1. Each Party shall ensure that any authority responsible for regulating delivery services is not accountable to any supplier of delivery services, and that the decisions and procedures that the regulatory authority adopts are impartial, non-discriminatory and transparent with respect to all market participants in its territory.
2. Each Party shall ensure that the authority responsible for regulating delivery services performs its tasks in a timely manner and has adequate financial and human resources.
Chapter 16. TELECOMMUNICATIONS SERVICES
Article 16.1. Scope
1. This Chapter sets out the principles of the regulatory framework for the provision of telecommunications networks and services liberalised pursuant to Chapters 10 and 11.
2. This Chapter does not apply to services providing, or exercising editorial control over, content transmitted using telecommunications networks and services.
Article 16.2. Definitions
For the purposes of this Chapter:
(a) "associated facilities" means services, physical infrastructures and other facilities associated with a telecommunications network or service which enable or support the provision of services through that network or service or have the potential to do so, and may include buildings or entries to buildings, building wiring, antennas, towers and other supporting constructions, ducts, conduits, masts, manholes and cabinets;
(b) "essential facilities" means facilities of a public telecommunications network or service that:
(i) are exclusively or predominantly provided by a single or limited number of suppliers; and
(ii) cannot feasibly be economically or technically substituted in order to provide a service;
(c) "interconnection" means the linking of public telecommunications networks used by the same or different suppliers of telecommunications networks or services in order to allow the users of one supplier to communicate with users of the same or another supplier or to access services provided by another supplier, irrespective of whether those services are provided by the suppliers involved or by any other supplier who has access to the network;
(d) "internet access services" means public telecommunications services that provide access to the internet in the territory of a Party, and thereby provide connectivity to virtually all end points of the internet, irrespective of the network technology and terminal equipment used;
(e) "leased circuits" means telecommunications services or facilities between two or more designated points, including those of a virtual nature, that set aside capacity for the dedicated use of, or availability to, a user;
(f) "major supplier" means a supplier of telecommunications networks or services which has the ability to materially affect the terms of participation, having regard to price and supply, in a relevant market for telecommunications networks or services as a result of its control over essential facilities or the use of its position in that market;
(g) "network elements" means facilities or equipment used in supplying a public telecommunications service, including features, functions and capabilities provided by means of those facilities or equipment;
(h) "number portability" means:
(i) for the European Union, the ability of a subscriber who so requests to retain the existing telephone number, at the same location in the case of fixed line subscribers, when switching between the same category of suppliers of public telecommunications services, without impairment of quality, reliability or convenience; and
(ii) for Chile, the ability of an end-user to retain, upon request, the existing telephone number when switching between suppliers of public telecommunications services, without impairment of quality, reliability or convenience;
(i) "public telecommunications network" means any telecommunications network used wholly or mainly for the provision of public telecommunications services between network termination points;
(j) "public telecommunications service" means any telecommunications service that is offered to the public generally;
(k) "subscriber" means any natural or juridical person that is party to a contract with a supplier of public telecommunications services for the supply of such services;
(l) "telecommunications" means the transmission and reception of signals by any electromagnetic means;
(m) "telecommunications network" means transmission systems and, if applicable, switching or routing equipment and other resources, including network elements which are not active, which permit the transmission and reception of signals by wire, radio, optical or other electromagnetic means;
(n) "telecommunications regulatory authority" means the body or bodies charged by a Party with the regulation of telecommunications networks and services covered by this Chapter (1);
(o) "telecommunications service" means a service which consists wholly or mainly in the transmission and reception of signals, including of broadcasting signals, via telecommunications networks, including via networks used for broadcasting;
(p) "universal service" means the minimum set of services of specified quality that must be made available to all users in the territory of a Party, regardless of their geographical location and at an affordable price; and
(q) "user" means any natural or juridical person using a public telecommunications network or service.
Article 16.3. Telecommunications Regulatory Authority
1. Each Party shall ensure that its telecommunications regulatory authority is legally distinct and functionally independent from any supplier of telecommunications networks, services or equipment, and that the decisions adopted, and the procedures used, by its telecommunications regulatory authority are impartial with respect to all market participants.
2. A Party that retains ownership or control of suppliers of telecommunications networks, services or equipment shall ensure the effective structural separation of the telecommunications regulatory function from activities associated with that ownership or control.
3. With a view to ensuring the independence and impartiality of telecommunications regulatory authorities, each Party shall ensure that its telecommunications regulatory authority does not hold a financial interest or maintain an operating or management role in any supplier of telecommunications networks, services or equipment.
4. Each Party shall ensure that suppliers of telecommunications networks, services or equipment do not influence the decisions and procedures of the telecommunications regulatory authority.
5. Each Party shall provide its telecommunications regulatory authority with the regulatory and supervisory power, as well as adequate financial and human resources, to carry out the tasks assigned to it in order to enforce the obligations set out in this Chapter. Such power shall be exercised transparently and in a timely manner. Those tasks shall be made public in an easily accessible and clear form, in particular when those tasks are assigned to more than one body.
6. Each Party shall provide its telecommunications regulatory authority with the power to ensure that suppliers of telecommunications networks or services provide it, promptly upon request, with all the information, including financial information, which is necessary to enable the telecommunications regulatory authority to carry out its tasks in accordance with this Chapter. Any information provided shall be treated in accordance with the requirements of confidentiality.
7. Each Party shall ensure that a user or supplier of telecommunications networks or services affected by a decision issued by its telecommunications regulatory authority has a right to appeal against that decision to an appeal body that is independent of the telecommunications regulatory authority and of other parties affected by the decision. Pending the outcome of the appeal, the decision issued by the telecommunications regulatory authority shall stand unless interim measures are granted in accordance with the law of the Party of that authority.
Article 16.4. Authorisation to Provide Telecommunications Networks or Services
1. If a Party requires an authorisation for the provision of telecommunications networks or services, it shall state a reasonable period of time normally required for the telecommunications regulatory authority to decide on the authorisation request, shall communicate that period of time to the applicant in a transparent manner and shall endeavour to decide on the request within the communicated period of time (1).
2. Any authorisation criteria and applicable procedures shall be as simple as possible, objective, transparent, non-discriminatory and proportionate. Any obligations and conditions imposed on or associated with an authorisation shall be non-discriminatory, transparent, proportionate and related to the services provided.
3. Each Party shall ensure that an applicant receives in writing the reasons for the denial or the revocation of an authorisation, or for the imposition of supplier-specific conditions. In the event of such denial, revocation or imposition, an applicant shall be able to seek recourse before an appeal body.
4. Administrative fees imposed on suppliers, if any, shall be objective, transparent, non-discriminatory and commensurate with the administrative costs reasonably incurred in the management, control and enforcement of the obligations set out in this Chapter (1).
Article 16.5. Interconnection
Without prejudice to Article 16.9, each Party shall ensure that a supplier of public telecommunications networks or services in its territory has the right and, on request of another supplier of public telecommunications networks or services in its territory, the obligation to negotiate interconnection for the purpose of providing public telecommunications networks or services within its territory.
Article 16.6. Access and Use
1. Each Party shall ensure that any service supplier of the other Party is accorded access to and use of any public telecommunications networks or services on reasonable and non-discriminatory (1) terms and conditions, in accordance with, inter alia, paragraphs 2 to 5.
2. Each Party shall ensure that any service supplier of the other Party has access to and use of any public telecommunications service offered within or across the border of that Party, including private leased circuits, and to this end shall ensure, subject to paragraph 5, that such supplier is permitted to:
(a) purchase or lease and attach terminal or other equipment which interfaces with the network and which is necessary to provide its services;
(b) interconnect private leased or owned circuits with public telecommunications networks or with circuits leased or owned by another supplier of telecommunications services; and
(c) use operating protocols of its choice in the supply of any service, other than as necessary to ensure the availability of telecommunications services to the public generally.
3. Each Party shall ensure that a service supplier of the other Party may use public telecommunications networks or services for the movement of information within and across the border of that Party, including for intra-corporate communications of such service supplier, and for access to information contained in databases or otherwise stored in machine-readable form in the territory of either Party.
4. Notwithstanding paragraph 3, a Party may take measures that are necessary to ensure the security and confidentiality of communications, subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade in services.
5. Each Party shall ensure that no condition is imposed on access to and use of public telecommunications networks or services in its territory other than as necessary to:
(a) safeguard the public service responsibilities of suppliers of public telecommunications networks or services, in particular their ability to make their services available to the public generally; or
(b) protect the technical integrity of public telecommunications networks or services.
Article 16.7. Resolution of Telecommunications Disputes
1. Each Party shall ensure that, in the event of a dispute arising between suppliers of telecommunications networks or services in connection with rights or obligations that arise from this Chapter, and on request of either disputing party, the telecommunications regulatory authority issues a binding decision within a reasonable period of time to resolve the dispute.
2. Each Party shall ensure that the decision issued by the telecommunications regulatory authority is made available to the public, subject to the requirements of business confidentiality under its laws and regulations. The telecommunications regulatory authority shall provide the disputing parties with a full statement of the reasons on which the decision is based. The disputing parties shall have the right to appeal that decision, in accordance with Article 16.3(7).
3. Each Party shall ensure that the procedure referred to in paragraphs 1 and 2 does not preclude either disputing party from bringing an action before a judicial authority, in accordance with the laws and regulations of the Party.
Article 16.8. Competitive Safeguards on Major Suppliers
Each Party shall adopt or maintain appropriate measures for the purpose of preventing suppliers of telecommunications networks or services that, alone or together, are a major supplier from engaging in or continuing anti-competitive practices, including:
(a) engaging in anti-competitive cross-subsidisation;
(b) using information obtained from competitors with anti-competitive results; and
(c) not making available to other service suppliers on a timely basis technical information about essential facilities and commercially relevant information which are necessary for them to provide services.
Article 16.9. Interconnection with Major Suppliers
1. Each Party shall ensure that major suppliers of public telecommunications networks or services provide interconnection at any technically feasible point in the network. Major suppliers shall provide such interconnection:
(a) under non-discriminatory terms and conditions, including with regard to rates, technical standards, specifications, quality and maintenance, and of a quality no less favourable than that provided for their own like services, or for like services of their subsidiaries or other affiliates;
(b) in a timely fashion and on terms and conditions, including in relation to rates, technical standards, specifications, quality and maintenance, that are transparent, reasonable, having regard to economic feasibility, and sufficiently unbundled so that the supplier need not pay for network components or facilities that it does not require for the service to be provided; and
(c) upon request, at points in addition to the network termination points offered to the majority of users, subject to charges that reflect the cost of construction of necessary additional facilities.
2. Each Party shall make publicly available the procedures applicable for interconnection with a major supplier.
3. Each Party shall ensure that major suppliers make publicly available either their interconnection agreements or their reference interconnection offers, as appropriate.
Article 16.10. Access to the Essential Facilities of Major Suppliers
Each Party shall provide its telecommunications regulatory authority with the power to require that a major supplier in its territory makes its essential facilities available to suppliers of telecommunications networks or services on reasonable and non-discriminatory terms and conditions for the purpose of providing telecommunications network or services, unless this is not necessary to achieve effective competition on the basis of the facts collected and the assessment of the market conducted by the telecommunications regulatory authority. The essential facilities of a major supplier may include network elements, leased circuits services and associated facilities.
Article 16.11. Scarce Resources
1. Each Party shall ensure that the allocation and granting of rights of use of scarce resources, including radio spectrum, numbers and rights of way, is carried out in an open, objective, timely, transparent, non-discriminatory and proportionate manner and in pursuit of objectives of general interest. Procedures, conditions and obligations attached to rights of use shall be based on objective, transparent, non-discriminatory and proportionate criteria.
2. Each Party shall make the current use of allocated frequency bands publicly available, but detailed identification of radio spectrum allocated for specific government uses is not required.
3. The measures of a Party allocating and assigning spectrum and managing frequency are not in themselves inconsistent with Articles 10.5 and 11.7. Accordingly, each Party retains the right to establish and apply spectrum and frequency management measures that may have the effect of limiting the number of suppliers of telecommunications services, provided that it does so in a manner consistent with this Agreement. This includes the ability to allocate frequency bands taking into account current and future needs and spectrum availability.
Article 16.12. Number Portability
Each Party shall ensure that suppliers of public telecommunications services in its territory provide number portability on a timely basis and on reasonable terms and conditions.
Article 16.13. Universal Service
1. Each Party has the right to define the kind of universal service obligations it wishes to maintain and to decide on their scope and implementation.
2. Universal service obligations will not be regarded as anti-competitive in themselves, provided that they are administered in a proportionate, transparent, objective and non-discriminatory manner. The administration of such obligations shall be neutral with respect to competition and not be more burdensome than necessary for the kind of universal service defined by the Party.
3. Each Party shall ensure that procedures for the designation of universal service suppliers are open to all suppliers of public telecommunications networks or services and shall designate universal service suppliers through an efficient, transparent and non-discriminatory mechanism.
4. If a Party decides to fund the provision of universal service by a supplier, it shall ensure that such funding does not exceed the net cost resulting from the universal service obligation.
Article 16.14. Confidentiality of Information
1. Each Party shall ensure that suppliers of telecommunications networks or services that acquire confidential information from another supplier of telecommunications networks or services in the process of negotiating arrangements pursuant to Articles 16.5, 16.6, 16.9 and 16.10 use that information solely for the purposes for which it was supplied and respect at all times the confidentiality of such information.
2. Each Party shall ensure the confidentiality of telecommunications and related traffic data transmitted in the use of public telecommunications networks or services, provided that any measures it adopts to that end are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade in services.
Article 16.15. Foreign Shareholding
With regard to the provision of telecommunications networks or services, other than public radio broadcasting, through commercial presence, a Party shall not impose joint venture requirements or limit the participation of foreign capital in terms of maximum percentage limits on foreign shareholding or in terms of the total value of individual or aggregate foreign investment.
Article 16.16. Open and Non-discriminatory Internet Access
1. Each Party shall adopt or maintain measures to ensure that suppliers of internet access services enable users of those services to access and distribute information, content and services of their choice.
2. Paragraph 1 is without prejudice to the laws and regulations of a Party related to the lawfulness of the information, content or services referred to in that paragraph.
3. Notwithstanding paragraph 1, suppliers of internet access services may implement non- discriminatory (1), reasonable, transparent and proportionate network management measures which are consistent with the laws and regulations of a Party.
4. Each Party shall adopt or maintain measures to ensure that suppliers of internet access services enable users of those services to use devices of their choice, provided that such devices do not harm the security of other devices, the network or services provided over the network.
Article 16.17. International Mobile Roaming
1. The Parties shall endeavour to cooperate on promoting transparent and reasonable rates for international mobile roaming services in ways that can help promote the growth of trade among the Parties and enhance consumer welfare.
2. Each Party may take steps to enhance transparency and competition with respect to international mobile roaming rates and technological alternatives to roaming services, such as:
(a) ensuring that information regarding retail rates is easily accessible to the public; and
(b) minimising impediments to the use of technological alternatives to roaming, whereby users visiting the territory of a Party from the territory of the other Party can access telecommunications services using the device of their choice.
Chapter 17. INTERNATIONAL MARITIME TRANSPORT SERVICES
Article 17.1. Scope, Definitions and Principles
1. This Chapter sets out the principles regarding the liberalisation of international maritime transport services pursuant to Chapters 10, 11 and 12.
2. For the purposes of this Chapter and Chapters 10, 11 and 12 and of Annexes 10-A, 10-B and 10-C:
(a) "container station and depot services" means activities consisting in storing containers, whether in port areas or inland, with a view to their stuffing or stripping, repairing them and making them available for shipments;
(b) "customs clearance services" or "customs house brokers' services" means activities consisting in carrying out on behalf of another party customs formalities concerning import, export or transport of cargoes, whether this service is the main activity of the service provider or a usual complement of its main activity;
(c) "door-to-door or multimodal transport operations" means the transport of cargo using more than one mode of transport, involving an international sea-leg, under a single transport document;
(d) "feeder services" means the pre- and on-ward transportation by sea, between ports located in a Party, of international cargo, notably containerised, en route to a destination outside the territory of that Party;
(e) "freight forwarding services" means the activity consisting of organising and monitoring shipment operations on behalf of shippers through the acquisition of transport and related services, preparation of documentation and provision of business information;
(f) "international cargo" means cargo transported between a port of one Party and a port of the other Party or of a third country, or between a port of one Member State and a port of another Member State;
(g) "international maritime transport services" means the transport of passengers or cargo by sea- going vessels between a port of one Party and a port of the other Party or of a third country, including the direct contracting with providers of other transport services, with a view to covering door-to-door or multimodal transport operations under a single transport document, but not the right to provide such other transport services;
(h) "maritime agency services" means activities consisting in representing, within a given geographic area, as an agent the business interests of one or more shipping lines or shipping companies, for the following purposes:
(i) marketing and sales of maritime transport and related services, from quotation to invoicing, and issuance of bills of lading on behalf of the companies, acquisition and resale of the necessary related services, preparation of documentation, and provision of business information; or
(ii) acting on behalf of the companies organising the call of the ship or taking over cargoes when required;
(i) "maritime auxiliary services" means maritime cargo handling services, customs clearance services, container station and depot services, maritime agency services and maritime freight forwarding services; and
(j) "maritime cargo handling services" means activities exercised by stevedore companies, including terminal operators but not including the direct activities of dockers, when that workforce is organised independently of the stevedoring or terminal operator companies; the activities covered include the organisation and supervision of:
(i) the loading or discharging of cargo to or from a ship;
(ii) the lashing or unlashing of cargo; and
(iii) the reception or delivery and safekeeping of cargoes before shipment or after discharge.
3. In view of the existing levels of liberalisation between the Parties in international maritime transport, the following principles apply:
(a) the Parties shall apply effectively the principle of unrestricted access to the international maritime markets and trades on a commercial and non-discriminatory basis; and
(b) each Party shall grant to ships flying the flag of the other Party or operated by service suppliers of the other Party treatment no less favourable than that accorded to its own ships, including with regard to access to ports, use of infrastructure and services of ports, and use of maritime auxiliary services, as well as related fees and charges, customs facilities and assignment of berths and facilities for loading and unloading.
4. In applying the principles referred to in paragraph 3, each Party shall:
(a) not introduce cargo-sharing arrangements in future agreements with third countries concerning maritime transport services, including dry and liquid bulk and liner trade, and terminate, within a reasonable period of time, such cargo-sharing arrangements if they exist in previous agreements; and
(b) as from the date of entry into force of this Agreement, abolish and abstain from introducing any unilateral measures or administrative, technical or other obstacles which could constitute a disguised restriction or have discriminatory effects on the free supply of services in international maritime transport.
5. Each Party shall permit international maritime transport service suppliers of the other Party to have an enterprise established and operating in its territory in accordance with the conditions provided for in its schedule of specific commitments in Annexes 10-A, 10-B and 10-C.
6. Each Party shall make available to international maritime transport service suppliers of the other Party on reasonable and non-discriminatory terms and conditions the following services at the port: pilotage, towing and tug assistance, provisioning, fuelling and watering, garbage collecting and ballast waste disposal, port captain's services, navigation aids, shore-based operational services essential to ship operations, including communications, water and electrical supplies, emergency repair facilities, anchorage, and berth and berthing services.
7. Each Party shall permit the international maritime transport service suppliers of the other Party to reposition owned or leased empty containers which are not being carried as cargo against payment between ports of Chile or between ports of a Member State.
Chapter 18. FINANCIAL SERVICES
Article 18.1. Scope
1. This Chapter applies to a measure adopted or maintained by a Party relating to:
(a) financial institutions of the other Party;
(b) investors of the other Party and financial institutions of such investors in the territory of the Party; or
(c) cross-border trade in financial services.
2. For greater certainty, Chapter 10 applies to a measure:
(a) relating to an investor of a Party in a covered enterprise as defined in subparagraph (d) of Article 10.2(1) that is not a financial institution but is supplying a financial service in the territory of the other Party, or to such covered enterprise; and
(b) other than a measure relating to the supply of financial services, relating to an investor of a Party, or a covered enterprise established by that investor in the territory of the other Party that is a financial institution.
3. The provisions of Chapters 10 and 11 apply to measures within the scope of this Chapter only to the extent that those provisions are incorporated into and made part of this Chapter.
4. Articles 10.12 and 11.9 are incorporated into and made part of this Chapter.
5. This Chapter does not apply to a measure adopted or maintained by a Party relating to:
(a) activities conducted by a central bank or monetary authority or by any other public entity in pursuit of monetary or exchange rate policies;
(b) activities or services forming part of a public retirement plan or statutory system of social security; or
(c) activities or services conducted for the account of the Party, with the guarantee or using the financial resources of the Party, including its public entities.
6. Notwithstanding paragraph 5, this Chapter applies to the extent that a Party allows any of the activities or services referred to in subparagraph (b) or (c) of paragraph 5 to be conducted by its financial institutions in competition with a public entity or a financial institution.
7. Articles 18.3 and 18.5 to 18.9 do not apply with respect to public procurement.
8. Articles 18.3 and 18.5 to 18.8 do not apply with respect to subsidies granted by a Party, including government-supported loans, guarantees and insurances.