Article 37. General Provisions
1. The Parties reaffirm their rights and obligations under the Anti-dumping Agreement, the Subsidies Agreement and WTO Agreement on Rules of Origin (hereinafter referred to as the "Rules of Origin Agreement").
2. In the case of the application of an anti-dumping duty or countervailing measure, or the acceptance of a price undertaking, by the Andean Community authority on behalf of two or more member Countries of the Andean Community, the competent Andean Community judicial body shall be the single forum for judicial review.
3. The Parties shall ensure that anti-dumping measures are not applied simultaneously in relation to the same product by regional authorities and national authorities. The same rule shall apply for countervailing measures.
Article 38. Transparency
1. The Parties agree that trade remedies should be used in full compliance with the relevant WTO requirements and should be based on a transparent system.
2. Recognising the benefits of legal certainty and predictability for economic operators, each Party shall ensure that its domestic legislation regarding trade remedies is fully consistent with the relevant WTO rules.
3. Without prejudice to Article 6.5 of the Anti-dumping Agreement and Article 12.4 of the Subsidies Agreement, each Party shall ensure, as soon as possible in accordance with its domestic legislation after the imposition of provisional measures, and in any event, prior to any final determination, full and meaningful disclosure of the essential facts under consideration which constitute the basis for the decision as to whether or not to apply measures. The disclosure of such information shall be made in writing and allow interested parties sufficient time to make comments.
4. Provided it does not unnecessarily delay the conduct of the investigation, upon request of any interested party, the investigating authority shall provide the possibility to be heard, in order to express their views during trade remedies investigations.
Article 39. Consideration of Public Interest
In accordance with their domestic law, the EU Party and Colombia shall provide the opportunity for industrial users and importers of the product under investigation, as well as for representative consumer organisations, as appropriate, to provide information which is relevant to the investigation. Such information shall be taken into account by the investigating authority, to the extent that it is relevant, duly supported by evidence and filed within the time limits specified in the domestic law.
Article 40. Lesser Duty Rule
Notwithstanding their rights under the Anti-dumping Agreement and the Subsidies Agreement as regards the application of anti-dumping and countervailing duties, the EU Party and Colombia consider it desirable that the duty applied be less than the corresponding margin of dumping or subsidy, as appropriate, if the lesser duty would be adequate to remove the injury to the domestic industry.
Article 41. Investigating Authorities
For the purposes of this Section, "investigating authority" means:
(a) with respect to Colombia, the Ministry of Trade, Industry and Tourism, or its successor;
(b) with respect to Peru, the National Institute for the Defense of Competition and Protection of Intellectual Property, or its successor;
(c) with respect to Ecuador, the Ministry of Foreign Trade, or its successor; and
(d) with respect to the EU Party, the European Commission
Article 42. Exclusion from the Dispute Settlement Mechanism
Title XII (Dispute Settlement) does not apply to this Section.
Section 2. Multilateral Safeguard Measures
Article 43. General Provisions
Each Party retains its rights and obligations under Article XIX of GATT 1994, the Safeguards Agreement, and the Rules of Origin Agreement.
Article 44. Transparency
Notwithstanding Article 43, upon request of another Party, a Party initiating an investigation or intending to adopt safeguard measures shall provide immediately ad hoc written notification of all pertinent information, including where relevant, regarding the initiation of a safeguard investigation, the preliminary determination and the final determination of the investigation.
Article 45. Non-simultaneous Application of Safeguard Measures
No Party may apply simultaneously, with respect to the same product:
(a) a bilateral safeguard measure in accordance with Section 3 (Bilateral Safeguard Clause) of this Chapter; and
(b) a measure under Article XIX of GATT 1994 and the Safeguards Agreement.
Article 46. Investigating Authority
For the purposes of this Section, "investigating authority" means:
(a) with respect to Colombia, the Ministry of Trade, Industry and Tourism, or its successor;
(b) with respect to Peru, the National Institute for the Defense of Competition and Protection of Intellectual Property;
(c) with respect to Ecuador, the Ministry of Foreign Trade, or its successor; and
(d) with respect to the EU Party, the European Commission.
Article 47. Exclusion from Dispute Settlement Mechanism
Except for Article 45, Title XII (Dispute Settlement) shall not apply to this Section.
Section 3. Bilateral Safeguard Clause
Article 48. Application of a Bilateral Safeguard Measure
1. Notwithstanding Section 2 (Multilateral Safeguard Measures), if as a result of concessions under this Agreement, a product originating in a Party is being imported into the territory of another Party in such increased quantities, in absolute terms or relative to domestic production, and under such conditions as to cause or threaten to cause serious injury to domestic producers (12) of like or directly competitive products, the importing Party may adopt appropriate measures under the conditions and in accordance with the procedures laid down in this Section.
2. A Party may only apply bilateral safeguard measures during the transitional period (13).
Article 49. Notification and Consultations
1. A Party shall immediately notify the exporting Party concerned upon the initiation of an investigation and the application of provisional and definitive measures.
2. When a Party considers that the circumstances established in Article 48 exist for the application or extension of a definitive measure, it shall provide adequate opportunities to conduct consultations with the affected Party, in accordance with the legislation of each Party, with a view to examining the available information, exchanging opinions on the application or extension of a measure and achieving a mutually satisfactory solution.
3. The consultations referred to in paragraph 2 shall begin within 15 days following the date of receipt by the affected Party of the invitation to consult from the investigating authority.
4. If no satisfactory solution has been reached within 45 days following the date of receipt by the affected Party of the invitation to consult, the importing Party may adopt the measures to remedy the circumstances in accordance with this Section.
5. A Party may apply a bilateral safeguard measure on a provisional basis, without prior consultations.
Article 50. Type of Measures
Any bilateral safeguard measure applied by an importing Party under Article 48 may consist of one or more of the following measures:
(a) a suspension of the further reduction of the customs duty on the product concerned provided for in the schedule of such Party under Annex I (Tariff Elimination Schedules), or
(b) an increase in the customs duty on the product concerned to a level which does not exceed the most-favoured-nation applied customs duty on the product in effect at the time the measure is taken or the base rate as specified in the schedule of such Party under Annex I (Tariff Elimination Schedules), whichever is lower.
Article 51. Investigation Procedure
1. A Party shall only apply a bilateral safeguard measure following an investigation by the competent authorities of that Party in accordance with Article 3 of the Agreement on Safeguards, and to this end, that Article is incorporated into and made an integral part of this Agreement, mutatis mutandis.
2. Any investigation by a Party pursuant to paragraph 1 shall comply with the requirements of Article 4.2(a) and 4.2(c) of the Agreement on Safeguards, and to this end, Article 4.2(a) and 4.2(c) of the Agreement on Safeguards is incorporated into and made an integral part of this Agreement, mutatis mutandis.
3. In addition to paragraph 2, the investigating Party shall demonstrate on the basis of objective evidence the existence of a causal link between the increase of the imports of the product of the exporting Party and serious injury or threat thereof.
4. Each Party shall ensure that its competent authorities complete any such investigation within the time limits established in its domestic legislation, which shall not exceed 12 months from the date of its initiation.
Article 52. Conditions and Duration of a Measure
1. No Party may apply a bilateral safeguard measure:
(a) except to the extent, and for such period of time, as may be necessary to prevent or remedy serious injury pursuant to Article 48;
(b) for a period exceeding two years; this period may exceptionally be extended by another two years if:
(i) the competent authorities of the importing Party determine, in conformity with the relevant procedures of Article 51, that the measure continues to be necessary to prevent or remedy serious injury pursuant to Article 48; and
(ii) there is evidence that the domestic industry is adjusting; the total period of application of a safeguard measure, including the period of initial application and any extension thereof, shall not exceed four years.
2. When a Party terminates a bilateral safeguard measure, the rate of customs duty shall be the rate that, according to the Annex I (Tariff Elimination Schedules) of that Party, would have been in effect without the measure.
Article 53. Provisional Measures
1. In critical circumstances where delay would cause damage that would be difficult to repair, a Party may apply a bilateral safeguard measure on a provisional basis, pursuant to a preliminary determination that there is clear evidence that imports of a product originating in the exporting Party have increased as a result of the reduction or elimination of duties under Annex I (Tariff Elimination Schedules), and such imports cause or threaten to cause serious injury pursuant to Article 48.
2. The duration of any provisional measure shall not exceed 200 days, during which period the Party shall comply with the requirements of Articles 49 and 51, paragraphs 1, 2 and 3.
3. The Party shall promptly refund any increase in customs duties applied pursuant to paragraph 1 if the investigation does not determine that the requirements of Article 48 are met. The duration of any provisional measure shall be counted as part of the period described in Article 52, subparagraph 1 (b).
Article 54. Compensation
1. A Party seeking to extend a bilateral safeguard measure shall consult with the Party whose products are subject to the measure in order to mutually agree on appropriate compensation in the form of concessions having substantially equivalent trade effect. The importing Party shall provide an opportunity for such consultations no later than 30 days before the extension of the bilateral safeguard measure.
2. If consultations under paragraph 1 do not result in an agreement on compensation within 30 days of the offer to consult, and the importing Party decides to extend the safeguard measure, the Party whose products are subject to the safeguard measure may suspend the application of substantially equivalent concessions to the trade of the Party extending the measure. (14)
Article 55. Re-application of a Measure
No safeguard measure referred to in this Section shall be applied to the import of a product that has previously been subject to such a measure, except for one time for a period of time equal to half of that during which such measure had been previously applied, provided that the period of non-application is at least one year.
Article 56. Outermost Regions of the European Union (15)
1. When a product originating in the signatory Andean Countries is being introduced into the territory of the outermost regions of the European Union (hereinafter referred to as the "EU outermost regions") in such increased quantities and under such conditions as to cause or threaten to cause serious deterioration in the economic situation of the EU outermost regions, the EU Party, after having examined alternative solutions, may exceptionally take safeguard measures limited to the territory of the region(s) concerned.
2. The safeguard measures for EU outermost regions shall apply in accordance with the provisions of this Chapter.
Article 57. Competent Authority
For the purpose of this Section, competent authority means:
(a) for Colombia, the Ministry of Trade, Industry and Tourism, or its successor;
(b) for Peru, the Ministry of Foreign Trade and Tourism, or its successor;
(c) for Ecuador, the Ministry of Foreign Trade, or its successor; and
(d) for the EU Party, the European Commission.
Chapter 3. Customs and Trade Facilitation
Article 58. Objectives
1. The Parties acknowledge the importance of customs and trade facilitation matters in the evolving global trading environment. The Parties agree to reinforce cooperation in this area with a view to ensuring that the relevant legislation and procedures of each Party, as well as the administrative capacity of their respective administrations, fulfil the objectives of effective control and promotion of trade facilitation.
2. The Parties recognise that legitimate public policy objectives, including those related to security, fraud prevention, and fight against fraud, shall not be compromised in any way.
Article 59. Customs and Trade-related Procedures
1. Each Party shall establish efficient, transparent and simplified procedures in order to reduce costs and to ensure predictability for importers and exporters.
2. The Parties agree that their respective trade and customs legislation, provisions and procedures shall be based upon:
(a) international instruments and standards applicable in the area of customs and trade, including the substantive elements of the Revised Kyoto Convention on the Simplification and Harmonisation of Customs Procedures (hereinafter referred as "Revised Kyoto Convention"), the International Convention on the Harmonized Commodity Description and Coding System (hereinafter referred as "HS Convention"), the Framework of Standards to Secure and Facilitate Global Trade of the World Customs Organisation (hereinafter referred as "WCO SAFE") and the Customs Data Model of the WCO (hereinafter referred as "Data Model");
(b) the protection and facilitation of trade through effective enforcement of and compliance with the legal requirements;
(c) requirements for economic operators that are reasonable, non-discriminatory and prevent fraud;
(d) the use of a single administrative document or its electronic equivalent, for the purposes of filing customs declarations at import and export;
(e) the application of modern customs techniques, including risk assessment, simplified procedures for entry and release of goods, post release controls, and company audit methods;
(f) the progressive development of systems, including those based upon information technology, to facilitate the electronic exchange of data between economic operators, customs administrations and other related agencies. To this end, and to the extent possible, each Party shall progressively work towards the establishment of a single window in order to facilitate external trade operations;
(g) rules that ensure that any penalty imposed for breaches of customs regulations or procedural requirements is proportionate and non-discriminatory, and the application of which shall not unduly delay the release of goods;
(h) fees and charges that are reasonable and do not exceed the cost of the service provided in relation to a specific transaction, and are not calculated upon an ad valorem basis. Fees and charges shall not be imposed for consular services;
(i) the elimination of any requirement for the mandatory use of pre-shipment inspections or their equivalent; and
(j) the need to ensure that all competent administrative entities that intervene in the control and physical inspection of goods subject to importation or exportation perform their activities, whenever possible, in a simultaneous manner and in a single place.
3. In order to improve working methods, as well as to ensure non-discrimination, transparency, efficiency, integrity and accountability of operations, each Party shall:
(a) take further actions with a view to reducing, simplifying and standardising data and documentation required by customs and other agencies;
(b) simplify requirements and formalities wherever possible, in respect of the prompt clearance and release of goods, allowing importers to carry out customs release without the payment of customs duties, subject to the constitution of a guarantee, according to domestic legislation, in order to ensure the final payment of customs duties, fees and charges;
(c) provide effective, prompt, non-discriminatory and easily accessible procedures to guarantee the right to appeal customs administrative rulings and decisions affecting imports, exports or goods in transit. Procedures shall be easily accessible, including to Micro and SMEs; and
(d) ensure that the highest standards of integrity are maintained, through the application of measures reflecting the principles of the relevant international conventions and instruments in this area.
Article 60. Advance Rulings
1. Upon written request and prior to the importation of goods into its territory, each Party shall issue, through its competent authorities written advance rulings, in accordance with its domestic laws and regulations, on tariff classification, origin, or any other related matters as the Parties may agree.
2. Subject to any confidentiality requirements in its law, each Party shall publish, to the extent possible through electronic means, its advance rulings on tariff classification and any other related matters as the Parties may agree.
3. To facilitate trade, the Parties shall include in their bilateral dialogue regular updates on changes in their respective legislation on the matters referred to in paragraphs 1 and 2.
4. All procedural issues for the issuance of advance rulings will be determined by the domestic legislation of each Party, in accordance with WCO International Standards. These procedures shall be published and publicly available.
Article 61. Risk Management
1. Each Party shall use risk management systems in order to enable its customs authorities to focus their inspection activities on high risk operations and to speed up the release of low risk goods.
2. The importing Party shall note the efforts carried out by the exporting Party in relation to the security of the trade supply chain.
3. The Parties shall work towards exchanging information on risk management techniques applied by their respective customs authorities, respecting the confidentiality of the information and, whenever necessary, transfer knowledge.
Article 62. Authorised Economic Operator
The Parties shall promote the implementation of the Authorised Economic Operator (hereinafter referred to as "AEO") concept according to the WCO SAFE. A Party shall grant AEO security status and trade facilitation benefits to operators meeting its customs security standards, in accordance with its domestic legislation.
Article 63. Transit
1. The Parties shall ensure freedom of transit through their territory via the route most convenient for transit.
2. Any restrictions, controls or requirements must pursue a legitimate public policy objective, be non-discriminatory, proportionate and uniformly applied.
3. Without prejudice to legitimate customs control and supervision of goods in transit, the Parties shall accord to traffic in transit to or from the territory of any Party, treatment no less favourable than that accorded to traffic in transit through its territory.
4. The Parties shall operate under bonded transport regimes that allow the transit of goods without payment of customs duties or other charges subject to the provision of an appropriate guarantee.
5. The Parties shall promote regional transit arrangements with a view to reducing trade barriers.
6. The Parties shall draw upon and use international standards and instruments relevant to transit.
7. The Parties shall ensure cooperation and co-ordination between all concerned authorities and agencies in their territory to facilitate traffic in transit and promote cooperation across borders.
Article 64. Relations with the Business Community
The Parties agree:
(a) to ensure that all customs related legislation and procedures as well as customs duties, fees and charges are made publicly available, to the extent possible through electronic means, together with, when appropriate, the necessary explanations;
(b) that there shall be, to the extent possible, a reasonable period of time between the publication of new or amended customs related legislation and procedures, as well as customs duties, fees or charges and their entry into force;
(c) to offer the business community opportunities to make comments on customs related legislative proposals and procedures. To this end, each Party shall establish consultation mechanisms between its administration and the business community;
(d) to make publicly available relevant notices of an administrative nature, including agency requirements and entry procedures, hours of operation and operating procedures for customs offices at ports and border crossing points, and points of contact for information enquiries;
(e) to foster cooperation between operators and relevant trade-related authorities via the use of non-arbitrary and publicly accessible procedures, in order to fight against fraud and illegal activities, to enhance the security of the supply chain and to facilitate trade; and
(f) to ensure that their respective customs and related requirements and procedures continue to meet the needs of the trading community, following best practices, and remain the least trade-restrictive possible.
Article 65. Customs Valuation
The Agreement on the Implementation of Article VII of the GATT 1994 (hereinafter referred to "Customs Valuation Agreement") shall govern customs valuation rules applied to reciprocal trade between the Parties.
Article 66. Customs Cooperation
1. The Parties shall promote and facilitate cooperation between their respective customs administrations in order to ensure that the objectives set out in this Chapter are met, particularly to guarantee the simplification of customs procedures and the facilitation of legitimate trade while retaining their control capabilities.
2. The cooperation pursuant to paragraph 1 shall include, among others:
(a) exchanges of information concerning customs legislation, procedures and techniques in the following areas:
(i) simplification and modernisation of customs procedures; and
(ii) relations with the business community;
(b) the development of joint initiatives in mutually agreed areas; and
(c) the promotion of coordination among related agencies.
3. Cooperation in the area of customs enforcement of intellectual property rights by customs authorities shall be carried out in accordance with Title VII (Intellectual Property).
Article 67. Mutual Assistance
The administrations of the Parties shall provide mutual administrative assistance in customs matters in accordance with the provisions of Annex V (Mutual Administrative Assistance in Customs Matters).
Article 68. Sub-committee on Customs, Trade Facilitation and Rules of Origin
1. The Parties establish a Sub-committee on Customs, Trade Facilitation and Rules of Origin, comprising representatives of each Party. The Sub-committee shall meet on a date and with an agenda agreed in advance by the Parties and shall be chaired for a period of one year by each Party on a rotational basis. The Sub-committee shall report to the Trade Committee.