PROTOCOL AMENDING THE TREATY ESTABLISHING
THE CARIBBEAN COMMUNITY

(Protocol VIII: Competition Policy, Consumer Protection, Dumping and Subsidies)

(Continuation)

Article 30(nn) 
Imposition of Anti-Dumping Measures

1. The COTED shall, after consideration of the available evidence and having been satisfied of the existence of dumped imports, injury caused by dumped imports or the threat of serious injury from dumped imports, authorise the Member State aggrieved to take anti-dumping action:

(a) if the parties alleged to be responsible for dumped imports refuse to cooperate within the time specified so as to frustrate or otherwise impede an investigation;

(b) if there is a serious threat of injury or if injury has resulted.

2. In authorising the imposition of anti-dumping measures, the COTED shall set the date, duration and conditions for the imposition of the measures as the case may require.

3. Anti-dumping action taken pursuant to this Article, shall be based on the calculated margin of dumping and may be applied as follows:

(a) if the evidence arising from definitive investigations of dumping proves the existence of dumping and that injury was caused by dumping, a Member State may impose anti-dumping duties sufficient to eliminate the margin of dumping. The COTED may authorise all affected Member States to impose similar anti-dumping duties for such time and under such conditions as the COTED may prescribe;

(b) in the imposition of anti-dumping duties, Member States imposing the measure shall not discriminate among the sources of all dumped imports based on country of origin or nationality of the exporters;

(c) an exporter whose exports are the subject of anti-dumping duties may request at any time the Member State imposing the duties to review the application of the duties against the relevant exports;

(d) if an applicant for review of anti-dumping duties applied to exports mentioned in sub-paragraph (c) is not satisfied that the competent authorities in the importing Member States have given adequate consideration to the request for review within 30 days of the receipt of the request, the applicant may refer the request to the COTED which shall recommend to the Member State maintaining the anti-dumping duty to take the appropriate action if it is satisfied that the application for review is justified;

(e) in the event that investigations have been concluded and the evidence proves that injury has been caused, a Member State may impose anti-dumping duties retroactively to account for the entire period during which provisional anti-dumping duties have been in force preceding the date of imposition of definitive anti-dumping duties. If, however, the definitive anti-dumping duties are higher than the provisional duties paid or payable or the amount estimated for the purpose of security, the difference shall not be collected. If the definitive duties are lower than the provisional duties payable, or the amount estimated for the purpose of security, the difference shall be reimbursed or the duties recalculated as the case may require. 

(f) if however the investigations reveal that injury was not caused by dumped imports as alleged, but the provisional measures have materially retarded exports of the Member State complained against, the COTED shall, upon application by such State, assess the effects of the provisionally applied duties and determine the nature and extent of compensation which is warranted and require the Member State applying provisional measures to withdraw the measure and pay compensation in accordance with its assessment;

(g) a Member State may accept a voluntary price guarantee from an exporter who is believed to be exporting dumped products, to raise the price of the export sufficiently to forestall a serious threat of injury or to eliminate injury caused by dumped imports;

(h) if a Member State has initiated investigations based on evidence of dumped imports and the Member State had imposed provisional measures, the Member State may, upon the receipt of a voluntary guarantee from the exporter referred to in sub-paragraph (g), promptly suspend the investigation and withdraw any provisional measures it may have imposed as appropriate.

4. The COTED shall keep under review all anti-dumping measures imposed by Member States and shall ensure that Member States observe the conditions and the timetable for review and withdrawal of anti-dumping measures that it may have authorised.

5. Member States undertake to co-operate in the establishment of harmonised anti-dumping legislation and procedures in accordance with the provisions of this Protocol.

PART V 
SUBSIDIES TO AGRICULTURE 

Article 30(oo)
Definition

1. For the purposes of this Protocol an agricultural subsidy is defined as any form of domestic support, financial or otherwise, including revenue foregone, provided by government or any public agency in favour of the producers of a specific agricultural product or to the agricultural sector as a whole. This includes:

(a) assistance provided by government or any public agency to foster agricultural and rural development or to assist low income or resource poor producers;

(b) financial concessions granted by government or a public agency to offset the cost of agricultural inputs or to encourage investments in agriculture;

(c) any other financial concession which has the effect of providing price or income support to producers of agricultural products which is administered either through direct payments to the producers or processors of an agricultural product or indirectly through government or other publicly funded programmes;

(d) payments in kind to agricultural producers.

2. "Agricultural products" refers to the products listed in Chapters 1-24 of the Harmonised System (HS) of Product Classification, not including fish and fish products, forestry and forest products, and including the products listed in Annex IV.

Article 30(pp)
Rights

Having regard to the general use of subsidies in Member States to encourage agricultural and rural development, to promote investments in agriculture generally and to assist low-income or resource-poor producers, Member States may grant subsidies to meet those objectives, consistent with their obligations under international agreements and subject to the provisions of this Protocol.

Article 30(qq)
Obligations

1. Notwithstanding the right to grant subsidies indicated in Article 30(pp), a Member State shall not use such subsidies in a manner to distort the production of and intraregional trade in the product or products benefitting from such subsidies.

2. Accordingly, subsidies provided by a Member State to agriculture shall not involve transfers from consumers, or direct payments to producers or processors which would have the effect of providing price support to producers.

3. Subsidies provided by a Member State to agriculture shall be made through publicly funded programmes which benefit the agricultural sector generally, in areas such as research, training, extension and advisory services, pest and disease control, inspection services, marketing and promotion services and infrastructural services.

4. Where a Member State makes direct payments of a subsidy to agricultural producers or processors through such schemes as crop insurance, disaster relief, income safety-net programmes, regional assistance programmes and structural adjustment assistance programmes , that Member State shall ensure that these payments, whether financial or otherwise, have no or minimal production and trade distortion effect and do not constitute price support to producers of the product or products benefitting from the use of such schemes.

Article 30(rr) 
Regulation

1. Any subsidy provided by a Member State in favour of the production of an agricultural product entering regional trade, except for the provision of general services programmes or direct payments satisfying the conditions stated in Article 30(qq), shall not exceed 10 per cent of the total value of that Member State's annual production of such tradeable agricultural product in any one year.

2. Any subsidy provided by a Member State in favour of agricultural producers or processors in general, except for the provision of general services programmes or direct payments satisfying the conditions stated in Article 30(qq), shall not exceed 10 per cent of the total value of that Member State's annual total agricultural output, in any one year.

3. Where a Member State provides a subsidy, except for the provision of general services programmes or direct payments satisfying the conditions stated in Article 30(qq), in excess of the levels prescribed in paragraphs 1 and 2, such a subsidy shall be considered as a subsidy causing injury, nullification, impairment or serious prejudice.

Article 30(ss)
Discipline

1. Each Member State shall ensure that any subsidy in favour of agricultural producers conforms with the provisions of Article 30(qq) and Article 30(rr).

2. Any subsidy in favour of agricultural producers that cannot be shown to satisfy the provisions in Article 30(qq) and Article 30(rr), shall be subject to the provisions of Article30(u) to Article 30(y) inclusive.

3. A subsidies programme undertaken in conformity with the provisions of this Part shall be subject to action based on Article 30(u) to 30(y) inclusive where a determination of injury or threat thereof is made in accordance with the provisions of this Part.

4. In the determination of a threat of injury, the investigating authorities shall consider, inter alia, such factors as:

(i) nature of the subsidy or subsidies in question and the trade effects likely to arise therefrom;

(ii) a significant rate of increase of subsidized imports into the domestic market indicating the likelihood of substantially increased importations;

(iii) sufficient freely disposable or an imminent, substantial increase in capacity of the exporter indicating the likelihood of substantially increased subsidized exports to the importing country's market, taking into account the availability of other export markets to absorb any additional exports;

(iv) whether imports are entering at prices that will have a significant depressing or suppressing effect on domestic prices, and would likely increase demand for further imports;

(v) inventories of the product being investigated.

Article 30(tt)
Due Restraint

Where it has been determined that a subsidy causes injury or threatens to cause such injury, in accordance with the provisions of this Protocol, the aggrieved Member State shall exercise due restraint in initiating any action in retaliation.

Article 30(uu)
Notification

1. Member States shall notify the COTED of any subsidy programme pursuant to Article 30(oo) prior to implementation.

2. In addition to the notification to be submitted under this Article, any new subsidy or modification of an existing measure shall be notified promptly. This notification shall contain details of the new or modified subsidy and its conformity with the agreed criteria as set out in Article 30(qq) and Article 30(rr).

3. Any Member State may bring to the attention of the COTED any measure which it considers ought to have been notified by another Member State.

Article 30(uu)(bis)
Review

1. The COTED shall undertake a review of the implementation of the provisions on subsidies to agriculture on the basis of notifications of the subsidies programmes submitted by Member States, as well as on the basis of any other documentation which the COTED may request to be prepared to facilitate its review.

2. Any Member State may bring to the attention of the COTED any measure which it considers ought to have been notified by another Member State.

PART VI 
CONSUMER PROTECTION 

Article 30(vv) 
Promotion of Consumer Interests 
in the Community

1. Member States shall promote the interests of consumers in the Community by appropriate measures that:

(a) provide for the production and supply of goods and the provision of services to ensure the protection of life, health and safety of consumers;

(b) ensure that goods supplied and services provided in the CARICOM Single Market and Economy (CSME) satisfy regulations, standards, codes and licensing requirements established or approved by competent bodies in the Community;

(c) provide, where the regulations, standards, codes and licensing requirements referred to in paragraph (b) do not exist, for their establishment and implementation;

(d) encourage high levels of ethical conduct for those engaged in the production and distribution of goods and services to consumers;

(e) encourage fair and effective competition in order to provide consumers with greater choice among goods and services at lowest cost;

(f) promote the provision of adequate information to consumers to enable the making of informed choices;

(g) ensure the availability of adequate information and education programmes for consumers and suppliers;

(h) protect consumers by prohibiting discrimination against producers and suppliers of goods produced in the Community and against service providers who are nationals of other Member States of the Community;

(i) encourage the development of independent consumer organisations;

(j) provide adequate and effective redress for consumers.

2. For the purpose of this Part,

"consumer" means any person:

(a) to whom goods are supplied or intended to be supplied in the course of business; or

(b) for whom services are supplied or intended to be supplied in the course of business,

carried on by a supplier or potential supplier and who does not receive the goods or services in the course of a business carried on by him.

Article 30(ww) 
Protection of Consumer Interests 
in the Community

Member States shall enact harmonised legislation to provide, inter alia:

(a) for the fundamental terms of a contract and the implied obligations of parties to a contract for the supply of goods or services;

(b) for the prohibition of the inclusion of unconscionable terms in contracts for the sale and supply of goods or services to consumers;

(c) for the prohibition of unfair trading practices particularly such practices relating to misleading or deceptive or fraudulent conduct;

(d) for the prohibition of production and supply of harmful and defective goods and for the adoption of measures to prevent the supply or sale of such goods including measures requiring the removal of defective goods from the market;

(e) that the provision of services is in compliance with the applicable regulations, standards, codes and licensing requirements;

(f) that goods supplied to consumers are labelled in accordance with standards and specifications prescribed by the competent authorities;

(g) that hazardous or other goods whose distribution and consumption are regulated by law are sold or supplied in accordance with applicable regulations;

(h) that goods or materials the production or use of which is likely to result in potentially harmful environmental effects, are labelled and supplied in accordance with applicable standards and regulations;

(i) that producers and suppliers are liable for defects in goods and for violation of product standards and consumer safety standards which occasion loss or damage to consumers;

(j) that violations of consumer safety standards by producers / suppliers are appropriately sanctioned and relevant civil or criminal defences to such violations are available to defendants.

Article 30(xx) 
Action by the Commission to Provide Support in the 
Promotion and Protection of Consumer Welfare

1. The Commission shall, for the purpose of providing support to Member States in the enhancement of consumer education and consumer welfare:

(a) promote in the Community the elaboration, publication and adoption of fair contract terms between suppliers and consumers of goods and services produced or traded in the CARICOM Single Market and Economy;

(b) take such measures as it considers necessary to ensure that Member States discourage and eliminate unfair trading practices, including misleading or deceptive conduct, false advertising, bait advertising, referral selling and pyramid selling; 

(c) promote in Member States product safety standards as part of a programme of consumer education in order to assist the consumer to make informed choices concerning the purchase of consumer goods;

(d) keep under review the carrying on of commercial activities in Member States which relate to goods supplied to consumers in such States or produced with a view to their being so supplied, or which relate to services supplied for consumers with a view to identifying practices which may adversely affect the interest of consumers;

(e) educate and guide consumers generally in the practical resolution of their problems and in the best use of their income and credit, using such techniques and means of communications as are available;

(f) confer, on request, with consumer organisations of Member States and offer such advice and information as may be appropriate for the resolution of their consumer problems;

(g) establish the necessary co-ordination with government agencies and departments for the effective education and guidance of consumers having regard to the programmes, activities and resources of each agency or department;

(h) conduct research and collect and collate information in respect of matters affecting the interests of consumers;

(i) compile, evaluate and publicise enactments for the protection of consumers in such States and recommend to the COTED the enactment of legislation considered necessary or desirable for the protection of consumers;

(j) promote, after consultation with the competent standardising agency and other public and private agencies or organisations, the establishment of quality standards for consumer products;

(k) promote and monitor, after consultation with relevant agencies and departments of Government, the enforcement of legislation affecting the interests of consumers, including, but not limited to, legislation relating to weights and measures, food and drugs adulteration, the control of standards and price controls;

(l) make recommendations to the COTED for the enactment of legislation by the Member States for the effective enforcement of the rights of consumers.

2. The Commission shall:

(a) draw to the attention of the COTED business conduct by enterprises which impact adversely on consumer welfare;

(b) collaborate with competent Organs of the Community to promote consumer education and consumer welfare.

ARTICLE III 
Signature

This Protocol shall be open for signature by any Member State.

Continue on to Article IV - Ratification