RESTRICTED  
  
WT/ACC/AFG/29  
 
2 July 2013  
(13-3487)  Page: 1/15  
Working Party on the Accession of  
the Islamic Republic of Afghanistan  Original: English  
 
ACCESSION OF AFGHANISTAN 
ADDITIONAL QUESTIONS AND REPLIES 
 The following submission, dated 1 July 2013, is being circulated at the request of the 
Delegation of the Islamic Republic of Afghanistan. 
 
_______________ WT/ACC/AFG/29 
 
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  TABLE OF CONTENTS 
IV. POLICIES AFFECTING TRADE IN GOODS ................................................................. 3  
A. IMPORT REGULATIONS ........................................................................................... 3  
-  Customs Valuation .................................................................................................. 3  
V. TRADE-RELATED INTELLECTUAL PROPERTY REGIME ............................................... 6  
-  Copyrights and re lated rights .................................................................................. 6  
-  ENFORCEMENT ...................................................................................................... 11  
 
   
 
  
 WT/ACC/AFG/29 
 
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  IV. POLICIES AFFECTING TRADE IN GOODS 
A. IMPORT REGULATIONS - Customs Valuation A Member has reviewed the following relevant legislation: 
- Draft Amendments to the Customs Law of the Islamic Republic of Afghanistan; 
- Draft Regulation on Customs Valuation; - Law on Management and Publication of the Offi cial Gazette of the Republic of Afghanistan; 
Question 1  
Draft Amendments to the Customs Law of the Islamic Republic of Afghanistan:  
Article 25 indicates that when the value of goods is expressed in foreign currency, the 
value shall be determined in accordance wi th the Da Afghanistan Bank exchange rate 
applicable at the time of "lodging of declaration". 
- Could Afghanistan please specify if this is at the time of exportation or the time of 
importation? 
Answer: 
Article 9 of the WTO Agreement on Customs Valuation allows the use of the conversion rate at 
either the time of importation or the time of exportation.  The WTO Interpretative Note to Article 9 
provides that "[f]or purposes of Article 9, 'time of importation' may include time of entry for 
customs purposes".  Afghanistan has chosen the time of importation and, applying the Interpretative Note, considers the time the declaration is lodged in Afghanistan as the time of importation. 
Question 2 
Regulation on Customs Valuation:  Concerning  Article 4, please ex plain which provision 
of the WTO Agreement on Customs Valuation this Article is intended to implement. 
Answer: 
Article 4.2 of the draft Regulation on Customs Valuation refers to "transaction value method".  
The article is intended to implement Article 1 of the WTO Agreement on Customs Valuation. 
Question 3 
Article 10 of the WTO Agreemen t on Customs Valuation requires that all information 
which is by nature confidential or is provid ed on a confidential basis for the purposes of 
customs valuation should be treated as strict ly confidential by the authorities concerned 
and shall not be disclosed without specific permission of the person or government 
providing such information, except to the exte nt that it may be required to be disclosed 
in the context of judicial proceedings.  
- Article 16 of Afghanistan's Regulation on Customs Valuation, however, only covers 
certain specified information.   
- Please indicate what steps Afghanistan will  take to fully comply with Article 10 of 
the WTO Agreement on Customs Valuation. 
Answer: 
The implementation of Article 10 of the WTO Agr eement on Customs Valuation is provided in the 
draft amendments to Article 13 of the Customs Law: WT/ACC/AFG/29 
 
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   Article 13 (Confidentiality) 
 The following information provided to Customs is covered by the obligation of professional 
secrecy and Customs will not disclose such in formation without permission of the person 
concerned and with legal authority to do so, or in connection with legal proceedings: 
 1. The valuation of a specific goods,  2. Details [e.g. names and addresses] of suppliers of goods,  3. The results of testing, and 
4. Other information which is by nature confidential or which is provided to Customs on a 
confidential basis. 
Article 16 of the draft Regulation on Customs Valuat ion does not limit the scope of Article 13 of the 
Customs Law.  It provides guidance as to the types of valuation-related information that shall be 
considered confidential, whether obtained by Customs in connection with clearance or otherwise 
(e.g., in an audit).  
The Draft Amendments to the Customs Law are pres ently at the Ministry of Justice.  Further 
amendments at the Ministry of Justice are bein g considered to Article 13 to read as follows: 
Article 13 (Confidentiality) (1) The following information provided to Customs is covered by the obligation of 
professional secrecy:  
1. The valuation of specific goods, 
2. Details [e.g. names and addresses] of suppliers of goods, 3. The results of testing, and 
4. Other information that is confidential in nature or which is provided to Customs 
on a confidential basis. 
(2) Customs shall not disclose such informat ion without the express permission of the 
person or authority who provided it and with legal authority to do so, except: 
1. where required to do so in connection with legal proceedings,  
2. to other public authorities for purposes of:  
  (i) the detection, prevention or investigation of offences that are, or would 
  be if committed, violations of the customs legislation or punishable by 
  imprisonment under other laws of Afghanistan; 
   (ii) the protection of border security, or 
(iii) the protection of the health and safety of members of the public; 
3. to a foreign customs or other the competent authority of a foreign country 
pursuant to an international treaty or agreement that ensures adequate level of 
protection of such information. 
Question 4 
Article 20 of the Regulation and Customs Valu ation states that price actually paid or 
payable of the merchandise "inc ludes all payments that the buyer actually made or will 
make as a condition of sale of the imported goods".   
- Please further elaborate the meaning of this statement. Answer: 
This language does not appear in Article 20 of th e draft Regulation on Customs Valuation.  Rather, 
it appears in the Interpretative Notes to the dr aft regulation, which are set out as an Annex.  
The purpose of these Interpretative Notes is re ferenced in Article 2 of the draft Regulation: WT/ACC/AFG/29 
 
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   Interpretative Notes 
 Article 2  Certain articles of this regulation are supplemented by one or more Interpretative Notes 
attached to this regulation.  The articles of this regulation are to be understood and applied 
consistently with their respective Interpretative Notes."   
These Interpretative Notes to the draft regulation are taken from the WTO Agreement on Customs 
Valuation.  The specific language that is the subject of the Member's question is taken from 
Annex III.7 of the WTO Agreement (“the price actu ally paid or payable includes all payments 
actually made or to be made as a condition of sa le of the imported goods, by the buyer [.]").   
In the draft regulation, the meaning of that statement is elaborated as follows:  
Annex: 
Interpretative Notes 
(…) 
Transaction Value Method       
Article 20 
The price actually paid or payable is the total payment made or to be made by the buyer to or 
for the benefit of the seller for the imported goods.  It includes all payments that the buyer 
actually made or will make as a cond ition of sale of the imported goods. 
(1)  The price for the goods may be paid by the buyer directly or indirectly to the seller.  
An example of an indirect payment would be a payment by the buyer to a third party to settle, in whole or in part a debt owed by the seller. 
(2)  Customs shall not consider as indirect payments to the seller those activities 
undertaken by the buyer on the buyer's own account, other than those for which an adjustment is provided in Article 21, even though such activities might be regarded 
as of benefit to the seller.  The costs of su ch activities shall not, therefore, be added 
to the price actually paid or payable in determining the customs value.  
(3)  The payment need not necessarily take the form of a transfer of money.  Payment 
may be made by way of letters of credit or negotiable instruments.   
(4)  The price actually paid or payable refers to the price for the imported goods.  Thus 
the flow of dividends or other payments from the buyer to the seller that do not relate to the imported goods are not part of the customs value. 
(5)  For purposes of Article 20, only the cost of those containers which are treated for 
tariff classification purposes as one with the goods shall be included in the customs value.  Cost of packing shall include costs of labour and materials. 
Question 5 
Please specify which provision of the Law on Management and Publication of the Official 
Gazette of the Republic of Afghanistan requ ires publication of judicial decisions as 
required by Article 12 of the WTO Agreement on Customs Valuation.  
Answer: 
Judicial decisions (including commercial court decisions) are published on the website of the 
Supreme Court of Afghanistan as well as in Mezan Gazette and Qaza Magazine.   WT/ACC/AFG/29 
 
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  It is the Law on Organizational Structure and Jurisdiction of Courts that provides for publication of 
judicial decisions. 
V. TRADE-RELATED INTELLECTUAL PROPERTY REGIME - Copyrights and related rights 
Question 6  
Paragraph 179 of document WT/ACC/SPEC/AFG /3 states that Article 12 of the 
Copyright Law provides that "once an au thor transferred or surrendered his/her 
economic right(s) to another person, he/she  could not stop the transferee from using 
the transferred rights".  However, according to Article 12 (as well as the bilateral replies 
to a Member's questions on the draft Copyright Law), an author can "withdraw publication and/or broadcasting of the work , and could also make changes to the work", 
despite the statement in paragraph 179 that the author is not able to stop the transferee 
from using the transferred right.  
- Please clarify. 
Answer: 
Article 12(2) of the Copyrights Law will be amended to read as follows, both to clarify this point 
and to follow on from the preceding paragraph: 
(2) The author cannot prevent the transferee from exercising, in accordance with the 
written transfer, the economic rights transferred by the author. 
Question 7 Paragraph 179 of document WT/ACC/SPEC/AFG /3 states that withdrawing the work 
from publication or broadcasti ng, and/or making changes, requires compensation to the 
transferee if losses occur as a result.  Arti cle 12 states, however, that the author can 
"dissuade" rather than prevent publishing and broadcasting.   
- Is this a translation error?  Under what  circumstances can an author prevent or 
cease the publication or broadcasting of a work that he/she has already 
transferred?  Is it only in  order to make changes?  
- If an author withdraws and/or makes chan ges to the work, is the initial transfer 
still in effect, or can the author transfer his/her ri ghts to a new transferee? 
Answer: 
The planned amendment provided in the reply to the previous question addresses this.  
Question 8  
Paragraph 182 of document WT/ACC/SPEC/AFG /3 states that Article 14 of the 
Copyright Law complies with the three-step test for limitations and exceptions under 
TRIPS Article 13.  This provision creates a compulsory licence for publishing works that 
have not been published by a deceased author 's inheritors or successors.  According to 
Afghanistan's earlier bilatera l replies to a Member's questions on the draft Copyright 
Law, this provision only applies for works that  the inheritors themselves did not publish, 
and it may actually impact works that were previously published by the author prior to 
his/her death.  
- Could Article 14 apply to works that are still being published, or only those works 
that are not currently being published and that have never been published by the 
heirs?  
- Can heirs opt out of the publication an d retain their right to not have works 
published?  WT/ACC/AFG/29 
 
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  - If not, does not this exception potent ially unreasonably prejudice the legitimate 
interests of right holders to not have their works published?  
- What criteria will Afghanistan use to determine whether publication is in the 
"interest of the public"? 
Answer: 
Article 14 will be amended and fully converted from a limited exception to a compulsory licence 
provision, to which the law's compulsory licence requ irements will apply.  It will read as follows:  
Where the Ministry of Culture and Information determines that the publication of a work of 
a deceased author would be in the interest of the public, that Ministry may issue a licence to reproduce and publish that work in accord ance with the requirements and procedures 
set out at Article 42(2)-(5) of this Law and the regulations promulgated thereunder. 
Related to this, the title of Article 42 will be changed from "Translation of Foreign Work" to 
"Compulsory Licensing". 
Through the application of the compulsory licensing provisions, amended Article 14 will apply only 
to published works, and the purposes for which a licence may be issued will be limited. 
Current Article 14 contains no opt-out mechanism, but the revised version is subject to 
compulsory licensing procedures and limitations at Article 42 of the Law. 
The criteria for determining whether publication is in the "interest of the public" will be developed 
in implementing procedures. 
Question 9  TRIPS Checklist WT/ACC/AFG/8/Rev.1:  In resp onse to a prior question from a Member, 
Afghanistan provided a list of the "applicable  intellectual property treaties" referred to 
in Article 43(1)(1) of the draft Copyright Law.  
- Does Afghanistan also intend to become  a signatory to the Beijing Treaty on 
Audiovisual Performances? 
Answer: 
Becoming a party to the Beijing Treaty on Audiovisual Performances is not now a short-term 
priority for Afghanistan.  However, the prospect will be considered after membership in the 
broader foundational WIPO treaties has been secured. 
Question 10  Draft Amended Copyright Law:  Afghanista n provided some clarification regarding 
Article 28 in response to earlier bilatera l questions from a Member.  To follow-up: 
- What kinds of uses of an audiovisual work does this Article contemplate would 
prejudice the "dissenter's" economic rights, especially in the context of a contract 
between the various parties that collect ively create the audiovisual work?  
- We recognize that this could be a transl ation issue, but the current draft suggests 
that the various individuals can prevent pe rformance or display of the work in the 
absence of prejudice to their moral or econ omic rights.  To resolve this confusion, 
a Member suggests deleting the word "no" from the last sentence.  This Member 
also suggests changing the word "produ ction" to "performance", as the 
Government of Afghanistan has indicated th at in this provision production means 
performance.  WT/ACC/AFG/29 
 
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  Answer: 
This provision, providing protection in cases that may not be explicitly covered by contract, would 
allow a contributor to prevent performance or display of the collective work on the ground of prejudice to his economic rights, for example, where the performance or display would occur under 
conditions permitting ready infringement of economic rights, such as through unauthorised 
reproduction or broadcasting.   
These are indeed translation issues.  The original  Dari provides that contributors may prevent 
performance or display only where there is prejudice to moral or economic rights.   
The revised English translation is as follows: 
If the authors of a literary text, scenario and dialogue, and/or the producer and music 
composer collectively create an audiovisual wo rk, neither of them has the right to prevent 
the production or display of such work, unl ess there is no prejudice to the moral and 
economic rights of the dissenter. 
Question 11  
Amendments to the Law on the Rights of In ventors and Discoverers,  Article 10:2 states 
that:  "The registration office shall, within  15 days of receiving the application and the 
annexes thereof, be required to check compliance thereof with the pertinent law and 
regulation and shall make a decision, and shall apprise the applicant in writing in case of 
defects being observed therein".  The time-lim it of 15 days ref erred to in Article 10:2 
clearly applies only to the registration office.   
- Article 10:4, however, states that:  "Where the applicants  fail to take action to 
correct the defects within the time-limit set forth in paragraph (2)  of the present 
article, the relevant office shall, by gi ving reasons, reject the application and 
shall communicate the issue to the applic ants in writing.  In this case the 
applicant may resort to the competent court according to the provision set forth 
under paragraph (2) of the present Article".   
- In this provision, the applicant is suppose d to comply with a time-limit that does 
not appear to be included in paragraph 2 of Article 10, and appeal to a court that 
is not named. 
- What is the applicant's time-limit for correcting defects in the application, and 
what court is referred to in Article 10:4? 
Answer: 
Article 10 has been substantially rewritten to correct this and other anomalies in this law, 
particularly those related to patent applications.  The updated Draft Patent Law has been 
submitted to the WTO in April 2013.  Article 10 reads as follows: 
Review of the Application 
Article 10: 
(1) The relevant Office of Intellectual Property shall, within 15 working days of receiving 
the application, evaluate the completeness of the application, taking into consideration the provisions set forth under Articles 8 and 9 of this Law, and return a copy thereof to the applicant after being signed and sealed by th at Office by recording the date, time, month 
and year in words on the application which is received by the aforementioned office.  An 
application found incomplete by the Office of Intellectual Property shall be rejected and returned to the applicant in accord with the applicable regulations. 
(2) The Office of Intellectual Property shall, within 15 working days of informing the 
applicant of a positive finding under the previo us paragraph, conduct an examination of the 
application and the supporting materials thereto, in order to verify their formal compliance WT/ACC/AFG/29 
 
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  with the pertinent law and regulations, and shall notify the applicant in writing in case of any 
formal defects being observed therein. 
(3) An applicant, if a citizen of Afghanistan shall decide within 45 working days, and if a 
foreign national shall decide within 130 working days, to correct the formal defects being 
observed in the documents, and where compelli ng reasons are given, this period can be 
extended for one more period specified above by the Office of Intellectual Property if deemed necessary.  Where an applicant fails to file a response within the applicable period, 
the Office of Intellectual Property shall deem the application abandoned, and shall 
communicate that determination to the applicant in writing. 
(4) Where the applicant has, within the time limit set forth in paragraph (3) of the this 
Article, filed a response to a notification of formal defects but has failed, in the judgment of 
the Office of Intellectual Property, to correct thos e defects, the Office of Intellectual Property 
shall, by giving reasons, reject the applicat ion and shall communicate the rejection to the 
applicant in writing. In this case the applicant may appeal to the competent court. 
(5) Where the Office of Intellectual Property , upon conducting the examination required 
under paragraph (2) of this Article, determines that the application and the supporting 
materials thereto are in formal compliance with the pertinent law and regulations, the Office 
shall grant the application preliminary approval and shall, within the period stated at 
paragraph (2) of this Article, inform the applicant thereof in writing. 
Revised Article 10(3) allows 45 working days for an applicant who is a citizen of Afghanistan, and 
130 working days for an applicant who is a foreign national, to correct defects in the application 
which have been identified by the Office of Inte llectual Property.  These periods may be extended 
by the Office of Intellectual Property  upon a showing of compelling reasons. 
Revised Article 10(4) refers to appeals to "the competent court", which, under Afghanistan's rules 
of appellate procedure, would be the district commercial court.   
Question 12  Amendments to the Law on the Rights of In ventors and Discoverer s, Article 32 states 
that:  "A Patent Right the registration of wh ich has been applied for shall be registered 
without investigation as the responsibility of  the applicant and without guarantee with 
an explanation that it has been registered without investigation, provided it does not 
result in limitation of rights of third parties". 
- Please make it clear that the "limitatio n of rights of third parties" referred to 
means the limitation of rights of a third pa rty inventor or discover who has rights 
on the claimed invention.   
Answer: 
This provision has been deleted and superseded by a new provision, at Article 26, noting simply 
that patent registration (which is the result of formal examination only) does not guarantee 
substantive validity.  The updated Draft Patent La w has been submitted to the WTO in April 2013.  
Article 26 reads as follows: 
 Article 26: 
A patent registration shall not bear the guarantee of the Office of Intellectual Property 
as to the novelty, inventiveness or industrial applicability of the subject invention or 
discovery, or its conformity with the synopsis of the invention or discovery. 
Question 13  
Amendments to the Law on the Rights of In ventors and Discoverers,  Article 33:3 states 
that:  "Using spare parts of ai rcrafts, road vehicles or ship s belonging to other countries 
which enter temporarily or coincidently the air space or territorial waters of WT/ACC/AFG/29 
 
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  Afghanistan, shall be an exception to the pr ovision set forth under paragraph (2) of the 
present Articles". 
- Could Afghanistan please provide details as  to what sort of situation this provision 
is designed to correct?   
- How does this provision satisfy th e requirements of Article 30 of the 
WTO Agreement on TRIPS? 
Answer: 
Based on Paris Convention Article 5 ter, this practical exception (now at Article 27(3)) ensures that 
there is no liability for patent infringement where, for example, a device that is the subject of a patent in Afghanistan forms a part of an airplane that briefly enters the country's air space. 
This Paris Convention-based exception to exclusive patent rights is extremely limited, in that it 
only applies to certain parts of vehicles incidentally present within Afghanistan's territory.  
The exception neither conflicts with normal exploita tion of the patent nor prejudices the legitimate 
interests of the patent owner, in that the temporary presence of such parts does not interfere with 
the local patentee's ability to make, use, sell or import his patented product in Afghanistan.  
The exception takes into account the legitimate interests of third parties in that it facilitates certain international traffic unencumbered by patent licence requirements or the risk of liability based on 
incidental physical presence. 
However, we agree to revise this provision to more comprehensively track the language of 
Paris Convention Article 5 ter, as follows:  
(3) Each of the following shall be an exception to the provision set forth under 
paragraph (2) of the present articles: 
  1. the use on board vessels of other countries of devices in the body of such  
  vessels, in the machinery, tackle, gear and other accessories, when such  
  vessels temporarily or accidentally enter the waters of Afghanistan,   
  provided that such devices are used there exclusively for the needs of    such vessels; 
  2. the use of devices in the construction or operation of aircraft or land vehicles of 
   other countries, or of accessories of such aircraft or land vehicles, when those    aircraft or land vehicles temporarily or accidentally enter Afghanistan. 
Question 14  
Amendments to the Law on the Rights of In ventors and Discoverers,  Article 35:2 states 
that:  "Where the right holder demonstrates to the pertinent office that his failure to 
work, or insufficient working, of the invent ion or discovery registered in Afghanistan 
was due to legitimate reasons, a compulsory licence may not be issued". 
- We believe that the word " shall " should be used rather than " may".   
- Please ensure that this is the case in the enacted law. 
Answer: 
We agree to make the requested change in the law. 
Question 15 Amendments to the Law on the Rights of In ventors and Discoverers,  Article 46:1 states 
that:  "Where the invention or discovery ha s not been worked for five years following 
issuance of the Patent Form, and where a compulsory licence on the invention or 
discovery has been granted but has not been sufficient to remedy the failure to work.  
No proceedings may be instituted under th is subparagraph before the expiration of WT/ACC/AFG/29 
 
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  two years from the grant of the first compul sory licence on the relevant invention or 
discovery". 
- This provision raises policy concerns that there is a danger of a number of patent 
cancellations after five years.   
- We suggest that a more appropriate remedy in this scenario would be a 
modification of the terms of the compulsory licence rather than cancellation of the patent.   
Answer: 
Afghanistan agrees to delete this provision, now at Article 30(1)(3), deferring to existing 
provisions, at Article 29, allowing compulsory licensing for failure to work.  Article 30(1) will read in full as follows: 
(1) Any interested person may file with the Office of Intellectual Property a written 
application to cancel a registered patent, based on either or both of the following 
grounds: 
1. The invention or discovery was not eligible for registration under this law; 
or 
2. The applicant was not entitled to register the invention or discovery. 
- ENFORCEMENT 
Question 16 Draft "Order on Customs Control of Inte llectual Property Rights":  Article 15, 
sub-section 1 (Period of time for suspension) requires that the right holder act "within a 
period of seven working days".  In compari son, TRIPS Article 55 provides "a period not 
exceeding 10 working days".   
- We believe seven working days is too shor t and does not allow the right holder an 
adequate amount of time to take action.  
- Thus, we would recommend allowing th e maximum, "a period not exceeding 
10 working days", as provided by TRIPS.  
Answer: 
Afghanistan agrees to make the requested change in the Draft Order. 
Question 17 Draft "Order on Customs Control of Inte llectual Property Rights":  Article 23, 
sub-section 1 (costs) does not specify from  whom the importer, exporter, consignee, 
consignor or owner of the goods may seek appropriate compensation.   
- This may leave the Customs authority open to liability.  
- Thus, we would recommend adopting language provided in TRIPS Article 56, to 
clarify that "relevant author ities shall have the authorit y to order the applicant to 
pay the importer … for any injury caused to them through the wrongful detention 
of goods …". 
Answer: 
Afghanistan agrees to make the requested change in  the Draft Order.  Article 23(1) will read as 
follows: WT/ACC/AFG/29 
 
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  (1) An importer, exporter, consignee, consignor or the owner of the goods may seek 
appropriate monetary compensation from th e applicant for any injury caused through 
wrongful detention of goods or devices released pursuant to Article 15. 
Question 18 
Draft Customs Law:  Under Article 61, Memb ers shall provide for criminal procedures 
and penalties to be applied at least in ca ses of wilful trademark counterfeiting or 
copyright piracy on a commercial scale.  Re medies shall include imprisonment and/or 
monetary fines sufficient to provide a deterrent.  Article 31(1) of the Copyright Law 
provide for 1-3 years of imprisonment and a fine of at least 50,000 (US$1,034) but not more than 100,000 Afghanis (US$2,070).  This section also provides that a court may order the seizure, forfeiture and destruction of infringing goods and of any materials or 
implements used to commit the violation.  A similar provision is found in the Trade Law 
under Article 27(3).  
- Are these criminal fines in an amount th at is sufficient to act as a deterrent?   
- Are these fines assessed for each copyrigh t/trademark violated or assessed for the 
entire violation? 
Answer: 
The government has set the referenced fines at a level which it considers, in the local economic 
context, sufficient to provide a deterrent.  
The referenced penalty provision (now at Article 30(1) of the Copyright Law, with draft 
amendments) is sufficiently flexible to permit the adjudicating court to assess fines for each 
violation, or for the entire violation, the operative requirement being that sanctions imposed be 
"sufficient under the circumstances to provide a deterrent to future violations".   
Question 19 
Article 13 of the Draft Customs Law states th at:  "information provided to Customs is 
covered by the obligation of professional secrecy and Customs will not disclose such 
information without permission of the person  or government concerned and with legal 
authority to do so, or in connection with le gal proceedings" addressing valuation, names 
and addresses of suppliers, the results of te sting, and other information provided to 
Customs on a confidential basis.   
- Please clarify under what ci rcumstances this information can be released by the 
Customs Authority for investigative purpos es and at the request of other Customs 
Administrations. 
Answer: 
The Draft Amendments to the Customs Law are pres ently at the Ministry of Justice.  Further 
amendments at the Ministry of Justice are bein g considered to Article 13 to read as follows: 
Article 13 (Confidentiality) 
(1) The following information provided to Customs is covered by the obligation of 
professional secrecy:  
1. The valuation of specific goods, 
2. Details [e.g. names and addresses] of suppliers of goods, 
3. The results of testing, and 
4. Other information that is confidential in nature or which is provided to Customs 
on a confidential basis. 
(2) Customs shall not disclose such informat ion without the express permission of the 
person or authority who provided it and with legal authority to do so, except: WT/ACC/AFG/29 
 
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  1. where required to do so in connection with legal proceedings,  
2. to other public authorities for purposes of:  
   (i) the detection, prevention or investigation of offences that are, or would 
   be if committed, violations of the customs legislation or punishable by 
   imprisonment under other laws of Afghanistan; 
   (ii) the protection of border security, or 
   (iii) the protection of the health and safety of members of the public; 
3. to a foreign customs or other the competent authority of a foreign country 
pursuant to an international treaty or agreement that ensures adequate level of 
protection of such information. 
Question 20 
Article 40 of the Draft Customs Law states th at private aircraft for personal use not 
carrying goods subject to customs control and supervision do not need to present a manifest to the customs. 
- How will Customs Authorities determine th at the aircraft is "not carrying goods 
subject to customs control"?   
Answer: 
The draft amendments to the Customs Law delete this  provision.  Private aircraft for personal use 
will be subject to the obligation to present a manifest to Customs. 
Question 21  Article 165 of the Draft Custom s Law states that:  "Violations of customs law and other 
customs legislation shall be of the following two types: 
i. Administrative violations; which are violat ions from all the provisions of this law, 
except Article 170; 
ii. Smuggling of goods, in accordance with Chapter 14 of this Law". 
- This would appear to limit the applicat ion of non-administrative penalties to 
smuggling.  Please clarify what aspects of violations of intellectual property rights, 
even those involving significant revenu e gains through theft of intellectual 
property, would be subject to crimin al, rather than civil, penalties. 
- Please consider expanding non-administ rative violations beyond smuggling. 
Answer: 
The draft Customs Law includes terms of imprisonment for smuggling offenses only.  Smuggling 
offenses, which are defined in Article 183 of the draft law (formerly Article 172), do not extend to violations of intellectual property rights per se .   
Copyright Law Article 29(3), with pending amen dments, includes terms of imprisonment for 
importation of devices intended for use to deactivate anti-piracy devices, or to enable the unauthorised reception of programmes broadcast or communicated through satellite.  More 
generally, Copyright Law Article 30 provides for criminal penalties for various infringements of 
copyrights and related rights, exceeding the TR IPS Agreement Article 61 minimum requirement of 
application of criminal penalties for copyright piracy on a commercial scale.  Similarly, Trademarks Law Article 31, with pending amendments, provides for criminal penalties for wilful counterfeiting, 
as required by TRIPS Agreement Article 61, as well as for additional violations of trademark rights. 
Question 22  Article 166:3(iii) of the Draft Customs Law st ates that:  "Acceptance by the customs 
officer(s) of documents and information provid ed in sections 1 and 2 of this paragraph", WT/ACC/AFG/29 
 
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  i.e., documents that misrepresent facts or that violate provisions of the Customs Law 
"with the intention of frustrating the enforc ement of customs legislation", is a Class 3 
offence. 
- Does there have to be a cceptance of the documents with knowledge  that the 
information was an intentional misrepresentation? 
Answer: 
Customs officers do not have to accept documents with knowledge that the information was an 
intentional misrepresentation.  We have noted your concern.  We will examine this provision in 
light of best practices. 
Question 23  Article 167 (Penalties) of the Draft Customs La w appears to indicate  that there are no 
criminal penalties associated with the intent ional misrepresentation of facts by persons 
who are not customs officials.   
- Why is that so, given that successful tr ading in counterfeit goods can be very 
profitable for IP pirates? 
Answer: 
Persons who submit false information to Customs ar e subject to penalties under the Customs Law.  
Under Article 177 (formerly 166), a person who provides incomplete or inaccurate information 
about the quality, quantity, value or origin of goods commits a category one administrative violation and is subject to monetary penalties and possible confiscation, in the case of undeclared quantities.  An intentional misrepresentation of facts required to be declared in order to obtain a 
more favourable customs tariff is a category three violation subject to a monetary penalty 
equivalent from 5% to 10% of the value of the goods. 
Afghanistan's trademarks law and proposed amendments impose criminal penalties for wilful 
trademark counterfeiting and violations on a commercial scale.  In addition, Afghan Customs 
Department is developing procedures for border protection of intellectual property rights based closely on the requirements of the TRIPS Agreement.   All of these have been notified to the WTO. 
Question 24  
Article 167 (Penalties) of the Draft Customs Law:   There appears to be a contradiction in 
that a Class 2 offence penalty for customs offi cials (listed in this Article as suspension 
from duty for 20-35 days) could be less onerous than the penalty for a Class 1 offence 
(listed in Article 166 as a suspension from duty of "15 days to one month"). 
- Please clarify. Answer: 
These provisions (now Articles 177 and 178) of  the draft Law have since been modified.  
A Customs officer will be subject to administrative  sanctions for Class One offenses and in certain 
aggravated circumstances will be referred to judicial authorities for prosecution.  A Customs officer 
who commits a Class Two or Class Three offenses will be referred to judicial authorities for 
prosecution.  The following are the relevant excerpts from the revised draft law:  
Article 177 (Administrative Violations and Sanctions) Administrative violations shall be classified in the following three categories: 
 (1) Category one violations are as follows: (…) WT/ACC/AFG/29 
 
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    4. If upon release of goods from customs it is determined that a customs official 
  has accepted incomplete or inaccurate information concerning the quality,    value, quantity, or origin of goods, without making necessary endeavours to   determine  its trustworthiness, then the following actions shall be taken  
  regarding such official(s) when it has been proven by the relevant   
  customs:  
 - If the official has committed such violation for the first time, s/he shall be 
punished by 25% reduction of salary for one month.  
 - If the official has committed such violation for the second time, s/he shall 
be punished by 50% reduction of salary for up to two months. In such case, a written warning shall also be issued to him by the customs in 
charge.  
 - If the official has committed such violation for the third time, s/he shall 
be punished, upon consideration of mitigating or aggravating 
circumstances, by suspension from duty for 15 days to one month.  
 - When the violation is serious due to which a loss of at least a million AFN 
has been inflicted on customs revenues, or has been committed for the 
fourth time by the violator, then the violator shall be dismissed from duty 
and referred to justice and judicial authorities.  
Article 178 (Penalties) (…) 
 (3) Customs officers who commit violations of both second and third categories 
 elaborated in Article 166 [sic] of this law, are introduced to judicial agencies according  to Article 20 of this law for legal prosecution.  
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