INFORMATION ON IMPLEMENTATION AND ADMINISTRATION
OF THE CUSTOMS VALUATION AGREEMENT

Checklist of issues

Gabon

The following communication, dated 10 September 2024, is being circulated at the request of the delegation of Gabon.

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1.     Questions concerning Article 1:

(a)   Sales between related persons:

(i)     Are sales between related persons subject to special provisions?

Yes, to Articles 24.4, 24.5, 26.2, 27.1, 42 (Note to Article 26), 43 (Note to Article 27) and 30.2 of the Customs Code of the Central African Economic and Monetary Community (CEMAC).

(ii)    Is the fact of intercompany prices prima facie considered as grounds for regarding the respective prices as being influenced?

No, it is not considered as grounds for regarding the prices as being influenced (Article 26.2(a) of the CEMAC Customs Code).

(iii)   What is the provision for giving the communication of the afore-mentioned grounds in writing if the importer so requests? (Article 1.2(a))

Article 26.2(a) of the Customs Code provides that "if the importer so requests, the communication of the grounds shall be in writing".

(iv) How has Article 1.2(b) been implemented?

Under Article 26.2 (b) of the CEMAC Customs Code: "In a sale between related persons, the transaction value shall be accepted and the goods valued in accordance with the provisions of paragraph 1 whenever the importer demonstrates that such value closely approximates to one of the following occurring at or about the same time:

•        the transaction value in sales to unrelated buyers of identical or similar goods for export to the same Community member State;

•        the customs value of identical or similar goods as determined under the provisions of Article 31;

•        the customs value of identical or similar goods as determined under the provisions of Article 32.

In applying the foregoing tests, due account shall be taken of demonstrated differences in commercial levels, quantity levels, the elements enumerated in Article 27 and costs incurred by the seller in sales in which the seller and the buyer are not related that are not incurred by the seller in sales in which the seller and the buyer are related".

(b)   Price of lost or damaged goods:

Are there any special provisions or practical arrangements concerning the valuation of lost or damaged goods?

No, there are no special provisions or practical arrangements that apply in these cases.

2.      How has the provision of Article 4 to allow the importer an option to reverse the order of application of Articles 5 and 6 been implemented?

Article 25.3 of the CEMAC Customs Code states that "[i]f the importer requests that the order of Articles 31 [deductive method] and 32 [computed value method] be reversed, that order of application of the sequence is to be followed. If the importer does so request, but the request is rejected by the customs authorities or it then proves impossible to determine the customs value, the customs value is to be determined under the provisions of Article 31, if it can be so determined".

3.      How has Article 5.2 been implemented?

Article 35.2 of the CEMAC Customs Code provides that "If neither the imported goods nor identical nor similar imported goods are sold in the country of importation in the condition as imported, then the customs value shall be based on the unit price at which the imported goods, after further processing, are sold in the greatest aggregate quantity to persons in the State of importation who are not related to the persons from whom they buy such goods, due allowance being made for the value added by such processing and the deductions provided for in paragraph 1(a) of this Article".

4.      How has Article 6.2 been implemented?

Article 36.2 of the CEMAC Customs Code states that "no Member may require or compel any person not resident in its own territory to produce for examination, or to allow access to, any account or other record for the purposes of determining a computed value. However, information supplied by the producer of the goods for the purposes of determining the customs value under the provisions of this Article may be verified in another country by the authorities of the State of importation, with the agreement of the producer and provided they give sufficient advance notice to the government of the country in question and the latter does not object to the investigation".

5.      Questions concerning Article 7:

(a)    What provisions have been made for making value determinations pursuant to Article 7?

Article 37.1 of the CEMAC Customs Code states that "If the customs value of the imported goods cannot be determined under the provisions of Articles 30 through 36, inclusive, the customs value shall be determined using reasonable means consistent with the principles and general provisions of Article VII of the GATT 1994 and the Agreement on Implementation, and on the basis of data available in the country of importation".

(b)    What is the provision for informing the importer of the customs value determined under Article 7?

Under Article 37.3, "If the importer so requests, the importer shall be informed in writing of the customs value determined under the provisions of this Article and the method used to determine such value".

(c)    Are the prohibitions found in Article 7.2 delineated?

Yes, in Article 37.2 of the CEMAC Customs Code, under which "no customs value shall be determined under the provisions of this Article on the basis of:

(a)  the selling price in the member State of importation of goods produced in such State;

(b)  a system which provides for the acceptance for customs purposes of the higher of two alternative values;

(c)  the price of goods on the domestic market of the country of exportation;

(d)  the cost of production other than computed values which have been determined for identical or similar goods in accordance with the provisions of Article 36;

(e)  the price of the goods for export to a country other than the State of importation;

(f)   minimum customs values; or

(g)  arbitrary or fictitious values".

6.      How have the options found in Article 8.2 been handled? In the case of f.o.b. application, are ex-factory prices also accepted?

Articles 31.1(e), 31.1(f) and 31.1(g) of the CEMAC Customs Code state that: "In determining the customs value under the provisions of Article 30, there shall be added to the price actually paid or payable for the imported goods:

(e)  the cost of transport of the imported goods to the place of introduction of the goods into the customs territory of the importing member State;

(f)   loading, unloading and handling charges associated with the transport of the imported goods to the place of introduction into the customs territory of the importing member State; and

(g)  the cost of insurance".

In the case of f.o.b. application, ex-factory prices are accepted.

7.      Where is the rate of exchange published, as required by Article 9.1?

The rate of exchange is published on the www.douanes.ga website and is displayed in all customs offices. It is also updated in the customs IT system. Article 39 of the CEMAC Customs Code states that "where the conversion of currency is necessary for the determination of the customs value, the rate of exchange to be used shall be that duly published by the competent authorities of each member State and shall reflect as effectively as possible, in respect of the period covered by each such document of publication, the current value of such currency in commercial transactions in terms of CFAF".

8.      What steps have been taken to ensure confidentiality, as required by Article 10?

Article 40 of the CEMAC Customs Code states that "All information which is by nature confidential or which is provided on a confidential basis for the purposes of customs valuation shall be treated as strictly confidential by the authorities concerned who shall not disclose it without the specific permission of the person or government providing such information, except to the extent that it may be required to be disclosed in the context of judicial proceedings".

9.      Questions concerning Article 11:

(a)    What rights of appeal are open to the importer or any other person?

Article 358.1 of the CEMAC Customs Code states that "any person who is directly affected by a decision or omission of the Customs shall have a right of appeal".

(b)    How is he to be informed of his right to further appeal?

Articles 358.2, 358.3, 358.4, 358.5 and 358.6 provide that "The person directly affected by a decision or omission of the Customs shall be given, after having made a request to the Customs, the reasons for such a decision or omission within 15 days. This may or may not result in an appeal within 30 days.

The initial right of appeal, made in writing, is to the National Customs Director, who has 30 working days to inform the appellant of the decision in writing.

If the appellant is not satisfied with the outcome of the appeal, or in the absence of a response from the customs administration within the time frame specified in subparagraph 3, the dispute shall, within 30 working days, be referred to the Independent Committee for the Settlement of Customs Disputes for arbitration.

If the appellant or the customs administration objects to the arbitration of the Independent Committee for the Settlement of Customs Disputes, the dispute concerning the nature, origin and value shall be brought before the CEMAC Commission.

In the final instance, the appellant or the customs administration shall have the right of appeal to the judicial authorities".

10.    Provide information on the publication, as required by Article 12, of:

(a)(i)       the relevant national laws;

Under Article 44 of the CEMAC Customs Code, "Laws, regulations, judicial decisions and administrative rulings of general application giving effect to this Code shall be published in the official journals of member States and the Community, in conformity with Article X of the GATT 1994".

(ii) the regulations concerning the application of the Agreement;

Under Article 44 of the CEMAC Customs Code, "Laws, regulations, judicial decisions and administrative rulings of general application giving effect to this Code shall be published in the official journals of member States and the Community, in conformity with Article X of the GATT 1994".

(iii)   the judicial decision and administrative rulings of general application relating to the Agreement;

Under Article 44 of the CEMAC Customs Code, "Laws, regulations, judicial decisions and administrative rulings of general application giving effect to this Code shall be published in the official journals of member States and the Community, in conformity with Article X of the GATT 1994".

(iv)   general or specific laws being referred to in the rules of implementation or application.

Under Article 44 of the CEMAC Customs Code, "Laws, regulations, judicial decisions and administrative rulings of general application giving effect to this Code shall be published in the official journals of member States and the Community, in conformity with Article X of the GATT 1994".

(b)  Is the publication of further rules anticipated? Which topics would they cover?

Further rules must be published in order to make them enforceable against third parties and all importers. Under Article 44 of the CEMAC Customs Code, "Laws, regulations, judicial decisions and administrative rulings of general application giving effect to this Code shall be published in the official journals of member States and the Community, in conformity with Article X of the GATT 1994". These further rules might concern changes in national laws, general or specific laws, regulations, or judicial or administrative decisions concerning the implementation of the Agreement.

11.    Questions concerning Article 13:

(a)    How is the obligation of Article 13 (last sentence) being dealt with in the respective legislation?

Article 181.3 provides that "if, in the course of determining the customs value, it becomes necessary to delay the final determination of the nature, origin or value, the importer of the goods shall nevertheless be able to withdraw them from customs, if the importer provides sufficient guarantee in the form of a surety, a deposit or some other appropriate instrument, covering the ultimate payment of customs duties and taxes having an equivalent effect for which the goods may be liable, and provided that the customs authorities are satisfied that the goods are not subject to any prohibition or restriction".

(b)    Have additional explanations been laid down?

Yes, additional explanations are laid down in Articles 181.4, 181.5 and 181.6, which state that:

"if the Customs are satisfied that the declarant will subsequently accomplish all the formalities in respect of clearance they shall release the goods, provided that the declarant produces a commercial or official document giving the main particulars of the consignment concerned and acceptable to the Customs, and that security, where required, has been furnished to ensure collection of any applicable duties and taxes.

When an offence has been detected, the Customs shall not wait for the completion of administrative or legal action before they release the goods, provided that the goods are not liable to confiscation or forfeiture or to be needed as evidence at some later stage, and that the declarant pays the duties and taxes, and furnishes security to ensure collection of any additional duties and taxes and of any penalties which may be imposed.

In cases where the goods are not released and time is needed to complete checks, the customs authorities shall inform the operator as soon as possible".

12.   Questions concerning Article 16:

(a)    Does the respective national legislation contain a provision requiring customs authorities to give an explanation in writing as to how the customs value was determined?

Yes, Article 41 of the CEMAC Customs Code states that "Upon written request, the importer shall have the right to an explanation in writing from the customs administration of the Member State of importation as to how the customs value of the importer's goods was determined".

(b)    Are there any further regulations concerning an above-mentioned request?

No, there are no further regulations.

13.    How have the Interpretative Notes of the Agreement been included?

The Interpretative Notes have been incorporated into the CEMAC Customs Code. Under Article 43 of the CEMAC Customs Code, "the Interpretative Notes to Articles 45 through 52 have the same legal force as the Articles of this Code, with which they must be read in conjunction".

14.    How have the provisions of the Decision on the Treatment of Interest Charges in the Customs Value of Imported Goods been implemented?

Interest charges are not regarded as an integral part of the additions to be made when determining the customs value of imported goods. Article 31 of the Customs Code specifies the additions to be made to the transaction value; Article 31.3 of the CEMAC Customs Code states that: "No additions shall be made to the price actually paid or payable in determining the customs value except as provided in this Article".

15.    For those countries applying paragraph 2 of the Decision on the Valuation of Carrier Media Bearing Software for Data Processing Equipment, how have the provisions of this paragraph been implemented?

Implemented by Order No. 0195/MEFBP/CME/SG/DGDDI, of 26 March 2004, establishing the method for determining the customs value of carrier media bearing software. When determining the duty, the value of carrier media is taken into account, not that of the software.

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