PROTOCOL RELATING TO THE DEFINITION OF THE CONCEPT OF PRODUCTS ORIGINATING FROM
MEMBER STATES OF THE ECONOMIC COMMUN WEST AFRICAN STATES ITY OF
THE HIGH CONTRACTING PARTIES,
to paragraph 2 of Article 15 of the Treaty of the Economic Community of West African States concerning the definition of the concept of products originating from Member States ;
AGREE AS FOLLOWS :
In this Protocol :
means the Treaty of the Economic Community of West African State ;
"Council" means the Council of Ministers established by Article 6 of the Treaty of the Economic Community of West African States ;
"Commission" means the Trade, Customs, Immigration, Money and Payments Commission established by Article 9 of the Treaty of the Economic Community of West African States ;
"Member State" or "Member States" means a Member State or Member States of the Economic Community of West African States ;
"Producer" includes a grower or a manufacturer or any person who supplies his goods otherwise than by sale to another person and to whose order the last process in the course of the manufacture of the goods is applied by that other person ;
"Materials" include raw materials, semi-finished products, parts and components used in the production of goods ;
"Produced" and "process of production" include the application of any operation or process with the exception of any operations or processes listed in Article IV of this Protocol ;
"Value-added" means the difference between the ex-factory price of the finished product including subsidies if any, less local taxes and duties, and c.i.f. value of the material imported from third countries and used in the production.
Rules of Origin of Community Goods
The promotion of trade in goods originating in Member States as well as the collective economic development of the Community requires indigenous ownership and participation. Goods shall be accepted as originating in Member States for purposes of Trade liberalisation if :
- they have been wholly produced as defined in Article V of this Protocol ; or
- they have been produced in a Member State other than by any of the operations and processes listed in Article IV of this Protocol or with the material from a foreign or undetermined origin used in the process of production of goods whose C.I.F. value does not exceed 60% of the total cost of the material employed in the production or with the material of Community origin whose value must not in any case be less than 40% of the total cost of the material used in the process of production or with the raw material of Community origin representing in quantity at least 60% of the whole raw material used in the production ; or
- if the goods have been produced from material of a foreign or undetermined origin and having received in the process of production a value added of at least 35% of the F.O.B. price of the finished product ; and
- If the Enterprises producing these goods attain a desirable level of indigenous ownership and participation. The Commission shall, on the basis of appropriate statistics, make proposals to the Council of Ministers to determine orientation and levels relating to ownership and participation.
Evidence of Community Origin
- The claim that goods shall be accepted as originating from a Member State in accordance with the provisions of this Protocol, shall be supported by a certificate in the form prescribed in Annex A to this Protocol and indicating therein the percentage and origin of the materials used and/or the percentage of value-added as the case may be in the process of production and the fact of direct consignment. A certificate shall be given by the competent authority designated for that purpose by the exporting Member State where the goods have been produced and countersigned by the Customs Department of that Member State.
- The competent authority designed by an importing Member State may, notwithstanding the presentation of a certificate issued in accordance with the provisions of paragraph 1 of this Article, require, in case of doubt, further verification of the declarations made in a certificate.
- In determining the place of production of marine, river or lake products and goods, a vessel of a Member State shall be regarded as part of that State. In determining the place from which goods originated marine, river or lake products taken from the sea, river or lake or goods produced therefrom at sea or on a river or lake, shall be regarded as having their origin in a Member State if they are taken by or produced in a vessel of that State and have been brought directly to the territories of the Member States.
- For the purpose of paragraph 3 of this Article, a vessel shall be regarded as a vessel of a Member State only if :
- it is registered in a Member State ;
- it carries a complement (inclusive of the Master thereof) of which not less than fifty per cent are nationals of Member States ; and
- at least majority control and equity holdings in respect of the vessel are in the hands of nationals of Member States and/or a Government or Governments of Member States or institutions, agencies, enterprises or corporations of such Government or Governments.
Processes not Conferring Origin
For the purpose of sub-paragraphs (b) and (c) of paragraph 1 of Article II of this Protocol, the following operations and processes shall be considered as insufficient to support a claim that goods originate from a Member State :
- packing, bottling, placing in flasks, bags, cases, boxes, fixing on cards or boards and all other simple packing operations ;
- mixing of products except as provided for in Article VIII of this Protocol ;
- operations to ensure the preservation of merchandise in good condition during transportation and storage such as ventilation, spreading out, drying, freezing, placing in brine, sulphur dioxide or other aqueous solutions, removal of damaged parts and similar operations ;
- changes of packing and breaking up or assembly of consignments ;
- simple assembly of parts of a product to constitute a complete product ;
f) marking or labelling for distinguishing products or their packages ;
g) simple operations consisting of removal of dust, sifting or screening, sorting, classifying, matching including the making up of sets of goods, washing, painting and cutting up ;
h) a combination of two or more operations specified in sub-paragraphs (a) to (g) of this Article.
Goods wholly produced in the Member States
For the purpose of sub-paragraph (a) of paragraph 1 of Article II of this Protocol, the following are among the products which shall be regarded as wholly produced in the Member States :
- mineral products extracted from the ground or sub-soil or sea of the Member State ;
- vegetable products harvested within the Member States ;
- live animals born and/or raised within the Member States ;
- products obtained within the Member States from live animals in (c) above ;
- products obtained by hunting or fishing conducted within the Member States ;
- products obtained from the sea and from rivers and lakes within the Member States by a vessel of a Member State ;
- products manufactured in a factory of a Member State exclusively from the products referred to in sub-paragraph (f) of this Article ;
- used articles fit only for the recovery of materials, provided that such articles have been collected from users within the Member States ;
- scrap and waste resulting from manufacturing operations within the Member States ;
- goods produced within the Member States exclusively or mainly from one or both of the following :
- products within sub-paragraphs (a) to (i) ;
- materials containing no element imported from outside the Member States or of undetermined origin.
Application of percentage and value-added criteria
For the purpose of sub-paragraph (b) and (c) of paragraph 1 of Article II of this Protocol :
- the value of any materials which can be identified as having been imported from a third country shall be their c.i.f. value accepted by the Customs Authorities on clearance for home use, or on temporary admission, at the time of last importation into the Member State where they were used in a process of production, less the amount of transport costs incurred in transit through other Member States ;
- if the value of any materials imported from outside the Member States cannot be determined in accordance with sub-paragraph (b) of this Article, their value shall be the earliest ascertainable price paid for them in the Member State where they were used in a process of production ;
- if the origin of any materials cannot be determined, such materials shall be deemed to have been imported from a foreign country and their value shall be the earliest ascertainable price paid for them in the Member State where used in a process of production ;
- the ex-factory price of the goods shall be the price paid or payable for them to the exporter in the Member State where the goods were produced, that price being adjusted, where necessary, to an f.o.b. or free at frontier basis in that State.
Segregation of Materials
- For those products or industries where it would be impracticable for the producer to segregate physically materials of similar character but different origins used in the production of goods, such segregation may be replaced by an appropriate accounting system which ensures that no more goods are deemed to originate in the Member States than would have been the case if the producer had been able physically to segregate the materials.
Treatment of Mixtures
- In the case of mixtures, not being groups, set or assemblies of goods dealt with under Article VII of this Protocol, a Member State may refuse to accept as originating in a Member State any product resulting from the mixing together of goods which would qualify as originating in the Member State with goods which would not so qualify, if the characteristics of the product as a whole are not essentially different from the characteristics of the goods which have been mixed.
- In the case of particular products it is, however, recognised by the Council to be desirable to permit mixing of the kind described in paragraph 1 of this Article, such products shall be accepted as originating in the Member States in respect of such part thereof as may be shown to correspond to the quantity of goods originating in the Member States used in the mixing subject to such conditions as may be agreed by the Council upon the recommendation of the Commission.
Treatment of Packing
- Where, for purposes of assessing customs duties, a Member State treats goods separately from their packing, it may also, in respect of its imports consigned from another Member State, determine separately the origin of such packing.
- Where paragraph 1 of this Article is not applicable, packing shall be considered as forming a whole with the goods and no part of any packing required for their transport or storage shall be considered as having been imported from a foreign country, when determining the origin of the goods as a whole.
- For the purpose of paragraph 2 of this Article, packing with which goods are ordinarily sold by retail shall not be regarded as packing required for the transport or storage of goods.
Unit of Qualification
- Each product in a consignment shall be considered separately.
- For the purpose of paragraph 1 of this Article :
- where the Nomenclature of the Customs Co-operation Council specifies that a group, set or assembly of products is to be classified within a single heading, such a group, set or assembly shall be treated as one product ;
- tools, parts and accessories which are imported with a product, and the price of which is included in that of the product or for which no separate charge is made, shall be considered as forming a whole with the product, provided that they constitute the standard equipment customarily included on the sale of products of that kind ;
- in cases not within sub-paragraphs (a) and (b) of this Article, goods shall be treated as a single product if they are so treated for purposes of assessing customs duties on like products by the importing Member State.
- An unassembled or disassembled product which is imported in more than one consignment because it is not feasible for transport or production reasons to import it in a single consignment, shall be treated as one product.
Movement of Goods in Transit
Where a Member State exports its products to another Member State through other Member States, such exportation shall be in accordance with International Transit procedures
The Council shall make regulations concerning proof and the verification of proof of goods originating from Member States in pursuance of this Protocol.
Infringement and Sanctions
- Member States undertake to introduce legislation, making such provision as may be necessary for penalties against persons who, in their state, furnish or cause to be furnished a document which is untrue in a material particularly in support of a claim in another Member State that should be accepted as originating from the Member States.
- Any Member State to which an untrue claim is made in respect of the origin of goods shall immediately bring the issue to the attention of the exporting Member State from which the untrue claim is made so that the appropriate action can be taken.
- Any Member State shall be under no obligation to institute or continue court proceedings, if it has not been requested to do so by the importing Member State to which the untrue claim was made.
- Without prejudice to the powers conferred upon the Tribunal of the Economic Community of West African States established by Article 11 of the Treaty, continued infringement by a Member State of the provisions of this Protocol may be referred by another Member State to the Council through the Commission.
Deposit and Entry into Force
- This Protocol shall enter into force provisionally upon signature by Heads of State and Government of Member States and definitively upon ratification by at least seven signatory States in accordance with the constitutional procedures applicable for each signatory State.
- This Protocol and all the instruments of ratification shall be deposited with the Depository Government of the Treaty which shall transmit certified true copies of this Protocol to all Member States and notify them of the dates of deposit of the instruments of ratification and shall register this Protocol with the Organisation of African Unity, the United Nations and such Organisations as the Council shall determine.
- This Protocol shall be annexed to and shall form an integral part of the Treaty.
IN THE FAITH WHEREOF, WE, THE HEADS OF STATE AND GOVERNMENT OF THE ECONOMIC COMMUNITY OF WEST AFRICAN STATES HAVE SIGNED THIS PROTOCOL.
DONE AT LOME, THIS 5TH DAY OF NOVEMBER, 1976 IN ONE SINGLE ORIGINAL IN THE ENGLISH AND FRENCH LANGUAGES, BOTH TEXTS BEING EQUALLY AUTHENTIC.
Rules for the Issuing of Certificate of Origin
- The forms may be completed by any process, provided that the entries are indelible and legible ;
- Neither erasures nor super-impositions should be allowed on the certificates. Any alterations should be made by striking out the erroneous material and making any addition required. Such alterations should be approved by the person who made them and certified by the appropriate authority or body ;
- Any unused spaces should be crossed out to prevent any subsequent addition ;
- If warranted by export trade requirements, one or more copies may be drawn up in additional to the original.
- Origin Criteria
- That all the goods (mentioned overleaf) have been wholly produced or manufactured in the Member State ;
- They have been produced in the Member State but not manufactured as a result of any of the processes listed in Article IV of the Protocol on Definition of Originating Products and the percentage of the materials imported from a foreign country or undetermined origin which have been used at any state of the production of the goods does not exceed 60 per cent or the percentage of the inputs of Community origin shall not be less than 40% ; or
- They have been produced in the Member State (but are not manufactured as a result of any of the processes listed in Article IV of the Protocol on Definition of originating products) from materials imported from a third country or of undetermined origin and the value-added in the process of production accounts for at least thirty-five per cent of the f.o.b. price of the finished product ;
- They have been produced by enterprises referred to in paragraph 1 of the Protocol ;
- They have been consigned directly from one Member State to another.