The Parties shall continue efforts to achieve further liberalisation on trade in goods covered by this Chapter, taking into account the pattern of trade in agricultural products between the Parties, the particular sensitivities of such products, the development of each Party’s agricultural policy and developments in bilateral and multilateral fora. With a view to achieving this objective, the Parties may consult in conjunction with the Joint Committee meetings.
Chapter 4. SANITARY AND PHYTOSANITARY MEASURES
Article 4.1. Objectives
The objectives of this Chapter are to:
(a) further the implementation of the SPS Agreement;
(b) strengthen cooperation between the Parties in the field of sanitary and phytosanitary measures to facilitate trade and access to their respective markets;
(c) facilitate information exchange between the Parties and enhance mutual understanding of each Party’s regulatory system; and
(d) effectively solve trade concerns affecting trade between the Parties within the scope of this Chapter.
Article 4.2. Scope
This Chapter shall apply to sanitary and phytosanitary measures, which may, directly or indirectly, affect trade between the Parties.
Article 4.3. Affirmation of the SPS Agreement
Except as otherwise provided for in this Chapter, the SPS Agreement shall apply and is hereby incorporated into and made part of this Agreement, mutatis mutandis.
Article 4.4. Definitions
For the purposes of this Chapter:
(a) international standards mean the standards, guidelines and recommendations of the Codex Alimentarius Commission (CAC), the World Organisation for Animal Health (OIE) and the relevant international and regional organisations operating within the framework of the International Plant Protection Convention (IPPC);
(b) perishable goods mean goods that rapidly decay due to their natural characteristics, in particular in the absence of appropriate storage conditions;
(c) serious sanitary or phytosanitary issues mean cases for which international standards, in particular in the Guidelines for the Exchange of Information between Countries on Rejections of Imported Food, by the CAC, (6) foresee a notification between competent authorities.
Article 4.5. Inspections, Certification System and System Audits
1. An importing Party shall base assessments of the inspection and certification system of the exporting Party on international standards.
2. Without prejudice to the right of the Parties to approve establishments seeking access to the export market on the basis of individual inspections and audits, the Parties agree to primarily audit the inspection and certification system of the exporting Party.
3. The competent authorities of the Parties shall agree in advance on the anticipated costs of an inspection or audit.
4. Corrective actions, timeframes and follow-up procedures shall, if applicable, be clearly documented in an assessment report.
5. The importing Party shall provide the relevant information in writing to the exporting Party within 60 days from the audit. The exporting Party may comment on such information within 45 days. Comments made by the exporting party shall be included in the assessment report.
Article 4.6. Certificates
1. The Parties agree to cooperate in order to minimise the number of SPS certificates as far as possible. Where official certificates are required, these should be in line with the principles laid down in international standards. A Party shall accept SPS certificates in English, issued by the competent authority of another Party, without any further requirements or charges.
2. If a Party introduces or modifies a certificate, it shall notify the other Parties as early as possible, in English. The Party shall provide the factual basis and justification for the new or modified certificate. The exporting Parties shall be given sufficient time to adapt to the new requirements.
Article 4.7. Cooperation
1. The Parties shall strengthen cooperation with a view to increasing the mutual understanding of each other’s systems and facilitating access to their respective markets. Such cooperation shall include, but is not limited to, collaboration between the relevant scientific institutions that provide the Parties with scientific advice and risk analysis.
2. The Parties shall ensure that all adopted SPS regulations are published and available on the internet. Upon request, a Party shall provide supplementary information regarding import requirements in English.
3. The Parties shall notify any substantial change in structure, organisation and division of responsibilities of their competent authorities and contact points to the other Parties.
4. When a Party introduces new SPS measures, its competent authority shall, upon request, provide, as far as practicable in English, the background of the change, appropriate risk assessment or scientific basis justifying the measure and other relevant information.
Article 4.8. Movement of Products
The Parties shall ensure that goods fully complying with the relevant sanitary and phytosanitary requirements of an importing Party can freely move within their respective territories, once placed on the market.
Article 4.9. Import Checks
1. The import requirements and checks applied to imported goods covered by this Chapter shall be based on the risk that is associated with such goods and shall be applied in a non-discriminatory manner. Import checks shall be carried out as expeditiously as possible, in a manner that is no more trade-restrictive than necessary. The Parties shall make every effort to avoid any deterioration of perishable goods.
2. Upon request, information about the frequency of import checks or changes in this frequency shall be exchanged between competent authorities of the Parties.
3. Each Party shall ensure that adequate procedures exist to allow a person responsible for a consignment, subject to sampling and analysis, to apply for a supplementary expert opinion at a laboratory, accredited by the competent authority of the importing Party, as part of the official sampling.
4. Import control should be carried out according to international standards.
5. Goods subject to random and routine checks should not be detained at the border
while awaiting the results of the tests.
6. Where a Party detains, at a port of entry, goods exported from another Party due to an alleged failure to comply with a sanitary or phytosanitary measure, the factual justification for the detention shall be promptly notified to the importer or his representative.
7. If goods are rejected at a port of entry due to a verified serious sanitary or phytosanitary issue, the competent authority of the exporting Party shall be promptly notified in writing of the factual basis and scientific justification.
8. If goods are rejected at the port of entry for reasons other than a verified serious sanitary or phytosanitary issue, the competent authority of the exporting Party shall, upon request, be notified in writing of the factual basis and scientific justification, as soon as possible.
9. Each Party shall ensure that appropriate procedures exist for the person responsible for the consignment or his representative to appeal the decision, if products are rejected at a point of entry.
Article 4.10. Consultations
Consultations shall be held at the request of a Party, which considers that another Party has taken a measure which is likely to create, or has created, an obstacle to trade. Such consultations shall take place within 30 days from the receipt of the request with the objective of finding a mutually acceptable solution. If consultations are not taking place in the Joint Committee, it should be informed thereof. In case of perishable goods, consultations between the competent authorities of the Parties shall be held without undue delay. The consultations may be conducted by any agreed method. (7)
Article 4.11. Review
The Parties shall, no later than two years from the entry into force of this Agreement, and thereafter upon request by a Party, jointly review this Chapter with a view to extending treatment granted to a non-party, with whom all Parties have established arrangements concerning sanitary and phytosanitary regulations, to the Parties.
Article 4.12. Contact Points
The Parties shall exchange names and addresses of contact points for this Chapter in order to facilitate communication and the exchange of information.
Chapter 5. TECHNICAL BARRIERS TO TRADE
Article 5.1. Objectives
(a) further the implementation of the TBT Agreement;
(b) facilitate bilateral trade and access to respective markets for goods within the scope of this Chapter;
(c) facilitate information exchange and cooperation in the field of technical regulations, standards and conformity assessment between the Parties, and enhance mutual understanding of each Party’s regulatory system;
(d) prevent, eliminate or reduce unnecessary obstacles related to trade between the Parties, in particular to avoid duplications in conformity assessment procedures;
(e) further the implementation of good regulatory practice in the area of product safety, including market surveillance; and
(f) effectively solve trade concerns affecting trade between the Parties within the scope of this Chapter.
Article 5.2. Scope
1. This Chapter shall apply to the preparation, adoption and application of all standards, technical regulations and conformity assessment procedures, which may affect trade in goods between the Parties.
2. Notwithstanding paragraph 1, this Chapter shall not apply to:
(a) sanitary and phytosanitary measures as defined in Chapter 4 (Sanitary and Phytosanitary Measures); nor
(b) purchasing specifications prepared by governmental bodies for production or consumption requirements of governmental bodies.
Article 5.3. Affirmation of the TBT Agreement
Except as otherwise provided for in this Chapter, the TBT Agreement shall apply and is hereby incorporated and made part of this Agreement, mutatis mutandis.
Article 5.4. International Standards
For the purposes of this Chapter, standards issued by international standardising bodies, in particular, but not limited to the International Organization for Standardization (ISO), International Electrotechnical Commission (IEC), the International Telecommunication Union (ITU) and the Codex Alimentarius Commission (CAC) shall be considered relevant international standards in accordance with Article 2.4. of the TBT Agreement.
Article 5.5. Movement of Products, Border Control and Market Surveillance
1. The Parties shall ensure that goods fully complying with the relevant technical regulations of an importing Party can freely move within their respective territories, once placed on the market.
2. Where, a Party detains, at a port of entry, goods exported from another Party due to an alleged failure to comply with a technical regulation, the reasons for the detention shall be promptly notified to the importer or his representative.
3. Where a Party withdraws, from its market, goods exported from another Party, the reasons shall be promptly notified to the importer, his representative or a person responsible for placing the goods on the market.
Article 5.6. Conformity Assessment Procedures
1. The Parties acknowledge that a broad range of mechanisms exist to facilitate the acceptance in a Party’s territory of the results of conformity assessment procedures conducted in another Party’s territory, but not limited to:
(a) agreements on mutual acceptance of the results of conformity assessment procedures with respect to specified technical regulations conducted by recognised conformity assessment bodies;
(b) voluntary arrangements between conformity assessment bodies in each Party’s territory;
(c) use of accreditation based on international standards, to qualify conformity assessment bodies;
(d) government designation of conformity assessment bodies;
(e) recognition by a Party of the results of conformity assessments performed in the territory of another Party;
(f) use of regional or international arrangements and regional or international recognition agreements to which the Parties are parties; and
(g) the importing Party’s acceptance of a supplier’s declaration of conformity, based on international standards.
2. The Parties shall not prepare, adopt or apply conformity assessment procedures, which are likely to create unnecessary obstacles to trade and shall to this end:
(a) reinforce the role of international standards as a basis for technical regulations, including conformity assessment procedures;
(b) promote the accreditation of conformity assessment bodies on the basis of relevant Standards and Guidelines of ISO and IEC; and
(c) encourage the mutual acceptance of conformity assessment results of bodies accredited in accordance with paragraph (b), which have been recognised under the relevant international agreement.
3. Insofar as the Parties require a positive assurance of conformity with domestic technical regulations, the Parties shall, where applicable, encourage the acceptance of supplier’s declarations of conformity, based on international standards as a documentation declaring conformity with domestic technical regulations.
Article 5.7. Cooperation
With a view to increasing the mutual understanding of each other’s systems and facilitating access to respective markets, the Parties shall strengthen their cooperation, in particular in the following areas:
(a) activities of international standardisation bodies and the WTO Committee on Technical Barriers to Trade;
(b) communication between the competent authorities of the Parties, exchange of information in respect of technical regulations, good regulatory practice, standards, conformity assessment procedures, border control and market surveillance;
(c) encouraging their respective standardisation bodies to cooperate; and
(d) on request of a Party, make available, promptly, the full text or summary of technical regulations notified to WTO members, in English.
Article 5.8. Consultations
Consultations shall be held at the request of a Party, which considers that another Party has taken a measure which is likely to create, or has created, an obstacle to trade. Such consultations shall take place within 40 days from the receipt of the written request with the objective of finding a mutually acceptable solution. The consultations shall take place in the Joint Committee if a Party so requests. The consultations may be conducted by any agreed method. (8)
Article 5.9. Review
1. The Parties shall no later than four years from the entry into force of this Agreement, and thereafter upon request by a Party, jointly review this Chapter with a view to extending treatment granted to a non-party, with whom all Parties have established arrangements concerning standards, technical regulations and conformity assessment procedures, to the Parties.
2. The Parties may conclude Annexes or side agreements to this Agreement to prevent, eliminate, or reduce unnecessary obstacles, including to avoid duplicative and unnecessarily burdensome conformity assessment procedures in specific product sectors.
Article 5.10. Contact Points
The Parties shall exchange names and addresses of contact points for this Chapter in order to facilitate communication and the exchange of information.
Chapter 6. TRADE IN SERVICES
Article 6.1. Scope and Coverage
1. This Chapter applies to measures by Parties affecting trade in services and taken by central, regional or local governments and authorities as well as by non- governmental bodies in the exercise of powers delegated by central, regional or local governments or authorities. It applies to all services sectors, except services supplied in the exercise of government authority.
2. With respect to air transport services, this Chapter shall not apply to measures affecting air traffic rights or measures affecting services directly related to the exercise of air traffic rights, except as provided for in paragraph 3 of the GATS Annex on Air Transport Services. The definitions of paragraph 6 of the GATS Annex on Air Transport Services are hereby incorporated and made part of this Agreement.
3. Articles 6.3 (Most-Favour-Nation Treatment), 6.4 (Market Access) and 6.5 (National Treatment) shall not apply to laws, rules, regulations or requirements governing the procurement by governmental agencies of services purchased for governmental purposes and not with a view to commercial resale or with a view to use in the supply of services for commercial sale.
Article 6.2. Definitions
1. Where a provision of this Chapter provides that a provision of the GATS is incorporated into and made part of this Agreement, the meaning of the terms used in the GATS provision shall be understood as follows:
(a) Member means Party;
(b) Schedule means a Schedule referred to in Article 6.16 (Schedules of Specific Commitments) and contained in Annex XI (Schedules of Specific Commitments); and
(c) specific commitment means a specific commitment in a Schedule referred to in Article 6.16 (Schedules of Specific Commitments).
2. The following definitions of Article I of the GATS are hereby incorporated into and made part of this Agreement:
(a) trade in services;
(b) services; and
(c) a service supplied in the exercise of governmental authority;
3. For the purposes of this Chapter:
(a) service supplier means any person that supplies a service; (9)
(b) natural person of another Party means a natural person who, under the
legislation of that other Party, is:
(i) a national of that other Party who resides in the territory of any WTO Member; or
(ii) a permanent resident of that other Party who resides in the territory of a Party, if that other Party accords substantially the same treatment to its permanent residents as to its nationals in respect of measures affecting trade in services. For the purpose of the supply of a service through presence of natural persons (Mode 4), this definition covers a permanent resident of that other Party who resides in the territory of a Party;
(c) juridical person of another Party means a juridical person which is either:
(i) constituted or otherwise organised under the domestic laws, rules and regulations of that Party, and is engaged in substantive business operations in the territory of a Party; or
(ii) in the case of the supply of a service through commercial presence, owned or controlled by:
(aa) natural persons of that other Party; or
(bb) juridical persons of that other Party identified under subparagraph (c)(i).
4. The following definitions of Article XXVIII of the GATS are hereby incorporated into and made part of this Agreement:
(a) measure;
(b) supply of a service;
(c) measures by Members affecting trade in services;
(d) commercial presence;
(e) sector of a service;
(f) service of another Member;
(g) monopoly supplier of a service;
(h) service consumer;
(i) person;
(j) juridical person;
(k) owned, controlled and affiliated; and
(l) direct taxes.
Article 6.3. Most-Favoured-Nation Treatment
1. Without prejudice to measures taken in accordance with Article VII of the GATS, and except as provided for in its List of MFN Exemptions contained in Annex XII (Lists of MFN Exemptions), each Party shall accord immediately and unconditionally, in respect of all measures affecting the supply of services, to services and service suppliers of another Party treatment no less favourable than the treatment it accords to like services and service suppliers of any non-party.
2. Treatment granted under other existing or future agreements concluded by a Party and notified under Article V or Article V bis of the GATS shall not be subject to paragraph 1.
3. If a Party concludes an agreement of the type referred to in paragraph 2 after the entry into force of this Agreement or amends such agreement, it shall notify the other Parties without delay. The former Party shall, upon request by another Party, negotiate the incorporation into this Agreement of a similar treatment no less favourable than that provided under that agreement.
4. Paragraph 3 of Article II of the GATS shall apply to the rights and obligations of the Parties with respect to advantages accorded to adjacent countries and is hereby incorporated into and made part of this Agreement.
Article 6.4. Market Access
Article XVI of the GATS shall apply and is hereby incorporated into and made part of this Agreement.
Article 6.5. National Treatment
Article XVII of the GATS shall apply and is hereby incorporated into and made part of this Agreement.