Annex W: Exceptions and Rules Governing the Application of the Provisions of the WTO Agreement (in accordance with Article 29(2)(A))(A) 

 

Editor's note: Originally, Annex G (modification based on Art. 4 of the Amendment to the Trade-Related Provisions of the Energy Charter Treaty). See also 'Transparency Document - Annex W, modified into a positive list of the applicable WTO provisions'.

Notwithstanding the listing of paragraph 6 of article XXIV of the GATT 1994 in Annex W (A)(1)(a)(i), any signatory affected by an increase in customs duties or other charges of any kind imposed on or in connection with importation or exportation referred to in the first sentence of that paragraph, is entitled to seek consultations in the Charter Conference.

(A) Exceptions to the Application of the Provisions of the WTO Agreement.

The following provisions of the WTO Agreement shall not be applicable under Article 29(2)(a):

(1) Agreement Establishing the World Trade Organization

All except article IX, paragraphs 3 and 4 and XVI, paragraphs 1, 3 and 4

(a)     Annex 1A to the WTO Agreement:               

                Multilateral Agreements on Trade in Goods:

                (i) General Agreement on Tariffs and Trade 1994

                II          Schedules of Concessions, paragraphs (1)(a),(1)(b,1st sentence), (1)(c) and (7)

                IV         Special Provisions relating to Cinematographic Films

               XV         Exchange Arrangements

               XVIII     Governmental Assistance to Economic Development

               XXII      Consultation

              XXIII      Nullification or Impairment

              XXIV      Customs Unions and Free-Trade Areas, paragraph 6

              XXV       Joint Action by the Contracting Parties

              XXVI      Acceptance, Entry into Force and Registration

              XXVII     Withholding or Withdrawal of Concessions

              XXVIII    Modification of Schedules

             XXVIIIbis Tariff Negotiations

             XXIX       The Relation of this Agreement to the Havana Charter

             XXX        Amendments

             XXXI      Withdrawal

             XXXII     Contracting Parties

             XXXIII    Accession

             XXXV     Non-application of the Agreement between Particular Contracting Parties

             XXXVI    Principles and Objectives

             XXXVII   Commitments

             XXXVIII  Joint Action

            Annex H  Relating to Article XXVI

            Annex I   Notes and Supplementary Provisions (related to the above-mentioned GATT provisions)


Understanding on the Interpretation of Article II: 1(b) of the GATT 1994

         2          Date of incorporation of other duties and charges into the schedule

         4          Challenges, (1st sentence only)

         6          Dispute settlement

         8          Supersession of BISD 27S/24


Understanding on the Interpretation of Article XVII of the GATT 1994

         1          only the phrase “for review by the working party to be set up under paragraph (5)”

         5          Working Party on state trading


Understanding on the Balance-of-Payments Provisions of the GATT 1994

         5         Committee on Balance-of-Payments Restrictions, except last sentence

         7         Review by the Committee, the phrase “or under paragraph 12(b) of Article XVIII”

         8         Simplified consultation procedures

        13        Conclusions of Balance-of-Payments consultations, first sentence, third sentence: the phrase “and XVIII: B,
                    the 1979 Declaration” and last sentence.


Understanding on the Interpretation of Article XXIV of the GATT 1994

         All except paragraph 13


Understanding in Respect of Waivers of Obligations under the GATT 1994

        3        Nullification and Impairment


Understanding on the Interpretation of Article XXVIII of the GATT 1994

Marrakesh Protocol to the GATT 1994

(ii)                 Agreement on Agriculture

(iii)                Agreement on the Application of Sanitary and Phytosanitary Measures

(iv)                Agreement on Textiles and Clothing

(v)                 Agreement on Technical Barriers to Trade

                     Preamble (paragraphs 1, 8, 9)

                     1.3           General Provisions

                    10.5          The words “Developed country” and the words “French or Spanish” which shall be replaced by “Russian”

                    10.6          The phrase “and draw attention of developing country Members …. interest to them.”

                    10.9          Information about technical regulations, standards and certification systems (languages)

                    11             Technical assistance to other Parties

                    12             Special and differential treatment of developing countries

                    13             The Committee on Technical Barriers to Trade

                    14             Consultation and Dispute Settlement

                    15             Final Provisions (other than 15.2 and 15.5)

                    Annex 2    Technical Expert Groups

(vi)               Agreement on Trade-Related Investment Measures

(vii)              Agreement on Implementation of Article VI of the GATT 1994 (Anti-dumping)

                    15           Developing Country Members

                    16           Committee on Anti-Dumping Practices

                    17           Consultation and Dispute Settlement

                    18           Final Provisions, paragraphs 2 and 6

(viii)             Agreement on Implementation of Article VII of the GATT 1994 (Customs Valuation)

                   Preamble, paragraph 2, the phrase “and to secure additional benefits for the international trade of developing countries”

                    14           Application of Annexes (second sentence except as far as it refers to Annex III paragraphs 6 and 7)

                    18           Institutions (Committee on Customs Valuation)

                    19           Consultation and Dispute Settlement

                    20           Special and differential treatment of developing countries

                    21           Reservations

                    23           Review

                    24           Secretariat

                   Annex II   Technical Committee on Customs Valuation

                   Annex III   Extra Provisions (except paragraphs 6 and 7)

(ix)             Agreement on Preshipment Inspection

                  Preamble, paragraphs 2 and 3

                    3.3         Technical Assistance

                    6            Review

                    7            Consultation

                    8            Dispute Settlement

(x)             Agreement on Rules of Origin 

                  Preamble, 8th indent

                   4            Institutions

                   6            Review

                   7            Consultation

                   8            Dispute Settlement

                   9            Harmonisation of Rules of Origin

                   Annex I Technical Committee on Rules of Origin

(xi)             Agreement on Import Licensing Procedures

                   1.4(a)   General Provisions (last sentence)

                   2.2       Automatic Import Licensing (footnote 5)

                   3.5(iv) Non-Automatic Import Licensing (last sentence)

                   4          Institutions

                   6          Consultations and Dispute Settlement

                   7          Review (except paragraph 3)

                   8          Final provisions (except paragraph 2)

(xii)           Agreement on Subsidies and Countervailing Measures

                   4          Remedies (except paragraphs 4.1, 4.2 and 4.3)

                   5          Adverse Effects, last sentence

                   6         Serious Prejudice (paragraphs 6.6, the phrases “subject to the provisions of paragraph 3 of Annex V” and “arising under Article 7, and to the panel established pursuant to paragraph 4 of Article 7”, 6.8 the phrase “, including information  submitted in accordance with the provisions of Annex V” and 6.9)

                   7         Remedies (except paragraphs 7.1, 7.2 and 7.3)

                   8         Identification of Non-Actionable Subsidies, paragraph 8.5 and Footnote 25

                   9         Consultations and Authorised Remedies

                   24       Committee on Subsidies and Countervailing Measures and Subsidiary Bodies

                   26       Surveillance

                   27       Special and Differential Treatment of Developing Country Members

                   29       Transformation into Market Economy, paragraph 29.2 (except first sentence)

                   30       Dispute Settlement

                   31       Provisional Application

                   32.2, 32.7 and 32.8 (only insofar as it refers to Annexes V and VII) Final Provisions

                   Annex V Procedures for Developing Information concerning Serious Prejudice

                   Annex VII Developing Countries

(xiii)           Agreement on Safeguards

                   9        Developing Country Members

                  12       Notification and Consultation, paragraph 10

                  13       Surveillance

                  14       Dispute Settlement

                  Annex Exception


(b) Annex 1B to the WTO Agreement:

                  General Agreement on Trade in Services


(c) Annex 1C to the WTO

                  Agreement: Agreement on Trade-Related Aspects of Intellectual Property Rights

Signatories confirm their commitment to provide effective protection of intellectual property rights following the highest international standards.

Intellectual property rights include for the purpose of this Declaration in particular copyright and related rights (including computer programmes and data bases), trademarks, geographical indications, patents, designs, topographies of semiconductor products and undisclosed information.

(d) Annex 2 to the WTO Agreement:

         Understanding on Rules and Procedures Governing the Settlement of Disputes


(e) Annex 3 to the WTO Agreement:

         Trade Policy Review Mechanism


(f) Annex 4 to the WTO Agreement:

         Plurilateral Trade Agreements:

         (i) Agreement on Trade in Civil Aircraft

         (ii) Agreement on Government Procurement


(g) Ministerial Decisions, Declarations and Understanding:

         (i) Decision on Measures in favour of Least-Developed Countries

         (ii) Declaration on the Contribution of the WTO to Achieving Greater Coherence in Global Economic Policy Making

         (iii) Decision on Notification Procedures

         (iv) Declaration on the Relationship of the WTO with the IMF

         (v) Decision on Measures Concerning the Possible Negative Effects of the Reform Programme on Least-Developed and Net Food-  Importing Developing Countries

         (vi) Decision on Notification of First Integration under Article 2.6 of the Agreement on Textiles and Clothing

         (vii) Decision on Review of the ISO/IEC Information Centre Publication

         (viii) Decision on Proposed Understanding on WTO-ISO Standards Information System

         (ix) Decision on Anti-Circumvention (x) Decision on Review of Article 17.6 of the Agreement on Implementation of Article VI of the     GATT 1994

         (xi) Declaration on Dispute Settlement pursuant to the Agreement on Implementation of Article VI of the GATT 1994 or Part V of the Agreement on Subsidies and Countervailing Measures

         (xii) Decision Regarding Cases Where Customs Administrations Have Reason to Doubt the Truth or Accuracy of the Declared Value

         (xiii) Decision on Texts Relating to Minimum Values and Imports by Sole Agents, Sole Distributors and Sole Concessionaires

         (xiv) Decision on Institutional Arrangements for the GATS (xv) Decision on certain Dispute Settlement Procedures for the GATS

         (xvi) Decision on Trade in Services and the Environment (xvii) Decision on Negotiations on Movement of Natural Persons

         (xviii) Decision on Financial Services (xix) Decision on Negotiations on Maritime Transport Services

         (xx) Decision on Negotiations on Basic Telecommunications

         (xxi) Decision on Professional Services

         (xxii) Decision on Accession to the Agreement on Government Procurement

         (xxiv) Decision on the Application and Review of the Understanding on Rules and Procedures Governing the Settlement of Disputes

         (xxv) Understanding on Commitments in Financial Services

         (xxvi) Decision on the Acceptance of and Accession to the Agreement Establishing the WTO

         (xxvii) Decision on Trade and Environment

         (xxviii) Decision on Organisational and Financial Consequences Following from Implementation of the Agreement Establishing the   WTO

         (xxix) Decision on the Establishment of the Preparatory Committee for the WTO

(2)     All other provisions in the WTO Agreement which relate to:

       (a) governmental assistance to economic development and the treatment of developing countries, except for paragraphs (1) to (4) of the Decision of 28 November 1979 (L/4903) on Differential and more Favourable Treatment, Reciprocity and Fuller Participation of Developing Countries;

         (b) the establishment or operation of specialist committees and other subsidiary institutions;

         (c) signature, accession, entry into force, withdrawal, deposit and registration.

(3)    All agreements, arrangements, decisions, understandings or other joint action pursuant to the provisions listed as not applicable in  paragraphs (1) or (2).

(4)   Trade in nuclear materials may be governed by agreements referred to in the Declarations related to this paragraph contained in the  Final Act of the European Energy Charter Conference.

The Russian Federation has raised the issue of trade in nuclear materials. The Russian Federation and the EU agreed that the Partnership and Cooperation Agreement between the Russian Federation, the European Union and its Member States, which entered into force on 1 December 1997, is the appropriate framework to deal with this issue, as confirmed in the conclusions of 27 January 1998 Cooperation Council.

(a) The European Communities and the Russian Federation declare that trade in nuclear materials between them shall be governed, until they reach another agreement, by the provisions of article 22 of the Agreement on Partnership and Cooperation establishing a partnership between the European Communities and their Member States, of the one part, and the Russian Federation, of the other part, signed at Corfu on 24 June 1994, the exchange of letters attached thereto and the related joint declaration, and disputes regarding such trade will be subject to the procedures of the said Agreement.

(b) The European Communities and Ukraine declare that, in accordance with the Agreement on Partnership and Cooperation signed at Luxembourg on 14 June 1994 and the Interim Agreement thereto, initialled there the same day, trade in nuclear materials between them shall be exclusively governed by the provisions of a specific agreement to be concluded between the European Atomic Energy Community and Ukraine. Until entry into force of this specific agreement, the provisions of the Agreement on Trade and Economic and Commercial Cooperation between the European Economic Community, the European Atomic Energy Community and the Union of Soviet Socialist Republics signed at Brussels on 18 December 1989 shall exclusively continue to apply for trade in nuclear materials between them.

(c) The European Communities and Kazakhstan declare that, in accordance with the Agreement on Partnership and Cooperation initialled at Brussels on 20 May 1994, trade in nuclear materials between them shall be exclusively governed by the provisions of a specific agreement to be concluded between the European Atomic Energy Community and Kazakhstan.

Until entry into force of this specific agreement, the provisions of the Agreement on Trade and Economic and Commercial Cooperation between the European Economic Community, the European Atomic Energy Community and the Union of Soviet Socialist Republics signed at Brussels on 18 December 1989 shall exclusively continue to apply for trade in nuclear materials between them.

(d) The European Communities and Kyrgyzstan declare that, in accordance with the Agreement on Partnership and Cooperation initialled at Brussels on 31 May 1994, trade in nuclear materials between them shall be exclusively governed by the provisions of a specific agreement to be concluded between the European Atomic Energy Community and Kyrgyzstan.

Until entry into force of this specific agreement, the provisions of the Agreement on Trade and Economic and Commercial Cooperation between the European Economic Community, the European Atomic Energy Community and the Union of Soviet Socialist Republics signed at Brussels on 18 December 1989 shall exclusively continue to apply for trade in nuclear materials between them.

(e) The European Communities and Tajikistan declare that trade in nuclear materials between them shall be exclusively governed by the provisions of a specific agreement to be concluded between the European Atomic Energy Community and Tajikistan.

Until entry into force of this specific agreement, the provisions of the Agreement on Trade and Economic and Commercial Cooperation between the European Economic Community, the European Atomic Energy Community and the Union of Soviet Socialist Republics signed at Brussels on 18 December 1989 shall exclusively continue to apply for trade in nuclear materials between them.

(f) The European Communities and Uzbekistan declare that trade in nuclear materials between them shall be exclusively governed by the provisions of a specific agreement to be concluded between the European Atomic Energy Community and Uzbekistan.

Until entry into force of this specific agreement, the provisions of the Agreement on Trade and Economic and Commercial Cooperation between the European Economic Community, the European Atomic Energy Community and the Union of Soviet Socialist Republics signed at Brussels on 18 December 1989 shall exclusively continue to apply for trade in nuclear materials between them.

 

*Editor's note: Original: "G(4)", adapted by editors.

The delegations of the Russian Federation and of the European Communities have examined the situation of the nuclear trade between both Parties and they acknowledged the following:

- The statement of the European Commission in the Joint Committee held on 1 and 2 December 1994 clearly indicates that “the European Commission and the Euratom Supply Agency have never made it their policy to apply quotas on imports of nuclear materials from Russia and do not intend to do so in the future unless a situation should arise requiring safeguard measures in accordance with Article 15 of the Agreement between the European Economic Community, the European Atomic Energy Community and the Union of Soviet Socialist Republics on Trade and Economic and Commercial Cooperation signed in Brussels on 18 December 1989. This means, a fortiori, that no quotas have been or will be applied on a utility by utility basis”.

- The relevant provisions of the Agreement on Partnership and Cooperation establishing a partnership between the European Communities and their Member States on the one part, and the Russian Federation on the other part, signed in Corfu on 24 June 1994, on national treatment with respect to nuclear materials imported from Russia are fully applicable.

- They acknowledge the intention expressed by the European Commission to look at the way the Euratom Supply Agency is implementing its supply policy, with a view to take full account of both Parties’ legitimate interests, including inter alia the interest expressed by Russia in increasing the volume of trade.

Representatives of the Commission and of the Russian Government will meet in the near future in order to examine the difficulties encountered by Russian exporters of nuclear materials.

 

Editor's note: Annex II to document CONF 115 of 6 January 1995 (not published)

(B) Rules Governing the Application of Provisions of the WTO Agreement.

(1)       In the absence of a relevant interpretation of the WTO Agreement adopted by the Ministerial Conference or the General Council of  the World Trade Organization under paragraph 2 of article IX of the WTO Agreement concerning provisions applicable under Article 29(2)(a), the Charter Conference may adopt an interpretation.


(2)       Requests for waivers under Article 29(2) and (6)(b) shall be submitted to the Charter Conference, which shall follow, in carrying out these duties, the procedures of paragraphs 3 and 4 of article IX of the WTO Agreement.


(3)        Waivers of obligations in force in the WTO shall be considered in force for the purposes of Article 29 while they remain in force in  the WTO.


(4)       The provisions of article II of the GATT 1994 which have not been disapplied shall, without prejudice to Article 29(4), (5) and (7), be modified as follows:       


(i) All Energy Materials and Products listed in Annex EM II and EnergyRelated Equipment listed in Annex EQ II imported from or  exported to any other Contracting Party shall also be exempt from all other duties or charges of any kind imposed on or in connection with importation or exportation, in excess of those imposed on the date of the standstill referred to in Article 29(6), first sentence, or under Article 29(7), or those directly and mandatorily required to be imposed thereafter by legislation in force in the importing or exporting territory on the date referred to in Article 29(6), first sentence.

(ii) Nothing in article II of the GATT 1994 shall prevent any Contracting Party from imposing at any time on the importation or exportation of any product:

      (a)  a charge equivalent to an internal tax imposed consistently with the provisions of paragraph 2 of article III of GATT 1994 in respect of the like domestic product or in respect of an article from which the imported product has been manufactured or produced in whole or in part;

      (b)  any anti-dumping or countervailing duty applied consistently with the provisions of article VI of GATT 1994;

      (c)  fees or other charges commensurate with the cost of services rendered.

(iii) No Contracting Party shall alter its method of determining dutiable value or of converting currencies so as to impair the value of the standstill obligations provided for in Article 29(6) or (7).

(iv) If any Contracting Party establishes, maintains or authorises, formally or in effect, a monopoly of the importation or exportation of any Energy Material or Product listed in Annex EM II or in respect of Energy-Related Equipment listed in EQ II, such monopoly shall not operate so as to afford protection on the average in excess of the amount of protection permitted by the standstill obligation provided for in Article 29(6) or (7). The provisions of this paragraph shall not limit the use by Contracting Parties of any form of assistance to domestic producers permitted by other provisions of this Treaty.

(v) If any Contracting Party considers that a product is not receiving from another Contracting Party the treatment which the first  Contracting Party believes to have been contemplated by the standstill obligation provided for in Article 29(6) or (7), it shall bring the matter directly to the attention of the other Contracting Party. If the latter agrees that the treatment contemplated was that claimed by the first Contracting Party, but declares that such treatment cannot be accorded because a court or other proper authority has ruled to the effect that the product involved cannot be classified under the tariff laws of such Contracting Party so as to permit the treatment contemplated in this Treaty, the two Contracting Parties, together with any other Contracting Parties substantially interested, shall enter promptly into further negotiations with a view to a compensatory adjustment of the matter.

(vi)  (a) The specific duties and charges included in the Tariff Record relating to the Contracting Parties members of the International  Monetary Fund, and margins of preference in specific duties and charges maintained by such Contracting Parties, are  expressed in the appropriate currency at the par value accepted or provisionally recognised by the Fund at the date of the standstill referred to in Article 29(6), first sentence, or under Article 29(7). Accordingly, in case this par value is reduced consistently with the Articles of Agreement of the International Monetary Fund by more than twenty per centum, such specific duties and charges and margins of preference may be adjusted to take account of such reduction; Provided that the Conference concurs that such adjustments will not impair the value of the standstill obligation provided for in Article 29(6) or (7) or elsewhere in this Treaty, due account being taken of all factors which may influence the need for, or urgency of, such adjustments.

       (b) Similar provisions shall apply to any Contracting Party not a member of the Fund, as from the date on which such  Contracting Party becomes a member of the Fund or enters into a special exchange agreement in pursuance of Article XV of GATT 1994.

(vii)  Each Contracting Party shall notify the Secretariat of the customs duties and charges of any kind applicable on the date of   the standstill referred to in Article 29(6) first sentence. The Secretariat shall keep a Tariff Record of the customs duties and charges of any kind relevant for the purpose of the standstill on customs duties and charges of any kind under Article 29(6) or (7).


(5)         The Decision of 26 March 1980 on “Introduction of a Loose-Leaf System for the Schedules of Tariff Concessions” (BISD  27S/24) shall not be applicable under Article 29(2)(a). The applicable provisions of the Understanding on the Interpretation of Article II:1(b) of the GATT 1994 shall, without prejudice to Article 29(4), (5) or (7), apply with the following modifications:

(i) In order to ensure transparency of the legal rights and obligations deriving from paragraph 1(b) of article II of GATT 1994, the nature and level of any “other duties or charges” levied on any Energy Materials and Products listed in Annex EM II or EnergyRelated Equipment listed in Annex EQ II with respect to their importation or exportation, as referred to in that provision, shall be recorded in the Tariff Record at the levels applying at the date of the standstill referred to in Article 29(6), first sentence, or under Article 29(7) respectively, against the tariff item to which they apply. It is understood that such recording does not change the legal character of “other duties or charges”.

(ii) “Other duties or charges” shall be recorded in respect of all Energy Materials and Products listed in Annex EM II and Energy-Related Equipment listed in Annex EQ II.

(iii) It will be open to any Contracting Party to challenge the existence of an “other duty or charge”, on the ground that no such “other duty or charge” existed at the date of the standstill referred to in Article 29(6), first sentence, or the relevant date under Article 29(7), for the item in question, as well as the consistency of the recorded level of any “other duty or charge” with the standstill obligation provided for by Article 29(6) or (7), for a period of one year after the entry into force of the Amendment to the trade-related provisions of this Treaty, adopted by the Charter Conference on 24 April 1998, or one year after the notification to the Secretariat 144 of the level of customs duties and charges of any kind referred to in Article 29(6), first sentence, or Article 29(7), if that is the later.

(iv) The recording of “other duties or charges” in the Tariff Record is without prejudice to their consistency with rights and obligations under GATT 1994 other than those affected by sub-paragraph (iii) above. All Contracting Parties retain the right to  challenge, at any time, the consistency of any “other duty or charge” with such obligations.

(v) “Other duties or charges” omitted from a notification to the Secretariat shall not subsequently be added to it and any “other duty or charge” recorded at a level lower than that prevailing on the applicable date shall not be restored to that level unless such additions or changes are made within six months of the notification to the Secretariat.


(6)       Where the WTO Agreement refers to “duties inscribed in the Schedule” or to “bound duties”, there shall be substituted “the level  of customs duties and charges of any kind permitted under Article 29(4) to (8)”.


(7)      Where the WTO Agreement specifies the date of entry into force of the WTO Agreement (or an analogous phrase) as the reference date for an action, there shall be substituted the date of entry into force of the Amendment to the trade-related provisions of this Treaty adopted by the Charter Conference on 24 April 1998.


(8)        With respect to notifications required by the provisions made applicable by Article 29(2)(a):

              (a)  Contracting Parties which are not members of the WTO shall make their notifications to the Secretariat. The Secretariat shall   circulate copies of the notifications to all Contracting Parties. Notifications to the  Secretariat shall be in one of the authentic languages of this Treaty. The accompanying documents may be solely in the language of the Contracting Party;

            (b)  such requirements shall not apply to Contracting Parties to this Treaty which are also members of the WTO which provides for its own notification requirements.


(9)       Where Article 29(2)(a) or (6)(b) applies, the Charter Conference shall carry out any applicable duties that the WTO Agreement assigned to the relevant bodies under the WTO Agreement.


(10)      (a)  Interpretations of the WTO Agreement adopted by the Ministerial Conference or the General Council of the WTO under paragraph 2 of article IX of the WTO Agreement insofar as they interpret provisions applicable under Article 29(2)(a) shall apply.

            (b)  Amendments to the WTO Agreement under article X of the WTO Agreement that are binding on all members of the WTO  (other then those under paragraph 9 of article X) insofar as they amend or relate to provisions applicable under Article 29(2)(a), shall apply unless a Contracting Party requests the Charter Conference to disapply or modify such amendment. The Charter Conference shall take the decision by a three-fourths majority of the Contracting Parties and determine the date of the disapplication or modification of such amendment. A request for the disapplication or modification of such amendment may include a request that the application of the amendment be suspended pending the decision of the Charter Conference.

 A request to the Charter Conference made under this paragraph shall be made within six months of the circulation of a notification from the Secretariat that the amendment has taken effect under the WTO Agreement.

              (c)   Interpretations, amendments, or new instruments adopted by the WTO, other than the interpretations and amendments applied under paragraphs (a) and (b) shall not apply.