifically, a request may be denied where: (i) it would require implementation of administrative measures at variance with either Contracting State's domestic law or administrative practice; (ii) the information requested is not obtainable under the laws or in the normal course of administration of either Contracting State; or (iii) it would involve disclosure of a trade, business, industrial, commercial or professional secret or information which would be contrary to public policy (for example, if it would breach human rights obligations). These circumstances, which act as a safeguard to protect Australia's interests and taxpayer's rights, accord with the OECD Model Tax Convention on Income and on Capital.
Implementation
20. Amendments to the International Tax Agreements Act 1953 will be made prior to the proposed Convention entering into force, to give the proposed Convention the force of law in Australia. No action is required by the States or Territories . There will be no change to the existing roles of the Commonwealth, or the States and Territories, in tax matters as a consequence of implementing the proposed Convention.
Costs
21. Treasury has estimated the impact of the first round effects on forward estimates is unquantifiable but expected to be small (less than $5 million per annum).
22. No other material costs have been identified as likely to arise from the implementation of the proposed Convention. In contrast, the establishment of a treaty between Australia and Turkey which is broadly consistent with international norms would generally be expected to reduce compliance costs for taxpayers.
23. There would be a small, unquantifiable cost in administering the changes made by the proposed Convention, including minor implementation costs to the Australian Taxation Office (ATO) in educating the taxpaying public and ATO staff concerning the new arrangements. There are also `maintenance' costs to the ATO and the Department of the Treasury in terms of dealing with inquiries, rulings and other interpretative decisions and mutual agreement procedures (including advance pricing arrangements). However, these costs will continue to be managed within existing agency resources.
Regulation Impact Statement
24. A Regulation Impact Statement is attached.
Future treaty action
25. The proposed Convention does not provide for the negotiation of future legally binding instruments, although it does require both countries to consult with each other regarding changes to the relevant laws (otherwise than in minor respects), relating to the taxation of income from insurance with non-resident insurers or of dividends, with a view to agreeing to any amendment that may be required to the relevant treaty provisions as a result.
26. The proposed Convention does not contain specific amendment procedures, however it may be amended from time to time by agreement of both countries (Article 39 of the Vienna Convention on the Law of Treaties). Any such amendment would be subject to Australia's domestic treaty-making process, including tabling and consideration by the Joint Standing Committee on Treaties.
Withdrawal or denunciation
27. The proposed Convention remains in force indefinitely, unless terminated by one of the Contracting Parties. Either Contracting Party can terminate the proposed Convention by providing written notice of termination through the diplomatic channel at least six months prior to the end of any calendar year beginning after the expiration of five years from the date of its entry into force (Article 29). Termination by Australia would be subject to Australia's domestic treaty-making process. The proposed Convention would then cease to be effective, in the case of Australia, on 1 January in the calendar year next following the date on which the notice of termination notice is given (in respect of withholding tax on income derived by a non-resident), or on 1 July in the calendar year next following the date on which the notice of termination is given (in respect of other Australian tax).
Contact details
Tax Treaties Unit International Tax & Treaties Division Department of the Treasury. ATTACHMENT ON CONSULTATION
Convention between the Government of Australia and the Government of the Republic of Turkey for the Avoidance of Double Taxation with Respect to Taxes on Income and the Prevention of Fiscal Evasion , and Protocol, done at Ankara on 28 April 2010 [2010] ATNIF 28
CONSULTATION
28. Treasury sought comments from the business community through the Tax Treaties Advisory Panel, members of which include:
• Australian Bankers' Association ® Australian Chamber of Commerce and Industry ® Australian Financial Markets Association. ® Business Council of Australia • CPA Australia • Corporate Tax Association ® Institute of Chartered Accountants in Australia • International Fiscal Association • Investment and Financial Services Association • Law Council of Australia ® Minerals Council of Australia ® Taxation Institute of Australia ® Property Council of Australia
29. The State and Territory Governments have been consulted through the Commonwealth-State Standing Committee on Treaties. DEPARTMENT OF FOREIGN AFFAIRS AND T RADE CAN BE RRA
World Wine Trade G roup Ag reement on Requirements for Wine Labelling
Accord d u G roupe mond ial d u commerce d u vin sur les r l ' tiqueta a du vin
G rupo M und ial del Cornercio del Vino Acuerdo sobre Req uisitos para el Etiquetado Vinos
Can berra, 23 January 2007
Not yet in force [2006] ATNIF 7 World Wine Trade Group Agreement on Requirements for Wine Labelling
The Parties to this Agreement:
Recalling Article 6, paragraph 2 of the Agreement on Mutual Acceptance of Oenological Practices, done at Toronto on 18 December 2001 (hereinafter the Mutual Acceptance Agreement), in force since 1 December 2002, by which the Parties to the Mutual Acceptance Agreement agreed to enter into negotiations for an agreement on labelling;
Recalling the industry Statement of Principles on Wine Label Requirements agreed at Sonoma, California on 5 October 2000;
Recognising that each Party has the right consistent with its international obligations to regulate the labelling of wine, inter alia, to prevent deceptive labelling practices and protect human health and safety;
Acknowledging that consumers have an interest in being provided with adequate information on wine labels;
Recognising that certain regulatory requirements are common to the domestic laws of the Parties;
Acknowledging that different regulatory requirements for wine labelling have contributed to the complexity and cost of international trade in wine;
Desiring to reaffirm their rights and obligations under the Marrakesh Agreement Establishing the World Trade Organization on 15 April 1994 (hereinafter the WTO Agreement) and to avoid unnecessary obstacles to trade in wine in accordance with those rights and obligations; and
Desiring to facilitate the international trade in wine through the adoption of common labelling requirements;
AGREE AS FOLLOWS:
Part I General Provisions
Article 1 Definitions For the purposes of this Agreement, the following definitions shall apply:
(a) "Common Mandatory Information" means country of origin, product name, net contents, and actual alcohol content as specified in Article 11;
(b) "Consensus" is achieved if, after such notice as is required by the Council's procedures, no Party present at the meeting formally objects to a proposed decision, recommendation, or finding and no other Party files an objection with the Council Chair to that decision, recommendation, or finding within 45 days after the date of the meeting;
(c) "Council" means the Council of the Parties established under Article 14 of this Agreement;
(d) "Label" means any brand, mark, pictorial or other descriptive matter that is written, printed, stencilled, marked, embossed or impressed on, or firmly affixed to the primary container of wine;
2 (e) "National Mandatory Information" means information other than Common Mandatory Information required by an importing Party;
(f) "Single Field of Vision" is any part of the surface of a primary container, excluding its base and cap, that can be seen without having to turn the primary container;
(g) "Wine" is a beverage produced by the complete or partial alcoholic fermentation exclusively of fresh grapes, grape must , or products derived from fresh grapes in accordance with oenological practices that are authorised for use under the regulatory mechanisms of the exporting Party and accepted by the importing Party, and containing not less than 7% and not more than 24% alcohol by volume; and
(h) "WWTG" is the World Wine Trade Group.
Article 2 Object and Purpose
The purpose of this Agreement is to accept common labelling information and to minimize unnecessary labelling -related trade barriers with the objective of facilitating international trade in wine among the Parties.
Article 3 International Obligations
1. Nothing in this Agreement shall limit the rights and obligations of the Parties under the WTO Agreement.
3 2. Nothing in this Agreement is intended to interfere with the provisions of a Party's existing agreements or preclude Parties, either individually or collectively, from concluding agreements regarding labelling of wine with third countries.
Article 4 Consistency with WTO Agreement
Measures relating to labelling shall be transparent, non-discriminatory and adopted and applied in conformity with the WTO Agreement, and not be used to frustrate the object and purpose of this Agreement.
Part II Common Labelling Requirements
Article 5 Requirements relating to the Labelling of Wine
1. Each Party shall provide, in any circumstance in which it regulates wine labelling, that all information on a label shall be clear, specific, accurate, truthful, and not misleading to the consumer.
2. Subject to Articles 10.2 and 10.3, each importing Party shall permit labels to contain information other than Common Mandatory Information and National Mandatory Information consistent with its laws, regulations and requirements, including any prohibitions.
4 3. Each importing Party shall permit information on a label to be repeated on the container, whether or not in the same form, in a manner consistent with its laws, regulations and requirements.
4. Nothing in this Agreement shall in any way prevent a Party from taking measures for the protection of human health and safety, provided such measures are in accordance with the provisions of the WTO Agreement.
5. No Party shall require disclosure on a label of oenological practices.
Article 6 Placement and Presentation of Common Mandatory Information
1. Each importing Party shall permit Common Mandatory Information to be presented in any Single Field of Vision. If Common Mandatory Information is presented in any Single Field of Vision, then the importing Party's requirements with respect to placement of Common Mandatory Information shall have been met, subject to Articles 8 and 11.3.
2. Each importing Party shall accept Common Mandatory Information that appears outside of a Single Field of Vision provided its laws, regulations and requirements have been satisfied.
Article 7 Common Mandatory Information : Less Restrictive Rules
1. Where an importing Party adopts or maintains for its market labelling rules in respect of Common Mandatory Information that are less restrictive than the rules specified in this Agreement, nothing in this Agreement shall allow the
5 Parties to prevent exporters exporting to that market from labelling in accordance with the importing Party's rules.
2. An importing Party that requires fewer than four items of Common Mandatory Information under its laws, regulations and requirements shall nevertheless permit labels listing all Common Mandatory Information.
Article 8 Language and Presentation of Common Mandatory Information
1. An importing Party may require that Common Mandatory Information appear in one or two of the languages in official use in the territory of that Party as provided for in its laws, regulations and requirements.
2. Each importing Party may require that where Common Mandatory Information is presented in more than one language the information presented in those languages is consistent and not contradictory.
3. Each importing Party may require that Common Mandatory Information be written or set out legibly and clearly so as to afford a distinct contrast to the background.
Article 9 Type Size of Common Mandatory Information
1. If an importing Party maintains type size requirements, that Party shall permit Common Mandatory Information relating to country of origin and product name to appear on a label in type size not less than 1.6mm for containers of 187ml or less and not less than 2mm for containers of more than
6 187m1, in which case the importing Party's requirements would be deemed to have been met in this respect.
2. If an importing Party maintains type size requirements, that Party shall permit Common Mandatory Information relating to actual alcohol content to appear on a label in type size of not less than 2mm or greater than 3mm, in which case the importing Party's requirements would be deemed to have been met in this respect.
3. If an importing Party maintains type size requirements, that Party shall permit Common Mandatory Information relating to net contents to appear on a label in a type size of not less than 3.3mm for a 750m1 bottle of wine no taller than 360mm, in which case the importing Party's requirements would be deemed to have been met in this respect.
4. In addition to the information supplied under Article 15, each Party shall provide information summarizing or describing its type size requirements for displaying net contents to the depositary, which shall maintain and publish such information on the WWTG website.
Article 10 National Mandatory Information and Voluntary Information
1. Nothing in this Agreement, with the exception of Article 5.5, shall prevent an importing Party from requiring National Mandatory Information to be specified on the primary container.
2. No importing Party shall restrict the placement of either National Mandatory Information or voluntary information. 3. Notwithstanding Article 10.2: (a) An importing Party may require that two or more items of National Mandatory Information or voluntary information or both appear in the same field of vision as, or in conjunction with, or in a certain proximity to, one another; and
(b) An importing Party may require that National Mandatory Information not be displayed on the base or cap of a container.
Article 11 Common Mandatory Information : Specifications
1. Country of Origin
(a) Each importing Party shall permit country of origin information to. be presented in the form of "Product of', "Wine of' or a similar phrase, or the name of the country of origin, used as either an adjective or a noun in conjunction with the word "wine".
(b) Labelling information regarding multi-country blends that may be required by an importing Party shall be treated as National Mandatory Information.
2. Product Name
(a) Each importing Party shall permit the use of the term "wine" as the product name.
8 (b) Each importing Party may require further information on labels concerning the type, category, class, or classification of the wine as National Mandatory Information.
3. Net Contents
(a) Each importing Party shall permit net contents to be stated using the metric system and displayed as either millilitres or litres, including the abbreviations ml, mL, 1, and L.
(b) In addition to the information required under Article 15, each Party shall provide information summarizing or describing its requirements concerning the display of net contents information to the depositary which shall maintain and publish such information on the WWTG website.
(c) Article 6.1 shall apply where the net contents is 50ml, 100ml, 187ml, 200m1, 250m1, 375m1, 500m1, 750m1, 1 litre, 1.5 litres, 2. litres, 3 litres, or larger in quantities of whole litres, except for those volumes that are not permitted by the importing Party.
4. Actual Alcohol Content
(a) Each importing Party shall permit the actual alcoholic content by volume to be indicated on the label in percentage terms to a maximum of one decimal point (e.g., 12%, 12.0%, 12.1%, 12.2%).
(b) Each Party shall permit the actual alcoholic content to be expressed by alc/vol (e.g., 12% alc/vol or alcl2%vol).
9 Article 12 Icewine
Each Party shall permit wine to be labelled as Icewine, ice wine, ice-wine, or similar variation thereof, only if that wine is made exclusively from grapes naturally frozen on the vine, as provided in Annex 1.
Article 13 Future Negotiations and Other Matters
1. Consistent with Article 2 of this Agreement, the Parties shall continue discussing the following matters with a view to concluding an additional agreement on labelling within three years from the closing of the period for signature of the Agreement as specified in Article 19.1:
(a) labelling requirements concerning information on alcohol tolerance, vintage, variety, and wine regions;
(b) labelling requirements concerning the linking of National Mandatory Information or voluntary information or both; and
(c) any other relevant trade facilitating matters concerning labelling requirements such as type size, presentation of net contents, multiple languages, and icewine.
2. Consistent with the objectives of the Preamble, the Parties shall continue to work on other matters concerning the facilitation of trade in wine, and such other matters as may be agreed among the Parties.
10 Part III Final Clauses
Article 14 Management of the Agreement
1. The Parties hereby establish a Council of Parties in which each Party has equal representation to manage this Agreement. All decisions, recommendations, and findings of the Council shall be by consensus. The Council shall determine its own rules and procedures.
2. The Council may consider any matter relating to the' effective operation of the Agreement. In particular it shall be responsible for:
(a) seeking to resolve questions relating to the application of this Agreement;
(b) providing a forum for discussing issues that may arise concerning this Agreement;
(c) considering ways to enhance the operation of this Agreement;
(d) administering the dispute settlement procedures set out in Article 16 of this Agreement;
(e) adopting amendments to this Agreement in accordance with Article 17;
(f) determining the working languages under this Agreement;
11 (g) deciding upon the application of States to accede to this Agreement pursuant to Article 20; and
(h) establishing procedures for notifying the Parties of Council decisions, recommendations and findings, and for Parties to object to their adoption.
Article 15 Transparency
1. Upon ratification, acceptance, or approval of, or accession to, this Agreement, a State shall:
(a) notify to the depositary its laws, regulations and requirements relevant to the labelling of wine. The depositary shall convey this information to the existing Parties' contact points and incorporate it in the WWTG website; and
(b) notify to the depositary a contact point at an appropriate level in its government, from which other Parties can obtain further information on the laws, regulations and requirements of that Party relevant to the labelling of wine notified by that Party. The depositary shall incorporate the notified contact point's details on the WWTG website.
2. Each Party is encouraged to notify to the depositary proposals to change its laws, regulations and requirements relevant to the labelling of wine. When possible, the notification should be made at the start of the process to change the
12 law, regulation or requirement. The depositary shall publish any such notification on the WWTG website.
3. Each Party shall notify to the depositary any changes to its laws, regulations or requirements relevant to the labelling of wine within 60 days after such changes become final, regardless of the effective date, and the depositary shall promptly publish such changes on the WWTG website. Should such changes relate to labelling requirements regarding net contents, the notification shall include any necessary modifications to the summary or description required under Articles 9.4 and 11.3(b).
Article 16 Consultations and Dispute Settlement
1. Any Party may request in writing consultations with any other Party with respect to the adoption or application of any measure of that other Party that it considers inconsistent with this Agreement. The requesting Party shall deliver its request to the other Party, and shall set out the reasons for the request, including identification of the measure at issue, and an indication of the legal basis for the complaint. The requesting Party shall, at the same time, deliver a copy of the request and the reasons for the request to all other Parties.
2. Any Party may participate in the consultations on delivery of written notice to all other Parties within 21 days of the date of receipt of the request for consultations. The Party shall include in its notice an explanation of its interest in the matter.
3. The Parties to the dispute and any other Party that has given notice pursuant to Article 16.2 shall, within 45 days from the date of receipt of the
13 request for consultations, consult with each other with a view to resolving the matter. The Parties to the dispute shall make every attempt to arrive at a mutually satisfactory resolution of the matter under dispute that is consistent with this Agreement, through consultations under this Article. To this end, the Parties to the dispute shall:
(a) subject to subparagraph (b), provide sufficient information in writing to enable a full examination of whether the measure or its application is inconsistent with the Agreement; and
(b) agree, prior to providing such information, on the treatment of any information designated confidential by the Party providing it.
4. Each Party to the dispute shall strive to make available personnel of its government agencies or other regulatory bodies who have expertise in the matter that is the subject of consultations.
5. If the Parties to the dispute fail to resolve a matter pursuant to Article 16.3 within:
(a) 60 days from the date of receipt of a request for consultations; or
(b) such other period as they may agree, any Party to the dispute may request in writing a meeting of the Council to resolve the dispute. Such a request shall set out the reasons for the request, including identification of the measure at issue or its application, and an indication of the legal basis for the complaint.
14 6. Unless it decides otherwise, the Council shall convene within 30 days from the date of receipt of the request under Article 16.5 and shall endeavour to resolve the dispute promptly. The Council may convene in person, via digital video conference, conference call, or other means as appropriate. To assist in its deliberations, the Council may:
(a) call on such technical advisors or create such working groups or expert groups as it deems necessary; or
(b) have recourse to good offices, conciliation, mediation, or such other dispute resolution procedures as the Parties to the dispute may agree upon.
The Council shall conduct its deliberations and make recommendations within 120 days of the receipt of a request under Article 16.5 in order to assist the Parties to the dispute to reach a mutually satisfactory resolution of the dispute.
7. The Council shall include in its recommendations under Article 16.6 a fording as to whether there has been a breach of an obligation under the Agreement, and if the finding is that there has been a breach, a recommendation that the Party against whom the complaint was submitted rectify the breach.
8. If a Party found in breach under Article 16.7 of an obligation under the Agreement has not rectified the breach within one year of the Council's finding, or within such other period as the Party submitting the complaint and the Party found in breach shall agree, the Party submitting the complaint may, upon 60 days notice to the other Party, suspend its obligations under the Article in relation to which a breach was found with respect to the Party found in breach
15 until such time as the Parties to the dispute agree or the Council finds that the breach has been rectified.
9. The Party found in breach of an obligation by the Council shall inform the Council of its efforts taken to comply with the Council's recommendations at six month intervals after the adoption of the recommendations and until such time as the Council finds the breach has been rectified.
10. The Parties to the dispute may agree in writing for the purposes of a specific dispute under this Article to follow different procedures than those set out in this Article for the purpose of expediting, enhancing, or facilitating resolution of the specific dispute.
11. Where Parties have separately requested consultations under Article 16.1, the Parties to the different disputes may agree to join consultations together as a single matter under dispute.
12. For purposes of this Article, "Parties to the dispute" means the Party requesting consultations and the Party to whom the request is addressed.
13. All requests, notifications, or other communications required by this Article shall be delivered to contact points notified under Article 15.1(b) for the Parties, and to the depositary for the Council.
14. Nothing in this Article shall be interpreted as implying any change in the rights and obligations of a Party under the WTO Agreement , including the dispute settlement provisions of that Agreement.
16 15. Articles 16.5 through 16.9 shall not apply to matters arising under Articles 3, 4, or 5.4 of this Agreement, or to any other matters for which a finding or recommendation requires an examination of the consistency of any measure of a Party or its application with the WTO Agreement.
16. Each Party shall endeavour, in good faith, to ensure that all reasonably available administrative remedies and procedures of a Party have been pursued prior to requesting consultations under Article 16.1.
17. Each Party to a dispute shall bear its own costs and expenses incurred in relation to the dispute.
Article 17 Amendment
1. Any Party may propose an amendment to this Agreement by submitting the text of the proposed amendment to the depositary. The depositary shall within 30 days of receiving the proposed amendment communicate it. to all Parties for their consideration.
2. The Council shall consider any proposed amendment at the first Council meeting held after all of the Parties have received it. The Council may decide to adopt or reject the proposed amendment no earlier than 90 days after its communication to all Parties.
3. Amendments shall be subject to acceptance by the Parties. Instruments of acceptance in respect of an amendment shall be deposited with the depositary. An amendment shall enter into force on the 30th day following the receipt by the depositary of the instruments of acceptance from all Parties, or as otherwise
17 decided by the Council. Each State that accedes to this Agreement after the entry into force of any amendment shall become a Party to the Agreement as amended.
Article 18 Withdrawal
A Party may withdraw from this Agreement by providing written notification to the depositary. The depositary shall promptly communicate the notification to the Parties. Withdrawal shall take effect six months after the date the depositary receives the notification, unless the notification specifies a later date. The withdrawal shall not take effect if the notification is withdrawn prior to the expiry of the six months, or where a later date is specified, the occurrence of that date.
Article 19 Parties and Entry into Force
1. This Agreement shall be open for signature by Parties to the Mutual Acceptance Agreement until 1 December 2007.
2. This Agreement is subject to ratification, acceptance or approval by signatory States. Instruments of ratification, acceptance or approval shall be deposited with the depositary, which shall promptly communicate them to the other signatory States.
3. This Agreement shall enter into force on the first day of the month following the date the depositary receives the second instrument of ratification, acceptance or approval. It shall enter into force for each subsequent signatory
18 State thereafter on the first day of the month following the date of deposit of its instrument of ratification, acceptance or approval.
4. A signatory State will seek to deposit its instrument of ratification, acceptance or approval within 30 months of the date this Agreement enters into force, or such longer period as the Council may decide. If a signatory State has not deposited such instrument by the end of this period , the signatory State shall no later than 90 days before depositing its instrument of ratification, acceptance or approval, provide to the depositary a copy of its laws, regulations and requirements relating to wine labelling practices and the mechanisms to regulate them.
Article 20 New Parties
1. Any State that has not signed this Agreement may by written application to the depositary seek to accede to it . Such application shall include a copy of that State's laws, regulations and requirements relating to labelling practices and the mechanisms to regulate them, and a statement of the applicant ' s approach towards the Mutual Acceptance Agreement.
2. The depositary shall circulate to the Parties within 30 days of receipt of a State's application to accede to the Agreement. The Council, at its first meeting following the receipt of any such application, which shall be held no sooner than 60 and no later than 120 days from the date of circulation to the Parties, shall assess that State ' s laws, regulations and requirements relating to wine labelling, practices and the mechanisms to regulate them, as well as the State's approach to the Mutual Acceptance Agreement. If the Council fmds these
19 acceptable, it shall notify the State of its decision and may invite the State to accede to this Agreement.
3. Following receipt of the invitation, but in no case later than 30 months thereafter, the State concerned shall deposit its instrument of accession with the depositary. This Agreement shall enter into force for that State on the first day of the month following the date of deposit of its instrument of accession.
4. The original of this text, of which the English, French, and Spanish language texts are equally authentic, shall be deposited with the Government of the United States.
IN WITNESS WHEREOF the undersigned, being duly authorised thereto by their respective Governments, have signed this Agreement.
Done at Canberra, on the twenty third day of January in the year two thousand and seven.
20 Annex 1
1. Each Party shall permit wine imported from another Party for domestic consumption and wine produced in its territory for domestic consumption to be labelled as Icewine, ice wine, ice-wine or similar variation thereof, only if that wine is made exclusively from grapes naturally frozen on the vine.
2. Notwithstanding paragraph 1, New Zealand shall implement the obligation in Article 12 by ensuring that wine exported to any Party is labelled as Icewine, ice wine, ice-wine or similar variation thereof, only if that wine is made exclusively from grapes naturally frozen on the vine.
21 Accord u Groupe nil du commerce du vin sur I r6 I d6flquetage' du vin
Les Parties au present accord :
Rappelant I'article 6, paragraphe 2, de I'Accord d'acceptation mutuelle des pratiques cenologiques, conclu a Toronto le 18 decembre 2001 (ci- apres « I'Accord d'acceptation mutuelle »), et en vigueur depuis le 1 er decembre 2002, par lequel les Parties a I'Accord d'acceptation mutuelle sont convenues d'engager des negociations en vue dun accord sur I'etiquetage;
Rappelant la Declaration de principes de l'industrie sur les exigences en matiere d'etiquetage du vin, qui a ete convenue a Sonoma (Californie), le 5 octobre 2000;
Reconnaissant que chacune des Parties a le droit, conformement a ses obligations internationales, de reglementer I'etiquetage du vin, notamment pour prevenir les pratiques trompeuses en la matiere et proteger la sante et la securite humaines;
Admettant que les consommateurs ont tout interet a titre bien renseignes sur les etiquettes des vins;
Reconnaissant que certaines exigences reglementaires sont communes aux lois domestiques des Parties;
Admettant que la diversite des exigences reglementaires en matiere d'etiquetage du vin a contribue a la complexite et aux couts du commerce international du vin; Desireuses de reaffirmer leurs droits et obligations aux termer de ('accord de Marrakech instituant ('Organisation mondiale du commerce, du 15 avril 1994 (ci-apres « ('Accord sur I'OMC ») et d'eviter la creation d'obstacles non necessaires au commerce du vin dans le respect de ces droits et obligations;
Desireuses de faciliter le commerce international du vin par ('adoption d'exigences communes en matiere d'etiquetage;
CONVIENNENT DE CE QUI SUIT:
Partie I Dispositions generales Article I Definitions
Aux fins du present accord, les definitions suivantes s'appliquent :
a) « information obligatoire commune » designe le pays d'origine, le nom du produit, le contenu net et la teneur veritable en alcool selon ce que prevoit ('article 11; b) « consensus >> est atteint si, apres I'avis prevu par les procedures du Conseil, aucune Partie presente a la reunion ne s'oppose formellement a une decision, recommandation ou conclusion proposee et qu'aucune autre Partie ne depose, aupres du president du Conseil, une opposition a la decision, recommandation ou conclusion proposee, dans un delai de 45 jours suivant la date de la reunion; c) « conseil » designe le Conseil des Parties etabli conformement a I'article 14 du present accord;
2 d) < etiquette » designe toute marque, signe, image ou autre representation graphique ecrite, imprimee, poncee, apposee, estampee, gravee ou appliquee fermement sur le contenant primaire d'un vin; e) « information obligatoire rationale » designe ('information, autre que ('information obligatoire commune, qui est requise par une Partie importatrice; f) « champ unique de vision » designe toute partie de la surface dun contenant primaire, a ('exclusion de sa base et de sa capsule, que ['on pent voir sans devoir tourner le contenant primaire. g) << vin » designe une boisson produite par la fermentation alcoolique complete ou partielle de raisin frais, de mout de raisin ou de produits derives de raisin frais exclusivement, conformement aux pratiques oenologiques autorisees par les mecanismes de reglementation de la Partie exportatrice et acceptees par Ia Partie importatrice, et titrant une teneur en alcool d'au moins 7 % et d'au plus 24 % en volume; h) « GMCV » designe le Groupe mondial du commerce du vin.
Article 2 Objectif et but
Le present accord vise a instituer certaines exigences communes en matiere d'etiquetage et a reduire les obstacles non necessaires au commerce relies a I'etiquetage afin de faciliter le commerce international du vin entre les Parties.
3 Article 3 Obligations internationales
1. Aucune disposition du present accord ne limite les droits et les obligations des Parties au titre de ('Accord sur l'OMC.
2. Aucune disposition du present accord ne vise a faire obstacle aux dispositions des accords existants conclus par une Partie ni a empecher les Parties, individuellement ou collectivement, de conclure des accords avec des pays tiers relativement a I'etiquetage du vin.
Article 4 Conformite avec ('Accord sur I'OMC
Les mesures se rapportant a I'etiquetage sont transparentes et non discriminatoires et elles sont etablies et appliquees en conformite avec ('Accord sur l'OMC; elles ne sont pas utilisees pour contrarier les fins du present accord.
Partie II Exigences communes d'etiquetage Article 5 Exigences relatives I'etiquetage du vin
1. Chaque Partie s'assure, en toute circonstance ayant trait a la reglementation de I'etiquetage du vin, que toute ('information qui apparait sur ('etiquette d'un vin est claire, precise, exacte, veridique et digne de foi pour le consommateur. 2. Sous reserve des articles 10.2 et 10.3, chaque Partie importatrice permet que les etiquettes des vins contiennent une information autre que ('information obligatoire commune et ('information obligatoire nationale d'une maniere qui s'accorde avec ses loin, reglementations et exigences, y compris toutes les prohibitions.
3. Chaque Partie importatrice permet que ('information soit reprise sur le contenant, dans la meme forme ou non, mais d'une maniere qui s'accorde avec ses lois, reglementations et exigences.
4. Le present accord n'a pas pour effet d'empecher une Partie de prendre des mesures en vue de proteger la sante et la securite humaines, a condition que de telles mesures soient conformes aux dispositions de I'Accord sur I'OMC.
5. Une Partie ne peut exiger Ia divulgation de pratiques oenologiques sur une etiquette.
Article 6 Emplacement et presentation de l'information obligatoire commune
1. Chacune des Parties importatrices permet que ('information obligatoire commune soit presentee dans un champ unique de vision. Si ('information obligatoire commune est presentee daps un champ unique de vision, alors les exigences de la Partie importatrice se rapportant a ('emplacement de ('information obligatoire commune auront ete respectees, sous reserve des articles 8 et 11.3.
2. Chacune des Parties importatrices accepte ('information obligatoire commune qui n'est pas presentee dans un champ unique de vision, a
5 condition qu'elle soit presentee en conformite avec ses lois, reglements et exigences.
Article 7 Information obligatoire commune : regles moins restrictives
1. Lorsqu'une Partie importatrice adopte ou applique, pour son etiquetage commercial, des regles en matiere d'information obligatoire commune qui sont moins restrictives que les regles precisees dans le present accord, aucune disposition du present accord ne permet alors aux Parties d'empecher les exportateurs qui exportent vers ce marche d'etiqueter leurs produits en conformite avec les regles de la Partie importatrice.
2. La Partie importatrice dont les lois, reglementations et exigences demandent moins de quatre elements de ('information obligatoire commune autorise neanmoins les etiquettes enumerant I'integralite de l'information obligatoire commune.
Article 8 Langue et presentation de ('information obligatoire commune
1. La Partie importatrice peut exiger que ('information obligatoire commune soit presentee dans Tune ou deux des langues officielles de son territoire, en conformite avec ses lois, ses reglements et ses exigences.
2. Chacune des Parties importatrices peut exiger que ('information obligatoire commune soit coherente et non contradictoire si elle est presentee dans plus d'une langue.
6 3. Chacune des Parties importatrices peut exiger que ['information obligatoire commune soit ecrite ou presentee lisiblement et clairement de maniere a produire un effet de contraste par rapport a I'arriere-plan.
Article 9 Information obligatoire commune - Corps des caracteres
1. Si une Partie importatrice applique des exigences relatives au corps des caracteres, elle permet que ('information obligatoire commune concernant le pays d'origine et le nom du produit apparaisse sur une etiquette dont le corps des caracteres nest pas inferieur a 1,6 mm pour les contenants de 187 ml ou moins, et n'est pas inferieur a 2 mm pour les contenants de plus de 187 ml, auquel cas cette indication est reputee remplir les exigences de la Partie importatrice en ce qui concerne le corps des caracteres pour cette information.
2. Si une Partie importatrice applique des exigences relatives au corps des caracteres, elle permet que ('information obligatoire commune relative a la teneur effective en alcool soit indiquee sur une etiquette ou le corps des caracteres n'est pas inferieur a 2 mm, ni superieur a 3 mm. L'indication est alors reputee remplir les exigences de la Partie importatrice en ce qui concerne le corps des caracteres pour cette information.
3. Si une Partie importatrice applique des exigences relatives au corps des caracteres, elle permet que ('information obligatoire commune relative au contenu net soit indiquee sur une etiquette ou le corps des caracteres n'est pas inferieur a 3,3 mm, dans le cas d'une bouteille de 750 ml dont la hauteur n'excede pas 360 mm. L'indication est alors
7 reputee remplir les exigences de la Partie importatrice en ce qui concerne le corps des caracteres pour cette information.
4. Outre les renseignements fournis en application de ('article 15, chacune des Parties fournit au depositaire (' information qui resume ou decrit ses exigences relatives au corps de caracteres concernant I'affichage du contenu net. L'information est alors conservee et publiee par le depositaire sur le site Web du GMCV.
Article 10 Information obligatoire nationale et information facultative
1. Aucune disposition du present accord, a ('exception de ('article 5.5, n'a pour effet d'empecher une Partie importatrice d'exiger que ('information obligatoire nationale apparaisse sur le contenant primaire.
2. Aucune Partie importatrice ne peut emettre de restriction quant a ('emplacement de ('information obligatoire nationale ou de ['information facultative.
3. Nonobstant ('article 10.2 :
a) Une Partie importatrice peut exiger qu'au moms deux elements de ('information obligatoire nationale ou de ('information facultative, ou des deux, apparaissent dans le meme champ de vision qu'un autre, ou qu'ils apparaissent cote a cote ou dans le voisinage l'un de l'autre; et
b) Une Partie importatrice peut exiger que ('information obligatoire nationale n'apparaisse pas sur la base ou la capsule d'un contenant.
8 Article 11 Information obligatoire commune : specifications
1. Pays d'origine
a) Chacune des Parties importatrices permet que ('information sur le pays d'origine soit presentee par les mots « Produit de , « Vin de » ou une expression semblable, ou par le nom du pays d'origine, utilise soit comme adjectif, soit comme nom a cote du mot « vin ». b) L'information qui concerne des melanges provenant de plusieurs pays et qui peut titre exigee par une Partie importatrice est une information obligatoire nationale.
2. Nom du produit
a) Chacune des Parties importatrices permet d'utiliser le mot vin » comme nom du produit b) Chacune des Parties importatrices peut exiger sur les etiquettes une information complementaire concernant le genre, la categorie, la classe ou la classification du vin, a titre d'information obligatoire nationale.
Contenu net a) Chacune des Parties importatrices permet que le contenu net soit indique a ['aide du systeme metrique et qu'il apparaisse soit en millilitres soit en litres, au moyen des abreviations ml, mL, I, et L.
9 b) Outre les renseignements exiges a ('article 15, chacune des Parties fournit au depositaire ('information qui resume ou decrit ses exigences relatives a ('indication du contenu net. Cette information est conservee et publiee par le depositaire sur le site Web du GMCV. c) L'article 6.1 s'applique lorsque le contenu net correspond a 50 ml, 100 ml, 187 ml, 200 ml, 250 ml, 375 ml, 500 ml, 750 ml, I litre, 1,5 litres, 2 litres, 3 litres, ou a des quantites plus importantes en nombres entiers de litres, a ('exception des volumes qui ne sont pas permis par la Partie importatrice.
4. Teneur effective en alcool
a) Chacune des Parties importatrices permet que la teneur effective en alcool en volume soit indiquee sur ('etiquette en des pourcentages ne comportant pas plus dune d6cimale (ex. : 12 %, 12,0 %, 12,1 %, 12,2 %).
b) Chacune des Parties importatrices permet que la teneur effective en alcool soit exprimee selon la formule alc/vol (ex. : 12 % alc/vol ou alcl2 %vol).
Article 12 Vin de glace
Chacune des Parties ne permet que le vin soit etiquete vin de glace, ou qu'il porte une designation semblable, que s'iI est produit a partir de raisins ayant gele naturellement sur la vigne, conformement a ('annexe I.
10 Article 13
Negociations futures et autres points
1. Conformement a ('article 2 du present accord, et dans le dessein de conclure un accord additionnel sur I'etiquetage dans un delai de trois ans a compter de la date de cloture de la periode de signature du present accord, tel qu'il a ete mentionne a ('article 19.1, les Parties continuent d'examiner ensemble les points suivants :
a) les exigences d'etiquetage concernant ('information sur les marges de tolerance applicables a I'alcool, le millesime, la variete et la region viticole;
b) les exigences concernant ['assemblage de ('information obligatoire nationale ou de ('information facultative ou des deux;
c) les autres aspects de la facilitation du commerce qui concernent les exigences d'etiquetage, telles que le corps des caracteres, ['indication du contenu net, les langues diverses et la designation de vin de glace.
2. Conformement aux objectifs exposes daps le preambule, les Parties poursuivent les travaux sur d'autres aspects se rapportant a la facilitation du commerce du vin, et sur tout autre aspect dont les Parties conviendront.
11 Partie III D ispositions finales Article 14 Gestion de ('accord
1. Par les presentes, les Parties etablissent un Conseil des Parties au sein duquel chacune des Parties est egalement representee pour gerer le present accord. Toutes les decisions, recommandations et conclusions du Conseil sont ('objet d'un consensus. Le Conseil etablit ses propres regles et procedures. 2. Le Conseil peut examiner toute question reliee au fonctionnement efficace de I'accord. En particulier, it lui incombe : a) de chercher a resoudre toute question relative a I'application du present accord; b) de fournir une enceinte pour Ia discussion des questions qui peuvent se poser au sujet du present accord; c) d'etudier des moyens d'ameliorer le fonctionnement du present accord; d) d'administrer les procedures de reglement des differends enoncees a ('article 16 du present accord; e) d'adopter les modifications a apporter au present accord, conformement a I'article 17; f) de determiner les langues de travail aux fins du present accord; g) de se prononcer sur les demandes d'accession des Etats au present accord, conformement a ('article 20; h) d'etablir la marche a suivre pour informer les Parties des decisions, recommendations et conclusions du Conseil et les
12 regles que les Parties doivent observer pour s'opposer a leur adoption.
Article 15 Transparence
1. Des qu'il ratifie, accepte ou approuve le present accord ou qu'il y accede, un Etat :
a) informe le depositaire de ses lois, reglements et exigences relatives a I'etiquetage du vin. Le depositaire transmet ces donnees aux points de contact des Parties existantes et les verse dans le site Web du GMCV;
b) indique au depositaire un point de contact a un niveau approprie de son gouvernement aupres duquel les autres Parties peuvent obtenir des renseignements complementaires sur ses lois, reglements et exigence relatives a I'etiquetage du vin qu 'il a transmis a titre de Partie . Le depositaire verse dans le site Web du GMCV les donnees signalees de ce point de contact.
2. Chaque Partie est priee d'aviser le depositaire des modifications proposees a ses loin, reglements et exigences relatives a I'etiquetage du vin. L'avis devrait titre donne, si possible, des que s'amorce le processus de modification de la loi, du reglement ou de ('exigence. Le depositaire publie I'avis sur le site Web du GMCV.
3. Chaque Partie avise le depositaire de toute modification apportee a ses lois, reglements ou exigences relatives a I'etiquetage du vin, dans
13 un delai de 60 jours suivant sa ratification , sans egard a la date d 'entree en vigueur. Le depositaire publie ces modifications sur le site Web du GMCV dans les plus brefs delais . Si les modifications concernent les exigences relatives a I'etiquetage du vin en matiere de contenu net, I'avis inclut toutes les modifications qu'iI faut apporter au sommaire ou a la description , conformement aux articles 9.4 et 11.3 b).
Article 16 Consultations et reglements des differends
1. Toute Partie peut demander par ecrit a consulter une autre Partie au sujet de I'adoption ou de ('application de toute mesure de cette autre Partie qu'elle juge non conforme au present accord . La Partie requerante transmet sa demande a I'autre Partie ; elle precise les motifs de sa demande , notamment en identifiant la mesure en cause et en indiquant le fondement juridique de sa plainte . La Partie requerante transmet, en meme temps , une copie de sa demande et ses motifs a toutes les autres Parties.
2. Toute Partie peut participer aux consultations apres avoir transmis un avis ecrit a cet effet a toutes les autres Parties dans un delai de 21 jours suivant la date de reception de la demande de consultation. La Partie indique les motifs de son interet pour cette question sur son avis.
3. Les Parties au differend et toute autre Partie qui a donne avis conformement a ('article 16.2 doivent, dans un delai de 45 jours a compter de la date de reception de la demande de consultation, se consulter les unes les autres en vue de regler la question. Les Parties au differend deploient tous les efforts necessaires pour parvenir a un
14 reglement de la question en litige qui leur soit mutuellement satisfaisant, c'est-a-dire en conformite avec ('accord, en procedant a des consultations en vertu du present article. A cette fin, les Parties au differend : a) remettent, sous reserve du sous-alinea b), suffisamment de renseignements ecrits pour permettre d'examiner a fond si la mesure ou son application est contradictoire a ('accord; b) s'entendent, avant de fournir de tels renseignements, sur le traitement de toute information designee confidentielle par la Partie qui la transmet.
4. Chaque Partie au differend s'efforce d'assurer la disponibilite du personnel de ses organismes gouvernementaux ou d'autres organismes de reglementation qui possede ('expertise relativement a la question qui fait ('objet des consultations.
5. Si les Parties au differend ne reussissent pas a regler la question conformement a ('article 16.3 : a) dans un delai de 60 jours a compter de la date de reception d'une demande de consultation; ou b) dans un delai autre auquel elles consentent, toute Partie au differend peut demander par ecrit que le Conseil se reunisse pour regler le litige. Une telle demande doit mentionner les motifs de celle-ci, notamment en identifiant la mesure en cause ou son application et en indiquant le fondement juridique de sa plainte.
6. Sauf s'iI en decide autrement, le Conseil se reunit dans un delai de 30 jours a compter de la date de reception de la demande, conformement a ('article 16.5, et it s'efforce de regler le litige
15 promptement. Le Conseil peut se reunir en personne, par le biais d'une videoconf(§rence numerique, d'une conference telephonique ou d'autres moyens, au besoin. Pour faciliter ses deliberations, le Conseil peut : a) faire appel a des conseillers techniques ou creer des groupes de travail ou des groupes d'experts lorsqu'il le juge necessaire; ou b) recourir aux bons offices, a Ia conciliation, a Ia mediation ou a d'autres procedures de reglement de differend, selon ce que conviennent les Parties au differend. Le Conseil mene ses deliberations et fait ses recommandations dans un delai de 120 jours suivant Ia reception d'une demande conformement a ('article 16.5, afin d'aider les Parties au differend a parvenir a un reglement qui leur soit mutuellement satisfaisant.
7. Le Conseil inclut dans ses recommandations faites au titre de ['article 16.6 une conclusion sur Ia question de savoir s'il y a eu manquement a une obligation aux termes de ['accord; s'iI conclut qu'il y a eu manquement, it recommande que Ia. Partie defaillante corrige ce manquement.
8. Si Ia Partie jugee responsable d'un manquement a une obligation aux termes de I'accord selon ('article 16.7 n'a pas corrige son manquement Bans un delai d'un an suivant Ia conclusion du Conseil, ou dans un delai autre convenu entre Ia Partie plaignante et Ia Partie defaillante, Ia Partie plaignante peut, apres avoir donne un avis de 60 jours a I'autre Partie, suspendre ses obligations aux termes de ('article a I'egard duquel it y a eu manquement par rapport a Ia Partie defaillante jusqu'au moment ou les Parties au differend se mettent d'accord ou jusqu'a ce que le Conseil constate que le manquement a ete corrige.
16 9. La Partie jugee responsable d'un manquement informe le Conseil des efforts qu'elle deploie pour respecter ses recommandations a des intervalles de six mois apres ('adoption de ces recommandations, jusqu'a ce que le Conseil constate que le manquement a ete corrige.
10. Les Parties au differend peuvent, en vue de regler un differend relatif au present article, consentir par ecrit a suivre d'autres procedures que celles qui y sont prevues, afin d'accelerer, de faire progresser ou de faciliter le reglement de ce differend.
11. Lorsque des Parties ont formule des demandes distinctes de consultation en vertu de ('article 16.1, elles peuvent convenir de les regrouper en une seule question en litige.
12. Aux fins du present article, on entend par « Parties au differend la Partie qui demande une consultation et la Partie a qui la demande est adressee.
13. Toutes les demandes, tous les avis ou autres communications prevus au present article sont transmis aux points de contact indiques conformement a I'article 15.1 b) dans le cas des Parties, et au depositaire dans le cas du Conseil.
14. Aucune disposition du present article ne doit etre interpretee comme suggerant une modification quelconque des droits et obligations d'une Partie au titre de ('Accord sur I'OMC, y compris les dispositions de cet accord sur le reglement des differends.
17 15. Les articles 16.5 a 16 . 9 ne s'appliquent pas aux questions relevant des articles 3, 4, ou 5.4 du present accord ni a toute autre question a I'egard de laquelle une conclusion ou une recommandation exige un examen de conformite avec ('Accord sur I'OMC de toute mesure prise par une Partie ou son application.
16. Chaque Partie s 'emploie, de bonne foi, a veiller a ce que toutes les procedures et tous les recours administratifs raisonnables dont elle dispose aient ete exploites, avant de demander une consultation au titre de ('article 16.1.
17. Chaque Partie au differend assume les frais et debours qu'elle a engages relativement au differend.
Article 17 Modification
1. Toute Partie peut proposer une modification au present accord en presentant le libelle de la modification qu'il propose au depositaire. Dans un delai de 30 jours suivant la reception de la modification proposee, le depositaire la transmet a toutes les Parties pour etude.
2. Le Conseil examine toute modification proposee a la premiere reunion tenue suivant la reception de cette derniere par toutes les Parties . Le Conseil peut decider d'adopter ou de rejeter la modification proposee dans un delai d 'au moins 90 jours apres sa transmission a toutes les Parties.
18 3. Les modifications sont assujetties a I'acceptation des Parties. Les instruments d'acceptation relatifs aux modifications sont deposes aupres du depositaire. La modification entre en vigueur le 30e jour suivant la reception par le depositaire des instruments d'acceptation de toutes les Parties ou dans le delai que fixe le Conseil. Chaque Etat qui accede au present accord apres ('entree en vigueur d'une modification devient Partie a ('accord modifie.
Article 18 Retrait
Une Partie peut se retirer du present accord en presentant un avis ecrit a cet effet au depositaire. Le depositaire communique rapidement cet avis aux Parties. Le retrait prend effet six moil apres la date de reception de I'avis par le depositaire, a moins que ('avis ne precise une date posterieure. Le retrait ne prend pas effet si ('avis est retire avant ('expiration du delai de six mois ou, si une date posterieure a ete precisee sur I'avis, a cette date.
Article 19 Parties et entree en vigueur
1. Le present accord est ouvert a la signature de ('Accord d'acceptation mutuelle par les Parties jusqu 'au 1 er decembre 2007.
2. Le present accord est assujetti a la ratification, a I'acceptation ou a ('approbation des Etats signataires. Les instruments de ratification, d'acceptation ou d'approbation sont deposes aupres du depositaire, qui les communique rapidement aux autres Etats signataires.
19 3. Le present accord entre en vigueur le premier du mois suivant la date de reception par le depositaire du deuxieme instrument de ratification, d'acceptation ou d'approbation. II entre ensuite en vigueur, pour chaque nouvel Etat signataire, le premier du mois suivant la date de depot de son instrument de ratification, d'acceptation ou d'approbation.
4. L'Etat signataire s'efforcera de deposer son instrument de ratification, d'acceptation ou d'approbation dans un delai de 30 mois a compter de la date d'entree en vigueur du present accord ou au terme de toute prorogation de ce delai approuvee par le Conseil. Si I'Etat signataire n'a pas depose un tel instrument a la fin de cette periode, iI remet au depositaire, au plus tard 90 jours avant de deposer son instrument de ratification, d'acceptation ou d'approbation, une copie de ses lois, reglements et exigences relatives a ses pratiques d'etiquetage du vin et aux mecanismes qui les reglementent.
Article 20 Nouvelles Parties
1. Tout Etat qui n'a pas signe le present accord peut adresser une demande ecrite d'accession au depositaire. Cette demande comprend une copie des lois, reglements et exigences de cet Etat relatives a I'etiquetage et aux mecanismes qui les reglementent, ainsi qu'une declaration concernant la demarche du demandeur pour acceder a I'Accord d'acception mutuelle.
20 2. Le depositaire diffuse aux Parties la demande d'accession a I'accord formulee par I'Etat dans un delai de 30 jours suivant sa reception. Lors de sa premiere reunion qui suit Ia reception de cette demande et qui ne doit pas avoir lieu avant 60 jours ou apres 120 jours suivant la date de diffusion aux Parties, le Conseil evalue les lois, reglements et exigences relatives a I'etiquetage du vin de I'Etat, ses pratiques et mecanismes de reglementation, ainsi que la demarche qu'il a entreprise en vue d'acceder a ('Accord d'acceptation mutuelle. Si le Conseil les juge acceptables, it informe I'Etat de sa decision et ('invite a acceder au present accord.
3. Sur reception de ('invitation, mais en aucun cas plus tard que 30 mois par la suite, I'Etat interesse depose son instrument d'accession aupres du depositaire. Pour I'Etat, le present accord entre en vigueur le premier du mois suivant la date de depot de son instrument d'accession.
4. L'original du present accord, dont les textes anglais, frangais et espagnol font egalement foi, est depose aupres du gouvernement des Etats-Unis.
EN FOI DE QUOI les soussignes, dument autorises par leurs gouvernements respectifs, ont signe le present accord.
Fait a Canberra, le vingt troisieme jour de janvier de I'annee deux mille et sept.
21 Annexe l
1. Chaque Partie permet que le vin importe dune autre Partie pour consommation interieure et le vin produit sur son territoire, egalement pour consommation interieure, soient etiquetes vin de glace ou portent une autre designation semblable, seulement s'ils sont produits a partir de raisins ayant gele naturellement sur la vigne.
2. Nonobstant le paragraphe 1, la Nouvelle Zelande met en oeuvre ('obligation enoncee a ('article 12 en s'assurant que le vin qu'elle exporte a une Partie est etiquete vin de glace ou porte une autre designation semblable, seulement s'il est produit a partir de raisins ayant gele naturellement sur la vigne.
22 Grupo Mundial del Com ercio del Vino Acuerdo sobre Requisitos para el Etiquetado de Vinos
Las Partes del presente Acuerdo:
Considerando el parrafo 2 del articulo 6, del Acuerdo sobre la Aceptacion Mutua de Practicas Enologicas, suscrito en Toronto el 18 de diciembre de 2001 (en adelante, el Acuerdo de Aceptacion Mutua) y vigente desde el 1 de diciembre de 2002 , por el cual las Partes del mismo convinieron en celebrar negociaciones para llegar a un auerdo sobre el etiquetado;
Considerando la Declaracion de principios por parte de la Industria sobre los requisitos para las etiquetas de vino , acordada en Sonoma, California, el 5 de octubre de 2000;
Reconociendo que cada Parte tiene el derecho , de conformidad con sus obligaciones internacionales, de regular el etiquetado del vino, inter alia, para prevenir practicas enganosas de etiquetado y proteger la salud y la seguridad humanas;
Teniendo en cuenta que el consumidor tiene interes en obtener informacion adecuada en las etiquetas de vino;
Reconociendo que ciertos requisitos reglamentarios son comunes a los ordenamientos juridicos internos de las Partes; Teniendo en cuenta que las diferencias en los requisitos reglamentarios del etiquetado del vino han contribuido a la complejidad y al costo del comercio intemacional del vino;
Deseando reafirmar sus derechos y obligaciones conforme al Acuerdo de Marrakech por el cual se establecio la Organizacion Mundial del Comercio el 15 de abril de 1994 (en adelante, el Acuerdo de la OMC) y evitar obstaculos innecesarios al comercio del vino conforme a dichos derechos y obligaciones; y
Deseando facilitar el comercio internacional del vino mediante la adopcion de requisitos comunes de etiquetado,
CONVIENEN EN LO SIGUIENTE:
Parte I Disposiciones generates
Articulo 1 Definiciones Para los efectos del presente Acuerdo se aplicaran las siguientes defmiciones:
(a) "Informacion comun obligatoria" significa el pals de origen, nombre del producto, contenido neto y contenido real de alcohol segun lo especificado en el articulo 11;
(b) El "consenso" se logra si, tras el aviso que especifiquen los procedimientos del Consejo, ninguna de las Partes presentes
2 en la reunion objeta formalmente a una decision, recomendacion o conclusion propuesta y si ninguna otra Parte presenta una objecion ante el Presidente del Consejo con respecto a dicha decision, recomendacion o conclusion en el plazo de 45 dial a partir de la fecha de la reunion;
(c) "Consejo" significa el Corisejo de las Partes establecido conforme al articulo 14 del presente Acuerdo;
(d) "Etiqueta" significa toda marca, material ilustrativo o descriptivo escrito, impreso, estampado, marcado, grabado en relieve o sellado, o firmemente asegurado al envase principal del vino;
(e) "Informacion nacional obligatoria" significa informacion que requiera una Parte importadora aparte de la informacion comun obligatoria;
(f) "Campo visual unico" es cualquier parte de la superficie del envase principal, excluidas la base y la tapa, visible sin hacer girar el envase;
(g) "Vino" es una bebida producida mediante la fermentacion alcoholica completa o parcial exclusivamente de uvas frescas, mosto de uva o productos derivados de la uva fresca, de conformidad con las practicas enologicas autorizadas en los mecanismos reglamentarios de la Parte exportadora y aceptados por la Parte importadora, y con un contenido
3 minimo de alcohol por volumen del 7% y un maximo del 24%; y
(h) "GMCV" es el Grupo Mundial del Comercio del Vino.
Articulo 2 Objetivo y fin
El presente Acuerdo tiene el fin de aceptar la informacion comun de etiquetado y reducir al minimo los obstaculos innecesarios entre las Partes al comercio internacional del vino que se relacionen con las etiquetas, con el objeto de facilitar dicho comercio.
Articulo 3 Obligaciones internacionales
1. Las disposiciones del presente Acuerdo no limitaran los derechos y las obligaciones de las Partes segun el Acuerdo de la OMC.
2. Las disposiciones del presente Acuerdo no se interpondran con los acuerdos vigentes de una Parte ni impediran que ninguna Parte ni grupo de Partes concierte acuerdos con terceros paises sobre el etiquetado de los vinos.
Articulo 4 Compatibilidad con el Acuerdo de la OMC
Las medidas relativas al etiquetado seran transparentes, no discriminatorias, y se adoptaran y aplicaran de conformidad con el
4 Acuerdo de la OMC. No se emplearan para frustrar el objetivo y fin del presente Acuerdo.
Parte II Reguisitos comunes del etiquetado
Articulo 5 Requisitos relativos al etiquetado de los vireos
1. Las Partes exigiran, en cualquier circunstancia en que regulen el etiquetado de los vinos, que toda la informacion que figure en una etiqueta sea clara, especifica, precisa, veridica y no engaflosa para el consumidor.
2. Con arreglo a los parrafos 2 y 3 del articulo 10, cada Parte importadora permitira que en las etiquetas figure otra informacion, que no sea la comun obligatoria ni la nacional obligatoria, mientras sea compatible con sus leyes, reglamentos y requisitos, incluida cualquier prohibicion.
3. Cada Parte importadora permitira que la informacion que figure en una etiqueta se repita en el envase, en la misma forma o no, siempre y cuando respete sus leyes, reglamentos y requisitos.
4. Las disposiciones del presente Acuerdo no impediran de ninguna manera que una Parte tome medidas para proteger la salud y la seguridad humanas, siempre que dichas medidas esten de conformidad con lo estipulado en el Acuerdo de la OMC.
5 5. Ninguna Parte exigira que las etiquetas divulguen practicas enologicas.
Articulo 6 Colocacion y presentacion de la informacion comun obligatoria
1. Las Partes importadoras permitiran que la informacion comun obligatoria se presente en cualquier campo visual unico. Si la informacion comun obligatoria se presenta en cualquier campo visual unico, se consideraran cumplidos los requisitos de la Parte importadora con respecto a la colocacion de la informacion comun obligatoria, siempre y cuando se atenga a las disposiciones del articulo 8 y del parrafo 3 del articulo 11.
2. Las Partes importadoras aceptaran la informacion comun obligatoria que aparezca fuera de un campo visual unico , siempre que se satisfagan sus leyes, reglamentos y requisitos.
Articulo 7 Informacion comun obligatoria: Normas menos restrictivas
L En los casos en que una Parte importadora adopte o mantenga para su mercado normas de etiquetado sobre informacion comun obligatoria menos restrictivas que las que se especifican en el presente Acuerdo, las disposiciones del presente Acuerdo no permitiran que las Partes impidan que los exportadores que vendan en ese mercado etiqueten sus productos conforme a las normas de la Parte importadora.
6 2. La Parte importadora que exija menos de cuatro elementos de informacion comun obligatoria segun sus leyes, reglamentos y requisitos, permitira sin embargo las etiquetas en las que figure la totalidad de la informacion comun obligatoria.
Articulo 8 Idioma y presentacion de la informacion comun obligatoria
1. Cualquier Parte importadora podra exigir que la informacion comun obligatoria aparezca en uno o dos idiomas que sean oficiales en el territorio de dicha Parte conforme a sus leyes, reglamentos y requisitos.
2. Cualquier Parte importadora podra exigir que en los casos en que la informacion comun obligatoria se presente en mas de un idioma, la informacion que se exprese en esos idiomas concuerde y no sea contradictoria.
3. Las Partes importadoras podran exigir que la informacion comun obligatoria aparezca escrita o presentada en forma legible y clara, de modo que contraste nitidamente con el fondo.
Articulo 9 Tamano de la letra de la informaci 6n comun obligatoria
1. Si una Parte importadora regula el tamano de la letra de la etiqueta, dicha Parte permitira que la informacion comun obligatoria sobre el pals de origen y el nombre del producto aparezca en la etiqueta en un tamano de 1,6 mm como minimo para los envases de 187 ml o menos, y de 2 mm como minimo para los envases de mas de 187 ml, en cuyo caso los
7 requisitos de la Parte importadora se consideraran satisfechos a este respecto.
2. Si una Parte importadora regula el tamano de la letra de la etiqueta, dicha Parte permitira que la informacion comun obligatoria sobre el contenido real de alcohol aparezca en la etiqueta en un tamano de 2 mm como minimo o de 3 mm como maximo, en cuyo caso los requisitos de la Parte importadora se consideraran satisfechos a este respecto.
3. Si una Parte importadora regula el tamano de la letra de la etiqueta, dicha Parte permitira que la informacion comun obligatoria sobre el contenido neto aparezca en un tamano de no menos de 3,3 mm para botellas de 750 ml y de no mas de 360 mm de altura, en cuyo caso los requisitos de la Parte importadora se consideraran satisfechos a este respecto.
4. Aparte de la informacion proporcionada conforme al articulo 15, las Partes presentaran al depositario informacion que resuma o describa sus requisitos con respecto al tamano de la letra de la etiqueta para indicar el contenido neto. El depositario mantendra y publicara dicha informacion en el sitio electronico del GMCV.
Articulo 10 Informacion nacional obligatoria e informacion voluntaria
1. Las disposiciones del presente Acuerdo, con la excepcion del parrafo 5 del articulo 5, no impediran que una Parte importadora requiera que en el envase principal se incluya la informacion nacional obligatoria.
8 2. Ninguna Parte importadora limitary la colocacion de la information obligatoria nacional o informacion voluntaria.
3. Sin perjuicio de lo expresado en el pyrrafo 2 del articulo 10:
a) Una Parte importadora puede exigir que dos o mys elementos de la informacion nacional obligatoria o de la voluntaria o de ambas aparezcan en el mismo campo visual, o conjuntamente o una cierta proximidad el uno del otro; y
b) Una Parte importadora puede exigir que la informacion nacional obligatoria no aparezca en la base ni en la tapa del envase.
Articulo 11 Informacion comun obligatoria : Especificaciones
1. Pais de origen
a) Las Partes importadoras permitiryn que la informacion sobre el pals de origen se presente como "Producto de", "Vino de" o alguna expresaon similar, o bien como el nombre del pals de origen empleado como adjetivo o sustantivo junto con la palabra "vino".
b) La informacion de la etiqueta relativa a mezclas de vinos de varios paises que pueda exigir una Parte importadora se tratary con carycter de informacion nacional obligatoria.
2. Nombre del producto
9 a) Cada Parte importadora permitira el use de la palabra "vino" como nombre del producto.
b) Cada Parte importadora podra exigir informacion adicional en las etiquetas acerca del tipo, la categoria, la clase o la clasificacion del vino, como informacion nacional obligatoria.
2. Contenido neto
a) Cada Parte importadora permitira que el contenido neto se exprese utilizando el sistema metrico y presentado en mililitros o litros, incluyendo las abreviaturas ml, mL, 1, y L.
b) Ademas de la informacion exigida conforme al articulo 15, las Partes proporcionaran al depositario informacion que resuma o describa sus requisitos respecto de la presentacion de la informacion sobre el contenido neto. El depositario mantendra y publicara dicha informacion en el sitio electronico del GMCV.
c) El parrafo 1 del articulo 6 se aplicara cuando el contenido neto del envase sea de 50 ml, 100 ml, 187 ml, 200 ml, 250 ml, 375 ml, 500 ml, 750 ml, 1 litro, 1,5 litros, 2 litros, 3 litros, o mas en cantidades de litros enteros, con la excepcion de los volumenes no permitidos por la Parte importadora.
4. Contenido Real de Alcohol
10 a) Las Partes importadoras permitiran que el contenido real de alcohol por volumen se indique en la etiqueta en terminos de porcentaje con precision maxima de una decima (por ej., 12%, 12,0%, 12,1%, 12,2%).
b) Las Partes permitiran que el contenido real de alcohol se exprese en terminos de alcohol por volumen (por ej., 12% alc/vol o alcl2%vol).
Articulo 12 Icewine
Las Partes permitiran etiquetar al vino como Icewine, ice wine, ice-wine, o alguna variacion similar, tinicamente si el vino ha sido elaborado exclusivamente a partir de uvas congeladas naturalmente en la vid, como se contempla en el Anexo 1.
Articulo 13 Negociaciones futuras y otros asuntos
1. En concordancia con el articulo 2 del presente Acuerdo y con miras a llegar a un acuerdo supletorio sobre el etiquetado en el lapso de tres anos contados desde el cierre del periodo de firma del presente Acuerdo, segun se especifica en el parrafo 1 del articulo 19, las Partes continuaran conversaciones sobre los siguientes asuntos:
a) Los requisitos de etiquetado sobre informacion relativa a la tolerancia del alcohol, anos de cosecha, variedad y regiones vinicolas;
11 b) Los requisitos de etiquetado sobre la vinculacion de la informacion nacional obligatoria o la informacion voluntaria o ambas; y
c) Cualquier otro asunto de facilitacion de comercio relevante sobre los requisitos de etiquetado, como el tamafio de la letra, la presentacion del contenido neto, los idiomas multiples, y el icewine.
2. En concordancia con los objetivos del Preambulo, las Partes continuaran trabajando en otros asuntos relativos a la facilitacion del comercio de vinos, u otras materias en que convengan las Partes.
Parte III Clausulas finales
Articulo 14 Admnnistracion del Acuerdo
1. Por el presente las Partes establecen un Consejo de las Partes para la administracion del presente Acuerdo, en el cual todas las Partes tendran representacion igualitaria. Todas las decisiones, recomendaciones y conclusiones del Consejo se tomaran por consenso. El Consejo adoptara sus propias reglas y procedimientos.
2. El Consejo puede considerar cualquier asunto relativo a la administracion eficaz del presente Acuerdo. En particular, estara a cargo de:
12 a) Procurar resolver asuntos relativos a la aplicacion del presente Acuerdo;
b) Proporcionar un foro para tratar las cuestiones que surjan relativas al presente Acuerdo;
c) Considerar las maneras de mejorar el funcionamiento del presente Acuerdo;
d) Administrar los procedimientos de solucion de diferencias dispuestos en el articulo 16 del presente Acuerdo;
e) Adoptar enmiendas al presente Acuerdo de conformidad con el articulo 17;
f) Decidir cuales seran los idiomas de trabajo bajo el presente Acuerdo;
g) Resolver acerca de las solicitudes de adhesion al presente Acuerdo presentadas por otros Estados en concordancia con el articulo 20; y h) Establecer procedimientos para notificar a las Partes las decisiones, recomendaciones y conclusiones del Consejo, y para que las Partes puedan oponerse a su adopcion.
13 Articulo 15 Transparencia
1. Cada Estado, una vez que haya ratificado, aceptado o aprobado el presente Acuerdo o se haya adherido a el:
a) Notificara al depositario sus leyes, reglamentos y requisitos pertinentes al etiquetado del vino . El depositario transmitira esta informacion a los enlaces nombrados por las Partes y la incorporara al sitio electronico del GMCV, y
(b)Notificara al depositario la identidad de su punto de contacto, que estara a un nivel adecuado de su gobierno y de quien las otras Partes obtendran informacion supletoria sobre las leyes, los reglamentos y los requisitos de dicha Parte pertinentes a su etiquetado de vinos. El depositario incorporara los datos notificados sobre el enlace al sitio electronico del GMCV.
2. Se alienta a todas las Partes a notificar al depositario las propuestas para modificar sus leyes, reglamentos y requisitos pertinentes al etiquetado del vino . Siempre que sea posible, la notificacion debera realizarse al comienzo del tramite de modificacion de la ley, el reglamento o el requisito . El depositario publicara dicha notificacion en el sitio electronico del GMCV.
3. Las Partes notificaran al depositario toda modificacion de sus leyes, reglamentos o requisitos relativos al etiquetado del vino en el plazo de 60 dias a partir de su aprobacion defmitiva, independientemente de su
14 fecha de entrada en vigor, y el depositario publicara sin demora dichas modificaciones en el sitio electronico del GMCV. En el caso de que las modificaciones afecten a los requisitos de etiquetado relativos al contenido neto, la notificacion especificara todas las modificaciones que deban hacerse al resumen o la descripcion requerida de conformidad con el parrafo 4 del articulo 9 y al inciso b, parrafo 3 del articulo 11.
Articulo 16 Consultas y solucion de diferencias
1. Cualquier Parte podra solicitar, por escrito, consultas con cualquier otra Parte con respecto a la adopcion o aplicaci6n de cualquier medida por la otra Parte que la primera considere incompatible con el presente Acuerdo. La Parte solicitante debe presentar su solicitud a la otra Parte, y debera exponer los motivos del mismo, identificar la medida en cuestion e indicar los fundamentos juridicos de la demanda. Al mismo tiempo, la Parte solicitante entregara una copia de su solicitud y las razones para ella a las demas Partes.
2. Cualquier Parte podra participar en las consultas previa notificacion escrita a las demas Partes en el plazo de 21 dias de haber recibido la solicitud de consulta. En su notificacion, la Parte explicara su interes en el asunto.
3. Las Partes en la diferencia, y toda otra que haya dado aviso conforme al parrafo anterior, efectuaran consultas entre si en el plazo de 45 dias contados a partir de la fecha de recibo de la solicitud de consulta, con miras a resolver la materia. Mediante consultas celebradas conforme al presente articulo, las Partes en la diferencia haran todo lo posible para
15 llegar a una solucion mutuamente satisfactoria que sea compatible con el presente Acuerdo. Para ello, las Partes en la diferencia:
a) Proporcionaran, conforme al posterior inciso b , suficiente informacion por escrito que permita examinar completamente si la medida o su aplicacion son incompatibles con el presente Acuerdo; y
b) Antes de proporcionar dicha informacion, convendan en el trato que se dara a toda informacion que la Parte que la provea considere confidencial.
4. Cada Parte en la diferencia procurara proporcionar personal de sus organismos gubernamentales u otras entidades regulatorias que tenga pericia en la materia objeto de consultas.
5. Si las Partes en la diferencia no la resuelven conforme al anterior parrafo 3 del presente articulo, en el plazo:
a) de 60 dias contados a partir de la fecha de recibo de la solicitud de consulta; u
b) otro plazo que las Partes convengan, cualquier Parte en la diferencia podra solicitar por escrito al Consejo que celebre una reunion para resolverla. En dicha solicitud se expondran los motivos por los que se ha formulado, se senalara la medida en cuestion o su aplicacion, y se indicara el fundamento juridico de la demanda.
16 6. Salvo que decida lo contrario, el Consejo se reunira en el plazo de 30 dias contados a partir de la fecha de recibo de la solicitud formulado segun el anterior parrafo 5 del presente articulo y procurara resolver la diferencia prontamente. El Consejo podra reunirse en persona, por videoconferencia digital, por conferencia telefonica o por otro medio adecuado. Para ayudarse en sus deliberaciones, el Consejo podra:
a) Consultar a asesores tecnicos o establecer los grupos de trabajo o de peritos que considers necesarios; o
b) Recurrir a los buenos oficios, la conciliacion, la mediacion u otros procedimientos de solucion de diferencias que las Partes convengan.
El Consejo llevara adelante sus deliberaciones y formulary recomendaciones en el plazo de 120 dias de recibida la solicitud conforme al anterior parrafo 5 del presente articulo, a fm de ayudar a las Partes en la diferencia a llegar a una solucion satisfactoria para ambas.
7. En las recomendaciones elaboradas conforme al anterior parrafo 6 del presente articulo, el Consejo indicara si ha habido incumplimiento de alguna obligacion del Acuerdo. Si la conclusion es que existe tal incumplimiento, el Consejo recomendara que la Parte denunciada lo rectifique.
8. Si se resuelve, conforme al anterior parrafo 7 del presente articulo, que una Parte no ha cumplido una obligacion conforme al Acuerdo, y no ha rectificado la situacion en el plazo de un ano a partir de la adopcion de la conclusion del Consejo, o en el plazo convenido entre la Parte
17 demandante y la demandada, la Parte demandante podra , previo aviso de 60 dias a la otra Parte, suspender sus obligaciones hacia la Parte demandada con respecto al articulo motivo del incumplimiento hasta que las Partes se pongan de acuerdo o el Consejo falle que el incumplimiento se ha rectificado.
9. La Parte que, segun el Consejo, ha incumplido una obligacion debera informar a ese, a intervalos de seis meses tras la adopcion de la recomendacion y hasta que el Consejo falle que el incumplimiento se ha rectificado, sobre las gestiones que ha efectuado para cumplir con la recomendacion.
10. A los fines de resolver una diferencia especifica conforme al presente articulo, las Partes podran acordar por escrito la adopcion de procedimientos distintos a los consignados en este articulo con el fin de acelerar, mejorar o facilitar la solucion de dicha diferencia.
11. En los casos en que algunas Partes hayan solicitado consultas por separado, conforme al parrafo 1 del presente articulo, las Partes en dichas diferencias podran convenir en celebrar consultas conjuntas como si se tratara de un solo asunto en diferencia.
12. A los fines del presente articulo, "Partes en la diferencia" significa la Parte que solicita la consulta y la Parte a la cual se dirige la solicitud.
13. Toda solicitud, notificacion u otra comunicacion que se exija segun el presente articulo se enviara a las Partes por medio de los enlaces notificados conforme al inciso b , parrafo 1 del articulo 15 , y al Consejo por medio del depositario.
18 14. Ninguna de las disposiciones del presente articulo se interpretaran en el sentido de que tales disposiciones implican alguna modificacion a los derechos y obligaciones de una Parte bajo el Acuerdo de la OMC, incluyendo la normativa de solucion de diferencias de dicho Acuerdo.
15. Los parrafos 5 al 9 del presente articulo no regiran para los asuntos que surjan con arreglo a los articulos 3 o 4 del presente Acuerdo ni al parrafo 4 del articulo 5 del mismo, ni para cualquier otro para cuya decision o recomendacion se requiera un examen de la compatibilidad de alguna medida de una Parte o de su aplicacion con el Acuerdo de la OMC.
16. Cada Parte debera esforzarse, de buena fe, en asegurar que se haya propuesto utilizar todos los recursos y procedimientos administrativos razonablemente disponibles antes de solicitar la consulta con arreglo al parrafo 1 del articulo 16.
17. Cada Parte en la diferencia solventara los gastos y costos que la misma le ocasione.
Articulo 17 Enmiendas
1. Cualquier Parte podra proponer enmiendas al presente Acuerdo presentando al depositario el texto de la propuesta de enmienda. En el plazo de 30 dias a partir de la fecha de recibo de la propuesta, el depositario la comunicara a todas las Partes para su consideraci6n.
19 2. El Consejo considerard cualquier propuesta de enmienda en la primera reunion que celebre una vez que todas las Partes la hayan recibido. El Consejo tendrd un plazo minimo de 90 dias, a partir de la fecha en que se haya comunicado la propuesta a todas las Partes, para decidir si la adopta o la rechaza.
3. Las enmiendas estardn sujetas a la aceptacion de las Partes. Los instrumentos de aceptacion con respecto a una enmienda serdn enviados al depositario. Una enmienda entrard en vigor el trigesimo dia posterior a la recepcion por parte del depositario de los instrumentos de aceptacion de todas las Partes, salvo decision en otro sentido por parte del Consejo. Todo Estado que se adhiera al presente Acuerdo tras la entrada en vigencia de una enmienda se hard Parte en el Acuerdo enmendado.
Articulo 18 Retiro
Cualquiera de las Partes puede retirarse del presente Acuerdo mediante notificacion escrita al depositario, quien procederd a comunicar sin demora tal situacion a las Partes. El retiro surtird efecto seis meses despues de la fecha en que el depositario reciba la notificacion, a menos que esta especifique una fecha posterior. El retiro quedard sin efecto si la notificacion se retira antes de vencidos los seis meses, o en los casos en que se especifique una fecha posterior, al cumplimiento de dicha fecha.
20 Articulo 19 Partes y Entrada en vigor
1. El presente Acuerdo quedara abierto para la firma de las Partes en el Acuerdo de Aceptacion Mutua hasta el 1 ° de diciembre de 2007.
2. El presente Acuerdo esta sujeto a ratificacion , aceptacion o aprobacion por los Estados signatarios. Los instrumentos de ratificacion, aceptacion o aprobacion se depositaran en poder del depositario, quien comunicara este hecho sin demora a los demas Estados signatarios.
3. El presente Acuerdo entrara en vigor el primer dia del mes siguiente a la fecha en que el depositario reciba el segundo instrumento de ratificacion, aceptacion o aprobacion . A partir de aquella fecha y para cada signatario posterior, el Acuerdo entrara en vigor el primer dia del mes siguiente a la fecha del deposito de su instrumento de ratificacion, aceptacion o aprobacion.
4. Cada Estado signatario procurara depositar su instrumento de ratificacion, aceptacion o aprobacion en el plazo de 30 meses a partir de la fecha en que el presente Acuerdo entre en vigor, o en un plazo mayor que el Consejo decida. Si un Estado signatario no ha depositado dicho instrumento al final del plazo mencionado , el Estado signatario debera entregar al depositario una copia de sus leyes, reglamentos y requisitos relativos a las practicas de etiquetado de vinos y los mecanismos que las regulan a mas tardar 90 dias antes de la fecha de deposito del instrumento de ratificacion, aceptacion o aprobacion.
21 Articulo 20 Partes nuevas
1. Todo Estado que no haya firmado el presente Acuerdo puede procurar adherirse mediante solicitud escrita enviada al depositario. En la solicitud se incluira una copia de las leyes, los reglamentos y los requisitos de ese Estado relativos a sus practicas de etiquetado y los mecanismos que las regulan, asi como una declaracion del solicitante en la que explique su postura con respecto al Acuerdo de Aceptacion Mutua.
2. Una vez recibida la solicitud de un Estado de adherirse al Acuerdo, el depositario la hard circular entre las Partes en el plazo de 30 dias. En su primera reunion despues de recibida la solicitud, la cual tends lugar no antes de 60 dias y no despues de 120 dias a partir de la fecha en que comenzo a circular la solicitud entre las Partes, el Consejo evaluard las leyes, los reglamentos y los requisitos de ese Estado con respecto al etiquetado, las practicas y los mecanismos que las regulan , asi como la postura del Estado con respecto al Acuerdo de Aceptacion Mutua. Si el Consejo los encuentra aceptables , notificara al Estado su decision y pods invitarlo a adherirse al presente Acuerdo.
3. Una vez recibida la invitacion , pero en ningun caso mas de 30 meses despues, el Estado interesado depositary su instrumento de adhesion al depositario. El presente Acuerdo entrara en vigor para dicho Estado el primer dia del mes siguiente a la fecha en que deposito su instrumento de adhesion.
22 4. El original del presente texto, cuyas versiones en espanol, frances e ingles tienen identica validez, se depositary en poder del Gobierno de los Estados Unidos.
EN FE DE LO CUAL los infrascritos, debidamente autorizados por sus respectivos Gobiernos, finnan el presente Acuerdo.
Hecho en Canberra, en el veinte tercer dia de enero del ano dos mil y siete.
23 Anexo 1
1. Las Partes permitiran que el vino importado de otra Parte para el consumo nacional y el producido en su territorio con ese mismo fm lleven la etiqueta de Icewine, ice wine, ice-wine o alguna variacion similar, unicamente si dichos vinos han sido elaborados exclusivamente con uvas naturalmente congeladas en la vid.
2. Sin perjuicio de lo expresado en el parrafo 1, Nueva Zelanda al implementar la obligacion formulada en el articulo 12, se asegurara de que el vino exportado a cualquiera de las Partes lleve la etiqueta Icewine, ice wine, ice-wine o alguna variacion similar, unicamente si dicho vino ha sido elaborado exclusivamente con uvas naturalmente congeladas en la vid.
24 Mr Carlos Chiappe Solozabal Charge d'Affaires
WARREN TRUSS Minister for Trade and Acting Minister for Foreign Affairs
HE Mr Michael Leir High Commissioner/Haut Commissaire CHILE CHILI CHILE
HE Mr Jose Luis Balmaceda Embajador
NEW ZEALAND NOUVELLE ZELANDE NUEVA ZEALAND
HE Mr John Larkindale High Commissioner
UNITED STATES OF AMERICA ETATS-UNIS D'AMERIQUE ESTADOS UNIDOS DE AMERICA
Mr James Murphy Assistant United States Trade Representative Office of the U.S. Trade Representative REGULATION IMPACT STATEMENT
Agreement on Requirements for Wine Labelling, done at Canberra on 23 January 2007 [2007] ATNIF 7
Background
1. Wine production is an important industry in Australia, contributing significantly to a number of regional economies and directly employing some 28 000 people in both winemaking and grape growing, with further downstream employment in retail, wholesale and hospitality industries.' The Australian wine industry is comprised of approximately 8 000 wine grape growers supplying over 2 300 wineries. In 2008, the total vineyard area reached almost 173 000 hectares. Wine grapes are grown in all states of Australia, with South Australia, New South Wales and Victoria accounting for most of the production.
2. The rapid expansion of wine production in Australia over the last decade, combined with a small domestic market has seen the Australian industry become increasingly export oriented. Australia exports wine to 130 countries and has an eight per cent volume share of global wine exports. In 2008 wine exports totalled 699 million litres with an estimated value of $2.5 billion and accounted for around 9 per cent of Australia's agricultural exports. These wine export volumes currently represent over 60 per cent of Australian wine sales and make Australia the world's fourth largest wine exporter. This contrasts with Australia's wine production accounting for only five per cent of total world production. Approximately half of Australia's wineries currently export to overseas markets.
3. Wine production and exports have also been expanding from other "new world" wine producing countries including: Argentina, Chile, South Africa and the United States. This growth has led to global wine production expanding faster than demand and has resulted in a significant decline in world wine prices.2 As a result, the profit margins for Australia's winemakers have declined in recent years, exacerbated by the increased number of competitors in the market as well as the capital intensive nature of the industry. Accordingly, the Australian wine industry is facing the challenge of maintaining profitability in global markets characterised by flat demand, increasing supply and declining prices.
4. Maintaining a strong export orientation is imperative to the continued viability of the Australian wine industry. With limited growth potential for the domestic market, any future increase in Australian wine production will require continued export growth. In the face of declining world prices Australia's international competitiveness will depend on continued innovation, product targeting, quality improvement and cost reduction.
5. To progress Australia's interests internationally, Australia participates in the World Wine Trade Group (WWTG), which is an informal group of government and industry representatives from countries with a mutual interest in facilitating the international trade in wine and breaking down trade barriers. Other participants in the WWTG are Argentina, Canada, Chile, New Zealand, South Africa and the United States. The WWTG is a valuable forum for information exchange, discussion on wine trade issues and the development of initiatives aimed at breaking down wine trade barriers. The joint participation of government and industry representatives at meetings is
' 2006 Census. 2 Sheales, T., Apted, S., Dickson, A., Kendall, R. and French, S. 2006, Australian Wine Industry: Challenges for the Future, ABARE Research Report 06.16, Canberra, October. designed to ensure a free exchange of information and a better understanding of issues being discussed.
6. The group's first major outcome was the conclusion of the Mutual Acceptance Agreement on Oenological Practices done at Toronto on 18 December 2001 designed to minimise trade disputes on winemaking practices. A further important outcome of WWTG is the Agreement on Requirements for Wine Labelling (the Wine Labelling Agreement), signed in 2007, which harmonises and simplifies wine labelling requirements for all countries party to the Wine Labelling Agreement. A key aspect of this is agreement to allow "single field of vision" labels which display mandatory information on eligible wine containers.
Statement of the problem
7. Labelling costs represent a significant component of the cost of production of Australian wine, especially for exporters. This is because most export markets have differing requirements for the placement of information on the wine container that are different to Australia's domestic market requirements. Thus, wineries are required to print separate wine labels, at additional cost, to meet both domestic requirements and each importing country's requirements for the placement of mandatory product information. The expense of producing separate wine labels for different markets is further exacerbated by the need to maintain separate buffer stocks for each market. (These stocks act as a reserve against short-term shortages and/or to dampen excessive fluctuations in the prices of commodities and thus protect local exporters from wild swings in world commodity prices).
8. Four items of common mandatory information (country of origin, product name, net contents and actual alcohol content) have been identified as being of particular interest in regard to harmonisation of placement requirements and consequential cost efficiencies for industry. To address this harmonisation objective, WWTG members have developed the Wine Labelling Agreement to permit single field of vision wine labels which display mandatory information together on eligible wine containers.
9. It is noted that Australia is also a member of the International Organisation of Vine and Wine (OIV) which has made two resolutions on wine labelling, eco 01/2005 and 06/2006, advocating a single field of vision approach to wine labelling. The provisions of the Wine Labelling Agreement are consistent with these OIV resolutions. It is also noted that Europe, Australia's largest wine export market, also adopts an approach to wine labelling that is consistent with the Wine Labelling Agreement.
10. Australia is also a signatory to the 1955 International Organisation of Legal Metrology (OIML) Convention and participates with other OIML member states in drafting guidelines to assist trade measurement labelling harmonisation. The OIML regulation of relevance to implementation of the Wine Labelling Agreement is Recommendation 79 which provides that volume statements should appear on the principal display panel of packaging (the front) except where otherwise provided for by national regulation. In this regard, implementation of the Wine Labelling Agreement constitutes such an exception to Recommendation 79 for wine containers of the sizes mentioned in the Wine Labelling Agreement. The Wine Labelling Agreement's single field of vision approach to labelling is important because it allows harmonisation with labelling practices in Australia's major wine export markets including the United States, Canada, New Zealand and the European Union.
11. When the Wine Labelling Agreement was signed in January 2007, regulations under Australian State and Territory government Uniform Trade Measurement Legislation (UTML) required that the statement of volume be displayed on the principal display panel of wine containers, consistent with OIML Recommendation 79. This regulatory arrangement did not allow for single field of vision labelling in this respect and needed to be altered before ratification of the Wine Labelling Agreement could proceed. At the 26 March 2008 Council of Australian Governments (COAG) meeting it was agreed that wine labelling requirements could be improved and to assist this COAG asked the Ministerial Council on Consumer Affairs (MCCA) to expedite ratification of the Wine Labelling Agreement. This was agreed by all relevant ministers and forms part of the National Partnership Agreement to Deliver a Seamless National Economy - an Agreement between the Commonwealth and the States and Territories to facilitate the implementation and reward the delivery of reforms that assist in the creation of a seamless national economy. As of 1 June 2009, all States and Territories had amended relevant trade measurement legislation to accommodate single field of vision labelling.
12. On 13 April 2007, COAG agreed that the Commonwealth should assume responsibility for trade measurement as of 1 July 2010. The National Measurement Institute will have the responsibility for administering the national system. The Office of Legislative Drafting and Publishing has drafted the national trade measurement legislation and regulations to replace the UTML commencing on 1 July 2010. An interim provision has been made in the National Trade Measurement Regulations 2009 to exempt certain wine containers from labelling requirements, consistent with the Wine Labelling Agreement. This exemption will ensure continuation of the wine industry's current ability to label in conformity with the Wine Labelling Agreement. It is noted that the explanatory statement to the regulations indicates that it is intended that detailed provisions relating to wine container labelling will be inserted into those regulations on ratification of the Wine Labelling Agreement.
13. There are no legal impediments to Australia proceeding to ratify the Wine Labelling Agreement.
Objective of government action
14. The objective is to harmonise Australia's wine labelling requirements with requirements of key export markets, to provide flexibility for individual winemakers to develop a single label that would be acceptable in most international export markets as well as the domestic market.
Identification of options to achieve the objective
Option 1: Ratify the Wine Labelling Agreement
15. Australia, as a member of the WWTG, has signed the Wine Labelling Agreement and ratification of this Agreement would allow winemakers the choice of using a single field of vision wine label on wine for sale both in Australia and international wine export markets. This option would also provide flexibility for winemakers to adopt the single field of vision approach on a voluntary basis. The single field of vision approach is to allow the four items of common mandatory information to be placed anywhere on a standard -sized wine container, with the exception of the cap or the base, provided they are displayed in a single field of vision.
Option 2: Maintain the status quo - i.e. do not ratify the Wine Labelling Agreement.
16. If Australia does not ratify the Wine Labelling Agreement, Australian winemakers will not have guaranteed continuation of the benefits of a single field of vision approach to wine labelling.
17. It is noted that following the March 2008 COAG decision to make domestic law consistent with the Wine Labelling Agreement in order to facilitate ratification of this Agreement, as of 1 July 2009 all States and Territories have regulatory provision for single field of vision labelling and winemakers can therefore choose to use this approach. That legislation will be superseded by the new National Trade Measurement Regulations 2009, which enter into force on 1 July 2010. Those Regulations include an interim regulation exempting wine containers of sizes mentioned in the Wine Labelling Agreement, from labelling requirements. As noted in the explanatory statement to the Regulations, it is intended that detailed provisions relating to wine container labelling will be inserted into the Regulations should the Wine Labelling Agreement be ratified. In the absence of ratification it is uncertain whether the Commonwealth would have the ability to reflect the specific requirements of the Wine Labelling Agreement in its new trade measurement regulations, leaving open the possibility that winemakers could be required to use a principal display panel labelling approach in the future. Reversion to a mandatory principal display panel approach would again restrict the choice of wine labelling that could be used on the domestic market and, again, require printing of multiple labels for export purposes.
Impact analysis - costs and benefits
Impact group identification
18. Ratification of the Wine Labelling Agreement will make it easier and more cost-effective for Australian winemakers to access international markets and increase the competitiveness of the Australian wine industry overall. Any improvement to Australia's competitiveness is likely to have a significant positive impact on Australia's 2 300 wineries and 8 000 wine grape growers and without detriment to consumers.
Option 1: Ratify the Wine Labelling Agreement
19. Option 1 is to ratify the Wine Labelling Agreement. The Winemakers' Federation of Australia (WFA) estimates that the Australian wine industry would benefit from ongoing cost reductions of approximately $25 million annually once the Wine Labelling Agreement is ratified and comes into force. The industry expects producers to benefit from reduced labelling costs for wine exported to both Wine Labelling Agreement signatories and non-signatories (such as the European Union) where labelling requirements are already consistent with the terms of the Wine Labelling Agreement. To verify industry's estimated savings from the change in labelling requirements, the Australian Government Department of Agriculture, Fisheries and Forestry commissioned the Australian Bureau of Agricultural and Resource Economics (ABARE) to assess the methodology, assumptions and calculations used by WFA. ABARE is an Australian government economic research agency recognised for its professionally independent research and analysis. ABARE concluded that the industry estimates were sound.3
20. The wine-making industry believes that the harmonisation of wine labelling laws under the Wine Labelling Agreement would afford the most significant benefits to the industry. In particular, providing industry with the choice to use a single field of vision approach allows Australian winemakers to take advantage of the efficiency gains and decreased labelling costs identified below. Aside from single field of vision labelling, Australia will benefit overall from provisions in the Wine Labelling Agreement that require other WWTG members to be more transparent and to conform to a variety of common labelling specifications, including for: language and presentation; type, size and other types of mandatory information. These provisions are currently already implemented in Australia through existing regulations, so there would be no cost associated with implementing the Wine Labelling Agreement in this regard.
3 ABARE Wine Labelling Assessment 2006, Canberra, June. 21. Efficiency gains are anticipated in the production and application of labels and through a reduction in the necessary amount of labels in stock. Label printing costs will account for the largest share of the savings under the Wine Labelling Agreement, with label production cost savings estimated at $11.1 million annually. Currently, separate label print runs are required for different overseas markets. By exploiting economies of scale by having a single print run for all markets (both domestic and overseas), the industry estimates that label printing costs will fall by 5 per cent for popular premium wines, 10 per cent for premium wines and 30 per cent for super- premium wines.
22. Gains in production line efficiency are likely to be achieved under the Wine Labelling Agreement as harmonised labelling requirements for different markets will mean fewer stoppages. Under the current system, producers need to stop and change labels during the labelling process whenever a different label is required for a different market. This causes delays and is a significant barrier to efficiency. Assuming a winery had a single label for all markets, there would be no need to stop the production line and change labels. It is noted that while ABARE agrees that production line efficiencies are likely to be achieved under the Wine Labelling Agreement, it was unable to substantiate industry's estimated saving of $1.3 million annually. Notwithstanding this, the saving only accounts for 5.2 per cent of the estimated overall annual saving of $25 million. Therefore changes to these assumptions are unlikely to significantly influence the overall benefit.
23. It is also expected that annual savings of $3.5 million will be achieved under the Wine Labelling Agreement through a reduction in wastage and overprinting of labels.
24. Indirect cost savings to the wine industry in the order of $8 million annually will also be possible from reduced label template and inventory requirements. Label template requirements will be reduced because only one label template will be required for most wines, rather than having a template for each market. Inventory requirements will be reduced because buffer stocks required for separate markets can be consolidated given the Wine Labelling Agreement would allow the same labelled wine to be used for most markets.
25. The ability to use a single label for most markets may offer growth opportunities for small wineries to enter export markets due to the lower cost structures expected to result from the Wine Labelling Agreement. Because small wineries operate at a lower scale, the need to produce a variety of labels for the domestic market and export markets means that they incur proportionally higher total costs, which often makes exporting prohibitive. In seeking information to verify the additional cost that is brought about by a lack of scale, ABARE identified that an order of 23 000 labels costs $283.80 per 1 000 while the same label at an order of 104 000 costs $104.50 per 1 000. Further savings could also be made through producing fewer label templates, offering an averaged fixed cost saving of $500 each. Accordingly, the Wine Labelling Agreement may offer proportionally greater benefits to small wineries over larger wineries by assisting them to be more efficient and competitively positioned to enter export markets.
26. There may be a one-off cost for winemakers who choose to adopt the single field of vision approach due to change in the design of the label template, although such a cost would be more than offset by the potential savings that such a change would afford. Under the Wine Labelling Agreement winemakers will retain the flexibility of choosing to continue to display the statement of volume on the front label (the principal display panel, which would not require their label template to be altered. In this instance, those producers solely engaged in the domestic market, or who see no benefit for their business from the change, would not incur this one-off cost.
27. The Australian wine industry's ability to improve its competitiveness is critical to its sustainability and its ability to expand its overseas market share. Exports are extremely important to the Australian wine industry. In 2008-2009, approximately 63 per cent of Australia's wine sales (by volume) were exports, while imports accounted for less than 13 per cent of domestic consumption.4 In comparison, three of Australia's top four export markets, which are also signatories to the Wine Labelling Agreement, are highly reliant on imports to satisfy domestic consumption. The United States, Canada and New Zealand accounted for almost 37 per cent of Australia's wine exports in 2008. As a percentage of consumption in 2005, imports accounted for 89.3 per cent in Canada, 43.5 per cent in New Zealand and 29.9 per cent in the United States.5 Not all countries will receive an equal production efficiency benefit through the Wine Labelling Agreement. Assuming the Wine Labelling Agreement assists Australia's global competitiveness in the current environment of relatively flat demand, increasing supplies and declining prices, it could be expected that there would also be broader flow-on benefits to industry's 8 000 wine grape growers and 2 300 wineries.
28. Consumer groups have expressed a preference that the Wine Labelling Agreement should not reduce protection afforded to consumers with regard to the provision of information on the net contents of wine containers. However, this also raises the question of level of protection the placement of the statement of volume on the front label provides to consumers. The requirement to have the statement of volume on the front label of wine containers does provide the consumer with access to this information and allows brand comparison without the need to handle the product off the retail shelf. Conversely, it does not require that other items of information important to consumers be displayed on the front label.
29. The single field of vision approach under the Wine Labelling Agreement only applies to the standard fill sizes of: 50m1, 100ml, 187m1, 200ml, 250m1, 375ml, 500ml, 750m1, 1 litre, 1.5 litres, 2 litres, 3 litres, or larger in quantities of whole litres. Therefore, the Commonwealth's trade measurement regulations can continue to maintain the requirement for the statement of volume to appear on the principal display panel for a non-standard fill size (as is currently provided for under the National Trade Measurement Regulations 2009). This would mean that if a company decided to have 740 ml instead of 750m1 in a wine container that `740m1' would have to be displayed on the principal display panel. It is also important that the single field of vision approach applies to wine containers (as has been incorporated into State and Territory trade measurement regulation), as opposed to being limited to wine bottles, to ensure that the Wine Labelling Agreement does not have the unintended effect of stifling future innovation in packaging within the wine industry.
30. The single field of vision approach also groups information of importance to consumers together and so makes it easier for the consumer to read. Because single field of vision labelling may also have a changeover effect on consumers' familiarity with the positioning of the statement of volume (e.g. 750ml) on wine containers, there is an associated one-off cost to educate Australian wineries and consumers about wine labelling changes. The Australian Consumers' Association is satisfied with an exemption to the standard trade measurement regulation to allow single field of vision labelling for wine. However, it did express concern that the presence of two systems for the placement of the statement of volume for wine containers may be confusing for consumers unless the change is accompanied by consumer education.
31. In response , the WFA has implemented a monitoring system and education process for consumers . All producers have been notified of the changes via the WFA website and newsletter enabling producers to inform consumers of the change . The Australian Wine and Brandy Corporation (AWBC) are also preparing a fact sheet for their website to inform consumers. The WFA Packaging Committee also has a standing agenda item on wine labelling at which any complaints are to be registered . The AWBC have also been requested to log all complaints
4 Australian Bureau of Statistics 2009, Australian Wine and Grape Industry 1329.0 (http://www.ausstats.abs.gov.au). 'Witter, G. & Rothfield, J. 2006, The Global Wine Statistical Compendium 1961-2005, Australian Wine andBrandy Corporation. concerning the volume statement. To date WFA and AWBC have received no complaints regarding the regulatory change, in spite of the South Australian legislation being put in place in November 2007 and other State and Territory legislation now also being in operation. The introduction of a new system of pricing into some Australian supermarkets will also mitigate possible confusion resulting from the change in labelling. Unit pricing allows consumers to make comparisons between different products through the provision of a price per unit of the product, such as cost per 100 millilitres or 1 litre. ALDI, Woolworths and Coles have introduced unit pricing into their Australian stores (however this pricing system may not be implemented in other liquor shops).
32. The previous requirement under Australian State and Territory government UTML regulations to place the statement of volume on the principal display panel (with the exception of South Australia) was based on Recommendation 79 by OIML, which Australia had agreed to adopt as far as possible. OIML Recommendation 79 provides that the statement of volume shall be on the part of the package that is most likely to be displayed, presented, shown or examined under normal and customary conditions of display.
33. The ratification of the Wine Labelling Agreement and amendment to State and Territory UTML regulations to accommodate the single field of vision approach for wine labelling is a direct consequence of Australia becoming a signatory to this international agreement. The labelling approach of the Agreement has strong wine industry support and a clear government commitment, given its economic benefits (for example, exemption in South Australia alone was anticipated in 2007 to result in a saving of $12.75 million for the South Australian wine industry).
34. A number of other OIML members, including the United States and the European Union, do not follow OIML Recommendation 79 in respect of wine labelling. Although Member States may be under a moral obligation to implement certain OIML decisions as far as possible, there is no legal obligation to do so. It is noted that in August 2005 the European Union (EU) conducted a review of its pre-packaging legislation. 6 This review referred to the current rule concerning the placement of the quantity indication, which is consistent with the single field of vision approach to labelling. The review involved significant consultation with consumers, producers, retailers and government authorities. The review reported that the majority of consumers considered "it is sufficient to have the quantity indication somewhere on the package, as is currently the rule", as opposed to restricted to the principal display panel. Therefore, the EU decided to maintain the existing standard, which is consistent with the single field of vision approach. European business associations also unanimously supported the current EU approach. They commented that although this approach conflicts with OIML Recommendation 79, a change in regulation could cause the principal display panel to become "too full and confusing" and "would cause trade barriers by the Community on the rest of the world."
Option 2: Maintain the status quo i.e. do not ratify the Wine Labelling Agreement
35. The main benefit of maintaining the existing state of affairs would be that the wine industry would not incur the one-off cost of an education campaign.
36. However, the status quo option could result in comparative inefficiency of the Australian wine industry and lower its productivity, particularly as more WWTG parties and other countries adopt single field of vision wine labelling which is consistent with the provisions of the Wine Labelling Agreement. Without the option of single field of vision labelling, the Australian wine industry is likely to be at comparative disadvantage in marketing wine on the export market as it would not be able to take advantage of the same labelling efficiencies. This will make the cost of producing Australian wine comparatively higher than that of international competitors in the domestic market and Australia's international wine export markets.
37. New Zealand is in the final stages of ratification of the Wine Labelling Agreement. When New Zealand ratifies the Wine Labelling Agreement , wine containers labelled with the single field of vision approach will enter the Australian market via the provisions in the Trans -Tasman Mutual Recognition Arrangement 1996, under which Australia accepts imported food and beverage products labelled in accordance with New Zealand ' s regulations (including any New Zealand regulations that provide for single field of vision labelling). Thus New Zealand wine, which accounted for over 52 per cent of Australia ' s wine imports in 2006-07,7 would gain cost efficiencies through the ability to use the single field of vision approach in its international export markets (including United Kingdom, United States, Australia and Canada ). Other WWTG members that are active exporters (i.e. Chile and Argentina) will also gain cost efficiencies and this could lead to improved competitiveness relative to Australian products in key Australian markets. The Wine Labelling Agreement is already binding on both the United States and Chile. South Africa and Argentina are also in the process of ratifying the Wine Labelling Agreement.
38. Currently, all Australian State and Territory trade measurement regulations provide for wine to be labelled in accordance with the single field of vision approach and wine with these labels is already sold throughout Australia. Therefore, option 2 (status quo, i.e. not ratifying the Agreement) would not prevent wine labelled with the single field of vision approach from entering or being sold in the Australian domestic market at the current time. However, in the absence of ratification, consumers could be faced with several different styles of labelling, but without the wine the industry education campaign.
39. Although the Commonwealth is currently able to regulate the placement of the volume statement on a wine label, legal advice indicates ratifying this treaty would ensure that the constitutional external affairs power (s.51(xxix) of the Constitution) provides the Commonwealth clear authority to regulate with respect to the placement of other mandatory items of information. Reversion to the previous more onerous mandatory requirement of placing the volume statement on the principal display panel (front label) and the other common mandatory information on the back of the label would be a cost burden on industry.
40. Option 2 (status quo) would also present significant opportunity cost for the Australian wine industry. That is, the implicit cost of not pursuing the Agreement is the loss of benefits offered by option I minus the one-off cost of educating Australian wineries about the labelling changes.
41. As a signatory to the Wine Labelling Agreement, the Australian government has indicated its intention and consent to become bound by the Agreement and to permit common mandatory information presented in any single field of vision. The negotiation and signing of the Wine Labelling Agreement were conducted in accordance with the domestic treaty process. By not ratifying the Agreement, the Australian Government may suffer political consequences in its relations with other WWTG participants. This could impact on the ability to of Australia to drive future WWTG initiatives and potentially impact on the confidence that other WWTG members place in Australia's commitment to the trade facilitation objectives of the WWTG. It could lead to uncertainty for the WWTG and impact adversely on the prospects of the WWTG developing future trade enhancing agreements.
7 Australian Bureau of Statistics 2007, Sales of Australian wine and brandy by winemakers (8504.0), June 2007. Consultation
42. Australian Government participation in negotiations for and signing of the Wine Labelling Agreement was carried out in close consultation with the Winemakers Federation of Australia (WFA) and the industry's statutory marketing authority - the Australian Wine and Brandy Corporation (AWBC). WFA and AWBC have actively supported and provided input into the treaty negotiations and both have confirmed their support for the text of the Wine Labelling Agreement. Wine industry leaders have also been directly briefed through the AWBC's International Trade Advisory Committee.
43. In-principle agreement was secured through the Standing Committee of Officials of Consumer Affairs prior to the signing of the Agreement in Canberra on 23 January 2007. This consultation process was conducted by the Australian Government Department of Foreign Affairs and Trade and the Australian Government Department of Agriculture, Fisheries and Forestry with relevant State and Territory government officials through the Trade Measurement Advisory Committee.
44. Consultation also occurred with State and Territory government officials in relation to the negotiation and signing of the treaty. All State and Territory governments were consulted on regulatory requirements to allow the single field of vision approach to wine labelling and agreed to follow the approach. All States and Territories have now amended their respective trade measurement legislation, UTML, as agreed through the Council of Australia Governments (COAG).
45. Prior to introducing the previous nation-wide amendments to State and Territory trade measurement regulations to allow single field of view labelling, consultation was conducted with the Australian Consumers' Association who advised that they did not oppose the proposed changes provided that industry accompanies the changes with consumer education. WFA has agreed to implement consumer education.
46. Consultation has been conducted with the National Measurement Institute, part of the Innovation, Industry, Science and Research portfolio, to ensure that provision will be made for implementing the Wine Labelling Agreement in the new Commonwealth trade measurement regulations to commence on 1 July 2010. Interim provision has been made to ensure continuation of the current ability of wine producers to label consistently with the Wine Labelling Agreement. Completion of the ratification process will enable inclusion of the specific provisions of the Wine Labelling Agreement in the National Trade Measurement Regulations 2009, as indicated in the explanatory statement to that instrument.
Conclusion and recommended option
47. Ratification of the Wine Labelling Agreement (option 1) is expected to deliver ongoing annual cost savings in the order of $25 million to the Australian wine industry. This would be at the expense of a one-off education cost and the one-off cost of altering label templates, for those that choose to do so. There would be little impact on consumers and, arguably, improvement to the presentation of common mandatory information to consumers. The single field of vision approach to wine labelling under the terms of the Wine Labelling Agreement would simplify labelling requirements for Australian winemakers and harmonise the placement of common mandatory information. This would enable Australian winemakers to use a single label for all major markets (the domestic market, WWTG countries and the European Union).
48. The recommended option is option 1, that the Wine Labelling Agreement be ratified. Wine is one of Australia's most important agricultural exports. Option 1 (ratifying the Wine Labelling Agreement) offers substantial efficiency gains for the Australian wine industry that option 2 cannot achieve. It will provide increased flexibility for industry in choosing cost-effective options for wine labelling where only one label need be developed for multiple markets. It will also provide certainty of international acceptance of Australian wine labels in other WWTG countries, without the cost of developing country-specific labels. The single field of vision approach to wine labelling has the potential to increase the Australian wine industry's international competitiveness and in turn the volume and value of wine exports. The identified potential for consumer confusion can be effectively cost offset through an education program that WFA has already begun to implement.
Implementation and review
49. Once the Wine Labelling Agreement is ratified an education campaign will be undertaken to advise the changes for wine labels. This campaign would be targeted at Australian wineries and consumers.
50. It is expected that the ongoing impact of the proposed labelling changes will be monitored by industry through the AWBC's International Trade Advisory Committee and by consumer groups in the interests of the broader community. National Interest Analysis [2010] ATNIA 27
with attachment on consultation
Agreement on Requirements for Wine Labelling, done at Canberra on 23 January 2007
[2007] ATNIF 7
Regulation Impact Statement NATIONAL INTEREST ANALYSIS: CATEGORY 2 TREATY
SUMMARY PAGE
Agreement on Requirements for Wine Labelling, done at Canberra on 23 January 2007 [2007] ATNIF 7
Nature and timing of proposed treaty action 1. The proposed treaty action is to bring into force for Australia the World Wine Trade Group (WWTG) Agreement on Requirements for Wine Labelling (the Wine Labelling Agreement). The Wine Labelling Agreement was concluded in Canberra on 23 January 2007. It is proposed that Australia lodge its instrument of ratification, acceptance or approval to bring the Agreement into force for Australia.
2. Pursuant to Article 19 of the Wine Labelling Agreement, the Agreement will enter into force on the first day of the month following the date of deposit of the instrument of ratification.
Overview and national interest summary 3. The WWTG is an informal grouping of industry representatives and government officials from seven wine producing countries (Australia, the United States, New Zealand, Chile, Canada, Argentina and South Africa). On 23 January 2007, Australia along with other WWTG countries signed the Wine Labelling Agreement. The purpose of the Wine Labelling Agreement is to accept common labelling and to minimise unnecessary labelling-related trade barriers with the objective of facilitating international trade in wine among the WWTG. A key provision of the Wine Labelling Agreement will allow Australian and other WWTG winemakers to harmonise the placement of four mandatory items of information on wine labels in a way that is acceptable in all major wine markets.
4. The information required on wine labels in Australia is currently regulated by State and Territory governments under Uniform Trade Measurement Legislation (UTML). The Commonwealth has constitutional responsibility for weights and measures (s.51(xv) of the Constitution). Prior to 2008, the Commonwealth chose not to enact comprehensive trade measurement legislation and this responsibility remained with the States and Territories by default. However, on 13 April 2007 the Council of Australian Governments (COAG) decided that a new national system of trade measurement regulation should be introduced.
5. From 1 July 2010, this information will be regulated by the Commonwealth. For the ratification of the Wine Labelling Agreement to proceed, amendments to the UTML first needed to be made. As of 1 July 2009, all State and Territory governments had completed amendments to the UTML. From 1 July 2010, the Wine Labelling Agreement will be implemented in Australia through new Commonwealth National Trade Measurement Regulations 2009 (the Regulations). An interim provision has been made in the Regulations to exempt certain wine containers from labelling requirements, consistent with the Wine Labelling Agreement. This exemption will ensure continuation of the wine industry's current ability to label in conformity with the Wine Labelling Agreement. It is noted that the explanatory statement to the Regulations indicates that it is intended that detailed provisions relating to wine container labelling will be inserted into those . Regulations following ratification of the Wine Labelling Agreement.
6. . The purpose of the Wine Labelling Agreement is for countries that are Parties to the Wine Labelling Agreement to harmonise their requirements for the placement on wine labels of four common mandatory items of information: product name, net contents, actual alcohol content and country of origin. The provisions of the Wine Labelling Agreement will allow individual wine producers to develop a common label approach that is acceptable in all WWTG markets and in all major international wine markets. The Wine Labelling Agreement advocates a "single field of vision" approach to wine labelling, whereby the four mandatory items of information are deemed to comply with domestic labelling requirements if they are presented together in any single field of vision.
7. WWTG markets alone accounted for over 37 per cent of Australia's wine exports, with sales of bottled wine to WWTG markets worth $0.93 billion in 2008. If the European Union market (which already applies a single field of vision approach to wine labelling) is added to the WWTG markets, all Australia's major wine markets would accept the single field of vision approach.
8. Estimates by the Australian wine industry and the Australian Bureau of Agricultural and Resource Economics (ABARE) indicate that the single field of vision approach to labelling could save on labelling costs, helping to increase the competitiveness, volume and value of Australian wine exports.
9. If ratified, the Wine Labelling Agreement would allow: a) WWTG members that have ratified or acceded to the Wine Labelling Agreement, to use the single field of vision wine labelling on imports in standard size wine containers into Australia; and b) Australia to use the single field of vision wine labelling on both domestic and export wines, thereby reducing the need for multiple labels for domestic and international markets. Reasons for Australia to take the proposed treaty action 10. The rapid expansion of wine production in Australia over the past decade, combined with a small domestic market, required the Australian industry to focus on increasing its exports. At the same time, global wine production expanded faster than demand as a growing number of competitors entered the market; the industry became more capital intensive; and domestic and international wine markets became increasingly competitive. This led to a significant decline in world wine prices and the erosion of profit margins for the Australian industry.
11. In order to ensure its continued profitability, the Australian wine industry has to maintain a competitive export orientation that is dependent on continued innovation, product targeting, quality improvement and cost reduction.
12. To progress its interests internationally, Australian government and industry representatives participate in the WWTG. This is an informal group with a mutual interest in facilitating the international trade in wine and breaking down trade barriers. Australia played an active role in developing the Wine Labelling Agreement through its representatives on the WWTG and has been a strong supporter of its early entry into force. Australia is also a signatory of the International Office for Vine and Wine (OIV), which comprises 43 countries and has voted resolutions supporting single field of vision wine labelling.
13. As a signatory to the Wine Labelling Agreement, the Australian government has indicated its intention and consent to become bound by the Agreement. By not ratifying the Wine Labelling Agreement, the Australian Government may suffer political consequences in its relations with other WWTG participants. This could impact on the ability of Australia to drive future WWTG initiatives and potentially impact on the confidence that other WWTG members place in Australia's commitment to the trade facilitation objectives of the WWTG. It could lead to uncertainty for the WWTG and impact adversely on the prospects of the WWTG developing future trade enhancing agreements.
14. Australia is also a signatory to the 1955 International Organisation of Legal Metrology (OIML) Convention and participates with other OIML member states in drafting guidelines to assist trade measurement labelling harmonisation. Internationally, it is clear that, in the case of wine labelling, many Parties to the Wine Labelling Agreement have subordinated OIML Recommendation 79 (requiring the volume statement to be on the principal display panel - the front of packaging) to other local requirements. The Wine Labelling Agreement's single field of vision approach to labelling, which departs from the OIML Recommendation 79, is important because it allows harmonisation with labelling practices in major wine export markets including the United States, Canada, New Zealand and the European Union.
15. The Wine Labelling Agreement will facilitate trade in wine between WWTG member countries by providing a consistent approach to wine labelling. Harmonisation of labelling requirements will make the Australian wine industry more efficient and reduce the industry's cost of production.
16. These savings arise because currently most export markets have different requirements for the placement of information on the wine product label compared to domestic market requirements. Thus, wineries are required to print separate wine product labels according to each importing country's requirements for the placement of mandatory product information. The expense of producing separately labelled wine products for different markets is further exacerbated by the need to maintain separate buffer stocks for each market.
17. In 2005, the Australian wine industry estimated that the single field of vision approach could save approximately $25 million in labelling costs, helping to increase the competitiveness, volume and value of Australian wine exports. Such savings represent approximately four per cent of the cost of production, in addition to marketing and distribution benefits. In 2006, the ABARE undertook an assessment of the proposed savings and confirmed that industry's estimates are correct. The ABARE assessment also noted the Wine Labelling Agreement may offer proportionally greater benefits to small wineries.
18. The Australian Government is committed to improving access for Australian wines in global markets and works closely with the Australian wine industry to identify and remove tariff and non-tariff trade barriers and harmonise import requirements. Implementation of the Wine Labelling Agreement would provide significant benefits to our wine producers and presents no discernable consumer detriment or health and safety issues. Conversely, the competitive position of Australian industry would be eroded if the Wine Labelling Agreement is ratified by other WWTG participants and not by Australia.
19. In addition, there will be a clear benefit to consumers who will be able to easily locate key items of information on the bottle in a single field of vision and easily compare different wines.
20. Wine is an important Australian industry, contributing significantly to a number of regional economies and directly employing some 28 000 people in both winemaking and grape growing] with further downstream employment in retail, wholesale, hospitality and tourism industries. The Australian wine industry is comprised of approximately 8 000 wine grape growers2 supplying over 2 300 wineries. In 2008, the total vineyard area reached 173 000 hectares. Wine grapes are grown in all states of Australia.
21. Australia exports wine to 130 countries and accounts for eight per cent of global wine exports, in volume terms. In 2008 wine exports totalled 699 million litres with an estimated value of $2.5 billion. These export volumes account for more than sixty per cent of Australian wine sales and make Australia the world's fourth largest wine exporter. This contrasts with Australia's wine production accounting for only five per cent of total world production. Approximately half of Australia's wineries export to overseas markets.
Obligations 22. The Wine Labelling Agreement is an outcome of obligations under the WWTG Agreement on Mutual Acceptance of Oenological Practices done at Toronto on 18 December 2001 (Article 6(2)) by which the Parties agreed to enter into negotiations for an agreement on wine labelling.
' 2006 Census 2 Winegrape Grower's Australia media release 5/10/2007 available at: httL)://www wgga com.au/news/view.asl2?view=5 accessed 2 July 2009. 23. The primary obligation of the Wine Labelling Agreement is contained in Article 6. This article provides that, once the Wine Labelling Agreement is ratified, accepted or approved Australia is obligated to permit wine producers to use a single field of vision approach to wine labelling. According to this approach, domestic labelling requirements will be met where four key common mandatory items of information are displayed together on a standard size wine container. This labelling requirement will apply to:
a) Australian wine produced for domestic consumption in any State and Territory; and b) Australian wine exports to WWTG Parties that have ratified, accepted or approved the Wine Labelling Agreement. 24. The effect of Article 6 is also that Australia is obligated to accept wine from other WWTG countries that have signed and ratified, accepted or approved the Wine Labelling Agreement and which use a single field of vision approach to wine labelling which complies with our domestic labelling requirements, provided this information is not displayed on the base or the cap of the wine container (Article 10(3b)). Other obligations of the Wine Labelling Agreement are outlined below.
25. Article 3 does not limit the rights and obligations of Parties under the Marrakesh Agreement Establishing the World Trade Organization done on 15 April 1994 and associated WTO Agreements and does not preclude the Parties from concluding wine labelling agreements with third countries. For example, Australia - European Community Agreement on Trade in Wine (EC Wine Agreement), done on 1 December 2008 (yet to enter into force) contains some provisions on labelling. The labelling provisions in the EC Wine Agreement are compatible with those of the Wine Labelling Agreement, covering different areas of labelling. There is no interaction or incompatibility between the two Agreements.
26. Article 5 specifies that all information on a label shall be clear, specific, accurate, truthful and not misleading to the consumer. Australia is also obligated to allow information on a wine label provided it is consistent with our labelling laws and that information may be repeated on a label whether mandatory or voluntary. Importantly, Article 5 specifies that no Party shall require wine making practices to be disclosed on a label.
27. Article 9 specifies a range of type size requirements for the presentation of the four items of common mandatory information that Australia must permit on wine containers. These size requirements are consistent with Australia's current requirements.
28. Article 10 provides that Australia cannot restrict the placement of mandatory information, apart from the restriction in Article 10(2)(b) on display of such information on the base or the cap of a wine container.
29. Article 11 provides the specifications for the presentation of the four items of common mandatory information on wine containers. These specifications are as follows:
a) country of origin - "product of', "wine of' or the name of the country of origin, used as either an adjective or a noun in conjunction with the word "wine" are allowable for country of origin; b) product name - the term "wine" is allowed as the product name; c) net contents - to be stated using the metric system, millilitres or litres and their abbreviations can be used. The single field of vision approach applies only to specified wine containers and in addition to Article 15, the Parties need to provide their requirements concerning the display of net contents to the depositary; and d) actual alcohol content - is to be indicated in percentage terms to a maximum of one decimal point and can be expressed by alcohol/volume (eg. 12.3% alc/vol or ale 12.3% vol). 30. Article 12 provides that a wine cannot be labelled as icewine unless it is made exclusively from grapes naturally frozen on the vine. The Australian Wine and Brandy Corporation (AWBC) will need to include this term in the future on the register of protected names.
31. Article 15 obligates Australia to notify the depositary on ratification of the Wine Labelling Agreement of its laws, regulations and requirements in relation to wine labelling and a contact point for such information. Australia is also obligated to notify the depositary of any proposals to change these laws, regulations and requirements within 60 days after such changes become final.
Implementation 32. To enable Australia to ratify the Wine Labelling Agreement, an amendment was needed to existing regulations under State and Territory UTML. This was to allow the volume statement to appear other than on the principal display panel or for an exemption made under the existing provisions of the regulations. The Australian Government consulted with the States and Territories on this issue throughout negotiations concerning the Wine Labelling Agreement. The Ministerial Council for Consumer Affairs (MCCA) has responsibility for the UTML within which this labelling matter falls until the Commonwealth assumes sole responsibility from 1 July 2010. Members of COAG and MCCA indicated support for the change in labelling requirements for wine containers at meetings on 23 March 2008 and 23 May 2008 respectively after a COAG regulation impact statement was drafted and circulated to the States and Territories for their agreement.
33. Now that the amendments have been made to State and Territory regulations, the single field of vision approach to wine labelling complies with current domestic labelling requirements. Therefore wine producers and importers are currently able to use it on standard size wine containers in Australia and for wine exports to WWTG countries and Europe.
34. No other legislative amendments will be required to implement the Wine Labelling Agreement, although further enabling legislation will need to be incorporated into the Regulations. Interim provisions apply in those regulations from 1 July 2010 exempting certain wine containers mentioned in the Wine Labelling Agreement from the requirements of the Regulations. However, it is intended that should the Wine Labelling Agreement be ratified, approved or accepted, this will enable inclusion of the specific provisions of this Agreement in the Regulations, as indicated in the explanatory statement to that instrument.
35. To ensure that consumers are not confused by the new labelling arrangements the Winemakers' Federation of Australia (WFA) volunteered to implement a monitoring system and conduct an education process for consumers. As a result of this process WFA has notified all producers of the changes via the WFA website and newsletter . The AWBC is also preparing a fact sheet for its website.
36. In addition, the WFA Packaging Committee has a standing agenda item on wine labelling at which any complaints are to be registered. The AWBC has also been requested to log all complaints concerning the regulatory system. Although the South Australia legislation was put in place in November 2007, to date WFA have received no complaints regarding the change or changes in other State and Territory jurisdictions.
Costs 37. As noted above, it has been estimated that the single field of vision approach could save approximately $25 million in labelling costs for Australian wine industry, thereby helping to increase the competitiveness, volume and value of Australian wine exports.
38. Although there are no annual membership costs or fees, the Australian Government Department of Agriculture, Fisheries and Forestry and the Department of Foreign Affairs and Trade are likely to incur minor costs in attending future meetings of the WWTG or the Council of Parties established under the Wine Labelling Agreement. These costs will be undertaken in the normal course of portfolio budgetary requirements.
39. There are no costs associated with the Wine Labelling Agreement for States and Territories . The WFA has and will incur some minor costs associated with an education campaign for consumers and with registering any complaints with the labelling system through its Packaging Committee . The AWBC will incur minor costs in developing a fact sheet for their website to inform consumers and logging any complaints concerning the volume statement.
Regulation Impact Statement 40. The Australian Government has prepared a Regulation Impact Statement (RIS) which is attached. Future treaty action 41. In relation to any future treaty action that may be required, Article 13 of the Wine Labelling Agreement obliges the Parties to continue discussing the following matters with a view to concluding an additional agreement on labelling within three years from the closing of the period for signature of the Agreement as specified in Article 13(1): (a) labelling requirements concerning information on alcohol tolerance, vintage, variety and wine regions; (b) labelling requirements concerning the linking of National Mandatory Information or voluntary information or both; and (c) any other relevant trade facilitating matters concerning labelling requirements such as type size, presentation of net contents, multiple languages and icewine. 42. Article 17 provides that any Party may propose amendment to the Wine Labelling Agreement by submitting the text of the proposed amendment to the depositary. Amendments shall be subject to acceptance by the Parties. Any such amendment would constitute a treaty action and would therefore be subject to Australia 's domestic treaty-making process, including tabling in Parliament and consideration by the Joint Standing Committee on Treaties (JSCOT).
Withdrawal or denunciation 43. Article 18 provides that a Party may withdraw from the Wine Labelling Agreement by providing written notification to the depositary. The depositary shall promptly communicate the notification to the Parties. Withdrawal shall take effect six months after the date the depositary receives the notification, unless the notification specifies a later date. The withdrawal shall not take effect if the notification is withdrawn prior to the expiry of the six months, or where a later date is specified, the occurrence of that date.
44. Any termination of the Wine Labelling Agreement by Australia would be subject to Australia's domestic treaty-making process, including tabling and consideration by JSCOT.
Contact details Food Trade and Quarantine Section Agriculture and Food Branch Office of Trade Negotiations Department of Foreign Affairs and Trade. ATTACHMENT ON CONSULTATION
Agreement on Requirements for Wine Labelling, done at Canberra on 23 January 2007 [2007] ATNIF 7
CONSULTATION
Commonwealth Agencies
45. Approval for Australia to sign the Wine Labelling Agreement has been received from the following relevant Australian Government agencies: Department of the Treasury; Attorney-General's Department; Department of Agriculture, Fisheries and Forestry; Department of Foreign Affairs and Trade; Department of Innovation, Industry, Science and Research. The Prime Minister has been informed of the process to sign the Wine Labelling Agreement.
46. Several ministers noted the need to continue to consult with the States and Territories to resolve the issue of the amendment to the State and Territory UTML. All States and Territories were consulted throughout this process and have now amended their relevant legislation.
State and Territory Governments
47. In June 2001 the Department of Agriculture, Fisheries and Forestry, wrote to the Premiers and Chief Minister of all States and Territories concerning the proposal to develop a multilateral agreement on wine labelling. At the same time, the Department of Innovation, Industry, Science and Research consulted with the Trade Measurement Advisory Committee (TMAC), formed by the Ministerial Council on Consumer Affairs, whose functions include oversight of the national review of trade measurement legislation.
48. In June 2003, Mr Vaile, the then Minister for Trade wrote to all Premiers and Chief Ministers to encourage support for the proposed Wine Labelling Agreement. Following Mr Vaile's letter, the Department of Foreign Affairs and Trade consulted with all State and Territory governments including regulatory authorities on the principles of the proposed Wine Labelling Agreement.
49. The first briefing provided to the Commonwealth-State/Territory Standing Committee on Treaties (SCOT) meeting was on 31 May 2004 and included a presentation by the Department of Foreign Affairs and Trade and the Department of Agriculture, Fisheries and Forestry.
50. In mid-2004, the Department of Foreign Affairs and Trade contacted the Secretariat of MCCA and proposed placing the wine labelling issue on the agenda for the Council's next meeting. 51. At its meeting of August 2004, MCCA considered a paper relating to possible changes to Australia's labelling requirements for wine containers in the event that firm agreement was reached in the WWTG and agreed to form a Standing Committee of Officials of Consumers Affairs (SCOCA) Working Party to report back within three months. South Australia, New South Wales, Tasmania, Victoria, Queensland and Western Australia agreed to participate on the Working Party to further examine the matter. The commencement of the SCOCA Working Party's consideration of this issue was delayed, pending receipt of clarifying information it had sought from the industry, further assessment of that information and confirmation of a firm position from the Department of Foreign Affairs and Trade and the WWTG.
52. In September 2004, the Department of Foreign Affairs and Trade and the Department of Agriculture, Fisheries and Forestry addressed a joint Working Party of TMAC considering this issue. At that time, TMAC expressed the view that it was strongly opposed to changing the legislation concerned with volume content labelling. The Commonwealth Government continued to discuss the matter with TMAC.
53. In September 2005, MCCA noted a paper and the work undertaken by the SCOCA Working Party in considering this matter. The Working Party had requested that further work in relation to consumer benefits, confirmation of industry proposed cost savings and Australia's obligations in adhering to international trade measurement standards.
54. In December 2006, the Australian Government provided SCOCA with a dossier of information addressing concerns which had been raised by the Working Party in relation to the "single field of vision" approach to wine labelling. At this meeting members indicated general support for the change in labelling requirements for standard wine containers.
55. The dossier was also sent by the then Minister for Trade to State and Territory Consumer Affairs and Primary Industries ministers for their information and consideration. State and Territory minister's responses expressed general support for the proposed amendments to the UTML.
56. Following Australia's signing of the Wine Labelling Agreement in January 2007, a progress report was provided to the SCOCA meeting in April 2007 and in June 2007 both the draft RIS and National Interest Analysis were provided to them for their consideration.
57. At the 26 March 2008 COAG meeting it was agreed to ask MCCA to expedite ratification of the Wine Labelling Agreement. MCCA agreed at its 23 May 2008 meeting that States and Territories should enable the necessary changes to the UTML to allow for ratification of the Wine Labelling Agreement.
58. South Australia amended its UTML commencing from 22 November 2007, enabling the information required under the Wine Labelling Agreement to be viewed together in a single field of vision.
59. In December 2008, Queensland implemented the Queensland Trade Measurement Amendment Legislation allowing the requirements of the Wine Labelling Agreement to come into force. It was agreed through the MCCA process that the Queensland regulations be used as a template for the other states to amend their legislation. Northern Territory and Victoria followed in December 2008 in also finalising the required amendments to their legislation.
60. Amendments to the UTML took effect on 1 February 2009 in New South Wales, in June 2009 in the Australian Capital Territory and Tasmania and on 1 July 2009 in West Australia. The UTML in all States and Territories has now been amended to allow for the Wine Labelling Agreement to be ratified.
Industry
61. Maintaining and increasing international market share is of great importance to continued wine industry viability. Hence, the Australian wine industry is highly supportive of the single field of vision approach for labels as it will provide considerable cost savings and make the labelling of standard size wine containers more efficient.
62. Australian Government participation in negotiations for the Wine Labelling Agreement have been carried out in close consultation with the WFA and the industry's statutory marketing authority - the AWBC. WFA and AWBC have actively supported and provided input into the negotiations for the Wine Labelling Agreement and both have confirmed their support for the text of this Agreement. Wine industry leaders have also been directly briefed through the AWBC's International Trade Advisory Committee. DEPARTMENT OF FOREIGN AFFAIRS AND TRADE
CANBERRA
THE AGREEMENT ESTABLISHING
THE ADVISORY CENTRE ON WTO LAW
(Seattle, 30 November 1999)
Not yet in force
[2010] ATNIF 20 THE PARTIES TO THIS AGREEMENT
Noting that the Agreement Establishing the World Trade Organisation (hereinafter referred to as the "WTO ") created a complex legal system and elaborate procedures for the settlement of disputes;
Noting further that developing countries, in particular the least developed among them, and the countries with economies in transition have limited expertise in WTO law and the management of complex trade disputes and their ability to acquire such expertise is subject to severe financial and institutional constraints;
Recognising that a proper balance of rights and obligations under the Agreement Establishing the WTO can only be maintained if all Members of the WTO have a full understanding of their rights and obligations thereunder and an equal opportunity to resort to the WTO dispute settlement procedures;
Recognisingfurther that the credibility and acceptability of the WTO dispute settlement procedures can only be ensured if all Members of the WTO can effectively participate in it;
Resolved, therefore, to create a source of legal training, expertise and advice on WTO law readily accessible to developing countries, in particular the least developed among them, and countries with economies in transition;
HAVE AGREED AS FOLLOWS:
Article 1 Establishment of the Advisory Centre on WTO Law The Advisory Centre on WTO Law (hereinafter referred to as the "Centre ") is hereby established.
Article 2 Objectives and Functions of the Centre 1. The purpose of the Centre is to provide legal training, support and advice on WTO law and dispute settlement procedures to developing countries , in particular to the least developed among them , and to countries with economies in transition. 2. To this end, the Centre shall:
• Provide legal advice on WTO law;
® Provide support to parties and third parties in WTO dispute settlement proceedings;
® Train government officials in WTO law through seminars on WTO law and jurisprudence, internships and other appropriate means; and 3
• Perform any other functions assigned to it by the General Assembly.
Article 3 Structure of the Centre 1. The Centre shall have a General Assembly, a Management Board and an Executive Director.
2. The General Assembly shall consist of the representatives of the Members of the Centre and the representatives of the least developed countries listed in Annex III to this Agreement. The General Assembly shall meet at least twice a year to:
• Evaluate the performance of the Centre;
• Elect the Management Board;
• Adopt regulations proposed by the Management Board;
• Adopt the annual .budget proposed by the Management Board; and
• Perform the functions assigned to it under other provisions of this Agreement.
The General Assembly shall adopt its rules of procedure.
3. The Management Board shall consist of four members , a representative of the least developed countries and the Executive Director. The persons serving on the Management Board shall serve in their personal capacity and shall be selected on the basis of their professional qualifications in the field of WTO law or international trade relations and development.
4. The members of the Management Board and the representative of the least developed countries on the Management Board shall be appointed by the General Assembly. The Executive Director shall serve ex officio on the Management Board. The group of Members listed in Annex Ito this Agreement and the three groups of Members listed in Annex II to this Agreement may each nominate one member of the Management Board for appointment by the General Assembly. The least developed countries listed in Annex III to this Agreement may nominate their representative on the Management Board for appointment by the General Assembly.
5. The Management Board shall report to the General Assembly. The Management Board shall meet as often as necessary to: • Take the decisions necessary to ensure the efficient and effective operation of the Centre in accordance with this Agreement;
• Prepare the annual budget for the Centre for approval by the General Assembly;
• Decide on appeals by Members to whom legal support in a dispute settlement proceeding has been denied; 4
® Supervise the administration of the Centre's endowment fund;
• Appoint an external auditor;
® Appoint the Executive Director in consultation with Members;
• Propose for adoption by the General Assembly regulations on:
- The procedures of the Management Board;
The duties and conditions of service of the Executive Director, the staff of the Centre and consultants contracted by the Centre; and
- The administration and investment policy of the Centre's endowment fund.
Perform the functions assigned to it under other provisions of this Agreement.
6. The Executive Director shall report to the Management Board and shall be invited to participate in all its meetings. The Executive Director shall:
® Manage the Centre's day-to-day operations;
® Hire, direct and dismiss the staff of the Centre in accordance with the staff regulations adopted by the General Assembly;
® Contract and supervise consultants;
® Submit to the Management Board and the General Assembly an independently audited statement of receipts and expenditures relating to the budget during the preceding fiscal year; and
® Represent the Centre externally.
Article 4 Decision-Making 1. The General Assembly shall take its decisions by consensus. A proposal considered for adoption at a meeting of the General Assembly shall be deemed to have been adopted by consensus if no formal objections are raised against it during the meeting by any Member of the Centre. This provision shall apply mutatis mutandis also to decisions by the Management Board.
2. If the Chairperson of the General Assembly or the Management Board determines that a decision cannot be arrived at by consensus, the Chairperson may decide to submit the matter to a vote by the General Assembly. In such a case, the General Assembly shall take its decision by a majority of four-fifth of the Members present and voting. Each Member shall have one vote. A simple majority of the Members of the Centre shall constitute the quorum for any meeting of the General Assembly during which a matter is submitted to a vote. 4 5
3. In the case of decisions on amendments the procedures set out in paragraph 1 of Article 11 of this Agreement shall apply.
Article 5 Financial Structure of the Centre 1. An endowment fund shall be created with the contributions made by Members in accordance with paragraph 2 of Article 6 of this Agreement.
2. The Centre shall charge fees for legal services in accordance with the schedule of fees set out in Annex IV to this Agreement. 3. The annual budget of the Centre shall be funded by the revenues from the Centre's endowment fund, the fees for services rendered by the Centre and any voluntary contributions made by governments, international organisations or private sponsors. 4. The Centre shall have an external auditor.
Article 6 Rights and Obligations of Members 1. Each developing country Member and each Member with an economy in transition listed in Annex II to this Agreement is entitled to the services of the Centre in accordance with the regulations adopted by the General Assembly and the schedule of fees set out in Annex IV. Each Member may request that the support in WTO dispute settlement proceedings be provided in any of the three official languages of the WTO.
2. Each Member that has accepted this Agreement shall promptly pay a one-time contribution to the Centre's endowment fund and/or annual contributions during the first five years of operation of the Centre in accordance with the scale of contributions set out in Annexes I and II to this Agreement. Each Member that has acceded to this Agreement shall make contributions in accordance with the provisions of its instrument of accession.
3. Each Member shall promptly pay the fees for the services rendered by the Centre.
4. If the Management Board determines that a Member is in default of any of its obligations under paragraph 2 or 3 of this Article, it may decide to bar that Member from the exercise of its rights under paragraph 1 of this Article. 5. Nothing in this Agreement shall be construed to imply any financial liability for any Member beyond the liabilities arising from paragraphs 2 and 3 of this Article.
Article 7 Rights of Least Developed Countries The least developed countries listed in Annex III shall be accorded at their request the services of the Centre in accordance with the regulations adopted by the General Assembly and the schedule of fees set out in Annex IV. Each of these countries may
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request that the support in WTO dispute settlement proceedings be provided in any of the three official languages of the WTO.
Article 8 Priorities in the Allocation of Support in WTO Dispute Settlement Proceedings If two countries entitled to support in WTO dispute settlement proceedings are involved in the same proceeding, support shall be granted in accordance with the following priorities : First, least developed countries ; second, Members that have accepted this Agreement; third, Members that acceded to this Agreement . The General Assembly shall adopt regulations on the allocation of support in WTO dispute settlement proceedings that reflect these priorities.
Article 9 Co-operation with Other International Organisations The Centre shall co -operate with the World Trade Organisation and other international organisations with a view to furthering the objectives of this Agreement.
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Article 10 Legal Status of the Centre 1. The Centre shall have legal personality. It shall have in particular the capacity to contract, to acquire and dispose of immovable and movable property and to institute legal proceedings. 2. The Centre shall be located in Geneva, Switzerland.
3. The Centre shall seek to conclude an agreement with the Swiss Confederation on the status, privileges and immunities of the Centre. The agreement may be signed by the Chairperson of the General Assembly subject to the approval by the General Assembly. The agreement may provide that the Swiss Confederation shall accord to the Centre, its Executive Director and its staff the status , privileges and immunities that the Swiss Confederation accords to permanent diplomatic missions and their members or to international organisations and their staff.
Article 11 Amendment, Withdrawal and Termination 1. Any Member of the Centre and the Management Board may submit to the General Assembly a proposal to amend a provision of this Agreement . The proposal shall be promptly notified to all Members . The General Assembly may decide to submit the proposal to Members for acceptance. The amendment shall take effect on the 30th day following the date on which the depositary has received the instruments of acceptance of all Members.
2. If the financial situation of the Centre so requires, any Member of the Centre and the Management Board may submit to the General Assembly a proposal to amend the scale of contributions set out in Annexes I and II to this Agreement and the schedule of fees set out in Annex IV to this Agreement. The amendment shall take effect on the 30th day following the date on which the General Assembly adopted it by unanimous decision. 3. Paragraphs 1 and 2 of this Article are without prejudice to the obligation of the Management Board to modify Annexes II and IV in accordance with the Notes contained therein.
4. Any Member may at any time withdraw from this Agreement by giving written notice to the Depositary. The Depositary shall inform the Executive Director of the Centre and the Members of the Centre of such a notice. The withdrawal shall become effective on the 30th day following the date on which the notice has been received by the Depositary. The obligation to pay the fees for services rendered by the Centre in accordance with paragraph 3 of Article 6 of this Agreement is unaffected by the
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withdrawal. The withdrawing Member shall not be entitled to a reimbursement of its contributions to the Centre ' s endowment fund.
5. The General Assembly may decide to terminate this Agreement. Upon the termination, the Centre ' s assets shall be distributed among the present and former Members of the Centre in proportion to the total of each Member ' s contributions to the endowment fund and/or the annual budget of the Centre.
Article 12 Transitional Arrangements 1. During the Centre's first five years of operation the annual budget of the Centre shall be funded by the annual contributions made by the Members in accordance with paragraph 2 of Article 6 of this Agreement and Annex Ito this Agreement. During this period the revenues from the endowment fund and from the fees for services rendered shall accrue to the endowment fund.
2. During the Centre's first five years of operation the Management Board shall have five members. The Members listed in Annex Ito this Agreement may nominate two persons to serve on the Management Board during that period.
3. The obligation of a Member to make annual contributions during the Centre's first five years of operation in accordance with paragraph 2 of Article 6 of this Agreement and Annex Ito this Agreement shall not be affected by the withdrawal of that Member from this Agreement.
Article 13 Acceptance and Entry into Force 1. Any State or separate customs territory listed in Annex I, II or III to this Agreement may become a Member of the Centre by accepting this Agreement, by signature or by signature subject to ratification, acceptance or approval, during the third Ministerial Conference of the WTO to be held at Seattle from 30 November to 3 December 1999, and thereafter until 31 March 2000. The instrument of ratification, acceptance or approval shall be deposited no later than 30 September 2002.
2. This Agreement shall enter into force on the 30th day following the date upon which all of the following conditions are met:
® The twentieth instrument of ratification , acceptance or approval or signature not subject to ratification, acceptance or approval has been deposited;
® The total of the one-time contributions to the Centre's endowment fund that the States or customs territories which have accepted this Agreement are obliged to make in accordance with paragraph 2 of Article 6 of this Agreement and Annexes I and II to this Agreement exceeds six million US dollars; and
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® The total of the annual contributions that the States or customs territories which have accepted this Agreement are obliged to make in accordance with paragraph 2 of Article 6 of this Agreement and Annex Ito this Agreement exceeds six million US dollars.
3. For each signatory of this Agreement that deposits its instrument of ratification, acceptance or approval after the date on which the conditions set out in paragraph 2 of this Article are met the Agreement shall enter into force on the 30th day following the date on which the instrument of ratification, acceptance or approval has been deposited.
Article 14 Reservations No reservations may be made in respect of any provision of this Agreement.
Article 15 Annexes The Annexes to this Agreement constitute an integral part of this Agreement.
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Article 16 Accession Any Member of the WTO and any State or separate customs territory in process of acceding to the WTO may become a Member of the Centre by acceding to this Agreement on terms and conditions agreed between it and the Centre. Accessions shall be effected by an instrument of accession approved by the General Assembly. The General Assembly shall approve the instrument of accession only if the Management Board advises it that the accession would cause neither financial nor operational problems for the Centre. This Agreement shall enter into force for the acceding Member of the WTO or for the State or separate customs territory in process of acceding to the WTO on the 30th day following the date on which the instrument of accession was deposited with the depositary.
Article 17 Depositary and Registration 1. This Agreement shall be deposited with the Government of the Kingdom of the Netherlands. 2. This Agreement shall be registered in accordance with the provisions of Article 102 of the Charter of the United Nations.
DONE at Seattle, this thirtieth day of November one thousand nine hundred ninety-nine, in a single copy, in the English, French and Spanish languages, each text being equally authentic.
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ANNEX I MINIMUM CONTRIBUTIONS OF DEVELOPED COUNTRY MEMBERS
WTO Member Contribution to Contribution to the Endowment Fund Annual Budget During the First Five Years
Australia
Austria
Belgium
Canada US$ 1,000,000
Denmark US$ 1,000,000
European Con-Imunities
Finland USS 1,000,000
France
Germany
Greece
Iceland
Ireland USS 1,000,000 US$ 1,250,000
Italy US$ 1,000,000
Japan
Liechtenstein
Luxembourg
Netherlands US$ 1,000,00() USS 1,250.000
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New Zealand
Norway US$ 1,000,000 US$ 1,250,000
Portugal
Spain
Sweden US$ 1,000,000
Switzerland
United Kingdom US$ 1,250,000
United States of America
If a Member considers it necessary, it may make its contribution to the endowment fund in equal annual instalments during the three years following the entry into force of this Agreement.
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ANNEX II MINIMUM CONTRIBUTIONS OF DEVELOPING COUNTRY MEMBERS AND MEMBERS WITH AN ECONOMY IN TRANSITION
Criteria WTO MEMBER `% of WTO Contribution to the Contribution Endowment Fund
CATEGORY A >1.5% Hong Kong, China 3.54 US$ 300,000
Korea 2.32 USS 300,000
Mexico 1.51 US$ 300,000
Singapore 2.25 US$ 300,000
Brunei Darussalam 0.04 US$ 300,000 or High Income Cyprus 0.07 US$ 300,000
Israel 0.59 US$ 300,000
Kuwait 0.24 USS 300,000
Macao 0.07 US$ 300,000
Qatar 0.06 USS 300,000
United Arab Emirates 0.52 US$ 300,000
CATEGORY B
>0.15%< Argentina 0.47 US$ 100,000 1.5% Brazil 0.92 USS 100,000
Chile 0.29 US$ 100,000
Colombia 0.25 USS 100,000
Czech Republic 0.51 US$ 100,000
Egypt 0.26 USS 100,000
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Hungary 0.32 US$ 100,000
India 0.57 US$ 100,000
Indonesia 0.87 US$ 100,000
Malaysia 1.31 USS 100,000
Morocco 0.16 USS 100,000
Nigeria 0.20 USS 100,000
Pakistan 0.19 USS 100,000
Philippines 0.46 USS 100,000
Poland 0.48 US$ 100,000
Romania 0.15 USS 100,000
Slovak Rep. 0.17 US$ 100,000
Slovenia 0.19 US$ 100,000
South Africa 0.55 USS 100,000
Thai land 1.19 USS 100,000
Turkey 0.60 USS 100,000
Venezuela US$ 100,000
Antigua and Barbuda 0.03 USS 100,000
Bahrain 0.09 USS 100,000
Barbados 0.03 US$ 100,000 or Upper middle Gabon 0.04 USS 100,000 income Malta 0.05 US$ 100,000
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Mauritius 0.04 US$ 100,000
St. Kitts and Nevis 0.03 US$ 100,000
0.03 USS 100,000
Trinidad and Tobago 0.04 US$ 100,000
Uruguay 0.06 US$ 100,000
CATEGORY C
< 0.15% Belize 0.03 US$ 50,000
Bolivia 0.03 USS 50,000
Botswana 0.04 US$ 50,000
Bulgaria 0.11 USS 50,000
Cameroon 0.04 US$ 50,000
Congo 0.04 US$ 50,000
Costa Rica 0.07 US$ 50,000
Cote d'lvoire 0.07 U SS 50,000
Cuba 0.04 US$ 50,000
Dominican Republic 0.10 US$ 50,000
Dominica 0.03 USS 50,000
Ecuador 0.09 USS 50,000
El Salvador 0.04 US$ 50,000
Estonia'` 0.03 US$ 50,000
Fiji 0.03 USS 50,000
Ghana 0.03 US$ 50,000
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Georgia* 0.03 US$ 50,000
Grenada 0.03 US$ 50,000
Guatemala 0.05 USS 50,000
Guyana 0.03 US$ 50,000
Honduras 0.03 US$ 50,000
Jamaica 0.06 US$ 50,000
Kenya 0.05 US$ 50,000
Kyrgyz Republic 0.03 USS 50,000
Latvia 0.03 US$ 50,000
Mongolia 0.03 USS 50,000
Namibia 0.03 US$ 50,000
Nicaragua 0.03 US$ 50,000
Panama 0.14 USS 50,000
Papua New-Guinea 0.05 US$ 50,000
Paraguay 0.05 US$ 50,000
Peru 0.12 US$ 50,000
Senegal 0.03 US$ 50,000
Sri Lanka 0.09 US$ 50,000
St. Vincent and the 0.03 US$ 50,000 Grenadines
Suriname 0.03 US$ 50,000
Swaziland 0.03 US$ 50,000
Tunisia 0.14 USS 50,000
Zimbabwe 0.03 US$ 50,000
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Least developed countries listed in Aimex III that US$ 50,000 have accepted this Agreement. *Pending deposit of instrument of ratification
Notes:
1. If a Member considers it necessary, it may make its contribution in equal annual instalments during the four years following the entry into force of this Agreement.
2. The classification of countries listed in this Annex II into Group A, B and C Members was made on the basis of their share of world trade with an upward correction reflecting their per capita income, as indicated in the table below. The share of world trade was determined on the basis of the share of world trade that the WTO used to determine the share of its Members in the expenses of the WTO. The per capita income was based on World Bank statistics. Taking into account these criteria and sources of statistics, the Management Board shall review the classification of Members listed in this Annex at least once every five years and, if necessary, modify the classification to reflect any changes in the share of world trade and/or per capita income of such Members.
Category World Trade GNP per capita Share
= 0,15 % and Upper Middle Income countries 1,5% or
3. The provisions of Article 7 of this Agreement and Annex IV to this Agreement shall apply equally to the least developed countries listed in Annex III that have not accepted this Agreement and the least developed countries listed in Annex III that have accepted this Agreement.
4. States and customs territories listed in Annex II that are not Members of the Centre, may request the support of the Centre in WTO dispute settlement proceedings subject to the fees indicated in Annex IV to this Agreement. Such support will be provided on the condition that no Member of the Centre is involved in the same case or any Member that is involved in the same case authorises the Centres' support to such
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State or customs territory. All other services shall be provided exclusively to Members and least developed countries.
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ANNEX III LEAST DEVELOPED COUNTRIES ENTITLED TO THE SERVICES OF THE ADVISORY CENTRE
WTO M ember % of ^W'TO Contribution
Angola 0.07
Bangladesh 0.09
Benin 0.03
Bhutan* 0.03
Burkina Faso 0.03
Burundi 0.03
Cambodia 0.03
Cape Verde* 0.03
Central Rep. Africa 0.03
Chad 0.03
Democratic Republic of 0.03
Congo
Djibouti 0.03
Gambia 0.03
Guinea rep. 0.03
Guinea-Bissau 0.03
Haiti 0.03
Lao People's Democratic 0.03 Republic"
Lesotho 0.03
Madagascar 0.03
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Malawi 0.03
Maldives 0.03
Mali 0.03
Mauritania 0.03
Mozambique 0.03
Myanmar 0.03
Nepal 0.03
Niger 0.03
Rwanda 0.03
Samoa* 0.03
Sierra Leone 0.03
Solomon Islands 0.03
Sudan < 0.03
Tanzania 0.03
Togo 0.03
Uganda 0.03
Vanuatu' 0.03
Zambia 0.03 *In the process of acceding to the WTO. Note
If the United Nations designate a country not listed in this Annex as a least developed country, such country shall be deemed to be listed in this Annex provided it is a Member of the WTO or in the process of acceding to the WTO. If a country listed in this Annex ceases to be designated as a least developed country by the United Nations, it shall be deemed to be a country not listed in this Annex.
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ANNEX IV SCHEDULE OF FEES FOR SERVICES RENDERED BY THE CENTRE
SERVICE CHARGE (hourly rate
Legal advice on WTO Law
Members and least developed Frec, subject to a maximum ofhours countries to be determined by the Management Board.
Developing countries not Members of the Centre:
- Category A US$ 350
- Category B US$ 300
- Category C USS 250
Support in NAITO dispute settlement proceedings
Charges will be levied by hours or by case. When charged by case, cost estimates would be offered for each phase of the proceedings (i.e. for panel phase, for appeal phase, etc.).
When two Members or a Member and a least developing country seek the services of the Centre, and subcontracting external legal counsel becomes necessary, the fees for both parties will be increased by 20 percent.
Members and least A percentage of the hourly basic rate developed countries (US$ 250)
Discount Payable hourly rate
- Category A 20% US$ 200
- Category B 40% USS 150
- Category C 60% US$ 100
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- Least developed countries 90% US$ 25
Developing countries not Members of the Centre - Category A US$ 350
Category B USS 300
Category C US$ 250
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SERVICE CHARGE (hourly rate
Seminars on jurisprudence Free for Members and other training activities
Internships
© Least developed countries Subject to availability of sponsorships. The Centre shall pay expenses and salary.
Members Expenses and salary to be paid by the government of the trainee except when sponsorship is available.
Note
This schedule of fees may be adjusted by the General Assembly upon a proposal of the Management Board to reflect changes in the Swiss consumer price index.
23 National Interest Analysis [2010] ATNIA 24
with attachment on consultation
Accession to the Agreement establishing the Advisory Centre on WTO Law, done at Seattle on 30 November 1999
[2010] ATNIF 20 NATIONAL INTEREST ANALYSIS: CATEGORY 1 TREATY
SUMMARY PAGE
Accession to the Agreement establishing the Advisory Centre on WTO Law, done at Seattle on 30 November 1999 [2010] ATNIF 20
Nature and timing of proposed treaty action
1. It is proposed that Australia become a Member of the Advisory Centre on WTO Law (ACWL) by acceding to the Agreement establishing the Advisory Centre on WTO Law (the Agreement).
2. The Agreement was opened for signature during the third Ministerial Conference of the World Trade Organization (WTO) in November-December 1999 . The original ACWL Members signed the Agreement in 1999 and the ACWL was officially established after the Agreement came into force in 2001.
3. Pursuant to Article 16, the Agreement will enter into force for Australia 30 days after the instrument of accession is deposited with the Depositary (the Government of the Kingdom of the Netherlands). It is proposed that this will occur as soon as is practicable.
Overview and national interest summary
4. The ACWL is a Geneva-based intergovernmental organisation, independent of the WTO, which assists developing countries by providing subsidised legal advice and training on WTO law, as well as support in WTO dispute settlement proceedings . By joining the ACWL Australia will raise its trade and development assistance profile and demonstrate its commitment to assist developing countries engage in the multilateral trading system.
5. The Australian Government recognises the importance of developing countries' participation in the open, transparent and rules-based global trading system of the WTO. Improving developing countries' ability to trade internationally, particularly in the Asia-Pacific region, will directly benefit Australia by leading to larger and more reliable export markets for Australian goods and more sources of imports for Australian consumers and manufacturers.
6. Trade law assistance helps developing countries build policy expertise and capacity to take full advantage of the WTO system. Increased access to the WTO dispute settlement system, for example, helps developing countries to fully realise their rights under WTO law. The ACWL also assists developing countries to ensure that domestic laws are WTO consistent. Improving developing countries' trade performance and economic growth contributes to greater stability and global prosperity, promoting Australia's broader foreign and trade policy objectives. Reasons for Australia to take the proposed treaty action
7. Australia ' s membership of the ACWL will add to Australia's longstanding support of developing countries ' interests in the multilateral trading system. Existing initiatives include our efforts to reform global agricultural trade as Chair of the Cairns Group and a wide range of `Aid for Trade' programs in the Asia-Pacific region. Australia' s contribution to and participation in, the ACWL falls within the Aid for Trade component of our overall aid program and complements Australia' s existing trade development activities.
8. A robust and equitable trading system based on respect for rules, which are upheld for all concerned, is important to Australia' s interests . ACWL comprises highly skilled and well regarded lawyers who contribute effectively to strengthening the WTO dispute system, as well as prosecuting their developing country clients ' interests . The ACWL has made a significant contribution to the development of the WTO dispute settlement system as a cornerstone of the WTO. The involvement of developing countries is essential for the ongoing legitimacy of this system, as is developing countries ' equal enjoyment of rights within that system. By joining and contributing to the ACWL, Australia will be helping to increase developing countries' access to legal services and the WTO dispute settlement system. In turn, this will foster a sense of confidence and equity in the multilateral trading system , as developing WTO Members become better able to enforce their rights under international trade law.
9. Joining the ACWL is a valuable way to demonstrate Australia' s commitment to assist developing countries ' engagement in international trade, because the ACWL assists a large number of clients in a range of WTO matters. Countries can approach the ACWL both for advice on WTO law and support in dispute settlement proceedings . The ACWL's schedule of fees provides that countries receive discounted advice proportionately according to their level of development, with least developed countries (LDCs) receiving the cheapest advice (Annex IV). The 44 LDCs that are Members of the WTO or in the process of acceding to the WTO are entitled to free legal advice on WTO law (and a significant discount on support in dispute settlement proceedings ) without having to become Members of the ACWL. Thirty developing countries are entitled to free advice (and discounted dispute settlement support) by virtue of their membership of ACWL. Thus, Australia's joining the ACWL will demonstrate its support for services that are available to 74 countries, or approximately half of the Members of the WTO and boost Australia' s trade development assistance profile in these countries.
10. Asa Member, Australia will be able to promote Australian foreign and trade policy interests while contributing to the operations of the ACWL. Members sit in the ACWL's General Assembly and are consulted on the appointment of the Executive Director, who manages day-to-day operations (Article 3 ). Decisions in the General Assembly are made by consensus or, in the event of disagreement, by a four-fifths majority vote (Article 4). As one of only two non-European developed Members (together with Canada), there is a significant opportunity for Australia to provide a unique perspective to the ACWL' s deliberations and to engage constructively in the ACWL' s decision-making. While the ACWL's services are demand-driven and not focused on particular regions, Australia could, for example, usefully promote ACWL services to Pacific island countries in support of Australian foreign and trade policy interests.
11. It is possible that developing counties may use ACWL services to bring a WTO dispute against Australia, as occurred when the Philippines launched two quarantine-related disputes against Australia in 2002.1 The probability of the WTO dispute settlement mechanism being invoked by a developing country against Australia is low, but a dispute would not necessarily be problematic in any case. Maintaining the robustness and integrity of the multilateral trading system depends on all parties, including developing countries, being actively and constructively engaged. The possibility of developing countries taking action against developed countries, including Australia, helps to ensure that WTO rules are appropriately upheld by developed and developing members alike. In any case, 82 per cent of legal advice offered in 2008 and 69 per cent in 2009 concerned issues relating to WTO decision making and negotiations or developing countries' own compliance with WTO law rather than the measures of other countries. Of the disputes in which the ACWL has been involved, close to half were between developing countries rather than between developing and developed countries. Further, Australia is already committed to assisting the ACWL having pledged significant financial assistance.
12. Developing countries have used many ACWL services in ways which are supportive of Australia's interests, either systemically or in respect of a specific trade issue. In particular, the ACWL represented Thailand when it joined with Australia and Brazil to mount a successful challenge against the European Communities' export subsidies for sugar.2 Also, the ACWL was effective in supporting Chad (a West African cotton producer and LDC) as a third party in Brazil's dispute against the United States on cotton subsidies,3 and Costa Rica as a third party in the dispute against the European Communities concerning certain information technology products.4 In both cases, the ACWL's advocacy aligned with the interests of Australia, which was a third party to both disputes.
Obligations
13. Australia has already pledged to satisfy the once-only obligation on new Members contained in Article 6(2) to pay a one-time contribution to the ACWL, having committed A$3 million to the ACWL on 12 November 2009. Following this single payment Australian membership of ACWL would not carry any ongoing obligation to contribute to the ACWL (Article 6(5)).
14. Australia will be expected to attend the meetings of the ACWL General Assembly in Geneva which occur at least twice a year (Article 3(2)).
Implementation
15. No legislative action by the Commonwealth or the States and Territories is required to give effect to the proposed accession to the Agreement.
Costs
16. Australia has pledged to satisfy the obligation on new Members contained in Article 6(2) to pay a one-time contribution to the ACWL.
'Australia - Certain Measures Affecting the Importation of Fresh Fruit and Vegetables, WTO DS270; Australia - Certain Measures Affecting the Importation of Fresh Pineapple, WTO DS271. 2 European Communities - Export Subsidies on Sugar, WTO DS285 (Australia's complaint); Thailand's complaint, DS283; Brazil's complaint, DS266. 3 United States - Subsidies on Upland Cotton, WTO DS267. 4 European Communities - Tariff Treatment of Certain Information Technology Products, WTO DS375, DS376 & DS377. 17. The only other contingent financial cost to Australia associated with joining the ACWL will be the incidental costs of attending meetings of the ACWL General Assembly in Geneva. Australia will be represented by staff based in Geneva, minimising any associated costs. There are no other financial costs associated with this treaty action.
18. It is not envisaged that the Australian Government will request any legal advice or legal services from the ACWL which the ACWL would charge Australia for.
19. No provision is made in the Agreement for how debts will be paid if the ACWL is wound up and found to be insolvent . Nonetheless, it is unlikely in the foreseeable future that the ACWL will be wound up leaving substantial net debts.
Regulation Impact Statement
20. The Office of Best Practice Regulation, Department of Finance and Deregulation, has been consulted and confirms that a Regulation Impact Statement is not required.
Future treaty action
21. Pursuant to Article 11, any Member of the ACWL and Management Board may submit a proposal to amend a provision of the Agreement to the General Assembly of the ACWL. The Agreement may be amended, including alterations to the scale of contributions and fees, only with the consent of all Members (Article 11(1)). Amendments would take effect on the thirtieth day following the date on which the Depositary has received the instruments of acceptance of all ACWL Members.
22. No reservations may be made in respect of any provision of the Agreement (Article 14).
23. The General Assembly of the ACWL may decide to terminate the Agreement and thereby close the ACWL (Article 11(5)). Upon termination, the ACWL's funds would be distributed among present and former Members in proportion to the total of each Member's contributions.
24. Any amendments to, or termination of, the Agreement would be subject to Australia's domestic treaty-making process, including tabling in Parliament and consideration by the Joint Standing Committee on Treaties (JSCOT).
Withdrawal or denunciation
25. Australia may withdraw from the Agreement at any time by giving written notice to the Depositary (Article 11(4)). Withdrawal from the Agreement becomes effective on the thirtieth day following the date on which the notice has been received by the Depositary.
26. Withdrawing Members are not entitled to a reimbursement of their contributions to the ACWL endowment fund and are obliged to pay for any services already provided to them by the ACWL (Article 11(4)).
27. A decision by Australia to withdraw from the Agreement would be subject to Australia's domestic treaty-making process, including tabling in Parliament and consideration by JSCOT. Contact details
Trade Policy Section Office of Trade Negotiations Department of Foreign Affairs and Trade ATTACHMENT ON CONSULTATION
Accession to the Agreement establishing the Advisory Centre on WTO Law, done at Seattle on 30 November 1999 [2010] ATNIF 20
CONSULTATION
28. Initial consultations were held between officers of the Department of Foreign Affairs and Trade (DFAT) and the Australian Agency for International Development concerning the proposed treaty action and its consistency with Australian aid objectives and `Aid for Trade' initiatives.
29. DFAT did not consult with States and Territories as the proposed action will not impact upon them.
30. DFAT announced the proposed action on its departmental website and in the February 2010 edition of the World Trade Organization (WTO) Doha Round Bulletin, published by DFAT's Office of Trade Negotiations.
31. The Department of Foreign Affairs and Trade called for public submissions from seven stakeholders by mail. Submissions were received from each of these stakeholders and were wholly supportive of Australia joining the Advisory Centre on WTO Law (ACWL). The main reasons given for this support were the need to better integrate developing countries into and assist them to realise their rights under, the WTO system. Dr Brett Williams and Mr Andrew Stoler also noted the high quality and efficiency of the ACWL.
LIST OF STAKEHOLDERS CONSULTED AND SUBMISSIONS RECEIVED
1. Dr Brett Williams (University of Sydney) 2. Professor Ann Capling (University of Melbourne) 3. Mr Andrew Stoler (University of Adelaide) 4. Professor Peter Drahos (Australian National University) 5. Professor Sam Blay (University of Technology Sydney) 6. Australian Fair Trade and Investment Network (AFTINET) 7. International Development Law Organization (IDLO) DEPARTMENT OF FOREIGN AFFAIRS AND TRADE
CANBERRA
EXCHANGE OF NOTES AMENDING ANNEX 4-A
OF
THE AUSTRALIA-UNITED STATES FREE TRADE AGREEMENT (Done at Washington on 18 May 2004)
Canberra/Washington, TBA
Not yet in force
[2010] ATNIF 23 Ambassador Ron Kirk United States Trade Representative Office of the United States Trade Representative 600 17th Street, N.W., Washington, D.C. 20508 UNITED STATES OF AMERICA
Dear Ambassador Kirk
I have the honour to refer to the Australia-United States Free Trade Agreement (the Agreement), done at Washington D.C. on 18 May 2004, and to negotiations held in 2008 between officials of our Governments concerning the desirability of amending the rules of origin for Tariff Classifications 5.501 - 5511 concerning yarns made of mixed synthetic staple fibres contained in Annex 4-A of the Agreement.
Following these negotiations, I have the honour to propose on behalf of the Government of Australia that in accordance with Article 23.3 of Chapter 23 of the Agreement, this letter, together with a letter in reply from you accepting this proposal, shall constitute an agreement in writing to amend the Agreement by making tariff adjustments as follows:
Existing Product Specific Rules (PSR) for 5501-5511, contained in Annex 4-A (Textile or Apparel Specific Rules of Origin), shall be deleted and replaced by three (3) new PSRs as follows:
5501.00 - 5510.30 A change to subheading 5501.00 through 5510.30 from any other chapter, except from heading 5201 through 5203 or 5401 through 5405.
5510.90 A change to subheading 5510.90 from subheading 5504.10, or from any other chapter, except from heading 5201 through 5203 or 5401 through 5405.
5511 A change to heading 5511 from any other chapter, except from heading 5201 through 5203 or 5401 through 5405.
If you accept my proposal on behalf of the Government of the United States of America to amend Product Specific Rules (PSR) for 5501-5511 contained in Annex 4-A (Textile or Apparel Specific Rules of Origin) of the Agreement referred to above, I have the further honour to propose that the Amendment shall enter into force after the Parties complete any necessary internal requirements for entry into force and on such date as the Parties may agree.
Accept, Your Excellency, the renewed assurances of my highest consideration.
Yours sincerely,
SIMON CREAN National Interest Analysis [2010 ] ATNIA 26
with attachment on consultation
Exchange of Letters Constituting an Agreement to Amend Annex 4-A (Textile or Apparel Specific Rules of Origin) of the Australia-United States Free Trade Agreement, done at Washington on 18 May 2004
[2010] ATNIF 23 NATIONAL INTEREST ANALYSIS: CATEGORY 1 TREATY
SUMMARY PAGE
Exchange of Letters Constituting an Agreement to Amend Annex 4-A (Textile or Apparel Specific Rules of Origin) of the Australia-United States Free Trade Agreement, done at Washington on 18 May 2004 [2010] ATNIF 23
Nature and timing of the proposed treaty action
1. The Australia- United States Free Trade Agreement (AUSFTA) entered into force on 1 January 2005. AUSFTA is a bilateral agreement designed to increase trade liberalisation and facilitate investment between Australia and the United States.
2. The proposed amendment changes the Product Specific Rule (PSR) for tariff classifications 5501.00-5510.30, 5510 . 90 and 5511 (concerning yarns made of mixed synthetic staple fibres) contained in Annex 4 -A of AUSFTA.
3. Subject to Joint Standing Committee on Treaties (JSCOT) approval, the proposed amendment will enter into force with an exchange of letters confirming completion of the Parties' respective internal procedures and on such a date as the Parties may agree.
Overview and national interest summary
4. The proposed amendment is consistent with the objective of the AUSFTA to "Establish clear and mutually advantageous rules governing [the Parties '] trade and reduce the barriers to trade that exist between them" (Preamble to the Agreement).
5. The proposed amendment will deliver benefits to Australian manufacturers by allowing them to access the preferential rate of duty when exporting certain yarns to the United States, regardless of the origin of the viscose rayon staple fibres used to produce that yarn. This will result in savings for manufacturers and will likely lead to reduced prices for consumers. Reasons for Australia to take the proposed treaty action
6. The need for this proposed amendment to the Agreement arose from the changing nature of the textile industry in Australia and the United States. Inquiries in both countries have shown that products are not able to achieve status as originating goods under the current rule, thereby denying them the potential benefits of the Agreement. Following industry consultation, the Department of Innovation, Industry, Science and Research (DIISR) concluded that the amendment would assist Australian manufacturers of yarn using viscose rayon staple fibre by allowing them to access the preferential rate of duty.
Obligations
7. Under the revised PSR proposed by the amendments, Australia will be obliged to provide US manufacturers with the access to the preferential rate of duty when exporting certain yarns to Australia, regardless of the origin of the viscose rayon fibres used to produce that yarn.
Implementation
8. The Customs (Australia-US Free Trade Agreement) Regulations 2004 will be amended to incorporate the amendment.
Costs
9. The present PSR precludes the claiming of originating goods status when the fibres used in the manufacture of yarns are not manufactured in the United States or Australia.
10. When the present PSR was created in 2004 there was a United States manufacturer of the viscose rayon staple fibres used to manufacture yarn. This manufacturer has ceased operation, causing the Australian yarn manufacturer to source viscose rayon from Asian suppliers.
11. The proposed amendment will allow those yarns to be claimed as originating goods.
12. There will be cost savings to Australian businesses that will be able to manufacture yarn using viscose rayon staple fibre produced outside Australia and the US. These savings will also enable the Australian yarn manufacturer to provide such yarn to United States fabric manufacturers at a price cheaper than can presently be achieved. Additionally, the Australian manufactured yarn will be able to be imported into the United States at the preferential rate of duty provided under AUSFTA for such goods.
Regulation Impact Statement
13. The Office of Best Practice Regulation has been consulted and confirms that a Regulation Impact Statement is not required. Future treaty action
14. Article 23.3 of Chapter Twenty Three (Final Provisions) provides for amendment by agreement in writing by the Parties following completion of respective necessary internal requirements. This would extend to amendment of Annexes to AUSFTA, as the Annexes constitute an integral part of the Agreement (Article 23.2 of AUSFTA).
15. Any proposals for amendment of the Agreement (including, for example, proposals to amend or remove reservations or exceptions) would be considered by the Joint Committee established under Article 21.1 of Chapter Twenty One (Institutional Arrangements and Dispute Settlement). The Joint Committee is composed of government officials of Australia and the United States and is co-chaired by the United States Trade Representative and the Minister for Trade for Australia, or their respective designees. The Joint Committee meets every year to, inter alia, review the operation of the Agreement; facilitate the avoidance of disputes; and consider ways to further enhance trade relations.
16. Any future treaty action would be subject to Australia's domestic treaty process, including tabling and consideration by JSCOT.
Withdrawal or denunciation
17. Under Article 23.4 of Chapter Twenty Three (Final Provisions), either Party may terminate the Agreement by giving the other Party six months notice in writing. Termination of the Agreement would be subject to the Australian treaty process.
Contact Details
US Trade Section Americas and Africa Division Department of Foreign Affairs and Trade ATTACHMENT ON CONSULTATION
Exchange of Letters Constituting an Agreement to Amend Annex 4-A (Textile or Apparel Specific Rules of Origin) of the Australia-United States Free Trade Agreement, done at Washington on 18 May 2004 [2010] ATNIF 23
CONSULTATIONS
18. Article 4.2 of Chapter Four (Textiles and Apparel) makes provision for Parties to consult to consider whether the rule of origin applicable to a particular textile or apparel should be revised to address issues of availability of supply of fibres , yarns, or fabrics in the territories of the Parties.
19. DIISR published a notice inviting public comment in the Tariff Concessions Gazette, No. TC08/ 14 on 9 April 2008, enquiring whether viscose rayon staple fibre, classified within subheading 5504.10 of the Customs Tariff Act 1995, is manufactured in Australia and can be supplied in commercial quantities in a timely manner.
20. No comment was received in response to this notice, leading DIISR to conclude that there is no substantial production of viscose rayon staple fibre in Australia. Similar enquiries were made in the United States which also led to the conclusion by relevant authorities that viscose rayon staple fibre was not manufactured in the United States.
21. The Attorney-General, the Minister for Innovation, Industry, Science and Research and the Minister for Home Affairs have approved the text of the proposed amendment. The Prime Minister has also been informed.
22. The State and Territory Governments have been consulted through notification to the Commonwealth-State/Territory Committee on Treaties. Information on the negotiation of this treaty has been included in the six-monthly schedules of treaties to State and Territory representatives.