The Parties recognise that the services of intermediaries may be used by third parties for infringing activities. To ensure the free movement of information services and, at the same time, to enforce copyright and related rights in the digital environment, each Party shall provide for the measures set out in this Section for intermediary service providers where they are in no way involved with the information transmitted.
Article 251. Liability of Intermediary Service Providers: "mere Conduit"
1. Where the service that is provided consists of the transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network, each Party shall ensure that the service provider is not liable for the information transmitted, on condition that such provider does not:
(a) initiate the transmission;
(b) select the receiver of the transmission; and
(c) select or modify the information contained in the transmission.
2. The acts of transmission and provision of access referred to in paragraph 1 include the automatic, intermediate and transient storage of the information transmitted in so far as this takes place for the sole purpose of carrying out the transmission in the communication network, and provided that the information is not stored for a period longer than is reasonably necessary for the transmission.
3. This Section shall not affect the possibility for a court or administrative authority, in accordance with the legal system of each Party, of requiring the service provider to terminate or prevent an infringement.
Article 252. Liability of Intermediary Service Providers: "caching"
1. Where the service that is provided consists of the transmission in a communication network of information provided by a recipient of the service, each Party shall ensure that the service provider is not liable for the automatic, intermediate and temporary storage of that information, performed for the sole purpose of making more efficient the onward transmission of the information to other recipients of the service upon their request, on condition that such provider:
(a) does not modify the information;
(b) complies with conditions on access to the information;
(c) complies with rules regarding the updating of the information, specified in a manner widely recognised and used by industry;
(d) does not interfere with the lawful use of technology, widely recognised and used by industry, to obtain data on the use of the information; and
(e) acts expeditiously to remove or to disable access to the information it has stored upon obtaining actual knowledge of the fact that the information at the initial source of the transmission has been removed from the network, or access to it has been disabled, or that a court or an administrative authority has ordered such removal or disablement.
2. This Section shall not affect the possibility for a court or administrative authority, in accordance with the legal systems of each Party, of requiring the service provider to terminate or prevent an infringement.
Article 253. Liability of Intermediary Service Providers: "hosting"
1. Where the service that is provided consists of the storage of information provided by a recipient of the service, each Party shall ensure that the service provider is not liable for the information stored upon request of a recipient of the service, on condition that such provider:
(a) does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or
(b) acts expeditiously to remove or to disable access to the information, upon obtaining such knowledge or awareness.
2. Paragraph 1 shall not apply when the recipient of the service is acting under the authority or the control of the provider.
3. This Section shall not affect the possibility for a court or administrative authority, in accordance with the legal system of each Party, of requiring the service provider to terminate or prevent an infringement, nor does it affect the possibility for a Party to establish procedures governing the removal or disabling of access to information.
Article 254. No General Obligation to Monitor
1. A Party shall not impose a general obligation on service providers, when providing the services covered by Articles 251, 252 and 253, to monitor the information which they transmit or store, nor a general obligation to actively seek for facts or circumstances indicating illegal activities.
2. The Parties may establish obligations for service providers to promptly inform the competent public authorities of alleged illegal activities undertaken or of information provided by recipients of their service, or obligations to communicate to the competent authorities, upon request of such authorities, information enabling the identification of recipients of their service with whom they have storage agreements.
Chapter 5. Transfer of Technology
Article 255.
1. The Parties agree to exchange experiences and information on their domestic and international practices and policies affecting transfer of technology (86). Such exchange shall include, in particular, measures to facilitate information flows, business partnerships, licensing and subcontracting deals on a voluntary basis. Particular attention shall be paid to the conditions necessary to create an adequate enabling environment for the promotion of lasting relations between the scientific communities of the Parties, the intensification of activities to promote linkage, innovation and technology transfer between the Parties, including issues such as the relevant legal framework and development of human capital.
2. The Parties shall facilitate and encourage research, innovation, technological development activities, transfer and diffusion of technology between them, aimed at, among others, enterprises, governmental entities, universities, research and technological centres. The Parties will promote capacity building, exchange and training of personnel in this area to the extent of their possibilities.
3. The Parties shall encourage mechanisms for the participation of entities and experts of their respective systems of science, technology and innovation, in projects and joint research, development and innovation networks, with the purpose of strengthening their capacities in science, technology and innovation. Those mechanisms may include:
(a) joint research, innovation and technological development activities as well as educational projects;
(b) visits and exchanges of scientists, researchers, trainees, and technical experts;
(c) joint organisation of scientific seminars, conferences, symposia and workshops, as well as the participation of experts in those activities;
(d) joint research, development, and innovation networks;
(e) exchange and sharing of equipment and materials;
(f) promotion of the evaluation of joint work, and the dissemination of results; and
(g) any other activity agreed upon by the Parties.
4. The Parties should consider establishing mechanisms for the exchange of information about research, development and innovation projects financed from public resources.
5. The EU Party shall facilitate and promote the use of incentives granted to institutions and enterprises in its territory for the transfer of technology to institutions and enterprises from the signatory Andean Countries in order to enable them to establish a viable technological base.
6. Each Party shall make its best efforts to evaluate the possibilities to facilitate the entry and exit from its territory of data and equipment related to or used in research, innovation and technological development activities by the Parties under the provisions of this Article, pursuant to the legislative and regulatory provisions applicable in the territory of each Party, including the regimes regarding export control of dual use products and its related legislation.
Chapter 6. Cooperation
Article 256.
1. The Parties agree to cooperate with a view to supporting implementation of the commitments and obligations undertaken under this Title.
2. Subject to the provisions of Title XIII (Technical Assistance and Trade Capacity-Building), areas of cooperation include, but are not limited to, the following activities:
(a) exchange of information on the legal framework concerning intellectual property rights and relevant rules of protection and enforcement, as well as exchange of experiences between the EU Party and each signatory Andean Country on legislative progress;
(b) exchange of experiences between the EU Party and each signatory Andean Country on enforcement of intellectual property rights;
(c) capacity-building and exchange and training of personnel;
(d) promotion and dissemination of information on intellectual property rights in, inter alia, business circles and civil society as well as public awareness of consumers and right holders;
(e) enhancement of institutional cooperation, for example between intellectual property offices; and
(f) actively promoting awareness and education of the general public in intellectual property rights policies.
Article 257. Sub-committee on Intellectual Property
1. The Parties hereby establish a Sub-committee on Intellectual Property to follow up on the implementation of the provisions of this Title. The Sub-committee will meet at least once a year, except if the Parties agree otherwise. These meetings may be carried out through any agreed means.
2. The Sub-committee on Intellectual Property will adopt its decisions by consensus. This Sub-committee may adopt its rules of procedure. The Sub-committee on Intellectual Property will be responsible for assessing the information referred to in Article 209 and for proposing to the Trade Committee the modification of Appendix 1 of Annex XIII (Lists of Geographical Indications) as regards to geographical indications.
Title VIII. Competition
Article 258. Definitions
1. For the purposes of this Title:
- "competition laws" means:
(a) for the EU Party, Articles 101, 102 and 106 of the Treaty on the Functioning of the European Union, Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation), and their implementing regulations and amendments;
(b) for Colombia, Ecuador and Peru, the following, as appropriate:
(i) domestic laws related to competition (87) adopted or maintained in compliance with Article 260, and their implementing regulations and amendments; and/or
(ii) Andean Community legislation applying in Colombia or Peru and its implementing regulations and amendments;
- "competition authority" and "competition authorities" mean:
(a) for the EU Party, the European Commission; and,
(b) for Colombia, Ecuador and Peru, their respective national competition authorities.
2. Nothing in this Article shall affect competences assigned by the Parties to their respective regional and national authorities for the effective and coherent implementation of their respective competition laws.
Article 259. Objectives and Principles
1. Acknowledging the importance of free competition and that anti-competitive practices have the potential of distorting the proper operation of markets, affecting economic and social development, economic efficiency and consumer welfare, and undermining the benefits arising from the implementation of this Agreement, the Parties shall apply their respective competition policies and laws.
2. The Parties agree that the following practices are inconsistent with this Agreement to the extent that such practices may affect trade and investment between the Parties:
(a) any agreement, decision, recommendation or concerted practice, which has the purpose or effect of impeding, restricting, or distorting competition in accordance with their respective competition laws;
(b) the abuse of a dominant position in accordance with their respective competition laws; and
(c) concentrations of companies which significantly impedes effective competition, particularly as a result of the creation or strengthening of a dominant position in accordance with their respective competition laws.
3. The Parties recognise the importance of cooperation and coordination of their respective competition authorities to further effective competition policy and law enforcement, including notifications under Article 262, consultations, exchange of information, technical assistance and promotion of competition.
4. The Parties shall support and promote measures to strengthen competition in their respective jurisdictions in accordance with the objectives of this Agreement.
Article 260. Competition Laws, Authorities and Policies
1. Each Party shall maintain competition laws that address the practices referred to in Article 259 paragraph 2, and adopt appropriate actions with respect to such practices.
2. Each Party shall establish or maintain competition authorities responsible and appropriately equipped for the effective enforcement of their respective competition laws.
3. The Parties recognise the importance of applying their respective competition laws in a transparent, timely and non-discriminatory manner, respecting the principle of due process and the rights of defence.
4. Each Party shall maintain its autonomy to establish, develop and implement their respective competition policies.
Article 261. Cooperation and Exchange of Information
1. The Parties shall make their best efforts to cooperate through their competition authorities in matters related to the implementation of competition laws.
2. The competition authority of a Party may request cooperation from the competition authority of another Party regarding enforcement activities. This cooperation shall not prevent the Parties concerned from taking independent decisions.
3. The competition authorities may exchange information in order to facilitate the effective application of their respective competition laws.
4. Whenever competition authorities exchange information pursuant to this Article, they shall take into account the restrictions imposed by their respective legislation.
5. If a Party considers that an anticompetitive practice as defined in Article 259 paragraph 2 carried out within the territory of another Party has an adverse effect within the territory of both Parties or on trade relations between those Parties, that Party may request that such other Party initiate the enforcement activities established under its legislation. 6. The competition authorities may further strengthen cooperation by appropriate means or instruments in accordance with their interests and capacities.
Article 262. Notification
1. The competition authority of a Party shall notify the competition authority of another Party, administrative resources allowing, with respect to the enforcement activities of competition laws that the notifying competition authority considers may affect important interests (88) of that other Party.
2. The notification pursuant to paragraph 1 shall be made as soon as possible, to the extent that this does not violate the competition law of the Party making the notification or affect any investigation underway.
Article 263. Designated Monopolies and State Enterprises
1. Nothing in this Agreement shall prevent a Party from establishing or maintaining public or private monopolies and state enterprises according to its legislation (89).
2. Each Party shall ensure that state enterprises and designated monopolies are subject to its competition laws in so far as the application of such laws does not obstruct the performance, in law or in fact, of the particular public tasks assigned to them.
3. With regard to state enterprises and designated monopolies, no Party shall adopt or maintain any measure contrary to the provisions of this Title which distorts trade and investment between the Parties.
Article 264. Technical Assistance
1. In order to achieve the objectives set out in this Title, the Parties acknowledge the importance of technical assistance and shall promote initiatives with a view to developing a competition culture.
2. Initiatives pursuant to paragraph 1 shall focus, among others, on strengthening the technical and institutional capacities as regards the implementation of competition policy and enforcement of competition laws, training of human resources and exchange of experiences.
Article 265. Consultations
1. For the purposes of fostering understanding between the Parties or addressing any specific issues arising under this Title, a Party, upon request of another Party, shall accept the initiation of consultations, without prejudice to pursuing any action in accordance with its competition laws and while maintaining its full autonomy as regards the final decision on the issues subject to consultations.
2. The Party requesting consultations pursuant to paragraph 1 shall indicate how the issue affects the proper operation of markets, as well as consumers and trade and investment between the Parties. The requested Party shall accord the fullest consideration to the concerns of the requesting Party.
Article 266. Dispute Settlement
No Party may have recourse to dispute settlement under Title XII (Dispute Settlement) with respect to any issue arising under this Title.
Title IX. Trade and Sustainable Development
Article 267. Context and Objectives
1. Recalling the Rio Declaration on Environment and Development and the Agenda 21 adopted by the United Nations Conference on Environment and Development on 14 June 1992, the Millennium Development Goals adopted in September 2000, the Johannesburg Declaration on Sustainable Development and its Plan of Implementation adopted on 4 September 2002, and the Ministerial Declaration on Attainment of Full, Productive Employment and Decent Work adopted by the United Nations Economic and Social Council in September 2006, the Parties reaffirm their commitment to sustainable development, for the welfare of present and future generations. In this regard, the Parties agree to promote international trade in such a way as to contribute to the objective of sustainable development and to work to integrate and reflect this objective in their trade relationship. In particular, the Parties underline the benefit of considering trade-related labour (90) and environmental issues as part of a global approach to trade and sustainable development.
2. In view of paragraph 1 the objectives of this Title are, among others, to:
(a) promote dialogue and cooperation between the Parties with a view to facilitating the implementation of the provisions of this Title and strengthening the relationship between trade and labour and environmental policies and practices;
(b) strengthen compliance with the labour and environmental legislation of each Party, as well as with the commitments deriving from the international conventions and agreements referred to in Articles 269 and 270, as an important element to enhance the contribution of trade to sustainable development;
(c) strengthen the role of trade and trade policy in the promotion of the conservation and sustainable use of biological diversity and of natural resources, as well as in the reduction of pollution in accordance with the objective of sustainable development;
(d) strengthen the commitment to labour principles and rights in accordance with the provisions of this Title, as an important element to enhance the contribution of trade to sustainable development;
(e) promote public participation in the matters covered under this Title.
3. The Parties reaffirm their full resolve to fulfil their commitments under this Title taking into account their own capacities, in particular technical and financial capacities.
4. The Parties reiterate their commitment to address global environmental challenges, in accordance with the principle of common but differentiated responsibilities.
5. The provisions of this Title shall not be interpreted or used as a means of arbitrary or unjustifiable discrimination between the Parties or as a disguised restriction to trade or investment.
Article 268. Right to Regulate and Levels of Protection
Recognising the sovereign right of each Party to establish its domestic policies and priorities on sustainable development, and its own levels of environmental and labour protection, consistent with the internationally recognised standards and agreements referred to in Articles 269 and 270, and to adopt or modify accordingly its relevant laws, regulations and policies; each Party shall strive to ensure that its relevant laws and policies provide for and encourage high levels of environmental and labour protection.
Article 269. Multilateral Labour Standards and Agreements
1. The Parties recognise international trade, productive employment and decent work for all as key elements for managing the process of globalisation, and reaffirm their commitments to promote the development of international trade in a way that contributes to productive employment and decent work for all.
2. The Parties will dialogue and cooperate as appropriate on trade-related labour issues of mutual interest.
3. Each Party commits to the promotion and effective implementation in its laws and practice and in its whole territory of internationally recognised core labour standards as contained in the fundamental Conventions of the International Labour Organisation (hereinafter referred to as the "ILO"):
(a) the freedom of association and the effective recognition of the right to collective bargaining;
(b) the elimination of all forms of forced or compulsory labour;
(c) the effective abolition of child labour; and
(d) the elimination of discrimination in respect of employment and occupation.
4. The Parties will exchange information on their respective situation and advancements as regards the ratification of priority ILO Conventions as well as other conventions that are classified as up-to-date by the ILO.
5. The Parties stress that labour standards should not be used for protectionist trade purposes and in addition, that the comparative advantage of any Party should in no way be called into question.
Article 270. Multilateral Environmental Standards and Agreements
1. The Parties recognise the value of international environmental governance and agreements as a response of the international community to global or regional environmental problems and stress the need to enhance the mutual supportiveness between trade and environment. In this context, the Parties shall dialogue and cooperate as appropriate with respect to trade-related environmental issues of mutual interest.
2. The Parties reaffirm their commitment to effectively implement in their laws and practices the following multilateral environmental agreements: the Montreal Protocol on Substances that Deplete the Ozone Layer adopted on 16 September of 1987, the Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal adopted on 22 March 1989, the Stockholm Convention on Persistent Organic Pollutants adopted on 22 May 2001, the Convention on International Trade in Endangered Species of Wild Fauna and Flora signed on 3 March 1973 (hereinafter referred to as "CITES"), the CBD, the Cartagena Protocol on Biosafety to the CBD adopted on 29 January 2000, the Kyoto Protocol to the United Nations Framework Convention on Climate Change adopted on 11 December 1997 (hereinafter referred to as "Kyoto Protocol") and the Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides in International Trade adopted on 10 September 1998 (91).
3. The Trade Committee may recommend the extension of the application of paragraph 2 to other multilateral environmental agreements following a proposal by the Sub-committee on Trade and Sustainable Development.
4. Nothing in this Agreement shall limit the right of a Party to adopt or maintain measures to implement the agreements referred to in paragraph 2. Such measures shall not be applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between the Parties or a disguised restriction on trade.
Article 271. Trade Favouring Sustainable Development
1. The Parties reaffirm that trade should promote sustainable development. The Parties also recognise the beneficial role that core labour standards and decent work can have on economic efficiency, innovation and productivity, as well as the value of greater coherence between trade policies, on the one hand, and labour policies on the other.
2. The Parties shall strive to facilitate and promote trade and foreign direct investment in environmental goods and services.
3. The Parties agree to promote best business practices related to corporate social responsibility.
4. The Parties recognise that flexible, voluntary, and incentive-based mechanisms can contribute to coherence between trade practices and the objectives of sustainable development. In this regard, and in accordance with its respective laws and policies, each Party will encourage the development and use of such mechanisms.
Article 272. Biological Diversity
1. The Parties recognise the importance of the conservation and sustainable use of biological diversity and all of its components as a key element for the achievement of sustainable development. The Parties confirm their commitment to conserve and sustainably use biological diversity in accordance with the CBD and other relevant international agreements to which the Parties are party.
2. The Parties will continue to work towards meeting their international targets of establishing and maintaining a comprehensive, effectively managed, and ecologically representative national and regional system of terrestrial and marine protected areas by 2010 and 2012, respectively, as fundamental tools for the conservation and sustainable use of biological diversity. The Parties also recognise the importance of protected areas for the welfare of populations settled in those areas and their buffer zones.
3. The Parties will endeavour to jointly promote the development of practices and programmes aiming at fostering appropriate economic returns from the conservation and sustainable use of biological diversity.
4. The Parties recognise their obligation in accordance with the CBD to, subject to their domestic legislation, respect, preserve and maintain knowledge, innovations and practices of indigenous and local communities embodying traditional lifestyles relevant for the conservation and sustainable use of biological diversity and promote their wider application conditioned to the prior informed consent of the holders of such knowledge, innovations and practices, and encourage the fair and equitable sharing of the benefits arising from the utilisation of such knowledge, innovation and practices.
5. Recalling Article 15 of the CBD, the Parties recognise the sovereign rights of States over their natural resources, and that the authority to determine access to genetic resources rests with the national governments and is subject to their domestic legislation. Furthermore, the Parties recognise that they shall endeavour to create conditions to facilitate access to genetic resources for environmentally sound uses and not to impose restrictions that run counter to the objectives of the CBD, and that access to genetic resources shall be subject to the prior informed consent of any Party providing such resources, unless otherwise determined by that Party. The Parties will take appropriate measures, in accordance with the CBD, with the aim of sharing in a fair and equitable way and upon mutually agreed terms, the results of research and development and the benefits arising from the commercial and other utilisation of genetic resources with the Party providing such resources.
6. The Parties shall strive to strengthen and to enlarge the capacity of national institutions responsible for the conservation and sustainable use of biological diversity, through instruments such as the strengthening of capacities and technical assistance.
Article 273. Trade In Forest Products
In order to promote the sustainable management of forest resources, the Parties recognise the importance of having practices that, in accordance with domestic legislation and procedures, improve forest law enforcement and governance and promote trade in legal and sustainable forest products, which may include the following practices:
(a) the effective implementation and use of CITES with regard to timber species that may be identified as endangered, in accordance with the criteria of and in the framework of such Convention;