(a) the data and objective information demonstrating the existence of serious injury or the threat of serious injury to the domestic industry caused by the increased imports under preferential terms;
(b) a complete description of the imported product subject to the measure and its classification under the Harmonized System;
(c) a description of the measure proposed;
(d) the date of entry into force of the measure and its duration; and
(e) the invitation for consultations.
4. The objective of the consultations referred to in paragraph 1 shall be to acquire a mutual understanding of the publicly known facts and to exchange opinions, with a view to reaching a mutually satisfactory solution. If no satisfactory solution is reached within 30 (thirty) days of the notification referred to in paragraph 1, the Party may apply the measure at the end of the period of 30 (thirty) days.
5. At any stage of the investigation, the notified Party may request consultations with the other Party or any additional information that it considers necessary.
SECTION I
OUTERMOST REGIONS OF THE EUROPEAN UNION 28
ARTICLE 17.20
Outermost Regions of the European Union
1. Notwithstanding Article 17.3, if a product originating in one or more Signatory MERCOSUR States is imported under preferential terms into the territory of one or several of the European Union's 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 European Union's outermost region(s), the European Union may exceptionally take safeguard measures limited to the territory of the region(s) concerned, unless a mutually satisfactory solution is reached.
2. Without prejudice to paragraph 1, other rules laid down in this Chapter applicable to bilateral safeguards also apply to any safeguard adopted under this Article.
3. For the purposes of paragraph 1, serious deterioration means major difficulties in a sector of the economy producing like or directly competitive products. The determination of serious deterioration shall be based on objective factors, including the following elements:
(a) the increase in the volume of imports in absolute or relative terms to domestic production and to imports from other countries; and
(b) the effect of such imports on the situation of the relevant industry or the economic sector concerned, including on the level of sales, production, financial situation and employment.
Chapter 18. TRADE IN SERVICES AND ESTABLISHMENT
Section A. GENERAL PROVISIONS
Article 18.1. Objective and Scope
1. The Parties, reaffirming their respective commitments under the WTO Agreement, hereby lay down the necessary arrangements for the liberalisation of trade in services and establishment.
2. Nothing in this Chapter shall be construed as requiring the privatisation of public services or imposing any obligation with respect to government procurement.
3. The provisions of this Chapter shall not apply to subsidies granted or grants provided by a Party, including government-supported loans, guarantees and insurance.
4. Consistent with the provisions of this Chapter, each Party retains the right to regulate, to introduce new regulations or to supply services to meet its policy objectives.
5. The provisions of this Chapter shall not apply to each Party's social security systems.
6. The provisions of this Chapter do not apply to services supplied or activities carried out in the exercise of governmental authority, namely any service which is supplied or any activity which is carried out neither on a commercial basis, nor in competition with one or more service suppliers or investors.
7. This Chapter applies to measures of each Party affecting trade in services and establishment, with the exception of:
(a) national maritime cabotage (1);
(b) domestic and international air transport services, whether scheduled or non-scheduled, and services directly related to the exercise of traffic rights, other than:
(i) aircraft repair and maintenance services during which an aircraft is withdrawn from service;
(ii) the selling and marketing of air transport services;
(iii) computer reservation system (CRS) services; and
(iv) ground handling services;
(c) inland navigation; and
(d) audio-visual services.
Article 18.2. Definitions
For the purposes of this Chapter:
(a) "consumption abroad" means the supply of a service in the territory of a Party to the service consumer of the other Party (mode 2);
(b) "cross-border supply of services" means the supply of a service from the territory of a Party into the territory of the other Party (mode 1);
(c) "economic activity" includes any activity of an economic nature, irrespective of whether it is related to services or non-services sectors, subject to the provisions of Article 18.1;
(d) "enterprise" means a juridical person of a Party, or a branch or a representative office of such juridical person of a Party, set up through establishment, as defined pursuant to this Article;
(e) "temporary entry and stay of natural persons" means the entry and temporary stay of key personnel, graduate trainees, business sellers, contractual service suppliers and independent professionals of a Party in the territory of the other Party, in accordance with Section B of this Chapter;
(f) "establishment" means:
(i) the constitution, acquisition or maintenance of a juridical person (1) ; or
(ii) the creation or maintenance of a branch or representative office of a juridical person, within the territory of a Party for the purpose of performing an economic activity;
(g) "investor" of a Party means any person that seeks to perform or performs an economic activity through establishment in the territory of the other Party (2) ;
(h) "juridical person" means any legal entity duly constituted or otherwise organised under applicable law, whether for profit or otherwise, and whether privately-owned or governmentally‑owned, including any corporation, trust, partnership, joint venture, sole proprietorship or association;
(i) a juridical person is:
(i) "owned" by natural or juridical persons of a Party if more than 50 % of the equity interest in it is beneficially owned by natural or juridical persons of that Party; and
(ii) "controlled" by natural or juridical persons of a Party if those natural or juridical persons have the power to name a majority of its directors or to legally direct its actions;
(j) "juridical person of a Party" means a juridical person which is either:
(i) constituted or otherwise organised under the law of that Party, and is engaged in substantive business operations in the territory of that Party or the other Party; or
(ii) in the case of establishment, owned or controlled by:
(A) natural persons of that Party; or
(B) juridical persons of that Party identified under point (j) (i);
Notwithstanding point (ii), shipping companies established outside the European Union or MERCOSUR and controlled by natural persons having the nationality of a Member State of the European Union or of a Signatory MERCOSUR State, respectively, shall also be beneficiaries of the provisions of this Chapter, if their vessels are registered in accordance with the laws and regulations in that Member State of the European Union or Signatory MERCOSUR State and fly the flag of a Member State of the European Union or of a Signatory MERCOSUR State (1) ;
(k) "measure" means any measure by a Party, whether in the form of a law, regulation, rule, procedure, decision, administrative action, or any other form;
(l) "measures adopted or maintained by a Party" means measures taken by:
(i) central, regional or local governments and authorities; and
(ii) non-governmental bodies in the exercise of powers delegated by central, regional or local governments or authorities;
(m) "measures by Parties affecting establishment, the cross-border supply of services, consumption abroad, and the entry and temporary stay of natural persons" include measures in respect of:
(i) the purchase, payment or use of a service;
(ii) the access to and use of, in connection with the performance of an economic activity, services which are required by those Parties to be offered to the public generally; and
(iii) the access, including through establishment, of persons of a Party to the territory of the other Party to perform an economic activity in that territory;
(n) "natural person" means a person having the nationality, or a permanent resident (1), of one of the Signatory MERCOSUR States or one of the Member States of the European Union according to their respective legislation;
(o) "sector" of an economic activity means:
(i) with reference to a specific commitment, one or more, or all, subsectors of that service or non-service, as specified in the specific commitments contained in Annexes 18-A to18-E; or
(ii) otherwise, the whole of that service or non-service sector, including all of its subsectors;
(p) "service supplier" means any person that seeks to supply or supplies a service (2); and
(q) "supply of a service" includes the production, distribution, marketing, sale and delivery of a service.
Article 18.3. Market Access
1. With respect to market access through establishment, the cross-border supply of services, consumption abroad, and the entry and temporary stay of natural persons as provided in Section B, each Party shall accord to enterprises, investors, services and services suppliers of the other Party treatment no less favourable than that provided for under the terms, limitations and conditions agreed and specified in the specific commitments contained in Annexes 18-A to 18-E.
2. In sectors where market access commitments are undertaken, the measures which a Party shall not maintain or adopt, either on the basis of a regional subdivision or on the basis of its entire territory, unless otherwise specified in Annexes 18-A to 18-E, are defined as:
(a) limitations on the number of services suppliers or enterprises in the form of numerical quotas, monopolies, exclusive rights or the requirements of an economic needs test;
(b) limitations on the total value of transactions or assets in the form of numerical quotas or the requirement of an economic needs test;
(c) limitations on the total number of operations or on the total quantity of output expressed in terms of designated numerical units in the form of quotas or the requirement of an economic needs test;
(d) limitations on the participation of foreign capital in terms of maximum percentage limit on foreign shareholding or the total value of individual or aggregate foreign investment;
(e) measures which restrict or require specific types of legal entity or joint ventures through which an investor or service supplier of the other Party may perform an economic activity; or
(f) limitations on the total number of natural persons that may be employed in a particular sector or that an enterprise may employ and who are necessary for, and directly related to, the performance of the economic activity in the form of numerical quotas or the requirement of an economic needs test.
3. Economic needs tests shall be described concisely and clearly, indicating the elements that render them inconsistent with this Article and specifying the criteria on which the test is based.
Article 18.4. National Treatment
1. In the sectors listed in Annexes 18-A to 18-E, and subject to any conditions and qualifications set out therein, with respect to all measures affecting establishment (1), the cross-border supply of services, consumption abroad and the entry and temporary stay of natural persons as provided in Section B, each Party shall accord to enterprises, investors, services and service suppliers of the other Party treatment no less favourable than that it accords to its own like enterprises, investors, services and service suppliers.
2. A Party may meet the requirement of paragraph 1 by according to enterprises, investors, services and services suppliers of the other Party either formally identical treatment or formally different treatment to that which it accords to its own like enterprises, investors, services and services suppliers.
3. Formally identical or formally different treatment shall be considered to be less favourable if it modifies the conditions of competition in favour of enterprises, investors, services or services suppliers of the Party compared to like enterprises, investors, services and services suppliers of the other Party.
4. Specific commitments assumed under this Article shall not be construed to require any Party to compensate for any inherent competitive disadvantages which result from the foreign character of the relevant enterprises, investors, services or services suppliers.
Article 18.5. List of Specific Commitments
1. The sectors liberalised by each Party pursuant to this Chapter and, by means of reservations, the market access and national treatment limitations applicable to services, services suppliers, enterprises and investors of the other Party in those sectors are set out in Annexes 18-A to 18-E.
2. The Parties shall not apply any market access or national treatment restrictions other than those contained in Annexes 18-A to 18-E.
Section B. ENTRY AND TEMPORARY STAY OF NATURAL PERSONS SUPPLYING SERVICES AND FOR BUSINESS PURPOSES
Article 18.6. Scope
1. This Section applies to measures of a Party concerning the entry and temporary stay in its territory of key personnel, graduate trainees, business sellers, contractual service suppliers and independent professionals of the other Party in accordance with paragraphs 2 and 3.
2. The provisions of this Section do not apply to measures affecting natural persons seeking access to the employment market of a Party, nor to measures of a Party regarding citizenship, residence or employment on a permanent basis.
3. The provisions of this Section do not prevent either Party from applying measures necessary to regulate the entry, temporary stay and orderly movement of natural persons in its territory or to protect the integrity of its borders, if such measures do not nullify or impair the benefits accruing to either Party under the terms of a specific commitment (1).
4. Subject to Articles 18.17 and 18.18, nothing in this Section shall prevent a Party from requiring that natural persons possess the necessary qualifications or professional experience in the territory where the service is supplied, for the sector of activity concerned.
Article 18.7. Definitions
1. For the purposes of this Section, the following definitions apply:
(a) "business sellers" means natural persons who are representatives of a juridical person of a Party seeking entry and temporary stay in the territory of the other Party for the purpose of negotiating the sale of services or goods or entering into agreements to sell services or goods for that supplier. They do not engage in making direct sales to the general public, do not receive remuneration from a source located within the host Party and are not a commission agent;
(b) "contractual service suppliers" means natural persons employed by a juridical person of a Party which is not established in the territory of the other Party and which has concluded a contract to supply services with a final consumer in the latter Party requiring the presence on a temporary basis of its employees in that Party in order to fulfil the contract to provide services (1);
(c) "graduate trainees" means natural persons who have been employed by a juridical person of a Party for at least 1 (one) year, who possess a university degree and who are temporarily transferred to an enterprise in the territory of the other Party for career development purposes or to obtain training in business techniques or methods (1) ;
(d) "independent professionals" means natural persons engaged in the supply of a service and settled as self-employed in the territory of a Party who have not established in the territory of the other Party and who have concluded a contract to supply services with a final consumer in the territory of the other Party, requiring their presence on a temporary basis in that Party in order to fulfil the contract to provide services (2) ;
(e) "key personnel" means natural persons employed within a juridical person of a Party, other than a non-profit organisation, and who are responsible for the establishment or the proper control, administration and operation of an enterprise, and consists of:
(i) "business visitors": natural persons working in a senior position who are responsible for establishing an enterprise; they do not engage in direct transactions with the general public and do not receive remuneration from a source located within the host Party; and
(ii) "intra-corporate transferees": natural persons who have been employed by a juridical person of a Party, or have been partners in it, for at least 1 (one) year, who are temporarily transferred to an enterprise or a head office of that juridical person in the territory of the other Party and who belong to one of the following categories:
(A) managers:
Natural persons working in a senior position within a juridical person, who primarily direct the management of the enterprise receiving general supervision or direction principally from the board of directors or stockholders of the business or their equivalent, including:
– directing the enterprise or a department or sub-division thereof;
– supervising and controlling the work of other supervisory, professional or managerial employees; or
– having the authority personally to recruit and dismiss or to recommend recruiting, dismissing or other personnel actions;
(B) specialists:
Natural persons working within a juridical person who possess specialised knowledge essential to the enterprise's economic activity, techniques or management.
Article 18.8. Key Personnel and Graduate Trainees
For each sector for which commitments have been undertaken for establishment as listed in Annexes 18-B and 18-E, and subject to any reservations listed in Annexes 18-C and 18-E, each Party shall allow investors of the other Party to employ in their enterprise natural persons of that other Party, if such employees are key personnel or graduate trainees as defined in Article 18.7. The temporary entry and stay of key personnel and graduate trainees shall be:
(a) for the period of time necessary for the fulfilment of the contract or up to 3 (three) years for intra-corporate transferees, whichever is less;
(b) up to 60 (sixty) days in any period of 12 (twelve) months for business visitors; and
(c) up to 1 (one) year for graduate trainees.
Article 18.9. Business Sellers
For each sector for which commitments have been undertaken for the cross-border supply of services and for establishment, listed in Annexes 18-A, 18-B and 18-E, and subject to any reservations listed in Annexes 18-C and 18-E, each Party shall allow the temporary entry and stay of business sellers for a period of up to 90 (ninety) days in any period of 12 (twelve) months (1).
Article 18.10. Contractual Service Suppliers and Independent Professionals
1. For the sectors specified in Annexes 18-D and 18-E and subject to any reservations listed therein, each Party shall allow the supply of services into its territory by contractual service suppliers of the other Party, through the presence of natural persons, subject to the following conditions:
(a) the juridical person employing the natural person must have obtained a service contract for a period not exceeding 12 (twelve) months;
(b) the natural persons entering the other Party must have an appropriate education or experience relevant to the service to be provided;
(c) the natural person shall not receive remuneration for the supply of a service other than the remuneration paid by the contractual service supplier during the stay of the natural person in the other Party;
(d) the temporary entry and stay of natural persons in the territory of the Party concerned shall be for a cumulative period of not more than 6 (six) months in any period of 12 (twelve) months or for the duration of the contract, whichever is less; and
(e) access accorded pursuant to the provisions of this Article relates only to the service activity which is the subject of the contract and it does not confer entitlement on to natural persons to exercise the professional title of the Party where the service is provided.
2. For the sectors specified in Annexes 18-D and 18-E, and subject to any reservations listed therein, each Party shall allow the supply of services into its territory by independent professionals of the other Party, through the presence of natural persons, subject to the following conditions:
(a) the natural persons must have obtained a service contract for a period not exceeding 12 (twelve) months;
(b) the natural persons entering the other Party must have an appropriate education and professional qualifications relevant to the service to be provided;
(c) the temporary entry and stay of natural persons within the Party concerned shall be for a cumulative period of not more than 6 (six) months in any period of 12 (twelve) months or for the duration of the contract, whichever is less; and
(d) access accorded pursuant to the provisions of this Article relates only to the service activity which is the subject of the contract and it does not confer entitlement to the natural person to exercise the professional title of the Party where the service is provided.
Section C. REGULATORY FRAMEWORK
Subsection 1. PROVISIONS OF GENERAL APPLICATION
Article 18.11. Mutual Recognition
1. Nothing in this Chapter shall prevent a Party from requiring that natural persons possess the necessary qualifications or professional experience specified in the territory where the service is supplied, for the sector of activity concerned.
2. For the purposes of the fulfilment, in whole or in part, of its standards or criteria for the authorisation, licensing or certification of investors and services suppliers, a Party may recognise the education or experience obtained, requirements met, or licences or certifications granted in the other Party. Such recognition, which may be achieved through harmonisation or otherwise, may be based upon an agreement or arrangement or may be accorded autonomously.
Article 18.12. Transparency
1. Each Party shall publish promptly, and except in emergency situations, at the latest by the time of their entry into force, all relevant measures of general application which pertain to or affect this Chapter.
2. The measures referred to in paragraph 1 shall include measures applying to all modes of supply, including on the process of entry and temporary stay of the categories of natural persons defined in Article 18.7. Information about these measures shall be kept up to date. Each Party shall facilitate access to relevant information by indicating to the other Party where relevant publications and websites can be found.
3. If publication of the measures referred to in paragraph 1 is not practicable, such measures shall be made otherwise publicly available.
4. Each Party shall respond promptly to all requests by the other Party for specific information on any of its relevant measures of general application referred to in paragraph 1, including measures regarding the entry and temporary stay of services suppliers as referred to in paragraph 2.