carry out any task assigned or responsibility delegated to them by the Trade Committee; and
provide a forum for the exchange of experiences, information and best practices on matters related to this Agreement.
The specialised committees may adopt such decisions as provided for in this Agreement and make recommendations in respect of all matters for which they are responsible.
The specialised committees shall also have such additional functions as provided for in this Agreement.
Domestic advisory groups
Each Party shall create a new, or designate an existing, domestic advisory group within a year after the date of entry into force of this Agreement. The domestic advisory group shall comprise a balanced representation of independent civil society organisations established in the territory of that Party working on, inter alia, economic, social, human rights and environmental matters, and, for Australia, matters relating to Australian First Nations peoples. Each domestic advisory group may submit advice to its respective Party on issues covered by this Agreement. The domestic advisory group may be convened in such configurations it considers appropriate for the purposes of discussing the implementation of relevant provisions of this Agreement.
Each Party shall meet with its domestic advisory group at least annually. Each Party shall consider any views or recommendations on the implementation of this Agreement submitted by its domestic advisory group.
To promote public awareness of the domestic advisory groups, each Party shall publish the contact point for its domestic advisory group and may publish the list of organisations participating in that group.
The Parties shall encourage interaction between their respective domestic advisory groups.
Civil Society Forum
The Parties shall facilitate the organisation of a Civil Society Forum to conduct a dialogue on the implementation of this Agreement and shall agree on operational guidelines for the conduct of the Civil Society Forum at the first meeting of the Trade Committee.
The Civil Society Forum shall endeavour to meet in conjunction with the meeting of the Trade Committee. The Civil Society Forum may meet in person or by other appropriate means of communication.
The Civil Society Forum shall comprise a balanced representation of civil society organisations established in the territory of a Party, including members of the domestic advisory groups referred to in Article 22.7 (Domestic advisory groups), working on, inter alia, economic, social, human rights and environmental matters, and, for Australia, matters relating to Australian First Nations peoples.
The representatives of the Parties comprising the Trade Committee shall, as appropriate, attend the meeting of the Civil Society Forum to present information on the implementation of this Agreement and to engage in a dialogue with the Civil Society Forum. Such meeting shall be chaired by the co-chairs of the Trade Committee or their designees, as appropriate. The Parties shall publish any formal statements made by their representatives at such meetings.
ANNEX 22
RULE 1
Role of the Trade Committee
The Trade Committee established pursuant to Article 22.1 (Trade Committee) of this Agreement shall undertake its work as provided for in this Agreement.
The Trade Committee may undertake its work by electronic means.
Composition and co-chairs
Pursuant to Article 22.1(1) (Trade Committee), the Trade Committee comprises representatives of the Union and Australia.
Pursuant to Article 22.1(4) (Trade Committee), the Trade Committee shall be co-chaired by the Minister for Trade of Australia and the Member of the European Commission responsible for trade, or their respective designees (hereinafter referred to as "co-chairs").
Secretariat
Officials from the department responsible for trade for each Party shall act together as the Secretariat of the Trade Committee (hereinafter referred to as "Secretariat").
Each Party shall notify to the other Party the name, position and contact details of the official who is the member of the Secretariat for that Party (hereinafter referred to as "Secretariat Member").
A Party will promptly notify the other Party of any change in the details of its Secretariat Member. Until such notification, the Secretariat Member of a Party is deemed to continue acting in this role.
Meetings
The Trade Committee shall meet in accordance with Article 22.1(2) (Trade Committee).
Pursuant to Article 22.1(3) (Trade Committee), the Trade Committee shall meet in the Union or Australia alternately, unless agreed otherwise by the co-chairs. The Trade Committee may meet in person or by other appropriate means of communication, including videoconference or teleconference, as agreed by the co-chairs.
Meetings of the Trade Committee shall be held at the date and time agreed by the co-chairs.
The meetings shall be convened by the co-chair of the Party hosting the meeting (hereinafter referred to as "Host Party").
Delegations
A reasonable period of time in advance of a meeting, the Secretariat Member of a Party shall inform the Secretariat Member of the other Party of the intended composition of that Party’s delegation by providing a list containing the names and functions of each delegation member.
Agenda for the Meetings
A provisional agenda for each meeting shall be drawn up by the Secretariat on the basis of a proposal made by the Host Party with a deadline for the other Party to provide comments.
For meetings of the Trade Committee at ministerial level, the Host Party shall provide a provisional agenda to the other Party at least one month in advance of a meeting. For meetings of the Trade Committee at senior officials level, the Host Party shall provide a provisional agenda to the other Party at least 14 days in advance of a meeting.
The agenda shall be adopted by the Trade Committee at the beginning of each meeting. The Trade Committee may, by consensus, place an item on the agenda that does not appear on the provisional agenda.
Invitation of experts
The co-chairs may, by mutual agreement, invite experts (i.e. non-government officials) to attend the meetings of the Trade Committee in order to provide information on specific subjects.
An expert invited pursuant to paragraph 1 may attend only for the parts of the meeting where such specific subjects are discussed.
Minutes
Draft minutes of each meeting shall be drawn up by the Host Party within 15 days from the end of the meeting, unless otherwise decided by the co-chairs.
The minutes shall, as a general rule, summarise each item on the agenda, specifying where applicable:
all documents submitted to the Trade Committee, subject to Article 23.4(2) (Disclosure of information);
any statement that one of the co-chairs requested to be entered in the minutes; and
the decisions taken, recommendations made, statements agreed upon and conclusions adopted by the Trade Committee on specific items.
The minutes shall also include:
a list of all decisions of the Trade Committee taken by written procedure pursuant to Rule 9.2 since the last meeting of the Trade Committee; and
an annex listing the names and functions of all individuals who attended the meeting of the Trade Committee.
The Secretariat Member of the Host Party shall transmit the draft minutes to the Secretariat Member of the other Party for comments. The other Party shall provide comments, if any, within seven days of receipt of the draft minutes.
The Secretariat shall adjust the draft minutes on the basis of comments received. The revised draft minutes shall be approved by the Parties within 30 days after the date of the meeting, or by
any other date agreed by the co-chairs. Once approved, the Secretariat shall establish two originals of the minutes and provide one original to each Party.
Where this Annex applies to the meetings of specialised committees, the minutes of the
specialised committee’s meeting shall be made available for any subsequent meetings of the Trade Committee.
Decisions and recommendations
As provided for in point (f) of Article 22.2(2) (Functions of the Trade Committee) and Article 22.4(3) (Decision and recommendations), the Trade Committee shall, by consensus, adopt its decisions in respect of all matters where this Agreement so provides, and make its recommendations in respect of all matters covered by this Agreement.
In the period between meetings, the Trade Committee may adopt decisions or make recommendations by written procedure.
The text of a draft decision or recommendation shall be proposed in writing by a co-chair to the other co-chair in the working language of the Trade Committee. The other Party shall have one month, or any longer period of time specified by the proposing Party, to express its agreement to the draft decision or recommendation or to make known any concerns or amendments it may wish to make. If the other Party does not express its agreement, the proposed decision or recommendation shall be discussed and may be adopted at the next meeting of the Trade Committee. Draft decisions or recommendations shall be deemed to be adopted once the other Party expresses its agreement and shall be recorded in the minutes of the next meeting of the Trade Committee pursuant to point
(a) of Rule 8.2.
Decisions or recommendations of the Trade Committee shall be entitled "Decision" or "Recommendation" respectively. The Secretariat shall give any decision or recommendation a progressive serial number, the date of its adoption and a description of its subject matter. Pursuant to Article 25.1(3) (Amendments), each decision shall specify the date of its entry into force.
Decisions and recommendations of the Trade Committee shall be established in duplicate, authenticated by the co-chairs and transmitted one to each Party.
Transparency
The Parties may agree to make a meeting of the Trade Committee open to the public.
Each Party may decide on the publication of the decisions and recommendations of the Trade Committee in its respective official publication or online.
All documents submitted by a Party to the Trade Committee shall be treated as confidential in accordance with Article 23.4(2) (Disclosure of information).
Provisional agendas of the meetings of the Trade Committee as agreed by the representatives of the Parties shall be made public before such meetings take place. The minutes of the meetings shall be made public following their approval in accordance with Rule 8.5.
Each Party shall publish the documents referred to in paragraphs 2 and 4 consistently with its data protection or privacy laws and regulations, as applicable.
Languages
The working language of the Trade Committee shall be English.
The Trade Committee shall adopt decisions concerning the amendment or interpretation of the provisions of this Agreement as referred to in points (d) and (e) of Article 22.2(2) (Functions of the Trade Committee) in the languages of the authentic texts of this Agreement as specified in Article
25.10 (Authentic texts). All other decisions of the Trade Committee shall be adopted in the working language referred to in paragraph 1.
Each Party shall be responsible for the translation of decisions into its own official language or languages, if required pursuant to this Rule, and it shall meet expenses associated with such translations.
Expenses
Each Party shall bear any expenses it incurs as a result of participating in the meetings of the Trade Committee, in particular with regard to staff, travel and subsistence expenditure and with regard to video or teleconferences, postal and telecommunications expenditure.
The Host Party shall bear any expenses in connection with:
the organisation of, and reproduction of documents for, meetings of the Trade Committee; and
the provision of interpretation services to and from the working language of the Trade Committee, if required for the participants at meetings of the Trade Committee shall be borne by the Host Party.
Specialised committees
Pursuant to point (b) of Article 22.2(1) (Functions of the Trade Committee), the Trade Committee shall supervise, guide and coordinate the work of all specialised committees and other bodies established under or pursuant to this Agreement.
Each specialised committee shall inform in writing the Trade Committee of the Secretariat Member or the contact point of each Party for that committee. All relevant correspondence, documents and communications between such persons regarding the implementation of this Agreement shall be forwarded to the Secretariat of the Trade Committee simultaneously.
Pursuant to Article 22.5(5) (Specialised Committees), the specialised committees shall inform the Trade Committee of the schedule and agenda of their meetings sufficiently in advance and shall report to the Trade Committee on the results and conclusions from each of their meetings.
Unless a specialised committee decides its own rules of procedure pursuant to Article 22.5(5) (Specialised Committees), this Annex shall apply, mutatis mutandis, to the specialised committees.
Chapter 23. EXCEPTIONS
Article ARTICLE 23.1
General exceptions
For the purposes of Chapter 2 (Trade in Goods), Chapter 4 (Customs and trade facilitation), Section B (Investment liberalisation) of Chapter 9 (Investment liberalisation and trade in services), Chapter 11 (Digital trade), Chapter 12 (Energy and resources) and Chapter 16 (State-owned enterprises), Article XX of GATT 1994, including its Notes and Supplementary Provisions, is incorporated into and made part of this Agreement, mutatis mutandis.
Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where like conditions prevail, or a disguised restriction on investment liberalization or trade in services, nothing in Chapter 9 (Investment liberalisation and trade in services), Chapter 11 (Digital trade), Chapter 12 (Energy and resources) and Chapter 16 (State-owned enterprises) shall be construed to prevent the adoption or enforcement by a Party of measures:
necessary to protect public security or public morals or to maintain public order1;
necessary to protect human, animal or plant life or health; or
1 The public security and public order exceptions may be invoked only where a genuine and sufficiently serious threat is posed to one of the fundamental interests of society.
necessary to secure compliance with laws or regulations which are not inconsistent with the provisions of this Agreement, including those relating to:
the prevention of deceptive and fraudulent practices or to deal with the effects of a default on contracts;
the protection of the privacy of individuals in relation to the processing and dissemination of personal data and the protection of confidentiality of individual records and accounts; or
safety.
For greater certainty, the Parties understand that, to the extent that such measures are otherwise inconsistent with the Chapters or Sections referred to in paragraphs 1 or 2:
the measures referred to in point (b) of Article XX of GATT 1994 and in point (b) of paragraph 2 of this Article include environmental measures, which are necessary to protect human, animal or plant life or health;
point (g) of Article XX of GATT 1994 applies to measures relating to the conservation of living and non-living exhaustible natural resources;
measures taken to implement multilateral environmental agreements may fall under points (b) or (g) of Article XX of GATT 1994 or under point (b) of paragraph 2 of this Article; and
measures taken to protect critical infrastructure, including communications, power and water infrastructure, may fall under point (a) of paragraph 2.
Before a Party takes a measure as provided for in points (i) or (j) of Article XX of GATT 1994, that Party shall:
notify the other Party in writing at least 30 days prior to applying the measure. Such notice shall include a description of the measure, its rationale and the intended duration; and
on request, provide the other Party with reasonable opportunity for consultation in relation to the measure, with a view to seeking a mutually acceptable solution. The Party may apply the relevant measures after the expiry of the period referred to in point (a).
If exceptional and urgent circumstances arise, the Party may apply the measures referred to in paragraph 4 that it considers necessary to deal with the situation. That Party shall inform the other Party immediately of the measures.
Security exceptions Nothing in this Agreement shall be construed:
to require a Party to furnish or allow access to any information the disclosure of which it considers contrary to its essential security interests;
to prevent a Party from taking an action which it considers necessary for the protection of its essential security interests:
connected to the production of or traffic in arms, ammunition and implements of war and to such traffic and transactions in other goods and materials, services and technology, and to economic activities, carried out directly or indirectly for the purpose of supplying a military establishment;
relating to fissionable and fusionable materials or the materials from which they are derived; or
taken in time of war or other emergency in international relations; or
to prevent a Party from taking any action in pursuance of its obligations under the United Nations Charter for the maintenance of international peace and security.
Taxation
For the purpose of this Article:
"residence" means residence for tax purposes; and
"tax convention" means a convention for the avoidance of double taxation or any other international agreement or arrangement relating wholly or mainly to taxation that either any Member State, the Union or Australia are party to.
Nothing in this Agreement shall affect the rights and obligations of either Australia or the Union or its Member States, under any tax convention. In the event of any inconsistency between this Agreement and any such tax convention, the tax convention shall prevail to the extent of the inconsistency. With regard to a tax convention between the Union or its Member States and Australia, the relevant competent authorities under this Agreement2 and the tax convention shall jointly determine whether an inconsistency exists between this Agreement and the tax convention.3
Article 9.7(Most Favoured Nation Treatment) and Article 9.15 (Most-favoured Nation Treatment) Shall Not Apply to an Advantage Accorded by a Party Pursuant to a Tax Convention. Nothing In this Agreement Shall Oblige a Party to Extend to the other Party the Benefit of Any Treatment, Preference or Privilege Arising from Any Tax Convention by Which the Party Is Bound.
Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where like conditions prevail, or a disguised restriction on trade and investment, nothing in this Agreement
2 For the purposes of this Article, for Australia, the relevant competent authority under this Agreement is the Secretary to the Treasury or a successor or an authorised representative.
3 For greater certainty, this is without prejudice to Chapter 24 (Dispute settlement). If a joint determination is made, it shall be binding on the panel established pursuant to Article 24.6 (Establishment of a panel) and taken into account to the extent it is relevant for the assessment of the matter before it.
shall be construed to prevent the adoption, maintenance or enforcement by a Party of any measure that:
aims at ensuring the equitable or effective imposition or collection of direct taxes;4 or
distinguishes between taxpayers who are not in the same situation, in particular with regard to their place of residence or with regard to the place where their capital is invested.5
Treatment of information
Nothing in this Agreement shall be construed to require a Party to make available confidential information, the disclosure of which would impede the enforcement of its laws or regulations, otherwise be contrary to the public interest or prejudice the legitimate commercial interests of particular enterprises, public or private, except where a panel requires such confidential information in dispute settlement proceedings under Chapter 24 (Dispute Settlement). In such cases, the panel shall ensure that confidentiality is fully protected pursuant to Chapter 24 (Dispute settlement).
Unless otherwise provided for in this Agreement, if a Party submits information to the other Party under this Agreement, or to the Trade Committee or to a specialised committee which the Party designates as confidential, the other Party shall treat that information as confidential.
WTO waivers
4 The term “any measure that aims at ensuring the equitable or effective imposition or collection of direct taxes” shall be understood by reference to the footnote to Article XIV of GATS.
5 The Parties understand that paragraph 4 may apply to taxation measures relating to retirement plans, including superannuation schemes.
If an obligation in this Agreement is substantially equivalent to an obligation in the WTO Agreement, a measure taken in conformity with a waiver adopted pursuant to Article IX of the WTO Agreement is deemed to also be in conformity with the substantially equivalent provision in this Agreement.
Chapter 24. DISPUTE SETTLEMENT
SECTION A OBJECTIVE AND SCOPE
Article ARTICLE 24.1
Objective
The objective of this Chapter is to establish an effective, efficient and transparent mechanism for avoiding and settling any dispute between the Parties concerning the interpretation and application of this Agreement with a view to reaching, where possible, a mutually agreed solution.
Scope
Unless otherwise provided in this Agreement, this Chapter applies with respect to any dispute between the Parties concerning the interpretation and application of the provisions of this Agreement (hereinafter referred to as "covered provisions"), when a Party considers that a measure of the other Party is inconsistent with an obligation under this Agreement.
Definitions
For the purposes of this Chapter, the following definitions apply:
"administrative staff", in respect of a panellist or a mediator, means individuals under the direction and control of a panellist or a mediator, other than assistants;
"adviser" means an individual retained by a Party to advise or assist that Party in connection with the panel proceedings;
"assistant" means an individual who, under the terms of appointment and under the direction and control of a panellist or a mediator, conducts research or provides assistance to that panellist or mediator;
"candidate" means an individual whose name is on the list of panellists referred to in Article
24.7 (Lists of panellists) and who is under consideration for selection as a panellist under Article 24.6 (Establishment of a panel);
"cases of urgency" and "matters of urgency" include cases and matters which concern goods or services that rapidly lose their quality, current condition or commercial value in a short period of time;
"complaining Party" means any Party that requests the establishment of a panel under Article 24.5 (Initiation of panel procedures);
"DSU" means the Understanding on Rules and Procedures Governing the Settlement of Disputes, contained in Annex 2 to the WTO Agreement;