(a) all licensing criteria and the period of time normally required to reach a decision concerning an application for a licence; and
(b) the terms and conditions of individual licences.
3. Where a Party denies granting an individual licence, that Party shall, upon request, inform the applicant of the reasons for the denial. Each Party shall establish or maintain an appeal or review procedure, as appropriate, before an independent body (48). Such procedures shall be transparent, non-discriminatory, and based on objective criteria.
Article 138. Independence of Regulatory Bodies
Regulatory bodies shall be legally separate from, and not accountable to, any supplier of postal and courier services. The decisions of regulatory bodies, as well as the procedures applied by them, shall be impartial with respect to all market participants.
Section 4. Telecommunications Services
Article 139. Scope of Application
This Section sets out the principles of the regulatory framework for telecommunications services, other than broadcasting (49), committed pursuant to Chapters 2 (Establishment), 3 (Cross-Border Supply of Services) and 4 (Temporary Presence of Natural Persons for Business Purposes) (50) (51) (52).
Article 140. Definitions
For the purposes of this Section:
- "essential telecommunications facilities" means facilities of a public telecommunications transport network and service (53) that:
(a) are exclusively or predominantly provided by a single or limited number of suppliers; and
(b) cannot feasibly be economically or technically substituted in order to provide a service;
- "interconnection" means linking with suppliers providing public telecommunications transport networks or services (54) in order to allow the users of one supplier to communicate with users of another supplier and to access services provided by another supplier;
- "major supplier" means a supplier in the telecommunications sector which has the ability to materially affect the terms of participation (having regard to price and supply) in the relevant market for telecommunications services as a result of control over essential facilities or the use of its position in the market;
- "regulatory authority" means the body or bodies in the telecommunications sector in charge of the regulation of telecommunications referred to in this Section; and
- "telecommunications services" means all services consisting of the transmission and reception of electro-magnetic signals and does not cover the economic activity consisting of the provision of content which requires telecommunications for its transport.
Article 141. Competitive Safeguards on Major Suppliers
In accordance with the provisions of Title VIII (Competition), each Party shall introduce or maintain appropriate measures for the purpose of preventing suppliers which, alone or together, are a major supplier from engaging in or continuing anti-competitive practices. These anti-competitive practices shall include, in particular:
(a) engaging in anti-competitive cross-subsidisation, or in margin squeeze (55);
(b) using information obtained from competitors with anti-competitive results; and
(c) not making available to other services suppliers on a timely basis, technical information about essential facilities and commercially relevant information which are necessary for them to provide services.
Article 142. Additional Obligations of Major Suppliers (56)
1. In accordance with the respective domestic legislation and procedures established by each Party, the regulatory authority of each Party shall, where appropriate, impose on major suppliers:
(a) obligations on transparency in relation to interconnection and/or access. Where a major supplier has obligations of non-discrimination as provided for in subparagraph (b), the regulatory authority may require that the major supplier publish a reference offer which is sufficiently unbundled to ensure that suppliers are not required to pay for facilities which are not necessary for the service requested. Such reference offer shall also include a description of the relevant offerings broken down into components according to market needs, and the associated terms and conditions, including prices;
(b) obligations of non-discrimination in relation to interconnection and/or access:
(i) to ensure that major suppliers in its territory apply equivalent conditions in equivalent circumstances to telecommunications services suppliers of another Party providing equivalent services; and
(ii) for services and information to other suppliers under the same conditions and of the same quality as they provide for their own services, or those of their subsidiaries or partners;
(c) obligations relating to cost recovery and price controls, including obligations for cost orientation of prices and obligations concerning the cost accounting systems for the provision of specific types of interconnection and/or access; and (d) obligations to meet reasonable requests by the suppliers of another Party for access to and use of specific network elements and associated facilities, inter alia, in situations where the regulatory authority considers that denial of access or unreasonable terms and conditions having a similar effect would hinder the emergence of a sustainable competitive market at the retail level, or would not be in the end-user's interest.
2. Pursuant to subparagraph 1(d), major suppliers may be required to, inter alia:
(a) grant third parties access to specified network elements and/or facilities;
(b) negotiate in good faith with undertakings requesting access;
(c) provide specified services on a wholesale basis for resale by third parties;
(d) grant access to technical interfaces, protocols or other key technologies, which are indispensable for the interoperability of networks, and that allow, upon request, interconnection at additional points other than the network termination points offered to the majority of users, subject to charges that reflect the cost of construction of necessary additional facilities;
(e) provide co-location or other forms of facility sharing, including duct, building or mast sharing;
(f) provide specified services needed to ensure interoperability of end-to-end services to users, including facilities for intelligent network services or roaming on mobile networks; and
(g) interconnect networks or network facilities.
Article 143. Regulatory Authorities
1. Regulatory authorities for telecommunications services shall be legally distinct and functionally independent from any supplier of telecommunications services.
2. The regulatory authority shall be sufficiently empowered to regulate the sector. The tasks to be undertaken by a regulatory authority shall be made public in an easily accessible and clear form, in particular where those tasks are assigned to more than one body.
3. The decisions of, and the procedures applied by, regulatory authorities shall be transparent and impartial with respect to all market participants.
4. A supplier affected by a decision of a regulatory authority of Colombia shall have the right to an appeal or review procedure, as appropriate, before a body independent of that regulatory authority.
5. A supplier affected by a decision of a regulatory authority of Peru or of the EU Party shall have the right to appeal such decision before an appeal body independent of the parties involved and which can be either judicial or non-judicial in character.
6. Where an appeal body of a Party is not judicial in character, written reasons for its decision shall always be provided and its decisions shall also be subject to review by an impartial and independent judicial authority. Decisions adopted by review or appeal bodies of a Party, as appropriate, shall be effectively enforced.
Article 144. Authorisation to Provide Telecommunications Services
1. The Parties shall endeavour to apply simplified procedures in authorising the provision of telecommunications services.
2. In accordance with the domestic legislation of each Party, an authorisation (57) may be required to address issues of attributions of numbers and frequencies. The terms and conditions for such authorisation shall be made publicly available.
3. Where an authorisation is required:
(a) all authorisation criteria and a reasonable period of time normally required to reach a decision concerning that application for an authorisation shall be made publicly available;
(b) the reasons for the denial of an authorisation shall be communicated in writing to the applicant upon request;
(c) in case that an authorisation is unduly denied, the applicant shall be able to seek review of and/or appeal against the decision in accordance with the domestic legislation of the respective Party;
(d) fees required by any Party for granting an authorisation shall not exceed the administrative costs normally incurred in the management, control and enforcement of the applicable authorisation (58).
Article 145. Interconnection
1. Each Party shall ensure that any supplier authorised to provide telecommunications services in its territory has the right to negotiate interconnection with other providers of publicly available telecommunications networks and services. Interconnection should, in principle, be agreed on the basis of a commercial negotiation between the suppliers concerned.
2. Regulatory authorities of each Party shall require that suppliers that acquire information from another supplier during the process of negotiating interconnection arrangements use that information solely for the purpose for which it was supplied and respect at all times the confidentiality of information transmitted or stored.
3. Interconnection with a major supplier shall be ensured at any technically feasible point in the network. Such interconnection shall be provided:
(a) under non-discriminatory terms, conditions (including technical standards and specifications) and rates, and with a quality no less favourable than that provided for its own like services or for like services of non-affiliated service suppliers or for its subsidiaries or other affiliates;
(b) in a timely fashion, on terms, conditions (including technical standards and specifications) and cost-oriented rates that are transparent, reasonable, which have regard to economic feasibility, and which are 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.
4. Each Party shall ensure that the procedures applicable for interconnection to a major supplier are made publicly available.
5. Each Party shall require that major suppliers make publicly available either their interconnection agreements or their reference interconnection offers.
6. Each Party shall ensure that a service supplier requesting interconnection with a major supplier has recourse, either at any time or after a reasonable period of time which has been made publicly known, to an independent domestic body, which may be a regulatory authority as referred to in Article 143, to resolve disputes regarding appropriate terms, conditions and rates for interconnection within a reasonable period of time.
Article 146. Scarce Resources
Each Party shall ensure that any procedure for the allocation and use of scarce resources, including frequencies, numbers and rights-of-way, are carried out in an objective, timely, transparent and non-discriminatory manner. The current state of allocated frequency bands shall be made publicly available, but detailed identification of frequencies allocated for specific government uses shall not be required.
Article 147. Universal Service
1. Each Party has the right to define the kind of universal service obligations it wishes to adopt or maintain.
2. The obligations referred to in paragraph 1 shall not be regarded as anti-competitive per se, provided that such obligations are administered in a transparent, objective and non-discriminatory manner. The administration of such obligations shall also be neutral with respect to competition and shall not be more burdensome than necessary for the kind of universal service defined by each Party.
3. All suppliers should be eligible to ensure universal service and no supplier shall be a priori excluded. The designation shall be made through an efficient, transparent and non-discriminatory mechanism, in accordance with the domestic legislation of each Party.
Article 148. Telephone Directories
Each Party shall ensure that:
(a) directories of all fixed telephone subscribers are available to users in a form approved by the national regulatory authority, whether printed or electronic, or both, and are updated on a regular basis, and at least once a year; and
(b) organisations that provide the services referred to in subparagraph (a) apply the principle of non-discrimination to the treatment of information that has been provided to them by other organisations.
Article 149. Confidentiality of Information
Each Party shall ensure the confidentiality of telecommunications and related traffic data by means of a publicly available telecommunications networks and services without restricting trade in services.
Article 150. Disputes between Suppliers
1. In the event of a dispute arising between suppliers of telecommunications networks or services in connection with rights and obligations set out in this Section, the regulatory authority of the Party concerned shall, at the request of a party to the dispute, issue a binding decision to resolve the dispute within the shortest possible timeframe.
2. When such a dispute relates to cross-border supply of services, the regulatory authorities of the Parties concerned shall coordinate their efforts in order to achieve a resolution of the dispute.
Section 5. Financial Services
Article 151. Scope of Application
This Section establishes the principles of the regulatory framework for all financial services committed pursuant to Chapters 2 (Establishment), 3 (Cross-Border Supply of Services) and 4 (Temporary Presence of Natural Persons for Business Purposes) of this Title. This Section applies to measures affecting the supply of financial services (59).
Article 152. Definitions
For the purposes of this Chapter and of Chapters 2 (Establishment), 3 (Cross-Border Supply of Services) and 4 (Temporary Presence of Natural Persons for Business Purposes) of this Title:
- "financial service" means any service of a financial nature offered by a financial service supplier of a Party. Financial services include all insurance and insurance-related services, and all banking and other financial services (excluding insurance). Financial services include the following activities:
(a) insurance and insurance-related services:
(i) direct insurance (including co-insurance):
(A) life;
(B) non-life;
(ii) reinsurance and retrocession;
(iii) insurance inter-mediation, such as brokerage and agency; and
(iv) services auxiliary to insurance, such as consultancy, actuarial, risk assessment and claim settlement services;
(b) banking and other financial services (excluding insurance):
(i) acceptance of deposits and other repayable funds from the public;
(ii) lending of all types, including consumer credit, mortgage credit, factoring and financing of commercial transactions;
(iii) financial leasing;
(iv) all payment and money transmission services, including credit, charge and debit cards, travellers cheques and bankers drafts;
(v) guarantees and commitments;
(vi) trading, for own account or for account of customers, whether on an exchange, in an over-the-counter market or otherwise, the following:
(A) money market instruments (including cheques, bills, certificates of deposits);
(B) foreign exchange;
(C) derivative products including, but not limited to, futures and options;
(D) exchange rate and interest rate instruments, including products such as swaps, forward rate agreements;
(E) transferable securities; and
(F) other negotiable instruments and financial assets, including bullion;
(vii) participation in issues of all kinds of securities, including underwriting and placement as agent (whether publicly or privately) and provision of services related to such issues;
(viii) money broking;
(ix) asset management, such as cash or portfolio management, all forms of collective investment management, pension fund management, custodial, depository and trust services;
(x) settlement and clearing services for financial assets, including securities, derivative products, and other negotiable instruments;
(xi) provision and transfer of financial information, and financial data processing and related software; and
(xii) advisory, intermediation and other auxiliary financial services on all the activities listed in subparagraphs (i) through (xi) above, including credit reference and analysis, investment and portfolio research and advice, and advice on acquisitions and on corporate restructuring and strategy;
- "financial service supplier" means any natural or juridical person of a Party that seeks to supply or supplies financial services. The term "financial service supplier" does not include a public entity;
- "new financial service" means a service of a financial nature, including services related to existing and new products or the manner in which a product is delivered, that is not supplied by any financial service supplier in the territory of a Party but which is supplied in the territory of another Party;
- "public entity" means:
(a) a government, a central bank or a monetary authority, of a Party, or an entity owned or controlled by a Party, that is principally engaged in carrying out governmental functions or activities for governmental purposes, not including an entity principally engaged in supplying financial services on commercial terms; or
(b) a private entity, performing functions normally performed by a central bank or monetary authority, when exercising those functions;
- "self-regulatory organisation" means any non-governmental body, including any securities or futures exchange or market, clearing agency or other organisation or association that exercises its own or delegated regulatory or supervisory authority over financial service suppliers; for greater certainty, a self-regulatory organisation shall not be considered a designated monopoly for purposes of Title VIII (Competition);
- "services supplied in the exercise of governmental authority" for the purposes of Article 108, also includes:
(a) activities conducted by a central bank or a monetary authority or by any other public entity in pursuit of monetary or exchange rate policies;
(b) activities forming part of a statutory system of social security or public retirement plans; and
(c) other activities conducted by a public entity for the account or with the guarantee or using the financial resources of the Government;
for purposes of the definition of "services supplied in the exercise of governmental authority" in Article 108, if a Party allows any of the activities referred to in subparagraphs (b) or (c) above to be conducted by its financial service suppliers in competition with a public entity or a financial service supplier, the definition of "services" as established in Article 108 shall include such activities.
Article 153. Clearing and Payment Systems
1. Under terms and conditions that accord national treatment, each Party shall grant to financial service suppliers of another Party established in its territory access to payment and clearing systems operated by public entities and to official funding and refinancing facilities available in the normal course of ordinary business. This paragraph is not intended to confer access to lender of last resort facilities of a Party.
2. Where a Party:
(a) requires, as a condition for financial service suppliers of another Party to supply financial services on an equal basis with domestic financial service suppliers, membership or participation in, or access to, any self-regulatory body, securities or futures exchange or market, clearing agency, or any other organisation or association; or
(b) provides, directly or indirectly, such entities privileges or advantages in supplying financial services; such Party shall ensure that such entities accord national treatment to financial service suppliers of another Party resident in its territory.
Article 154. Prudential Carve-out
1. Notwithstanding other provisions of this Title or Title V (Current Payments and Movements of Capital), a Party may adopt or maintain for prudential reasons (60), measures such as:
(a) the protection of investors, depositors, policy-holders or persons to whom a fiduciary duty is owed by a financial service supplier;
(b) ensuring the integrity and stability of its financial system.
2. Measures referred to in paragraph 1 shall not be more burdensome than necessary to achieve their aim, and shall not discriminate against financial services or financial service suppliers of another Party in comparison to its own like financial services or like financial service suppliers.
3. Nothing in this Agreement shall be construed to require a Party to disclose information relating to the affairs and accounts of individual customers or any confidential or proprietary information in the possession of public entities.
4. Without prejudice to other means of prudential regulation of the cross-border supply of financial services, a Party may require the registration or authorisation of cross-border suppliers of financial services of another Party and of financial instruments.
Article 155. Effective and Transparent Regulation
1. Each Party shall make its best endeavours to provide in advance to all interested persons any measure of general application that that Party intends to adopt in order to give an opportunity for such persons to comment on the measure. Such measure shall be provided:
(a) by means of an official publication; or
(b) in other written or electronic form.