2. A duty which shall not exceed 25 per cent of the current WTO bound tariff or 25 percentage points, whichever is higher, may be imposed to the agricultural products referred to in paragraph 1. Such duty shall not exceed the prevailing MFN applied rate.
3. Safeguard measures referred to in this Article shall be maintained for the remainder of the calendar year or five (5) months, whichever is the longer.
4. Safeguard measures referred to in this Article shall not be maintained or applied with respect to the same good at the same time as:
(a) a general bilateral safeguard measure in accordance with Article 34;
(b) a measure under Article XIX of the GATT 1994 and the WTO Agreement on Safeguards; or
(c) a special safeguard measure under Article 5 of the WTO Agreement on Agriculture.
5. Safeguard measures referred to in this Article shall be implemented in a transparent manner. Within ten (10) days after applying such a measure, SACU shall notify the EU in writing and shall provide relevant data concerning the measure. On request, SACU shall consult the EU regarding the application of the measure. SACU shall also notify the Trade and Development Committee within thirty (30) days after such imposition.
6. The implementation and operation of this Article may be the subject of discussion and review in the Trade and Development Committee. On request of either Party, the Trade and Development Committee may review the reference quantities and agricultural products as provided for in this Article.
7. The provisions of this Article may only be applied during the period of twelve (12) years from the date of entry into force of this Agreement.
Article 36. Food Security Safeguards
1. The Parties acknowledge that the removal of barriers to trade between them, as envisaged in this Agreement, may pose significant challenges to the SADC EPA States' producers in the agricultural and food sectors and agree to consult with each other on these issues.
2. Notwithstanding Article 34, where essential for the prevention or relief of critical general or local shortages of foodstuffs or other products in order to ensure food security of a SADC EPA State and where this situation gives rise or is likely to give rise to major difficulties for such a SADC EPA State, that SADC EPA State may adopt safeguard measures in accordance with the procedure set out in paragraph 7(b) to (d), 8 and 9 of Article 34. The measure will be reviewed at least annually and shall be removed as soon as the circumstances leading to its adoption cease to exist.
Article 37. BLNS Transitional Safeguards
1. The Parties acknowledge the sensitivity of the liberalised products listed in Annex V for the BLNS States.
2. Notwithstanding Article 34, in the event that one of the products listed in Annex V and originating in the EU being imported into the territory of a BLNS State in such increased quantities as to cause or threaten to cause serious injury in any BLNS State, that BLNS State may apply a transitional safeguard measure.
3. Safeguard measures referred to in paragraph 2 shall take the form of a duty on the product concerned listed in Annex V up to a level which does not exceed the MFN applied rate at the time of taking the measure or introduce a zero duty tariff rate quota (TRQ), provided that the level of the duty outside the quota does not exceed the MFN applied rate at the time of taking the measure.
4. Thirty (30) days in advance of applying the safeguard measure, the BLNS State concerned shall notify the measure to the EU in writing. After notification, the BLNS State concerned shall have sixty (60) days to provide all relevant information concerning the measure.
5. Without prejudice to paragraph 2, the BLNS State concerned and the EU shall, upon request of either Party, enter into consultations on the safeguard measure.
6. Safeguard measures referred to in this Article shall be applied for a period not exceeding four (4) years. Where the circumstances warranting imposition of the measure continue to exist, such a measure may be extended for a further period of no more than four (4) years.
7. No safeguard measure referred to in this Article may be adopted after twelve (12) years from the entry into force of this Agreement.
Article 38. Infant Industry Protection Safeguards
1. Notwithstanding Article 34, Botswana, Lesotho, Namibia, Mozambique and Swaziland may temporarily suspend further reductions of the rate of customs duty or increase the rate of customs duty up to a level which does not exceed the applied MFN duty, where a product originating in the EU, as a result of the reduction of duties, is being imported into its territory in such increased quantities and under such conditions as to threaten the establishment of an infant industry, or cause or threaten to cause disturbances to an infant industry producing like or directly competitive products.
2. Safeguard measures adopted in accordance with the conditions of paragraph 1 by a SADC EPA State which is also a SACU Member State shall take the form of the levying of additional duties exclusively by the SADC EPA State invoking this provision.
3. Safeguard measures referred to in paragraph 1 may be applied for a period of up to eight (8) years and may be further extended by a decision of the Joint Council
4. With regard to the implementation of paragraphs 1 and 2, the following provisions shall apply:
(a) where a SADC EPA State takes the view that the circumstances set out in paragraph 1 exist, it shall immediately refer the matter to the Trade and Development Committee for examination. The SADC EPA State concerned shall supply the Trade and Development Committee with all relevant information required for a thorough examination of the situation;
(b) the Trade and Development Committee may make any recommendation with a view to seeking an acceptable solution needed to remedy the circumstances which have arisen. If no recommendation has been made by the Trade and Development Committee, or no other satisfactory solution has been reached within thirty (30) days of the matter being referred to the Trade and Development Committee, the SADC EPA State concerned may adopt measures in accordance with this Article;
(c) in the application of measures pursuant to paragraph 1, priority must be given to those which least disturb the operation of this Agreement; and
(d) any measure taken pursuant to this Article shall be notified immediately to the Trade and Development Committee and shall be the subject of periodic consultations within that body.
5. In critical circumstances where delay would cause damage which would be difficult to repair, the SADC EPA State concerned may take measures provided for in paragraph 1 on a provisional basis without complying with the requirements of paragraph 4. Such measure may be taken for a maximum period of two hundred (200) days. The duration of any such provisional measure shall be counted as part of the period referred to in paragraph 3. In taking such provisional measures, the interest of all parties involved shall be taken into account. The importing SADC EPA State concerned shall inform the EU, and it shall immediately refer the matter to the Trade and Development Committee for examination of such provisional measure.
6. SACU Member States shall have the right to have recourse to Article 26 of the SACU Agreement.
Chapter III. Non-tariff Measures
Article 39. Prohibition of Quantitative Restrictions
The Parties may apply quantitative restrictions provided such restrictions are applied in conformity with the WTO Agreement.
Article 40. National Treatment on Internal Taxation and Regulation
1. The Parties recognise that internal taxes and other internal charges, and laws, regulations and requirements affecting the internal sale, offering for sale, purchase, transportation, distribution or use of products, and internal quantitative regulations requiring the mixture, processing or use of products in specified amounts or proportions, should not be applied to imported or domestic products so as to afford protection to domestic production.
2. Imported products originating in the other Party shall not be subject, directly or indirectly, to internal taxes or other internal charges of any kind in excess of those applied, directly or indirectly, to like domestic products. Moreover, the Parties shall not otherwise apply internal taxes or other internal charges to imported or domestic products in a manner contrary to the principles set forth in paragraph 1 (1).
3. Imported products originating in the other Party shall be accorded treatment no Jess favourable than that accorded to like domestic products of national origin in respect of all laws, regulations and requirements affecting their internal sale, offering for sale, purchase, transportation, distribution or use. The provisions of this paragraph shall not prevent the application of differential internal transportation charges which are based exclusively on the economic operation of the means of transport and not on the nationality of the product.
4. The Parties shall not establish or maintain any internal quantitative regulation relating to the mixture, processing or use of products in specified amounts or proportions which requires, directly or indirectly, that any specified amount or proportion of any product which is the subject of the regulation must be supplied from domestic sources. Moreover, Parties shall not otherwise apply internal quantitative regulations in a manner contrary to the principles set forth in paragraph 1.
5. No internal quantitative regulation relating to the mixture, processing or use of products in specified amounts or proportions shall be applied in such a manner as to allocate any such amount or proportion among external sources of supply.
6. The provisions of this Article shall not apply to laws, regulations or requirements governing the procurement by governmental agencies of products purchased for governmental purposes and not with a view to commercial resale or with a view to use in the production of goods for commercial sale.
7. The provisions of this Article shall not prevent the payment of subsidies exclusively to domestic producers, including payments derived from the proceeds of internal taxes or charges applied consistently with the provisions of this Article and subsidies effected through governmental purchases of domestic products.
8. The Parties recognise that internal maximum price control measures, even though conforming to the other provisions of this Article, can have effects prejudicial to the interests of Parties supplying imported products. Accordingly, Parties applying such measures shall take account of the interests of exporting Parties with a view to avoiding to the fullest practicable extent such prejudicial effects.
9. The provisions of this Article shall not prevent any Party from establishing or maintaining internal quantitative regulations relating to exposed cinematograph films and meeting the requirements of Article IV of the GATT 1947.
Chapter IV. Customs and Trade Facilitation
Article 41. Objectives
The objectives of this Chapter are to:
(a) reinforce cooperation in the area of customs and trade facilitation with a view to ensuring that the relevant legislation and procedures, as well as the administrative capacity of the customs authorities, fulfil the objectives of effective control and the promotion of trade facilitation;
(b) promote harmonisation of customs legislation and procedures;
(c) ensure that legitimate public policy objectives, including those related to security and the prevention of fraud in the area of customs and trade facilitation, shall not be compromised in any way; and
(d) provide the necessary support for the SADC EPA States' customs administrations to effectively implement this Agreement.
Article 42. Customs and Administrative Cooperation
1. In order to ensure compliance with the provisions of this Chapter and effectively respond to the objectives laid down in Article 41, the Parties shall:
(a) exchange information on customs legislation and procedures;
(b) develop joint initiatives relating to customs and trade facilitation and the strengthening of administrative capacity;
(c) exchange experience and best practices on combating corruption and fraud in matters relating to this Chapter;
(d) exchange experience and best practices on issues relating to import, export and transit procedures and to improving the service to the business community;
(e) exchange experience and best practices on facilitating transit;
(f) facilitate the exchange of experts between customs administrations, and
(g) promote coordination between all related agencies, both internally and across borders.
2. The Parties shall prepare and develop an enhanced cooperation on the implementation of the World Customs Organisation ("WCO") Framework of Standards to Secure and Facilitate Global Trade of 2005. This cooperation shall include initiatives in view of working towards the mutual recognition of the Authorised Economic Operator status and the exchange of advance information to allow an effective risk assessment and management for security purposes.
3. The Parties shall provide mutual administrative assistance in customs matters in accordance with the provisions of Protocol 2.
Article 43. Customs Legislation and Procedures
1. The Parties agree that their respective trade and customs legislation and procedures shall to the extent possible be based on:
(a) the Revised Kyoto Convention on the Simplification and Harmonization of Customs Procedures of 1999, the substantive elements of the WCO Framework of Standards to Secure and Facilitate Global Trade, the International Convention on the Harmonised System and other international instruments and standards applicable in the field of customs and trade;
(b) the need to protect and facilitate legitimate trade;
(c) the need to avoid unnecessary and discriminatory burdens on economic operators, the need to safeguard against fraud and corruption and the need to provide further facilitation for operators that meet high level of compliance;
(d) the need for each Party to apply a single administrative document or electronic equivalent;
(e) the application of modern customs techniques, including risk assessment, simplified procedures for entry and release of goods, post release controls, and company audits;
(f) transparency, efficiency and proportionality, in order to reduce costs and increase predictability for economic operators;
(g) the need for non-discrimination in terms of requirements and procedures applicable to import, export and goods in transit, though it is accepted that consignments might be treated differently according to objective risk assessment criteria;
(h) the progressive development of systems, including those based upon information technology, for both export and import operations, to facilitate the exchange of information between economic operators, customs administrations and other agencies;
(i) the adoption of systems that facilitate the importation of goods through the use of simplified customs procedures and processes, including pre-arrival clearance;
(j) the elimination of any requirements for the mandatory use of pre-shipment inspections as defined by the WTO Agreement on Preshipment Inspection, or their equivalent;
(k) the application of rules that ensure that any penalties imposed for minor breaches of customs regulations or procedural requirements are proportionate and, in their application, do not give rise to undue delays in customs clearance;
(l) a system of binding rulings on customs matters, in particular on tariff classification and rules of origin, in accordance with rules laid down in their respective legislation;
(m) the facilitation of transit movements;
(n) the elimination of all requirements for the mandatory use of customs brokers; and
(o) transparent, non-discriminatory and proportionate rules in respect of the licensing of customs brokers.
2. In order to improve working methods and to ensure transparency and efficiency of customs operations, the Parties shall:
(a) ensure that the highest standards of integrity be maintained, through the application of anti-corruption measures in this field;
(b) take further steps towards the reduction, simplification and standardization of data in the documentation required by customs and other related agencies;
(c) simplify requirements and formalities wherever possible, in respect of the rapid release and clearance of goods;
(d) provide effective, prompt and non-discriminatory procedures enabling the right of appeal, against customs and other agency administrative actions, rulings and decisions affecting imports, exports or goods in transit. Procedures for appeal shall be easily accessible, including to small or medium enterprises; and
(e) create an environment for the effective enforcement of legislative requirements.
Article 44. Facilitation of Transit Movements
1. The Parties shall ensure freedom of transit through their territory via the route most convenient for transit. Any controls or requirements must be non-discriminatory, proportionate and applied uniformly.
2. Without prejudice to legitimate customs control, the Parties shall accord to traffic in transit treatment no less favourable than that accorded to domestic goods, exports and imports, and their movement.
3. The Parties shall:
(a) operate bonded transport regimes that allow the transit of goods without payment of duties or other charges, subject to the provision of an appropriate guarantee;
(b) promote and implement regional transit arrangements;
(c) use international standards and instruments relevant to transit; and
(d) promote coordination between all concerned agencies, both internally and across borders.
Article 45. Relations with the Business Community
The Parties agree to:
(a) ensure that all customs legislation, procedures and fees and charges are made publicly available, as well as whenever possible the necessary explanations, and as far as possible through electronic means;
(b) consult, as far as possible, timely and regularly with trade representatives on legislative proposals and procedures related to customs and customs related trade issues;
(c) introduce, where appropriate, new or amended legislation and procedures and their entry into force in a way to allow traders to become well prepared for complying with them. The Parties shall make publicly available relevant notices of an administrative nature, including agency requirements and entry procedures, hours of operation and operating procedures for customs offices at ports and border crossing points, and points of contact for information enquiries; and
(d) to foster cooperation between operators and relevant administrations through the use of instruments such as memoranda of understanding.
Article 46. Customs Valuation
1. The Agreement on Implementation of Article VII of the GATT 1994 ("WTO Agreement on Customs Valuation") shall govern customs valuation rules applied to trade covered by this Agreement.
2. The Parties shall cooperate with a view to reaching a common approach to issues relating to customs valuation.
Article 47. Harmonisation of Customs Standards at Regional Level
1. The Parties shall promote harmonisation of customs legislation, procedures, standards and requirements.
2. Each Party shall determine the content and pace of this process.
Article 48. Support to the SADC EPA States' Customs Administrations
1. The Parties recognise the importance of supporting the SADC EPA States' customs administrations for the implementation of this Chapter, in line with the provisions of Chapter IlI of Part I.
2. The priority areas for such support are:
(a) the application of modern customs techniques, including:
(i) risk management;
(ii) post release controls; and
(iii) automation of customs procedures;
(b) control of customs valuation, classification and rules of origin, including in view of meeting the requirement of Article 43(1)(j):
(c) the facilitation of transit and the enhancement of the efficiency of regional transit arrangements;
(d) transparency issues relating to the publication and administration of all trade regulations, as well as relevant fees and formalities;
(e) the introduction and implementation of procedures and practices which reflect international instruments and standards applicable in the field of customs and trade, inter alia the revised Kyoto Convention on the Simplification and Harmonisation of Customs Procedures and the WCO Framework of Standards to Secure and Facilitate Global Trade.
3. The Parties recognise the need for specific needs assessment studies taking into account the situation in each country, using WTO and WCO needs assessment instruments or any other mutually agreed instrument.
Article 49. Transitional Arrangements
1. The Parties recognise the need for transitional arrangements to ensure the smooth implementation of the provisions of this Chapter.
2. In view of the need to enhance their capacity in the area of customs and trade facilitation and without prejudice to their WTO rights and obligations, the SADC EPA States shall benefit from a transitional period of eight (8) years to meet those requirements referred to in Articles 27, 43, 44, and 45 where the need for capacity building exists at the time of entry into force of this Agreement.
3. The Joint Council may decide to extend this transitional period by two (2) years in case the necessary capacity has not yet been attained.
Article 50. Special Committee on Customs and Trade Facilitation
1. The Parties hereby establish a Special Committee on Customs and Trade Facilitation, composed of representatives of the Parties.
2. The functions of the Special Committee on Customs and Trade Facilitation shall include:
(a) monitoring the implementation and administration of this Chapter and of Protocol I;
(b) providing a forum to consult and discuss all issues concerning customs, including rules of origin, general customs procedures, customs valuation, tariff classification, transit and mutual administrative assistance in customs matters;
(c) enhancing cooperation on the development, application and enforcement of rules of origin and related customs procedures, general customs procedures and mutual administrative assistance in customs matters;
(d) enhancing cooperation on capacity building and technical assistance;
(e) following up on the implementation of Article 47;
(f) determining its own rules of procedure; and
(g) addressing any other issues agreed by the Parties in respect of this Chapter.
3. The Special Committee on Customs and Trade Facilitation shall meet on a date and with an agenda agreed in advance by the Parties.
4. The Special Committee on Customs and Trade Facilitation shall be chaired alternatively by either Party.
5. The Special Committee on Customs and Trade Facilitation shall report to the Trade and Development Committee.
Chapter V. Technical Barriers to Trade
Article 51. Multilateral Obligations
1. The Parties affirm their commitment to the rights and obligations provided for in the Agreement on Technical Barriers to Trade (WTO TBT Agreement).
2. Those rights and obligations shall underlie the activities of the Parties under this Chapter.
Article 52. Objectives
The Parties agree to:
(a) cooperate in order to facilitate and increase trade in goods between them, by identifying, preventing and eliminating unnecessary barriers to trade within the terms of the WTO TBT Agreement;
(b) cooperate in strengthening regional, and specifically the SADC EPA States' integration and cooperation on matters concerning TBT; and
(c) establish and enhance the SADC EPA Statesâ technical capacity on matters concerning TBT.
Article 53. Scope and Definitions
1. The provisions of this Chapter shall apply to standards, technical regulations, and conformity assessment procedures as defined in the WTO TBT Agreement in so far as they affect trade covered by this Agreement.
2. For the purposes of this Chapter, the definitions used by the WTO TBT Agreement shall apply.
Article 54. Collaboration and Regional Integration
The Parties agree that collaboration between national and regional authorities dealing with matters concerning TBT, in both the public and private sector, is important to facilitate trade in the region and between the Parties, as well as for the overall process of regional integration and undertake to cooperate to this end.