FREE TRADE AGREEMENT BETWEEN
THE EUROPEAN UNION AND THE SOCIALIST REPUBLIC OF VIET NAM

CHAPTER 4: CUSTOMS AND TRADE FACILITATION

ARTICLE 4.1

Objectives

1. The Parties recognise the importance of customs and trade facilitation matters in the evolving global trading environment. The Parties shall reinforce cooperation in this area with a view to ensuring that their respective customs legislation and procedures fulfil the objectives of promoting trade facilitation while ensuring effective customs control.

2. The Parties agree that their legislation shall be non-discriminatory and that customs procedures shall be based on the use of modern methods and effective controls to combat fraud and to promote legitimate trade.

3. The Parties recognise that legitimate public policy objectives, including those in relation to security, safety and the fight against fraud, shall not be compromised.

ARTICLE 4.2

Customs Cooperation and Mutual Administrative Assistance

1. The respective authorities of the Parties shall cooperate on customs matters in order to ensure that the objectives set out in Article 4.1 (Objectives) are attained.

2. The Parties shall enhance customs cooperation, inter alia, by:

(a) exchanging information concerning customs legislation, its implementation, and customs procedures, in particular in the following areas:

(i) simplification and modernisation of customs procedures;

(ii) border enforcement of intellectual property rights by the customs authorities;

(iii) facilitation of transit movements and transhipment; and

(iv) relations with the business community;

(b) exploring joint initiatives relating to import, export and other customs procedures, including technical assistance, in order to ensure effective services to the business community;

(c) strengthening their cooperation in the field of customs in international organisations such as the WTO and the World Customs Organization (hereinafter referred to as “WCO”); and

(d) establishing, where relevant and appropriate, mutual recognition of trade partnership programmes and customs controls, including equivalent trade facilitation measures.

3. The Parties shall provide each other with mutual administrative assistance in customs matters in accordance with Protocol 2 (Mutual Administrative Assistance in Customs Matters).

ARTICLE 4.3

Customs Legislation and Procedures

1. The Parties shall base their respective customs legislation and procedures on international instruments and standards applicable in the area of customs and trade, including the substantive elements of the Revised Kyoto Convention on the Simplification and Harmonisation of Customs Procedures, done at Brussels on 26 June 1999, the International Convention on the Harmonized Commodity Description and Coding System (hereinafter referred to as “HS Convention”), the Framework of Standards to Secure and Facilitate Global Trade and the Customs Data Model of the WCO.

2. The customs legislation and procedures of the Parties shall:

(a) aim at the protection of legitimate trade through effective enforcement and compliance with legislative requirements;

(b) avoid unnecessary or discriminatory burdens on economic operators, and provide for further facilitation for operators with high levels of compliance; and

(c) ensure safeguards against fraud and illicit or damaging activities.

3. The Parties agree that their respective customs legislation and procedures, including remedies shall be proportionate and non-discriminatory and that their application shall not unduly delay the release of goods.

4. In order to improve working methods, as well as to ensure non-discrimination, transparency, efficiency, integrity and accountability of operations, the Parties shall:

(a) simplify and review requirements and formalities, wherever possible, with respect to the rapid release and clearance of goods; and

(b) work towards further simplification and standardisation of data and documentation required by customs and other agencies.

ARTICLE 4.4

Release of Goods

1. Each Party shall ensure that its customs authorities apply requirements and procedures that provide for the release of goods within a period no longer than that required to ensure compliance with its customs and other trade-related laws and formalities. Each Party shall work towards further reducing this period and releasing the goods without undue delay.

2. The Parties shall allow, inter alia, the release of goods without the payment of customs duties, subject to the provision of a guarantee if required in accordance with their legislation in order to secure the final payment of customs duties.

3. Each Party shall ensure that its customs authorities provide for advance electronic submission and further processing of information before the physical arrival of goods (pre-arrival processing) to enable the release of goods on arrival.

ARTICLE 4.5

Simplified Customs Procedures

1. Each Party shall provide for simplified customs procedures that are transparent and efficient in order to reduce costs and increase predictability for economic operators, including for small and medium-sized enterprises. Easier access to customs simplifications shall also be provided for authorised traders according to objective and non-discriminatory criteria.

2. A single administrative document or electronic equivalent shall be used for the purposes of completing the formalities required for placing the goods under a customs procedure.

3. The Parties shall apply modern customs techniques, including risk assessment and post-clearance audit methods, in order to simplify and facilitate the entry and the release of goods.

4. The Parties shall promote the progressive development and use of systems, including those based on information technology, to facilitate the electronic exchange of data between traders, customs administrations and other related agencies.

ARTICLE 4.6

Transit and Transhipment

1. Each Party shall ensure the facilitation and effective control of transhipment operations and transit movements through its territory.

2. To facilitate traffic in transit each Party shall ensure cooperation and coordination between all authorities and agencies concerned in its territory.

ARTICLE 4.7

Risk Management

1. Each Party shall base its examination and release procedures and its post-clearance audit procedures on risk assessment principles and audits, rather than examining each shipment in a comprehensive manner for compliance with all import requirements.

2. The Parties shall adopt and apply their import, export, transit and transhipment control requirements and procedures for goods on the basis of risk management principles which shall be applied to focus compliance measures on transactions that merit attention.

ARTICLE 4.8

Transparency

1. Each Party shall ensure that its customs and other trade-related laws, regulations and general administrative procedures and other requirements, including fees and charges, are readily available to interested parties and, where feasible and possible, on an official website.

2. Each Party shall designate or maintain one or more inquiry or information points to address, within a reasonable time, inquiries by interested parties concerning customs and other trade-related matters.

ARTICLE 4.9

Advance Rulings

1. Upon written request from traders, the customs authorities of each Party shall issue, in accordance with its laws and regulations, prior to the importation of a good into its territory, written advance rulings on tariff classification or on any other matter as the Parties may agree upon.

2. Subject to any confidentiality requirements in each Party’s laws and regulations, each Party shall publish, for example on an official website, its advance rulings on tariff classification and on any matters as the Parties may agree upon.

3. With a view to facilitating trade, the Parties shall include in their bilateral dialogue regular updates on changes in their respective laws and regulations on advance rulings.

ARTICLE 4.10

Fees and Charges

1. Each Party shall publish information on fees and charges via an officially designated medium, and where feasible and possible, on an official website. This information shall include the fees and charges that will be applied, the reason for the fees or charges for the service provided, the responsible authority, and when and how payment is to be made.

2. Each Party shall not impose new or amended fees and charges until the information in accordance with paragraph 1 is published and made readily available.

ARTICLE 4.11

Customs Brokers

The Parties shall not require in their respective customs legislation and procedures the mandatory use of customs brokers. The Parties shall apply transparent, non-discriminatory and proportionate rules if and when licensing customs brokers.

ARTICLE 4.12

Customs Valuation

1. The Parties shall determine the customs value of goods in accordance with Article VII of GATT 1994 and the Customs Valuation Agreement.

2. The Parties shall cooperate with a view to reaching a common approach to issues relating to customs valuation.

ARTICLE 4.13

Preshipment Inspections

The Parties agree that their respective customs legislation and procedures shall not require the mandatory use of preshipment inspections as defined in the Agreement on Preshipment Inspection, or any other inspection activity performed at destination, before customs clearance, by private companies.

ARTICLE 4.14

Review and Appeal

Each Party shall provide effective, prompt, non-discriminatory and easily accessible procedures to guarantee the right of appeal against customs and other agency administrative actions, rulings and decisions affecting importation or exportation of goods or goods in transit.

ARTICLE 4.15

Relations with the Business Community

The Parties agree:

(a) on the need for timely consultations with trade representatives on legislative proposals and general procedures related to customs and trade facilitation matters. To that end, appropriate consultations between administrations and the business community shall be held by each Party;

(b) to publish or otherwise make available, as far as possible through electronic means, any new legislation and general procedures related to customs and trade facilitation matters prior to the application of any such legislation and procedures, as well as changes to and interpretations of such legislation and procedures. They shall also 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 contact points for information enquiries;

(c) on the need for a reasonable time period between the publication of new or amended legislation, procedures and fees or charges and their entry into force; and

(d) to ensure that their respective customs and related requirements and procedures continue to meet the needs of the business community, follow best practices, and remain as little trade- restrictive as possible.

ARTICLE 4.16

Committee on Customs

1. The Committee on Customs established by Article 17.2 (Specialised Committees) shall be composed of representatives of the Parties.

2. The Committee on Customs shall ensure the proper functioning of this Chapter, the enforcement of intellectual property rights by customs in Sub-Section 4 (Border Enforcement) of Section C (Enforcement of Intellectual Property Rights) of Chapter 12 (Intellectual Property), Protocol 1 (Concerning the Definition of the Concept of “Originating Products” and Methods of Administrative Cooperation), Protocol 2 (Mutual Administrative Assistance in Customs Matters) and any additional provisions relating to customs that the Parties may agree upon.

3. The Committee on Customs shall examine the need for, and adopt, decisions, opinions, proposals or recommendations on all issues arising from the implementation of the provisions referred to in paragraph 2. It shall have the power to adopt decisions on mutual recognition of risk management techniques, risk criteria and standards, security controls and trade partnership programmes, including aspects such as data transmission and mutually agreed benefits.

CHAPTER 5: TECHNICAL BARRIERS TO TRADE

ARTICLE 5.1

Affirmation of the TBT Agreement

The Parties affirm their rights and obligations with respect to each other under the TBT Agreement, which is incorporated into and made part of this Agreement, mutatis mutandis.

ARTICLE 5.2

Objectives

1. The objectives of this Chapter are to facilitate and increase bilateral trade in goods by preventing, identifying and eliminating unnecessary obstacles to trade within the scope of the TBT Agreement, and to enhance bilateral cooperation between the Parties.

2. The Parties shall establish and enhance technical capabilities and institutional infrastructure on matters concerning technical barriers to trade.

ARTICLE 5.3

Scope and Definitions

1. This Chapter applies to the preparation, adoption and application of standards, technical regulations and conformity assessment procedures, as defined in Annex 1 to the TBT Agreement, that may affect trade in goods between the Parties, except for:

(a) purchasing specifications prepared by governmental bodies for production or consumption requirements of those bodies; or

(b) sanitary and phytosanitary measures as defined in Annex A to the SPS Agreement.

2. Each Party has the right to prepare, adopt and apply standards, technical regulations and conformity assessment procedures in accordance with this Chapter and the TBT Agreement.

3. For the purposes of this Chapter, the definitions of Annex 1 to the TBT Agreement apply.

ARTICLE 5.4

Technical Regulations

1. Each Party shall make best use of good regulatory practice, as provided for in the TBT Agreement and in this Chapter, in particular, by:

(a) assessing the available regulatory and non-regulatory alternatives to a proposed technical regulation that would fulfil the Party’s legitimate objectives, in accordance with Article 2.2 of the TBT Agreement; endeavouring to assess, inter alia, the impact of a proposed technical regulation by means of a regulatory impact assessment, as recommended by the Committee on Technical Barriers to Trade established under Article 13 of the TBT Agreement;

(b) using relevant international standards, such as those developed by the International Organization for Standardization, the International Electrotechnical Commission, the International Telecommunication Union and the Codex Alimentarius Commission, as a basis for their technical regulations, except when such international standards would be ineffective or inappropriate for the fulfilment of the legitimate objectives pursued by a Party. When a Party has not used international standards as a basis for its technical regulations, it shall, upon request of the other Party, identify any substantial deviation from the relevant international standards and explain the reasons why those standards have been judged inappropriate or ineffective for the objective pursued;

(c) reviewing, without prejudice to Article 2.3 of the TBT Agreement, technical regulations with a view to increasing their convergence with relevant international standards. In undertaking this review, the Parties shall, inter alia, take into account any new development in the relevant international standards and whether the circumstances that have given rise to divergences from any relevant international standard continue to exist;

(d) specifying technical regulations based on product performance requirements, rather than on design or descriptive characteristics.

2. In accordance with Article 2.7 of the TBT Agreement, a Party shall give favourable consideration to accepting as equivalent technical regulations of the other Party, even if those regulations differ from its own, provided it is satisfied that those regulations adequately fulfil the objectives of its own regulations.

3. A Party that has prepared a technical regulation that it considers to be equivalent to a technical regulation of the other Party because it has a compatible objective and product scope may request in writing that the other Party recognise it as equivalent. That request shall be made in writing and set out in detail the reasons why the technical regulations should be considered to be equivalent, including reasons with respect to product scope. A Party which does not agree that the technical regulations are equivalent shall provide to the other Party, upon request, the reasons for its decision.

ARTICLE 5.5

Standards

1. The Parties affirm their obligations under Article 4.1 of the TBT Agreement to ensure that their standardising bodies accept and comply with the Code of Good Practice for the Preparation, Adoption and Application of Standards in Annex 3 to the TBT Agreement. The Parties further affirm their adherence to the principles set out in Decisions and Recommendations adopted by the WTO Committee on Technical Barriers to Trade since 1 January 1995, G/TBT/1/rev.13 of 8 March 2017, including the Decision of the Committee on Principles for the Development of International Standards, Guides and Recommendations with relation to Articles 2, 5 and Annex 3 of the Agreement, referred to in the Annexes to Part 1 of the document.

2. With a view to harmonising standards on as wide a basis as possible, the Parties shall encourage their standardising bodies as well as the regional standardising bodies of which they or their standardising bodies are members to:

(a) participate, within the limits of their resources, in the preparation of international standards by relevant international standardising bodies;

(b) use relevant international standards as a basis for the standards they develop, except where those international standards would be ineffective or inappropriate for the fulfilment of the legitimate objectives pursued by a Party, for instance because of an insufficient level of protection, fundamental climatic or geographical factors, or fundamental technological problems;

(c) avoid duplication of, or overlap with, the work of international standardising bodies;

(d) review national and regional standards not based on relevant international standards at regular intervals, with a view to increasing their convergence with relevant international standards; and

(e) cooperate with the relevant standardisation bodies of the other Party in international standardisation activities. That cooperation may be undertaken in international standardising bodies or at regional level.

3. The Parties shall exchange information on:

(a) their use of standards in support of technical regulations;

(b) their standardisation processes, and the extent of their use of international or regional standards as basis for their national standards; and

(c) cooperation agreements on standardisation implemented by either Party, including on standardisation issues in international agreements with third parties, to the extent this is not explicitly prohibited by those agreements.

4. The Parties recognise that in accordance with Annex 1 to the TBT Agreement, compliance with standards is voluntary. When a Party makes compliance with standards mandatory, through incorporation or referencing in technical regulations or conformity assessment procedures, Article 5.7 (Transparency) applies.

ARTICLE 5.6

Conformity Assessment Procedures

1. In respect of mandatory conformity assessment procedures the Parties shall apply paragraph 1 of Article 5.4 (Technical Regulations), mutatis mutandis, with a view to avoiding unnecessary obstacles to trade and ensuring transparency and non-discrimination.

2. In line with Article 5.1.2 of the TBT Agreement, when an importing Party requires positive assurance of conformity with its applicable technical regulations or standards, its conformity assessment procedures shall neither be stricter nor applied more strictly than necessary to give this Party adequate confidence that products conform with its applicable technical regulations or standards, taking account of the risks non-conformity would create.

3. The Parties recognise that a broad range of mechanisms exists to facilitate the acceptance of the results of conformity assessment procedures conducted in the territory of the other Party, including:

(a) the importing Party’s reliance on a supplier’s declaration of conformity;

(b) agreements on mutual acceptance of the results of conformity assessment procedures with respect to specific technical regulations conducted by bodies located in the territory of the other Party;

(c) use of accreditation to qualify conformity assessment bodies located in the territory of either Party;

(d) government designation of conformity assessment bodies, including bodies located in the territory of the other Party;

(e) unilateral recognition by a Party of the results of conformity assessment procedures conducted in the territory of the other Party;

(f) voluntary arrangements between conformity assessment bodies located in the territory of either Party; and

(g) use of regional and international multilateral recognition agreements and arrangements to which the Parties are party.

4. Having regard in particular to the considerations referred to in paragraph 3, the Parties shall:

(a) intensify their exchange of information on the mechanism referred to in paragraph 3 and on similar mechanisms with a view to facilitating the acceptance of conformity assessment results;

(b) exchange information on conformity assessment procedures and, in particular, on the criteria used to select appropriate conformity assessment procedures for specific products;

(c) consider a supplier’s declaration of conformity as one of the assurances of conformity with domestic law;

(d) consider arrangements on mutual acceptance of the results of conformity assessment procedures according to the procedure set out in paragraph 5;

(e) exchange information on accreditation policy and to consider how to best make use of international standards for accreditation and of international agreements involving the Parties’ accreditation bodies, for example, through the mechanisms of the International Laboratory Accreditation Cooperation and the International Accreditation Forum;

(f) consider joining or, as applicable, to encourage their testing, inspection and certification bodies to join any operative international agreements or arrangements for harmonisation or facilitation of acceptance of conformity assessment results;

(g) ensure that economic operators have a choice amongst conformity assessment facilities designated by the authorities to perform the tasks required by domestic law to assure compliance;

(h) endeavour to use accreditation to qualify conformity assessment bodies; and

(i) ensure independence of, and absence of conflict of interest between, accreditation bodies and conformity assessment bodies.

5. Upon request from a Party, the other Party may decide to enter into consultations with a view to defining sectoral initiatives regarding the use of conformity assessment procedures or the facilitation of acceptance of conformity assessment results that are appropriate for the respective sectors. The Party making the request should provide relevant information on how the sectoral initiative would facilitate trade. If the other Party declines that request it shall, upon request, provide its reasons.

6. The Parties affirm their obligations under Article 5.2.5 of the TBT Agreement that fees imposed for mandatory conformity assessment of imported products shall be equitable in relation to any fees chargeable for assessing the conformity of like products of domestic origin or originating in any other country, taking into account communication, transportation and other costs arising from differences between location of facilities of the applicant and the conformity assessment body.

ARTICLE 5.7

Transparency

The Parties acknowledge the importance of transparency with regard to the preparation, adoption and application of standards, technical regulations and conformity assessment procedures. In that regard, the Parties affirm their transparency obligations under the TBT Agreement. Each Party shall:

(a) take the other Party’s comments into account where a part of the process of developing a technical regulation is open to public consultation, and provide, upon request, written responses in a timely manner to the comments made by the other Party;

(b) ensure that economic operators and other interested persons of the other Party are allowed to participate in any formal public consultation process concerning the development of technical regulations, on terms no less favourable than those accorded to its own legal or natural persons;

(c) further to subparagraph 1(a) of Article 5.4 (Technical Regulations), in cases where impact assessments are carried out, inform the other Party, upon request, of the outcome of the impact assessment of the proposed technical regulation;

(d) when making notifications in accordance with Article 2.9.2 or 5.6.2 of the TBT Agreement:

(i) allow at least a period of 60 days, following the notification, for the other Party to provide comments in writing to the proposal and, where practicable, give due consideration to reasonable requests for extending that period;

(ii) provide the electronic version of the notified text;

(iii) provide, in case the notified text is not in one of the official WTO languages, a detailed and comprehensive description of the content of the measure in the WTO notification format;

(iv) reply in writing to written comments received from the other Party on the proposal, no later than the date of publication of the final technical regulation or conformity assessment procedure; and

(v) provide information on the adoption and the entry into force of the notified measure and the adopted final text through an addendum to the original notification;

(e) allow sufficient time between the publication of technical regulations and their entry into force for economic operators of the other Party to adapt, except where urgent problems of safety, health, environmental protection or national security arise or threaten to arise;

(f) ensure that all technical regulations and mandatory conformity assessment procedures adopted and in force are publicly available on official websites and free of charge; and

(g) ensure that the enquiry point, established in accordance with Article 10.1 of the TBT Agreement, provides information and answers in one of the official WTO languages to reasonable enquiries from the other Party or from interested persons of the other Party on adopted technical regulations, conformity assessment procedures and standards.

ARTICLE 5.8

Market Surveillance

The Parties shall:

(a) exchange views on market surveillance and enforcement activities;

(b) ensure that market surveillance functions are carried out by the competent authorities and that no conflicts of interest exist between the market surveillance function and the conformity assessment function; and

(c) ensure that there are no conflicts of interest between market surveillance bodies and the economic operators subject to control or supervision.

ARTICLE 5.9

Marking and Labelling

1. The Parties note that a technical regulation may include or deal exclusively with marking or labelling requirements. When a Party’s technical regulations contain mandatory marking or labelling requirements, that Party shall observe the principles of Article 2.2 of the TBT Agreement, in particular, that technical regulations shall not be prepared with a view to, or with the effect of, creating unnecessary obstacles to international trade, and that they shall not be more trade restrictive than necessary to fulfil a legitimate objective.

2. When requiring mandatory marking or labelling of products, a Party shall:

(a) only require information which is relevant for consumers or users of the product or which indicates the product’s conformity with the mandatory technical requirements;

(b) not require any prior approval, registration or certification of the labels or markings of products as a precondition for placing on its market products that otherwise comply with its mandatory technical requirements, unless it is necessary in view of the risk of the products to human, animal or plant health or life, the environment or national security; this provision is without prejudice to the right of the Party to require prior approval of the specific information to be provided on the label or marking in light of the relevant domestic regulations;

(c) in the event that it requires the use of a unique identification number by economic operators, issue that number to the economic operators of the other Party without undue delay and on a non-discriminatory basis;

(d) provided it is not misleading, contradictory or confusing in relation to the information required in the Party importing the goods, permit the following:

(i) information in other languages in addition to the language required in the Party importing the goods;

(ii) internationally accepted nomenclatures, pictograms, symbols or graphics; or

(iii) additional information to that required in the Party importing the goods;

(e) accept that labelling, including supplementary labelling or corrections to labelling, take place, where relevant, in authorised premises, such as in customs or bonded licensed warehouses at the point of import, in the importing Party prior to the distribution and sale of the product; the Party may require that the original labelling is not removed;

(f) when it considers that the legitimate objectives under the TBT Agreement are not compromised, endeavour to accept non-permanent or detachable labels, or marking or labelling in the accompanying documentation rather than physically attached to the product.

ARTICLE 5.10

Cooperation and Trade Facilitation

1. The Parties shall strengthen their cooperation in the field of standards, technical regulations and conformity assessment procedures with a view to increasing the mutual understanding of their respective systems and to facilitating trade between them. To that end, they may establish regulatory dialogues at both horizontal and sectoral levels.

2. The Parties shall aim to identify, develop and promote bilateral initiatives regarding standards, technical regulations and conformity assessment procedures that are appropriate for particular issues or sectors and which facilitate trade. Those initiatives may include:

(a) promoting good regulatory practices through regulatory cooperation, including the exchange of information, experiences and data, with a view to improving the quality and effectiveness of their standards, technical regulations and conformity assessment procedures and making efficient use of regulatory resources;

(b) using a risk-based approach to conformity assessment such as relying on a supplier’s declaration of conformity for low-risk products and, where appropriate, reducing the complexity of technical regulations, standards and conformity assessment procedures;

(c) increasing the convergence of their standards, technical regulations and conformity assessment procedures with relevant international standards, guides or recommendations;

(d) avoiding unnecessary divergence of approach in standards, technical regulations and conformity assessment procedures where no international standards, guides or recommendations exist;

(e) promoting or enhancing cooperation between the Parties’ respective organisations, public or private, responsible for standardisation, conformity assessment and metrology;

(f) ensuring efficient interaction and cooperation between regulatory authorities at regional or international level; and

(g) exchanging information, to the extent possible, about agreements and arrangement related to technical barriers to trade subscribed to at international level.

3. Upon request, a Party shall give due consideration to proposals for cooperation from the other Party under this Chapter. This cooperation shall be undertaken, inter alia, through dialogue in appropriate fora, joint projects, technical assistance and capacity-building programmes on

standards, technical regulations and conformity assessment procedures in selected industrial areas, as mutually agreed.

ARTICLE 5.11

Consultations

1. A Party shall give prompt and favourable consideration to any request for consultations from the other Party on issues relating to the implementation of this Chapter.

2. In order to clarify or resolve issues referred to in paragraph 1, the Trade Committee may establish a working group with a view to identifying a workable and practical solution to facilitate trade. The working group shall comprise representatives of the Parties.

ARTICLE 5.12

Implementation

1. Each Party shall designate a contact point in the Ministry of Science and Technology of Viet Nam and the European Commission, respectively, and provide the other Party with the contact details of the office or official responsible for matters covered under this Chapter, including information on telephone, facsimile, e-mail and other relevant details.

2. Each Party shall promptly notify the other Party of any change of its contact point and amendments to the information referred to in paragraph 1.

3. The contact points shall, inter alia:

(a) monitor the implementation and administration of this Chapter;

(b) facilitate cooperation activities, as appropriate, in accordance with Article 5.10 (Joint Cooperation and Trade Facilitation);

(c) promptly address any issue that a Party raises in relation to the development, adoption, application or enforcement of standards, technical regulations and conformity assessment procedures;

(d) consult, upon a Party’s request, on matters arising under this Chapter;

(e) take any other actions which may assist the Parties in implementing this Chapter; and

(f) carry out other functions as may be delegated by the Committee on Trade in Goods.

4. The enquiry points, established in accordance with Article 10.1 of the TBT Agreement, shall:

(a) facilitate the exchange of information between the Parties on standards, technical regulations and conformity assessment procedures, in response to all reasonable requests for such information from the other Party; and

(b) refer enquiries from the other Party to the appropriate regulatory authorities.

CHAPTER 6: SANITARY AND
PHYTOSANITARY MEASURES

ARTICLE 6.1

Scope

1. This Chapter applies to the preparation, adoption and application of all sanitary and phytosanitary (hereinafter referred to as “SPS”) measures of a Party which may, directly or indirectly affect trade between the Parties.

2. This Chapter does not affect the rights of the Parties under Chapter 5 (Technical Barriers to

Trade) with respect to measures not within the scope of this Chapter.

ARTICLE 6.2

Objectives

The objectives of this Chapter are to:

(a) enhance the effective implementation of the principles and disciplines of the SPS Agreement and international standards, guidelines and recommendations developed by relevant international organisations;

(b) protect human, animal or plant life or health in the territory of each Party while facilitating trade between the Parties and to ensure that SPS measures adopted by each Party do not create unnecessary obstacles to trade;

(c) strengthen communication and cooperation on, and resolution of SPS matters that affect trade between the Parties and other agreed matters of mutual interest; and

(d) promote greater transparency and understanding in the application of each Party’s SPS measures.

ARTICLE 6.3

Definitions

1. For the purposes of this Chapter:

(a) the definitions contained in Annex A of the SPS Agreement apply;

(b) “competent authorities” means each Party’s authorities responsible for developing, implementing and administering SPS measures within its territory; and

(c) “SPS Committee” means the Committee on Sanitary and Phytosanitary Measures referred to in Article 6.11 (Committee on Sanitary and Phytosanitary Measures) established pursuant to Article 17.2 (Specialised Committees).

2. The Parties may agree on other definitions for the application of this Chapter taking into consideration the glossaries and definitions of the relevant international organisations, such as the Codex Alimentarius Commission (hereinafter referred to as “Codex Alimentarius”), the World Organisation for Animal Health (hereinafter referred to as “OIE”), and the International Plant Protection Convention (hereinafter referred to as “IPPC”).

ARTICLE 6.4

General Provisions

1. The Parties affirm their existing rights and obligations with respect to each other under the SPS Agreement.

2. Each Party shall apply the SPS Agreement in the development, application or recognition of any SPS measure with the aim of facilitating trade between the Parties while protecting human, animal or plant life or health in its territory.

ARTICLE 6.5

Competent Authorities and Contact Points

1. To ensure close and effective working relationships between the Parties in achieving the objectives of this Chapter, the competent authorities are:

(a) in the case of Viet Nam, responsibility for SPS matters is shared between governmental agencies as follows:

(i) the Ministry of Agriculture and Rural Development, or its successor, is responsible for animal and plant health; it administers surveillance and control measures to prevent the introduction of diseases which negatively affect human and animal health; it also administers a comprehensive program to control and prevent the incursion of diseases and pests which negatively affect plant health and the economy; and, for animal and plant products destined for exportation, it is also responsible for inspection, for quarantine and for the issuance of certifications attesting to the agreed standards and requirements of the Union; and

(ii) the Ministry of Health, the Ministry of Agriculture and Rural Development and the Ministry of Industry and Trade, or their respective successors, are, in accordance with their respective competences, responsible for the safety of food destined for human consumption; for the importation of food, they administer surveillance and control measures, including the development of national technical regulations and approval procedures, the conduct of risk assessment of products and inspections of establishments, to ensure the compliance with the agreed standards and requirements of Viet Nam; for the exportation of food, they are also responsible for inspection and for the issuance of health certifications;

(b) in the case of the Union, responsibility is shared between the administrations of the Member States and the European Commission as follows:

(i) as regards exports to Viet Nam, the Member States are responsible for the control of the production conditions and requirements, including statutory inspections and issuing health and animal welfare certifications attesting to compliance with Viet Nam’s standards and requirements;

(ii) as regards imports from Viet Nam, the Member States are responsible for controlling compliance of imports with the Union’s import conditions;

(iii) the European Commission is responsible for overall coordination, inspection and audits of inspection systems and the necessary legislative action to ensure uniform application of standards and requirements within the Union’s internal market.

2. As of the date of entry into force of this Agreement, the competent authorities of each Party shall provide each other with a contact point for communication on all matters arising under this Chapter. The contact points’ functions shall include:

(a) enhancing communication among the Parties’ agencies and ministries responsible for SPS matters; and

(b) facilitating information exchange in order to enhance mutual understanding of each Party’s SPS measures, the regulatory processes that relate to those measures and their impact on trade in the products concerned between the Parties.

3. The Parties shall ensure that the information provided under paragraphs 1 and 2 is kept up to date.

ARTICLE 6.6

Import Requirements and Procedures

1. The general import requirements of a Party shall be applicable to the entire territory of the exporting Party, without prejudice to the ability of the importing Party to take decisions and measures in accordance with the criteria set out in Article 6.9 (Measures linked to Animal and Plant Health).

2. Each Party shall adopt only measures that are scientifically justified, consistent with the risk involved and that represent the least restrictive measures available and result in minimum impediment to trade.

3. The importing Party shall ensure that its import requirements and procedures are applied in a proportional and non-discriminatory manner.

4. The import procedures shall aim at minimising negative trade effects and expedite the clearance process while complying with the importing Party’s requirements and procedures.

5. The importing Party shall ensure full transparency of its import requirements and procedures.

6. The exporting Party shall ensure compliance with the import requirements of the importing Party.

7. Each Party shall establish and update lists of regulated pests, using scientific terminology, and make such lists available to the other Party.

8. Phytosanitary import requirements shall be restricted to measures ensuring the respect for the appropriate level of protection of the importing Party, and limited to the regulated pests of concern to the importing Party. Without prejudice to Article 6 of the IPPC, a Party shall not impose or maintain phytosanitary measures for non-regulated pests.

9. A pest risk analysis undertaken by a Party shall be carried out without undue delay after the initial request of the exporting Party. In case of difficulties, the Parties shall agree within the SPS Committee on a time schedule for carrying out the pest risk analysis.

10. The importing Party shall have the right to carry out import checks based on the SPS risks associated with imports. Those checks shall be carried out without undue delay and with a minimum impediment to trade. If products do not conform to the requirements of the importing Party, any action taken by the importing Party shall be in conformity with the international standards and proportionate to the risk caused by the product.

11. The importing Party shall make available the information about the frequency of import checks carried out on products. This frequency may be adapted as a consequence of verifications or import checks, or by mutual agreement between the Parties.

12. Any fees imposed for the procedures related to the import of products under this Chapter shall be equitable in relation to any fees charged on like domestic products and shall not be higher than the actual cost of the service.

ARTICLE 6.7

Verifications

1. In order to obtain or maintain confidence in the effective implementation of this Chapter, the importing Party has the right to carry out verifications, including:

(a) by conducting verification visits to the exporting Party to verify all or part of the exporting Party’s control system, in accordance with the relevant international standards, guidelines and recommendations of the Codex Alimentarius, OIE and IPPC; the expenses of such verification visits shall be borne by the Party carrying out the verification visit; and

(b) by information requests to the exporting Party about its control system and the results of the controls carried out under that system.

2. Each Party shall provide the other Party with the results and conclusions of the verification visits carried out in the territory of the other Party.

3. If the importing Party decides to carry out a verification visit to the exporting Party, it shall notify the exporting Party of this visit at least 60 working days before such verification visit is carried out, unless agreed otherwise. Any modification to this verification visit shall be mutually agreed by the Parties.

4. The importing Party shall provide a draft verification report to the exporting Party within 45 working days of the completion of the verifications. The exporting Party shall have 30 working days to comment on the draft report. Comments made by the exporting Party shall be attached to and, where appropriate, included in the final verification report which shall be delivered within 30 working days. If, during the verification, the importing Party identifies a significant human, animal or plant health risk, it shall inform the exporting Party as quickly as possible and in any case within 10 working days following the end of the verification.

ARTICLE 6.8

Procedure for Listing of Establishments

1. Upon request of the importing Party, the exporting Party shall inform the importing Party of its list of establishments which comply with the importing Party’s requirements for approval and for which satisfactory sanitary guarantees have been provided in accordance with Annex 6-A (Requirement and Procedures for Approval of Establishments for Products).

2. Upon request of the exporting Party, the importing Party shall approve within 45 working days the list of establishments referred to in paragraph 1, without prior inspection of individual establishments.

3. If the importing Party requests additional information, the time-period referred to in paragraph 2 shall be extended by up to 30 working days. Following the approval of the list of establishment, the importing Party shall take necessary measures, in accordance with its applicable legal procedures, to allow the importation of products concerned.

4. If the importing Party rejects the request for approval, it should inform without delay the exporting Party of the reasons upon which that rejection was based.

ARTICLE 6.9

Measures linked to Animal and Plant Health

1. The Parties recognise the concepts of disease-free areas, areas of low disease prevalence, and compartmentalisation in accordance with the SPS Agreement and OIE standards, guidelines or recommendations. The Parties also recognise the animal health status as determined by the OIE.

2. The Parties recognise the concepts of pest-free areas, areas of low pest prevalence, protected zones and pest free production sites in accordance with the SPS Agreement and IPPC standards, guidelines or recommendations.

3. The Parties shall consider factors such as geographical location, ecosystems, epidemiological surveillance, and the effectiveness of the SPS controls.

4. The SPS Committee shall define in further detail the procedure for the recognition of the concepts referred to in paragraphs 1 and 2 taking into account the SPS Agreement and the OIE and IPPC standards, guidelines or recommendations.

5. When the importing Party assesses the self-determination of the animal or plant health status made by the exporting Party, it shall, in principle, base its own assessment of the animal or plant health status of the exporting Party or parts thereof on the information provided by the exporting Party in accordance with the SPS Agreement and the OIE and IPPC standards, guidelines or recommendations. The importing Party shall endeavour to provide the exporting Party its decision without undue delay after the request for assessment.

6. If the importing Party does not accept the self-determination of the animal or plant health status made by the exporting Party, it shall explain the reasons and, upon request by the exporting Party, enter into consultations as soon as possible to reach an alternative solution.

7. The exporting Party shall provide relevant evidence in order to objectively demonstrate to the importing Party that the animal or plant health status of those areas is likely to remain unchanged. For that purpose, the exporting Party shall, upon request by the importing Party, give the importing Party reasonable access for inspection, testing and other relevant procedures.

ARTICLE 6.10

Equivalence

1. The Parties recognise that the application of equivalence in Article 4 of the SPS Agreement is an important tool for trade facilitation and has mutual benefits for both exporting and importing countries.

2. Equivalence can be accepted for a specific SPS measure or SPS measures related to a certain product or categories of products, or on a systems-wide basis.

3. The importing Party shall accept the SPS measures and systems of the exporting Party as equivalent if the exporting Party objectively demonstrates that its measures achieve the importing Party’s appropriate level of SPS protection. To facilitate a determination of equivalence, the importing Party shall, upon request, explain the objective of any relevant SPS measures to the other Party.

4. Within three months of the date of receipt by the importing Party of a request from the exporting Party, the Parties shall hold consultations in order to determine the equivalence of SPS measures and systems.

5. The importing Party shall make a determination of equivalence without undue delay after the exporting Party has demonstrated the equivalence of the proposed SPS measures and systems.

6. The importing Party shall accelerate the determination of equivalence in particular in respect of those products which it has historically imported from the exporting Party.

7. In case of multiple requests from the exporting Party, the Parties shall agree within the SPS Committee on a time schedule in which they shall initiate the process.

8. In accordance with Article 9 of the SPS Agreement, the importing Party shall give full consideration to the requests by the exporting Party for technical assistance to facilitate the implementation of this Article. This assistance may, inter alia, help to identify and implement measures which can be recognised as equivalent or to otherwise enhance market access.

9. The consideration by the importing Party of a request from the exporting Party for recognition of equivalence of its SPS measures with regard to a specific product shall not be in itself a reason to disrupt or suspend ongoing imports from that Party of that product. When the importing Party has made an equivalence determination, the Parties shall formally record it and apply it without delay to trade between them in the relevant area.

ARTICLE 6.11

Committee on Sanitary and Phytosanitary Measures

1. The SPS Committee established pursuant to Article 17.2 (Specialised Committees) shall include representatives of the competent authorities of the Parties. All decisions made by the SPS Committee shall be by mutual agreement.

2. The SPS Committee shall meet in person within one year of the entry into force of this Agreement. It shall meet at least annually thereafter or as mutually determined by the Parties. It shall establish its rules of procedure at its first meeting. It shall meet in person, via teleconference, video-conference, or through other means as mutually agreed by the Parties.

3. The SPS Committee may propose to the Trade Committee to establish working groups which shall identify and address technical and scientific issues arising from this Chapter and explore opportunities for further collaboration on SPS matters of mutual interest.

4. The SPS Committee may address any matter related to the effective functioning of this Chapter, including facilitating communication and strengthening cooperation between the Parties. In particular it shall have the following responsibilities and functions:

(a) developing the necessary procedures or arrangements for the implementation of this Chapter;

(b) monitoring the progress in the implementation of this Chapter;

(c) providing a forum for discussion of problems arising from the application of certain SPS measures with a view to reaching mutually acceptable solutions and promptly addressing any matters that may create unnecessary obstacles to trade between the Parties;

(d) providing a forum to exchange information, expertise and experiences in the field of SPS matters;

(e) identifying, initiating and reviewing technical assistance projects and activities between the Parties; and

(f) carrying out any other function as mutually agreed between the Parties.

5. The Parties may, by decision in the SPS Committee, adopt recommendations and decisions related to the authorisation of imports, exchange of information, transparency, recognition of regionalisation, equivalence and alternative measures, and any other matter referred to under this Article.

ARTICLE 6.12

Transparency and Exchange of Information

1. The Parties shall:

(a) ensure transparency as regards SPS measures applicable to trade between them;

(b) enhance mutual understanding of each Party’s SPS measures and their application;

(c) exchange information on matters related to the development and application of SPS measures, including the progress on new available scientific evidence, that affect, or may affect, trade between them with a view to minimising their negative trade effects;

(d) upon request of a Party, communicate the import requirements that apply to the import of a particular product within 15 working days of the date of receipt of the request; and

(e) upon request of a Party, communicate progress achieved in processing the application for the authorisation of a particular product within 15 working days of the date of receipt of the request.

2. When a Party has made the information available either by notification to the WTO in accordance with the relevant rules and procedures, or by publication on its official publicly and free of charge accessible websites, the exchange of information pursuant to subparagraphs 1(c) to 1(e) shall not be required.

3. All notifications under this Chapter shall be made to the contact points referred to under Article 6.5 (Competent Authorities and Contact Points).

ARTICLE 6.13

Consultations

1. When a Party considers that an SPS measure affecting bilateral trade warrants further discussion, it may, through the contact points referred to under Article 6.5 (Competent Authorities and Contact Points), request full explanation and, if necessary, request consultations on that SPS measure. The other Party shall respond promptly to such requests.

2. The Parties shall make every effort to reach, within an agreed timeframe, a mutually acceptable solution through consultations. Should the consultations fail to resolve the matter, it shall be considered by the SPS Committee.

ARTICLE 6.14

Emergency Measures

1. Each Party shall notify in writing to the other Party within two working days any serious or significant risk to human, animal or plant life or health, including any food emergencies, affecting products for which trade between the Parties takes place.

2. Where a Party has serious concerns regarding a risk to human, animal or plant life or health affecting products for which trade between the Parties takes place, it may request consultations in accordance with Article 6.13 (Consultations). The consultations shall take place as soon as possible. Each Party shall endeavour to provide in due time all necessary information to avoid disruption in trade.

3. The importing Party may take, without previous notification, measures necessary to protect human, animal or plant life or health. For consignments in transport between the Parties, the importing Party shall consider the most suitable and proportional solution in order to avoid unnecessary disruptions to trade.

4. The Party taking the measures shall inform the other Party as soon as possible and in any case no later than 24 hours after the adoption of the measure. Either Party may request any information related to the SPS situation and any measures adopted. The other Party shall reply as soon as the requested information is available.

5. Upon request of either Party and in accordance with Article 6.13 (Consultations) the Parties shall hold consultations regarding the situation within 10 working days of the notification referred to in paragraph 1. The consultations shall be held with a view to avoiding unnecessary disruptions to trade. The Parties may consider options for the facilitation of the implementation or the replacement of the SPS measures.

ARTICLE 6.15

Technical Assistance and Special and Differential Treatment

1. The Union should provide technical assistance to address specific needs of Viet Nam to comply with the Union’s SPS measures, including food safety, animal and plant health, and the use of international standards.

2. In accordance with Article 10 of the SPS Agreement, in the case of new SPS measures, the Union shall take into account the special needs of Viet Nam so as to maintain the export opportunities of Viet Nam while continuing to achieve the Union’s level of protection. The SPS Committee shall be consulted upon request by either Party to reflect on and decide about:

(a) longer timeframes for compliance;

(b) alternative import conditions in the context of equivalence; and

(c) technical assistance activities.