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Date of Signature: December 16, 2004
The Argentine Republic, the Federative Republic of Brazil,
the Republic of Paraguay and the Republic Oriental del Uruguay, States Parties
to the MERCOSUR, and the Republic of Botswana, the Kingdom of Lesotho, the
Republic of Namibia, the Republic of South Africa and the Kingdom of Swaziland,
Member States of SACU.
WHEREAS the Framework Agreement for the Creation of a
Free Trade Area between MERCOSUR and the Republic of South Africa provides for a
first stage of actions aimed at increasing trade, including the mutual granting
of tariff preferences;
WHEREAS the SACU Agreement of 2002 establishes a Common
Negotiating Mechanism for Botswana, Lesotho, Namibia, South Africa and Swaziland
in regard to trade relations with third Parties;
WHEREAS implementation of an instrument providing for the
granting of fixed preferences during said stage will facilitate subsequent
negotiations for the creation of a Free Trade Area;
WHEREAS the negotiations needed to implement the granting
of preferences and to establish trade disciplines between the Parties have been
conducted;
WHEREAS these negotiations have taken into account the
principle of special and differential treatment for the smaller and the
lesser developed economies in MERCOSUR and SACU;
WHEREAS regional integration and South-South trade,
including through the creation of free trade areas, are
compatible with the multilateral trading system, and
contributes to the expansion of world trade, to the integration
of their economies into the global economy, and to the social and economic
development of their peoples;
WHEREAS the process of integrating their economies
includes the gradual and reciprocal liberalization of trade and the
strengthening of economic co-operation ties among themselves;
WHEREAS the Parties reiterate their will to promote the
South Atlantic as a zone of peace and cooperation;
WHEREAS Article 27 of the Treaty of Montevideo 1980, of
which the MERCOSUR Member States Parties are Signatory Parties,
authorizes the conclusion of Partial Scope Agreements with other developing
countries and economic integration areas outside Latin America. HEREBY AGREE AS FOLLOWS:
Chapter I For the purposes of this Agreement, the ‘Contracting Parties’
(hereinafter referred to as ‘Parties’) are MERCOSUR and SACU. The ‘Signatory
Parties’ are the Governments of the Argentine Republic, the Federative Republic
of Brazil, the Republic of Paraguay, the Republic Oriental del Uruguay ,
the Republic of Botswana, the Kingdom of Lesotho, the
Republic of Namibia, the Republic of South Africa and the Kingdom of Swaziland.
Article 2
The Parties hereby agree to establish fixed preference
margins as a first step towards the creation of a free trade area between
MERCOSUR and SACU.
Chapter II Article 3
Annexes I and II to this Agreement contain the tariff
preferences and other conditions agreed for the importation of negotiated
products from the respective territories of the Signatory Parties.
a) Annex I sets forth the preferences granted by MERCOSUR
to SACU; b) Annex II sets forth the preferences granted by SACU to
MERCOSUR. Article 4
The products included in Annex I and II are classified
in accordance with the Harmonised System (HS) 2002.
Article 5
Tariff preferences shall be applied to all customs duties in
force in each Signatory Party at the time of importing the relevant product.
Article 6
A customs duty includes duties and charges of any kind
imposed in connection with the importation of a good, but does not include:
a) internal taxes or other internal charges imposed
consistently with Article III of the General Agreement on Tariffs and Trade
1994 (GATT 1994);
b) antidumping or countervailing duties in accordance
with Article VI and XVI of GATT 1994, the World Trade Organisation (WTO)
Agreement on Implementation of Article VI of the GATT 1994 and the WTO
Agreement on Subsidies and Countervailing Measures;
c) other duties or charges imposed in a manner that is
not inconsistent with: i.- Article VIII of GATT 1994; or
ii.- the Understanding on the Interpretation of Article
II:1 (b) of the GATT 1994. d) duties imposed by the Governments of the Republic of
Botswana, the Kingdom of Lesotho, the Republic of Namibia and the Kingdom of
Swaziland for the development of infant industries pursuant to Article 26 of
the SACU Agreement 2002. In such cases, the SACU Signatory Party intending
to apply any such duties shall promptly notify the Joint Administration
Committee and shall enter into consultations where these duties adversely
affect the preferential exports of the Republic of Paraguay and/or the
República Oriental del Uruguay, aiming at a mutually satisfactory solution
to the matter, which shall be notified to the Joint Administration
Committee. Article 7
Except otherwise provided for in this Agreement or in GATT
1994, the Signatory Parties shall not apply non-tariff restrictions to the
exchange of products included in the Annexes to this Agreement. Non-tariff restrictions shall refer to any administrative,
financial, exchange-related or other measure whereby a party prevents or hinders
mutual trade by virtue of a unilateral decision.
Article 8
For the purposes of this Agreement, used products shall be
subjected to the domestic regulations of the Signatory Parties.
Article 9
The Parties agree to negotiate a Protocol on mutual
administrative assistance to be annexed to this Agreement before the
implementation of this Agreement, taking into account that the Signatory Parties
for MERCOSUR maintain separate customs jurisdictions.
Chapter III The products included in Annexes I and II of this Agreement
shall meet the rules of origin specified in Annex III in order to qualify for
tariff preferences.
Chapter IV Article 11
In matters relating to taxes, fees or any other domestic
duties, the products originating from the territory of any of the Signatory
Parties shall receive in the territory of the other Signatory Parties
the same treatment applied to the national product in accordance with Article
III of GATT 1994 .
Chapter V Article 12
On matters related to customs valuation, the Signatory
Parties shall refer to Article VII of GATT 1994 and the WTO Agreement on
the Implementation of Article VII of GATT 1994.
Chapter VI Article 13
The implementation of safeguard measures concerning the
imported products that are the object of the tariff preferences established in
Annexes I and II shall be carried out according to the rules agreed upon in
Annex IV of this Agreement.
Chapter VII Article 14
In applying antidumping and countervailing measures, the
Signatory Parties shall be governed by their respective legislation, which shall
be consistent with Articles VI and XVI of the GATT 1994 ,
the Agreement on Implementation of Article VI of GATT
1994 and the WTO Agreement on Subsidies and Countervailing Measures.
Article 15
The Signatory Parties undertake to give notice, within thirty
(30) days and through their competent bodies, of the initiation of
investigations in connection with dumping practices or subsidies affecting
mutual trade, as well as the preliminary and final conclusions thereof.
Chapter VIII Article 16
1. The provisions of this Chapter are intended to prevent
technical regulations and standards, conformity assessment procedures and
metrology of the Signatory Parties from becoming unnecessary technical barriers
to mutual trade.
2. This Chapter applies to all standards, technical
regulations and conformity assessment procedures as defined in the WTO Agreement
on Technical Barriers to Trade (TBT Agreement).
3. This Chapter does not apply to sanitary and phytosanitary
measures as defined in Annex A of the WTO Agreement on Sanitary and
Phytosanitary Measures (SPS Agreement). Article 17
For the purposes of this chapter, definitions as per Annex 1
of the WTO TBT Agreement and the decisions of the WTO TBT Committee established
pursuant to Article 13 of the WTO TBT Agreement shall apply.
Article 18 The Signatory Parties affirm their existing rights and
obligations in respect of technical regulations, standards and conformity
assessment procedures with respect to each other under the WTO TBT Agreement.
Article 19 The Signatory Parties shall intensify their joint work in the
field of standards, technical regulations, and conformity assessment procedures
with a view to facilitating market access. In this process, the Signatory
Parties shall seek to identify initiatives that are appropriate for particular
issues or sectors.
Article 20 1. The Signatory Parties shall strengthen their mutual
cooperation in the field of technical regulations and standards, conformity
assessment and metrology in order to enhance mutual understanding of their
respective systems with the aim of facilitating access to their respective
markets. 2. For such purpose, the Signatory Parties undertake the
following cooperation: a) to promote the application of the WTO TBT Agreement;
b) to strengthen their respective bodies dealing with
standardisation, technical regulation, conformity assessment and metrology,
as well as their information and notification systems;
c) to strengthen the technical reliability of
standardisation, technical regulation, conformity assessment and
metrology bodies;
d) to increase participation and seek coordination of
common positions at international organisations on issues related to this
Chapter;
e) to support the development and application of
international standards;
f) to exchange information on the variety of mechanisms
to facilitate the acceptance of conformity assessment results;
g) to strengthen mutual technical confidence between the
competent bodies, aiming at negotiations of mutual recognition on technical
regulations and standards, conformity assessment and metrology in accordance
with the criteria set by relevant international organisations or the WTO TBT
Agreement. Chapter IX Article 21
This Chapter applies to all sanitary and phytosanitary
measures of a Signatory Party that may, directly or indirectly, affect trade
between the Parties. For the purposes of this Chapter, sanitary or phytosanitary
measure means any measure referred to in Annex A, paragraph 1, of the WTO SPS
Agreement.
Article 22
The Signatory Parties reaffirm their rights and obligations
set out in the WTO Agreement on the Application of Sanitary and Phytosanitary
Measures.
Article 23
The Signatory Parties agree to cooperate in the areas of
animal health, plant protection and food safety, through their respective
competent authorities in order to strengthen mutual technical confidence. Such
cooperation may lead to, inter alia, negotiations of equivalence
agreements on sanitary and phytosanitary measures in accordance with
standards, guidelines and recommendations developed by the relevant
international organisations, with due regard to the Signatory Parties’
individual domestic legislation, the WTO SPS Agreement and their individual and
collective SPS status.
Chapter X Article 24
The Parties agree to create a Joint Administration Committee
(hereinafter referred to as “the Committee”) comprised of the Common Market
Group, or its representatives
on the side of MERCOSUR, and of the Common Negotiating
Mechanism on the side of
SACU.
Article 25
The Committee shall hold its first meeting within sixty (60)
days of the entry into force of this Agreement to establish its working
procedures.
Article 26
The Committee shall meet ordinarily at least once every year,
at such venues as shall be agreed by the Parties, and extraordinarily at any
time, at the request of a Party.
Article 27
The Committee shall adopt its decisions by consensus and
shall have the following functions, inter alia: a) to ensure the proper functioning and implementation of
this Agreement, its Annexes and Additional Protocols and the dialogue
between the Parties;
b) to consider and submit to the Parties any
modifications and amendments to this Agreement;
c) to evaluate the process of trade liberalisation
established under this Agreement, study the development of trade between the
Parties and recommend further steps to create a free trade area in
accordance with Article 2;
d) to perform other functions that may arise from the
provisions of this Agreement, its Annexes and any Additional Protocols;
e) to establish mechanisms to encourage the active
participation of the private sectors in trade between the Parties;
f) to exchange opinions and make suggestions on any issue
of mutual interest relating to trade, including future action;
g) to address non-tariff measures that unnecessarily
restrict trade between the Parties. Chapter XI
Article 28
Any disputes arising in connection with the application of ,
interpretation of, or non-compliance with this
Agreement shall be settled in accordance with the rules established in the Annex
V of this Agreement.
Chapter XII Article 29
Any Party may initiate a proposal to amend or modify the
provisions of this Agreement by submitting such proposal to the Committee. The
decision to amend shall be taken by mutual consent of the Parties.
Article 30
The amendments or modifications to this Agreement shall be
adopted by means of Additional Protocols thereto.
Chapter XIII Article 31
If one of the Contracting Parties incorporates one or more
new Member States, it shall notify the other Contracting Party and afford
adequate opportunity for consultations on the terms referred to in Article 32.
Article 32
The incorporation into this Agreement of new members to
MERCOSUR or to SACU, as Signatory Parties, shall be formalised by means of an
Additional Protocol.
Chapter XIV Article 33
This Agreement shall be subject to signature of all the
Signatory Parties and shall enter into force thirty (30) days after all
Signatory Parties have formally notified, through diplomatic channels, the
completion of the respective internal procedures to that effect. For
MERCOSUR the notification will be done by the MERCOSUR Pro Tempore Presidency
and for SACU the notification will be done by the SACU Secretariat.
Article 34
This Agreement shall remain in force until the date of entry
into force of the Agreement for the creation of a Free Trade Area between
MERCOSUR and SACU
unless terminated by either Party giving to the other Party twelve (12) months
written notice of its intention to terminate this Agreement.
Chapter XV Article 35
Any Signatory Party which withdraws from the SACU
Agreement or the MERCOSUR Agreement shall ipso facto on the same
day as the withdrawal takes effect cease to be a Signatory Party to this
Agreement. Should any SACU State wish to withdraw from this Agreement as a
Signatory Party, it shall give formal notice of its intention to the other
Signatory Parties at least sixty (60) days in advance.
Article 36
Once withdrawn, the rights and obligations assumed by the
withdrawing party shall cease to apply, but it shall be bound to comply
with obligations in connection with the tariff preferences established in
Annexes I and II of this Agreement for a term of one year, unless otherwise
agreed upon. The Committee shall evaluate the impact of the withdrawal on the
balance of rights and obligations of this Agreement and, as appropriate,
recommend adjustments to the Parties.
Chapter XVI Article 37
The Government of the Republic of Paraguay shall be the
Depositary of this Agreement for MERCOSUR. The SACU Secretariat shall be the
Depositary of this Agreement for SACU.
Article 38
In fulfilment of their depositary functions, the Government
of the Republic of Paraguay and the SACU Secretariat shall notify the States
Parties of MERCOSUR and Member States of SACU respectively, of the date on which
this Agreement shall enter into force.
Done in the city of Belo Horizonte, Federative Republic of
Brazil, on the 16th day of December 2004, in two copies in the Spanish,
Portuguese and English languages, all texts being equally authentic. In case of
doubt or divergence of interpretation, however, the English text shall prevail.
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