Decreto n.º 56/82 — Aprova, para ratificação, a Convenção sobre o Controle e Marcação de Artigos de Metais Preciosos

de 29 de Abril

O Governo decreta, nos termos da alínea c) do artigo 200.º da Constituição, o seguinte:

Artigo único. É aprovada, para ratificação, a Convenção sobre Controle e Marcação de Artigos de Metais Preciosos, assinada em Viena em 15 de Novembro de 1972, cujos textos em inglês, francês e respectiva tradução para português vão anexos ao presente decreto.

Visto e aprovado em Conselho de Ministros de 26 de Março de 1982. - Francisco José Pereira Pinto Balsemão.

Assinado em 13 de Abril de 1982.

Publique-se.

O Presidente da República, ANTÓNIO RAMALHO EANES.

CONVENTION ON THE CONTROL AND MARKING OR ARTICLES OF PRECIOUS METALS

PREAMBLE

The Republic of Austria, the Republic of Finland, the Kingdom of Norway, the Portuguese Republic, the Kingdom of Sweden, the Swiss Confederation and the United Kingdom of Great Britain and Northern Ireland:

Desiring to facilitate international trade in articles of precious metals while at the same time maintaining consumer protection justified by the particular nature of these articles;

have agreed as follows:

I - Scope and operation

ARTICLE 1

1 - Legal provisions of a Contracting State which require articles of precious metals to be assayed by an authorized body and to be marked with official stamps so as to indicate that they have been satisfactorily assayed, or require such articles to be marked so as to indicate the sponsor, the nature of the metal or the standard of fineness, shall be deemed to be satisfied in respect of articles of precious metals imported from the territory of another Contracting State if such articles have been controlled and marked in accordance with the provisions of this Convention.

2 - For articles controlled and marked in accordance with the provisions of this Convention an importing Contracting State shall not require further assayng or marking of a king referred to in paragraph 1, except for the purpose of check tests as provided in article 6.

3 - Nothing in this Convention shall require a Contracting State to allow the importation or sale of articles of precious metals which do not fulfil its national minimum standards of fineness. Furthermore, nothing in this Convention shall require a Contracting State which accepts 800 as a standard of fineness for silver to allow the importation or sale of articles marked with the 830 standard of fineness.

ARTICLE 2

For the purposes of this Convention, «articles of precious metals» means articles of silver, gold, platinum or alloys thereof, as defined in Annex I.

ARTICLE 3

1 - In order to benefit from the provisions of article 1, articles of precious metals must be:

2 - The benefits of article 1 shall not be applicable to articles of precious metals which, after being marked as prescribed in Annex II, have had any of these marks altered or obliterated.

ARTICLE 4

The Contracting States shall not be obliged to apply the provisions of paragraphs 1 and 2 of article 1 to articles of precious metals which, since being submitted to an authorized assay office and controlled and marked as prescribed in article 3, have been altered by addition or in any other manner.

II - Control and sanctions

ARTICLE 5

1 - Each Contracting State shall appoint one or more assay offices which shall be the only bodies authorized in its territory to carry out the control of articles of precious metals provided for in this Convention and to apply its own appointed assay office mark and the Common Control Mark.

2 - Each Contracting State shall notify the depositary of the appointment of such authorized assay offices and of their assay office marks and any withdrawal of this authorization from any assay office previously appointed. The depositary shall immediately notify all other Contracting States accordingly.

ARTICLE 6

The provisions of this Convention shall not prevent a Contracting State from carrying out check tests on articles of precious metals bearing the marks provided for in this Convention. Such tests shall not be carried out in such a way as to hamper unduly the importation or sale of articles of precious metals marked in conformity with the provisions of this Convention.

ARTICLE 7

The Contracting States hereby empower the depositary to register with the World Intellectual Property Organization (WIPO), in accordance with the Convention of Paris for the Protection of Industrial Property, the Common Control Mark as a national hallmark of each Contracting State. The depositary shall also do so in the case of a Contracting State in relation to which this Convention enters into force at a later date or in the case of an acceding State.

ARTICLE 8

1 - Each Contracting State shall have and maintain legislation prohibiting subject to penalties, any forgery or misuse of the Common Control Mark provided for by this Convention or of the marks of the authorized assay offices which have been notified in accordance with paragraph 2 of article 5, and any unauthorized alteration to the article or alteration or obliteration of the fineness mark or responsibility mark after the Common Control Mark has been applied.

2 - Each Contracting State undertakes to institute proceedings under such legislation when sufficient evidence of forgery or misuse of the Common Control Mark or marks of the authorized assay offices, or unauthorized alteration to the article or alteration or obliteration of the fineness mark or responsibility mark after the Common Control Mark has been applied is discovered or brought to its attention by another Contracting State or, where more appropriate, to take other suitable action.

ARTICLE 9

1 - If an importing Contracting State or one of its assay offices has reason to believe that an assay office of an exporting Contracting State has affixed the Common Control Mark without having complied with the relevant provisions of this Convention, the assay office by which the articles are purported to have been marked shall be immediately consulted, and the latter assay office shall promply lend all reasonable assistance for the investigation of the case. If no satisfactory settlement is reached, either of the parties may refer the case to the Standing Committee by notifying its Chairman. In such a case the Chairman shall convene a meeting of the Standing Committee not later than one month from the receipt of such notification.

2 - If any matter has been referred to the Standing Committee under paragraph 1, the Standing Committee may, after having given an opportunity for the parties concerned to be heard, make recommendations as to the appropriate action to be taken.

3 - If within a reasonable time a recommendation referred to in paragraph 2 has not been complied with, or the Standing Committee Contracting State may ther introduce such additional surveillance of articles of precious metals marked by that particular assay office and entering its territory, as it considers necessary, including the right temporarily to refuse to accept such articles. Such measures shall immediately be notified to all Contracting States and shall be reviewed from time to time by the Standing Committee.

4 - Where there is evidence of repeated and grave misapplication of the Common Control Mark, the importing Contracting State may temporarily refuse to accept articles bearing the assay office mark of the assay office concerned whether or not controlled and marked in accordance with this Convention. In such a case the importing Contracting State shall immediately notify all other Contracting States and the Standing Committee shall meet within one month to consider the matter.

III - Standing Committee and amendments

ARTICLE 10

1 - A Standing Committee is hereby established on which each Contracting State shall be represented. Each Contracting State shall have one vote.

2 - The tasks of the Standing Committee shall be:

To consider and review the operation of this Convention;

To promote technical and administrative co-operation between the Contracting States in matters dealt with by this Convention;

To consider measures for securing uniform interpretation and application of the provisions of this Convention;

To encourage the adequate protection of the marks against forgery and misuse;

To make recommendations in the case of any matter referred to it under the provisions of paragraph 2 of article 9, or for the settlement of any dispute arising out of the operation of this Convention which is presented to the Standing Committee.

3 - The Standing Committee shall adopt rules of procedure for its meeting, including rules for the convening of such meetings. This Committee shall meet at least once a year. The first meeting shall be convened by the depositary not later than six months after the coming into force of this Convention.

4 - The Standing Committee may make recommendations on any question relating to the implementation of this Convention or make proposals for the amendment of this Convention or its Annexes. Such recommendations or proposals shall be transmitted to the depositary who shall notify all Contracting States.

ARTICLE 11

1 - In the case of a proposal received from the Standing Committee for amendment of the Annexes to the Convention, the depositary shall notify all Contracting States and invite their Governments to give their consent to the proposed amendment within four months. Such consent may be conditional in order to meet internal constitutional requirements.

2 - Unless a negative reply has been received from the Government of a Contracting State within the period mentioned in paragraph 1, the amendment to the Annexes shall come into force six months after the expiration of this period, unless a later date for its entry into force has been provided for in the amendment, and provided that the conditions in any consent referred to in paragraph 1 have been fulfilled. The depositary shall notify the entry into force and the relevant date to all Contracting States.

3 - In the case of a proposal received from the Standing Committee for the amendment of the articles to the Convention, or in the case of a proposal for amendment of the Convention or its Annexes received from a Contracting State, the depositary shall submit such proposals for acceptance to all Contracting States.

4 - If within three months from the date of the submission of a proposal for amendment under paragraph 3 a Contracting State requests that negotiations be opened on the proposal, the depositary shall arrange for such negotiations to be held.

5 - Provided it is accepted by all Contracting States, an amendment to this Convention or its Annexes proposed under paragraph 3 shall enter into force one month after deposit of the last instrument of acceptance, unless another date is provided for in the amendment. Instruments of acceptance shall be deposited with the depositary, who shall notify all Contracting States.

IV - Final provisions

ARTICLE 12

1 - This Convention is open to accession by any State being a Member of the United Nations or of any of the specialized agencies or of the International Atomic Energy Agency or a Party to the Statute of the International Court of Justice and having arrangements for the assay and marking of articles of precious metals necessary to comply with the requirements of this Convention.

2 - Requests for accession expressing willingness to accept the obligations under this Convention, together with a description of the assay offices which the requesting State proposes to appoint in accordance with article 5, shall be addressed to the depositary, who shall notify the Governments of all Contracting States and ask them to consent to the accession.

3 - The Governments of the Contracting States shall base their decision whether to consent to the accession solely on the technical competence and the reliability of the assay office described in the request for accession and on the existence of arrangements necessary to comply with the provisions of article 8.

4 - The Governments shall notify their reply to the depositary within four months after receipt of the notification of a request for accession. Any Government not replying within that period shall be deemed to have consented to the accession. The depositary shall inform the Governments of the requesting State and of the Contracting States whether the request for accession has received general consent.

5 - Provided that the Governments of all Contracting States have consented to the acession, the requesting State may accede to this Convention by depositing an instrument of accession with the depositary, which shall notify all other Contracting States. The accession shall become effective three months after deposit of that instrument.

ARTICLE 13

The Kingdom of Denmark and the Republic of Iceland, which participated in the drafting of this Convention, may accede to it by depositing an instrument of accession with the depositary. The accession shall become effective two months after the date of deposit of that instrument, but not before the expiry of the period of four months mentioned in paragraph 2 of article 16.

ARTICLE 14

1 - The Government of any signatory or acceding State may, when depositing its instrument of ratification or accession, or at any time thereafter, declare in writing to the depositary that this Convention shall apply to all or part of the territories, designated in the declaration, for the external relations of which it is responsible. The depositary shall communicate any such declaration to the Governments of all other Contracting States.

2 - If the declaration was made at the time of the deposit of the instrument of ratification or accession, this Convention shall enter into force in relation to those territories on the same date as the Convention enters into force in relation to the State having made the declaration. In all other cases the Convention shall enter into force in relation to those territories three months after the declaration has been received by the depositary.

3 - The application of this Convention to all or part of such territories may be terminated by the Government of the State having made the declaration referred to in paragraph 1 provided that it gives three months' notice in writing to the depositary, which shall notify all other Contracting States.

ARTICLE 15

Any Contracting State may withdraw from this Convention provided that it gives twelve months' notice in writing to the depositary, who shall notify all Contracting States, or on such other terms as may be agreed upon by the Contracting States. Each Contracting State undertakes that, in the event of its withdrawal from the Convention, it will cease after withdrawal to use or apply the Common Control Mark for any purpose.

ARTICLE 16

1 - This Convention shall be ratified by the signatory States. The instruments of ratification shall be deposited whith the depositary, which shall notify all other signatory States.

2 - This Convention shall enter into force four months after deposit of the fourth instrument of ratification. In relation to any other signatory State depositing subsequently its instrument of ratification this Convention shall enter into force two months after the date of deposit but not before the expiry of the above-mentioned period of four months.

In whitness whereof the undersigned, duly authorized thereto, have signed the present Convention.

Done at Vienna the 15th day of November 1972, in a single copy in the English and French languages, both texts being equally authentic, which shall be deposited with the Government of Sweden, by which certified copies shall be transmitted to all other signatory and acceding States.

Here follow the signatures of the representatives of Austria, Finland, Norway, Portugal, Sweden, Switzerland and the United Kingdom.

ANNEX I

Definitions and technical requirements

1 - For the purposes of this Convention, articles of precious metals means articles consisting of or containing gold, silver, platinum or their alloys and complete as to all their metalic parts, but excluding the following:

Standards of fineness

2 - The following standards of fineness shall be recognized for the purpose of this Convention:

3 - «Fineness» means the number of parts by weight of fine gold or silver or platinum in 1,000 parts by weight of alloy.

4 - The standard of fineness of any article of precious metal, which is of a fineness higher than a standard for that metal mentioned in paragraph 2, shall for the purposes of this Convention be regarded as being of the nearest lower standard as defined in that paragraph.