Article 88. Definitions
1. For the purposes of this Chapter, the definitions of Annex A to the SPS Agreement shall apply.
2. The Parties may agree on other definitions for the application of this Chapter, taking into consideration the glossaries and definitions of the relevant international organisations.
Article 89. Competent Authorities
For the purposes of this Chapter, the competent authorities of each Party are those listed in Appendix 1 of Annex VI (Sanitary and Phytosanitary Measures). The Parties shall inform each other of any change of these competent authorities.
Article 90. General Principles
1. SPS measures shall not be used as unjustified barriers to trade between the Parties.
2. The procedures established under the scope of this Chapter shall be applied:
(a) in a transparent manner,
(b) without undue delays; and
(c) in conditions and requirements, including costs, which should be no higher than the actual cost of the service and be equitable in relation to any fees charged on like domestic products of the Parties.
3. The Parties shall use neither the procedures mentioned in paragraph 2 nor the requests for additional information in order to delay the access of imported products into their markets without scientific and technical justification.
Article 91. Import Requirements
1. The general import requirements of a Party shall apply to products of another Party.
2. Each Party shall ensure that products exported to another Party meet the sanitary and phytosanitary requirements of the importing Party.
3. The importing Party shall ensure that its import conditions are applied in a proportionate and non-discriminatory manner.
4. Any modification to the import requirements of a Party has to consider the establishment of a transitional period, according to the nature of the modification, in order to avoid the interruption of the trade flow of products and to allow the exporting Party to adjust its procedures to such modification.
5. When a risk assessment is included by an importing Party in its import requirements, that Party will immediately initiate this assessment and inform the exporting Party of the period of time required for such assessment.
6. When the importing Party has concluded that the products of an exporting Party meet its sanitary and phytosanitary import requirements, such Party will authorise the import of such products within 90 working days (17) following the date in which such conclusion was reached.
7. Inspection fees may only cover the costs incurred by the competent authority when performing import checks. Inspection fees shall be equitable in relation to the fees charged for the inspection of like domestic products.
8. The importing Party shall inform an exporting Party as soon as possible of any modification concerning fees, including the reasons for such modification.
Article 92. Import Procedures
1. For the import of animal products, the exporting Party shall inform the importing Party of the list of its establishments meeting the requirements of the importing Party.
2. Upon request of an exporting Party accompanied by the appropriate guarantees, the importing Party shall approve establishments referred to in paragraph 3 of Appendix 2 of Annex VI (Sanitary and Phytosanitary Measures) which are located in the territory of the exporting Party without prior inspection of individual establishments. Such approval shall be consistent with the conditions and provisions set out in Appendix 2 of Annex VI (Sanitary and Phytosanitary Measures) and is limited to those categories of products for which imports are authorised.
3. Except when additional information is required, the importing Party shall, in accordance with its applicable legal procedures, adopt the necessary legislative or administrative measures to allow imports of products from the establishments referred to in paragraph 2, within 40 working days following the date of receipt of the request referred to in paragraph 2.
4. The Sub-committee on Sanitary and Phytosanitary Measures (hereinafter referred to as the "SPS Sub-committee") may modify the requirements and provisions for approval of establishments for products of animal origin of the Parties. The corresponding modification to Appendix 2 of Annex VI (Sanitary and Phytosanitary Measures) shall be adopted by the Trade Committee.
5. The importing Party will regularly submit a record of consignment rejections, including information about the non-conformities upon which the rejections were based.
Article 93. Verifications
1. In order to maintain confidence in the effective implementation of the provisions of this Chapter, each Party, within the scope of this Chapter, shall have the right to:
(a) carry out, in accordance with the Guidelines set out under Appendix 3 of Annex VI (Sanitary and Phytosanitary Measures), verification of all or part of the control system of the authorities of another Party; the expenses of such verification shall be borne by the Party carrying out the verification; and
(b) receive information from the other Parties about their control system and of the results of controls carried out under that system.
2. A Party carrying out a verification under this Article in the territory of another Party shall provide that Party with the results and conclusions of such verification.
3. When the importing Party decides to carry out a verification visit to an exporting Party, such visit shall be notified to the exporting Party at least 60 working days before such verification is to be carried out, except in cases of emergency or where the Parties concerned agree otherwise. Any modification to such visit shall be agreed by the Parties concerned.
Article 94. Measures Linked to Animal and Plant Health
1. The Parties shall recognise the concept of pest- and disease-free areas, and areas of low pest- and low disease-prevalence, in accordance with the SPS Agreement, and the standards, guidelines or recommendations of the World Organization on Animal Health (hereinafter referred to as "OIE") and of the International Plant Protection Convention (hereinafter referred to as "IPPC").
2. Pursuant to paragraph 1, the SPS Sub-committee shall establish an appropriate procedure for the recognition of pest- and disease-free areas, and areas of low pest- and low disease-prevalence, taking into account any relevant international standard, guideline or recommendation. Such procedure will include situations related to outbreaks and reinfestations.
3. When determining the areas referred to in paragraphs 1 and 2, the Parties shall consider factors such as geographical location, ecosystems, epidemiological surveillance, and the effectiveness of sanitary or phytosanitary controls in that area.
4. The Parties shall establish close cooperation on the determination of pest- and disease-free areas, and areas of low pest- and disease prevalence, with the objective of acquiring confidence in the procedures followed by each Party for the determination of pest- and disease-free areas, and areas of low pest- and low disease prevalence.
5. When determining pest- and disease-free areas, and areas of low pest and disease prevalence, whether for the first time or after an outbreak of an animal disease or a re-introduction of a plant pest, the importing Party shall in principle base its own determination of the animal and plant health status of the exporting Party or parts thereof, on the information provided by the exporting Party in accordance with the SPS Agreement and OIE and IPPC standards, and take into consideration the determination made by the exporting Party.
6. In the event that an importing Party does not recognise the areas determined by an exporting Party as a pest- and disease-free areas or areas of low pest- and disease prevalence, the importing Party, upon request of the exporting Party, shall provide the information on the basis on which such decision was made, and/or hold consultations, as soon as possible, in order to assess a possible alternative agreed solution.
7. The exporting Party shall provide sufficient evidence thereof in order to objectively demonstrate to the importing Party that the areas in question are, and are likely to remain, pest- or disease-free areas or areas of low pest or disease prevalence, as the case may be. For this purpose, upon request, such exporting Party shall grant reasonable access to the importing Party for inspection, testing and other relevant procedures.
8. The Parties recognise the principle of compartmentalisation of the OIE and the principle of pest-free production sites of the IPPC. The SPS Sub-committee will assess any future recommendation of the OIE or the IPPC on the matter and will make recommendations accordingly.
Article 95. Equivalence
The SPS Sub-committee may develop provisions on equivalence and will make recommendations to the Trade Committee accordingly. This Sub-committee shall also establish the procedure for the recognition of equivalence.
Article 96. Transparency and Exchange of Information
1. The Parties shall:
(a) pursue transparency as regards SPS measures applicable to trade and, in particular, to the SPS requirements applied to imports of the other Parties;
(b) enhance mutual understanding of the SPS measures of each Party and their application;
(c) exchange information on matters related to the development and application of SPS measures, including the progress on new available scientific evidence, that affect or may affect trade between the Parties, with a view to minimising negative trade effects;
(d) communicate, upon the request of a Party and within 15 working days following the date of such request, the requirements that apply for the import of specific products, including if a risk assessment is needed;
(e) communicate, upon request of a Party the status of the procedure for the authorisation of the import of specific products.
2. The contact points of the Parties for the exchange of information referred to in this Article are listed in Appendix 4 of Annex VI (Sanitary and Phytosanitary Measures). Information shall be sent by post, fax or e-mail. Information sent by e-mail may be signed electronically and shall only be sent between the contact points.
3. When the information referred to in this Article has been made available by notification to the WTO in accordance with the relevant rules, or on any of the official, publicly accessible and fee free web-sites of the Party concerned, listed in Appendix 4 of Annex VI (Sanitary and Phytosanitary Measures), the information exchange shall be considered to have taken place.
Article 97. Notification and Consultation
1. Each Party shall notify in writing to the other Parties within two working days, of any serious or significant public, animal or plant health risk, including any food emergencies.
2. Notifications referred to in paragraph 1 shall be made to the contact points listed in Appendix 4 of Annex VI (Sanitary and Phytosanitary Measures). The Parties shall inform each other in accordance with Article 96 of any changes in the contact points. The written notifications referred to in paragraph 1 shall be made by post, fax or e-mail.
3. Where a Party has serious concerns regarding a risk to public, animal or plant health, affecting products being traded between the Parties, a Party may request consultations with the exporting Party regarding the situation. Such consultations shall take place as soon as possible. In those consultations, each Party shall endeavour to provide all the information necessary to avoid disruption in trade.
4. Consultations referred to in paragraph 3 may be held by e-mail, video or audio conference, or any other technological means available to the Parties. The Party requesting the consultations shall ensure the preparation of the minutes of such consultations.
Article 98. Emergency Measures
1. The importing Party may adopt, on the basis of serious public, animal or plant health risk and without previous notification, provisional and transitional measures necessary for the protection of public, animal or plant health. For consignments in transport between the Parties, such importing Party shall consider the most suitable and proportionate solution in order to avoid unnecessary disruptions to trade.
2. The Party adopting measures under paragraph 1 shall inform the other Parties as soon as possible, and in any case no later than one working day following the date of the adoption of the measure. The other Parties may request any information related to the sanitary situation of the Party adopting the measure, as well as to the measure itself. The Party adopting the measure shall answer as soon as the requested information is available.
3. Upon request of a Party, and in accordance with the provisions of Article 97, the Parties shall hold consultations regarding the situation within 15 working days following the date of receipt of the request for consultations. These consultations will be carried out in order to avoid unnecessary disruptions to trade. Options for the facilitation of the implementation or the replacement of the measures may be considered.
Article 99. Alternative Measures
1. Upon request of an exporting Party, and with respect to measures adopted by the importing Party affecting trade (including the establishment of specific limits for additives, residues and contaminants), the Parties concerned shall enter into consultations in accordance with Article 97 in order to agree on additional import conditions or alternative measures to be applied by the importing Party. Such additional import conditions or alternative measures may, when appropriate, be based on international standards or on measures of the exporting Party that ensure an equivalent level of protection as that of the importing Party. Article 95 shall not apply to these measures.
2. Upon request of the importing Party, an exporting Party shall provide all relevant information required by the legislation of the importing Party, including the results of their official laboratories or any other scientific information in order to be evaluated by the appropriate scientific instances. If agreed, the importing Party shall take the legislative or administrative measures to allow imports on the basis of such agreement.
3. Where relevant scientific evidence is insufficient, a Party may provisionally adopt SPS measures on the basis of available pertinent information. In such case, the Parties shall seek to obtain the additional information necessary for a more precise risk assessment, in order to allow the importing Party to review the SPS measure accordingly.
Article 100. Special and Differential Treatment
In application of Article 10 of the SPS Agreement, when a signatory Andean Country has identified difficulties with a proposed measure notified by the EU Party, the signatory Andean Country may request, in its comments submitted to the EU Party pursuant to Article 7 of the SPS Agreement, an opportunity to discuss the issue. The Parties concerned shall enter into consultations in order to agree on:
(a) alternative import conditions to be applied by the importing Party; and/or
(b) technical assistance according to Article 101; and/or (c) a transition period of six months, which could be exceptionally extended for another period of no longer than six months.
Article 101. Technical Assistance and Strengthening of the Trade Capacities
1. In accordance with the provisions of Title XIII (Technical Assistance and Trade- Capacity Building), the Parties agree to strengthen cooperation so as to contribute to this Chapter being implemented and made the most of with the aim of optimising its results and for the expanding opportunities and obtaining the greatest benefits for the Parties in relation to public health, animal and plant health and food safety. This cooperation shall be developed within the legal and institutional framework governing cooperation relations between the Parties.
2. To achieve these objectives, the Parties agree to attach particular importance to cooperation needs identified by the SPS Sub-committee and to transmit such information, as provided in Title XIII (Technical Assistance and Trade-Capacity Building). This Sub-committee may also review the mentioned needs.
Article 102. Collaboration on Animal Welfare
The SPS Sub-committee shall promote collaboration on animal welfare matters between the Parties.
Article 103. Sub-committee on Sanitary and Phytosanitary Measures
1. The Parties establish a Sub-committee on Sanitary and Phytosanitary Measures as a forum to ensure and monitor the implementation of this Chapter and to consider any matter that could affect compliance with its provisions. The SPS Sub-committee may review this Chapter and make recommendations accordingly.
2. The SPS Sub-committee shall comprise representatives designated by each Party. This Sub-committee shall meet on ordinary session at least once a year on a mutually agreed date and venue, and will hold special sessions upon request of any Party. The SPS Sub-committee shall hold its first ordinary session within the first year following the entry into force of this Agreement. The SPS Sub-committee shall adopt its working procedures at this first meeting. The agenda shall be agreed by the Parties before the meetings. The Sub-committee may also meet by video and audio conference.
3. The SPS Sub-committee shall:
(a) develop and monitor the implementation of this Chapter;
(b) provide a forum for discussing problems arising from the application of SPS measures and the application of this Chapter, and identify possible solutions;
(c) discuss the need to establish joint study programmes, in particular in relation to the establishment of specific limits;
(d) identify cooperation needs;
(e) conduct the consultations established in Article 104 concerning the settlement of disputes arising under this Chapter;
(f) conduct the consultations established in Article 100 of this Chapter concerning special and differential treatment; and
(g) perform any other function mutually agreed between the Parties.
4. The SPS Sub-committee may establish ad hoc working groups in order to undertake specific tasks and shall establish their functions and working procedures.
Article 104. Dispute Settlement
1. When a Party considers that an SPS measure of another Party is or might be contrary to the obligations under this Chapter, or that another Party has breached any obligation covered by this Chapter related to an SPS measure, such Party may request technical consultations in the SPS Sub-committee. The competent authorities identified in Appendix 1 of Annex VI (Sanitary and Phytosanitary Measures) will facilitate these consultations.
2. Unless otherwise agreed by the Parties to the dispute, when a dispute has been subject to consultations within the SPS Sub-committee according to paragraph 1, such consultations shall replace the consultations foreseen in Article 301 provided that those consultations meet the requirements established in paragraph 9 of that Article. Consultations in the SPS Sub-committee shall be deemed concluded within 30 days following the date of submission of the request, unless the consulting Parties agree to continue with the consultations. These consultations may be held via videophone conference, videoconference, or any other technological means mutually agreed by the consulting Parties.
Chapter 6.
Article 105. Movement of Goods
1. The Parties recognise the different levels reached by regional integration processes within the European Union, on the one hand, and between the signatory Andean Countries within the Andean Community, on the other. In this regard, the Parties will act with a view to moving towards the goal of creating conditions conducive to the free movement of goods from other Parties among their respective territories. In this respect:
(a) products originating in a signatory Andean Country shall benefit from free movement of goods within the territory of the European Union under the conditions established by the Treaty on the Functioning of the European Union for free movement of goods originating in third countries;
(b) subject to the provisions of the Andean Subregional Integration Agreement, (hereinafter referred to as the "Cartagena Agreement"), regarding movement of goods, the signatory Andean Countries will grant each other a treatment no less favourable than that granted to the EU Party pursuant to this Agreement. This obligation is not subject to Title XII (Dispute Settlement);
(c) having regard to Article 10, the signatory Andean Countries will make their best efforts to facilitate the movement of goods originating in the European Union between their territories and to avoid duplication of procedures and controls.
2. In addition to paragraph 1:
(a) on Customs matters, the signatory Andean Countries will apply to goods originating in the European Union and arriving from another signatory Andean Country, the most favourable customs procedures applicable to goods from other signatory Andean Countries;
(b) on Technical Barriers to Trade matters:
(i) the signatory Andean Countries will allow goods originating in the European Union to benefit from the harmonised standards, technical regulations and conformity assessment procedures applicable to trade between the signatory Andean Countries;
(ii) in areas of interest, the signatory Andean Countries will make their best efforts to foster the gradual harmonisation of standards, technical regulations and conformity assessment procedures;
(c) on Sanitary and Phytosanitary measures matters, the signatory Andean Countries will allow goods originating in the European Union to benefit from the harmonised procedures and requirements applied to trade. The SPS Subcommittee will examine the application of this subparagraph.
3. In the event that all the Member Countries of the Andean Community become Parties to this Agreement, the signatory Andean Countries will examine this new situation and propose to the EU Party the appropriate measures to improve the conditions of movement of goods originating in the European Union between the Member Countries of the Andean Community and, in particular, to avoid the duplication of procedures, customs duties and other charges, inspections and controls.
4. Pursuant to paragraph 3, the signatory Andean Countries will make their best efforts to foster harmonisation of their legislation and procedures on technical regulations and SPS measures, and to promote the harmonisation or mutual recognition of their controls and inspections.
5. In accordance with paragraph 1, the Parties shall develop cooperation mechanisms, taking into account their needs and realities, within the legal and institutional framework governing cooperation relationships between the Parties.
Chapter 7. Exceptions
Article 106. Exceptions to the Title on Trade In Goods
1. Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between the Parties where the same conditions prevail, or a disguised restriction on trade in goods between the Parties, nothing in this Agreement shall be construed to prevent the adoption or enforcement by any Party of measures:
(a) necessary to protect public morals or to maintain public order (18);
(b) necessary to protect human, animal or plant life or health, including those environmental measures necessary to this effect;
(c) relating to the importations or exportations of gold or silver;
(d) necessary to secure compliance with laws or regulations which are not inconsistent with the provisions of this Agreement, including those relating to customs enforcement, the enforcement of monopolies operated in conformity with Article 27, the protection of intellectual property rights and the prevention of deceptive practices;
(e) relating to the products of prison labour;
(f) imposed for the protection of national treasures of artistic, historic or archaeological value;
(g) relating to the conservation of living and non-living exhaustible natural resources, if such measures are made effective in conjunction with restrictions on domestic production or consumption;
(h) undertaken in pursuance of obligations under any intergovernmental commodity agreement which conforms to criteria submitted to the Parties and not disapproved by them or which is itself so submitted and not so disapproved (19);
(i) involving restrictions on exports of domestic materials necessary to ensure essential quantities of such materials to a domestic processing industry during periods when the domestic price of such materials is held below the world price as part of a governmental stabilisation plan; provided that such restrictions shall not operate to increase the exports of, or the protection afforded to, such domestic industry, and shall not depart from the provisions of this Agreement relating to non-discrimination; and
(j) essential to the acquisition or distribution of products in general or local short supply; provided that any such measures shall be consistent with the principle that all Parties are entitled to an equitable share of the international supply of such products, and that any such measures, which are inconsistent with the other provisions of this Agreement shall be discontinued as soon as the conditions giving rise to them have ceased to exist.
2. The Parties understand that when a Party intends to adopt any measure under subparagraphs 1(i) and 1(j), such Party shall provide the other Parties with all relevant information, with a view to seeking a solution acceptable to the Parties. The Parties may agree on any means needed to resolve the situation of the Party intending to adopt the measure. If no agreement is reached within 30 days, such Party may apply measures under subparagraphs 1(i) and 1(j) to the exportation of the product concerned. However, where exceptional and critical circumstances requiring immediate action make prior information or examination impossible, the Party intending to adopt the measures may do so and shall inform the other Parties as soon as possible.
Title IV. Trade In Services, Establishment and Electronic Commerce
Chapter 1. General Provisions
Article 107. Objective and Scope of Application
1. The Parties, reaffirming their commitments under the WTO Agreement, and with a view to facilitating their economic integration, sustainable development and continuous integration into the global economy, and considering the differences in the level of development of the Parties, hereby establish the necessary provisions for the progressive liberalisation of establishment and trade in services and for cooperation on electronic commerce.
2. Nothing in this Title shall be construed to require any Party to privatise public undertakings or to impose any obligation with respect to government procurement.
3. The provisions of this Title shall not apply to subsidies granted by a Party (20).
4. The provisions of this Title shall not apply to services supplied in the exercise of governmental authority.
5. Subject to the provisions of this Title, each Party retains the right to exercise its powers and to regulate and introduce new regulations in order to meet legitimate public policy objectives.
6. This Title shall not apply to measures affecting natural persons seeking access to the employment market of a Party, nor shall it apply to measures regarding citizenship, residence or employment on a permanent basis.
7. Nothing in this Title shall prevent a Party from applying measures to regulate the entry of natural persons into, or their temporary stay in, its territory, including those measures necessary to protect the integrity of, and to ensure the orderly movement of natural persons across, its borders, provided that such measures are not applied in such a manner as to nullify or impair the benefits accruing to any Party under the terms of a specific commitment in this Title and its Annexes (21).
Article 108. Definitions
For the purposes of this Title:
- "economic integration agreement" means an agreement substantially liberalising trade in services and establishment pursuant to WTO rules;
- "juridical person of a Party" means a juridical person set up in accordance with the laws of that Party and having its registered office, central administration or principal place of business in the territory of that Party; in case a juridical person has only its registered office or central administration in the territory of a Party, it shall not be considered as a juridical person of that Party, unless its operations have a real and continuous link with the economy of that Party (22);
- "measure" means any measure by a Party, whether in the form of a law, regulation, rule, procedure, decision, administrative action, or any other form;
- "measures adopted or maintained by a Party" means measures adopted or maintained by:
(a) central, regional or local governments and authorities; and
(b) non-governmental bodies in the exercise of powers delegated by central, regional or local governments or authorities;
- "natural person of a Party" means a natural person that has the nationality of a Member State of the European Union or of a signatory Andean Country according to their respective domestic legislation (23);
- "services" includes any service in any sector, except services supplied in the exercise of governmental authority;
- "services supplied in the exercise of governmental authority" means any service which is supplied neither on a commercial basis, nor in competition with one or more service suppliers;
- "service supplier of a Party" means any natural or juridical person of a Party that seeks to supply or supplies a service;
- "supply of a service" includes the production, distribution, marketing, sale and delivery of a service.