Article 39 Derogations
Derogations from this Protocol may be adopted by the Committee when they are justified by the development of existing industries or the creation of new industries in Ghana. To this end, either before or when Ghana submits the matter to the Committee, it shall notify the European Union of its request for a derogation together with the reasons for the request in accordance with paragraph 2 of this Article. The European Union shall respond positively to all requests from Ghana which are duly justified in conformity with this Article and which cannot cause serious damage to an established industry in the European Union.
In order to facilitate the examination by the Committee of requests for derogation, when making the request Ghana shall, by means of the form given in Annex VII to this Protocol, furnish in support of its request the fullest possible information covering in particular the following points:
description of the finished product;
nature and quantity of materials originating in a third country;
nature and quantity of materials originating in Ghana or the States or territories mentioned in Article 7 of this Protocol, or of materials that have been processed there;
manufacturing processes;
added value;
number of employees in the enterprise concerned;
anticipated volume of exports to the European Union;
other possible sources of supply for raw materials;
reasons for the duration requested in the light of efforts made to find new sources of supply;
other observations.
The same rules shall apply to any request for extension of derogation.
The Committee may modify the form.
The examination of requests shall in particular take into account:
the level of development or the geographical situation of Ghana;
cases where the application of the existing rules of origin would significantly affect the ability of an existing industry in Ghana to continue its exports to the European Union, with particular reference to cases where this could lead to cessation of its activities;
specific cases where it can be clearly demonstrated that significant investment in an industry could be deterred by the rules of origin and where a derogation favouring the realisation of an investment programme would enable these rules to be satisfied by stages.
In every case, an examination shall be made to ascertain whether the rules relating to cumulation of origin do not provide a solution to the problem.
In the examination of requests, special account shall be taken, on a case by case basis, of the possibility of conferring originating status on products which include in their composition materials originating in neighbouring developing countries, least‐developed countries or developing countries with which Ghana has special relations, provided that administrative cooperation can be established.
The Committee shall take steps necessary to ensure that a decision is reached as soon as possible and in any case not later than seventy‐five (75) working days after the request is received by the European Union Co‐chairman of the Committee. If the European Union does not inform Ghana of its position on the request within this period, the request shall be deemed to have been accepted.
Derogations shall be valid for a period, generally of five (5) years, to be determined by the Committee.
The derogation decision may provide for renewals without a new decision of the Committee being necessary, provided that Ghana submits, three (3) months before the end of each period, proof that it is still unable to meet the conditions of this Protocol which have been derogated from.
If any objection is made to the extension, the Committee shall examine it as soon as possible and decide whether to prolong the derogation. The Committee shall proceed as provided for in paragraph 6. All necessary measures shall be taken to avoid interruptions in the application of the derogation.
In the periods referred to in subparagraphs (a) and (b), the Committee may review the terms for implementing the derogation should a significant change be found to have taken place in the substantive factors governing the decision to grant the derogation. On conclusion of its review the Committee may decide to amend the terms of its decision as regards the scope of derogation or any other condition previously laid down.
Notwithstanding paragraphs 1 to 7 of this Article, a derogation concerning canned tuna and tuna loins of HS 16.04 shall only be granted on the first year of entry into force of the Protocol, within an annual quota non renewable of 1 000 tonnes for canned tuna and of 200 tonnes for tuna loins.