1. "the product" means only passenger cars originating in the EU Party and falling under tariff heading 8703 in accordance with the rules of origin established in Protocol I to this Agreement concerning the definition of the concept of "originating products" and methods of administrative cooperation;
2. "serious injury" shall be understood in accordance with Article 4.1(a) of the Agreement on Safeguards. To this end, Article 4.1(a) is incorporated into and made part of this Agreement, mutatis mutandis;
3. "like product" shall be understood to mean a product which is identical, i.e. alike in all respects to the product under consideration, or in the absence of such a product, another product which although not alike in all respects, has characteristics closely resembling those of the product under consideration;
4. "transition period" means a 10-year period beginning on the date this Agreement enters into force. The transition period will be extended for three more years, if before the end of the year 10, Ukraine has presented a reasoned request to the Trade Committee referred to in Article 465 of this Agreement and the Trade Committee has discussed it;
5. "year one" means the 12-month period beginning on the date of entry into force of this Agreement;
6. "year two" means the 12-month period beginning on the first anniversary of the entry into force of this Agreement;
7. "year three" means the 12-month period beginning on the second anniversary of the entry into force of this Agreement;
8. "year four" means the 12-month period beginning on the third anniversary of the entry into force of this Agreement;
9. "year five" means the 12-month period beginning on the fourth anniversary of the entry into force of this Agreement;
10. "year six" means the 12-month period beginning on the fifth anniversary of the entry into force of this Agreement;
11. "year seven" means the 12-month period beginning on the sixth anniversary of the entry into force of this Agreement;
12. "year eight" means the 12-month period beginning on the seventh anniversary of the entry into force of this Agreement;
13. "year nine" means the 12-month period beginning on the eighth anniversary of the entry into force of this Agreement;
14. "year ten" means the 12-month period beginning on the ninth anniversary of the entry into force of this Agreement;
15. "year eleven" means the 12-month period beginning on the tenth anniversary of the entry into force of this Agreement;
16. "year twelve" means the 12-month period beginning on the eleventh anniversary of the entry into force of this Agreement;
17. "year thirteen" means the 12-month period beginning on the twelfth anniversary of the entry into force of this Agreement;
18. "year fourteen" means the 12-month period beginning on the thirteenth anniversary of the entry into force of this Agreement;
19. "year fifteen" means the 12-month period beginning on the fourteenth anniversary of the entry into force of this Agreement.
Section 3. Non-cumulation
Article 45bis. Non-cumulation
Neither Party may apply, with respect to the same product, at the same time:
(a) a safeguard measure in accordance with Section 2 (Safeguard Measures on Passenger Cars) of this Chapter; and
(b) a measure under Article XIX of GATT 1994 and the Agreement on Safeguards.
Section 4. Anti-dumping and Countervailing Measures
Article 46. General Provisions
1. The Parties confirm their rights and obligations under Article VI of GATT 1994, the Agreement on Implementation of Article VI of GATT 1994, contained in Annex 1A to the WTO Agreement (hereinafter referred to as the "Anti-Dumping Agreement") and the Agreement on Subsidies and Countervailing Measures, contained in Annex 1A to the WTO Agreement (hereinafter referred to as the "SCM Agreement").
2. The preferential rules of origin established under Chapter 1 (National Treatment and Market Access for Goods) of Title IV of this Agreement shall not apply to this Section.
Article 47. Transparency
1. The Parties agree that anti-dumping and countervailing measures should be used in full compliance with the requirements under the Anti- Dumping Agreement and the SCM Agreement respectively and should be based on a fair and transparent system.
2. After receipt by a Party's competent authorities of a properly documented anti-dumping application with respect to imports from the other Party, and no later than 15 days before initiating an investigation, the Party shall provide written notification to the other Party of receipt of the application.
3. Without prejudice to Article 6.5 of the Anti-Dumping Agreement and Article 12.4 of the SCM Agreement, the Parties shall ensure, im- mediately after the imposition of provisional measures, if any, and before final determination is made, full and meaningful disclosure of all essential facts and considerations which form the basis for the decision to apply measures. Disclosure shall be made in writing and allow interested parties sufficient time to make their comments. After final disclosure, interested parties shall be given at least 10 days to make their comments.
4. Provided it does not unnecessarily delay the conduct of the investigation and in accordance with a Party's internal legislation concerning investigation procedures, each interested party shall be granted the possibility to be heard in order to express its views during anti-dumping and anti-subsidy investigations.
Article 48. Consideration of Public Interest
Anti-dumping or countervailing measures may not be applied by a Party where, on the basis of the information made available during the investigation, it can clearly be concluded that it is not in the public interest to apply such measures. The public interest determination shall be based on an appreciation of all the various interests taken as a whole, including the interests of the domestic industry and of users, consumers and importers to the extent that they have provided relevant information to the investigating authorities.
Article 49. Lesser Duty Rule
Should a Party decide to impose a provisional or definitive anti-dumping or countervailing duty, the amount of such duty shall not exceed the margin of dumping or countervailable subsidies, but it should be less than the margin if such a lesser duty would be adequate to remove the injury to the domestic industry.
Article 50. Application of Measures and Reviews
1. Provisional anti-dumping or countervailing measures may be applied by the Parties only if a preliminary determination has shown the existence of dumping or subsidy causing injury to a domestic industry.
2. Before imposing a definitive anti-dumping or countervailing duty, the Parties shall explore the possibility of applying constructive remedies, due consideration being given to the special circumstances of each case. Without prejudice to the relevant provisions of each Party's internal legislation, the Parties should give preference to price undertakings, to the extent that they have received adequate offers by exporters and that the acceptance of these offers is not considered impractical.
3. Upon receiving a duly substantiated request made by an exporter for a review of anti-dumping or countervailing measures in force, the Party that has imposed the measure shall examine such a request in an objective and expeditious manner and shall inform the exporter of the results of the examination as soon as possible.
Section 5. Consultations
Article 50bis. Consultations
1. A Party shall afford the other Party, at the latter's request, the opportunity for consultation concerning specific issues that may arise regarding the application of trade remedies. Those issues may concern, but are not limited to, the methodology followed to calculate margins of dumping, including various adjustments, the use of statistics, the development of imports, the determination of injury and the application of the lesser duty rule.
2. Consultations shall take place as soon as possible and normally within 21 days of the request.
3. Consultations under this Section shall be held without prejudice to, and in full compliance with, the provisions of Article 41 and Article 47 of this Agreement.
Section 6. Institutional Provisions
Article 51. Dialogue on Trade Remedies
1. Parties have agreed to establish an expert-level Dialogue on Trade Remedies as a forum for cooperation in trade remedies matters.
2. The Dialogue on Trade Remedies shall be conducted with the aim of:
(a) enhancing a Party's knowledge and understanding of the other Party's trade remedy laws, policies and practices;
(b) examining the implementation of this Chapter;
(c) improving cooperation between the Parties' authorities having responsibility for trade remedies matters;
(d) discussing international developments in the area of trade defence;
(e) cooperating on any other trade remedies matter.
3. The Dialogue on Trade Remedies meetings shall be held on ad
hoe basis upon request by either Party. The agenda of each such meeting shall be jointly agreed in advance.
Section 7. Dispute Settlement
Article 52. Dispute Settlement
Chapter 14 (Dispute Settlement) of Title IV of this Agreement shall not apply to Sections 1, 4, 5, 6 and 7 of this Chapter.
Chapter 3. Technical Barriers to Trade
Article 53. Scope and Definitions
1. This Chapter applies to the preparation, adoption and application of technical regulations, standards, and conformity assessment procedures as defined in the Agreement on Technical Barriers to Trade, contained in Annex 1A to the WTO Agreement (hereinafter referred to as the "TBT Agreement") that may affect trade in goods between the Parties.
2. Notwithstanding paragraph 1 of this Article, this Chapter does not apply to sanitary and phytosanitary measures as defined in Annex A of the Agreement on the Application of Sanitary and Phytosanitary Measures, contained in Annex 1A to the WTO Agreement (hereinafter referred to as the "SPS Agreement"), nor to purchasing specifications prepared by public authorities for their own production or consumption requirements.
3. For the purposes of this Chapter, the definitions of Annex I to the TBT Agreement shall apply.
Article 54. Affirmation of the TBT Agreement
The Parties affirm their existing rights and obligations with respect to each other under the TBT Agreement, which is hereby incorporated into, and made part of, this Agreement.
Article 55. Technical Cooperation
1. The Parties shall strengthen their cooperation in the field of technical regulations, standards, metrology, market surveillance, accreditation and conformity assessment procedures with a view to increasing mutual understanding of their respective systems and facilitating access to their respective markets. To this end, they may establish regulatory dialogues at both horizontal and sectoral levels.
2. In their cooperation, the Parties shall seek to identify, develop and promote trade-facilitating initiatives which may include, but are not limited to:
(a) reinforcing regulatory cooperation through the exchange of information, experience and data; scientific and technical cooperation, with a view to improving the quality of their technical regulations, standards, testing, market surveillance, certification, and accreditation, and making efficient use of regulatory resources;
(b) promoting and encouraging cooperation between their respective organisations, public or private, responsible for metrology, standardisation, testing, market surveillance, certification and accreditation;
(c) fostering the development of the quality infrastructure for standardisation, metrology, accreditation, conformity assessment and the market surveillance system in Ukraine;
(d) promoting Ukrainian participation in the work of related European organisations;
(e) seeking solutions to trade barriers that may arise;
(f) coordinating their positions in international trade and regulatory organisations such as the WTO and the United Nations Economic Commission for Europe (hereinafter referred to as "UNECE").
Article 56. Approximation of Technical Regulations, Standards, and Conformity Assessment
1. Ukraine shall take the necessary measures in order to gradually achieve conformity with EU technical regulations and EU standardisation, metrology, accreditation, conformity assessment procedures and the market surveillance system, and undertakes to follow the principles and practices laid down in relevant EU Decisions and Regulations (1).
2. With a view to reaching the objectives set out in paragraph 1, Ukraine shall, in line with the timetable in Annex III to this Agreement:
(i) incorporate the relevant EU acquis into its legislation;
(ii) make the administrative and institutional reforms that are necessary to implement this Agreement and the Agreement on Conformity Assessment and Acceptance of Industrial Products (hereinafter referred to as the "ACAA") referred to in Article 57 of this Agreement; and
(iii) provide the effective and transparent administrative system required for the implementation of this Chapter.
3. The timetable in Annex III to this Agreement shall be agreed and maintained by the Parties.
4. After this Agreement enters into force, Ukraine shall provide the EU Party once a year with reports on the measures taken in accordance with this Article. Where actions listed in the timetable in Annex III to this Agreement have not been implemented within the applicable time frame, Ukraine shall indicate a new timetable for the completion of such action.
5. Ukraine shall refrain from amending its horizontal and sectoral legislation listed in Annex III to this Agreement, except in order to align such legislation progressively with the corresponding EU acquis, and to maintain such alignment.
6. Ukraine shall notify the EU Party of any such changes in its national legislation.
7. Ukraine shall ensure that its relevant national bodies participate fully in the European and international organisations for standardisation, legal and fundamental metrology, and conformity assessment including accreditation in accordance with its area of activity and the membership status available to it.
8. Ukraine shall progressively transpose the corpus of European standards (EN) as national standards, including the harmonised European standards, the voluntary use of which shall be presumed to be in conformity with legislation listed in Annex II to this Agreement. Simultaneously with such transposition, Ukraine shall withdraw conflicting national standards, including its application of interstate standards (GOST/TOCT), developed before 1992. In addition, Ukraine shall progressively fulfil the other conditions for membership, in line with the requirements applicable to full members of the European Standardisation Organisations.
Article 57. Agreement on Conformity Assessment and Acceptance of Industrial Products
1. The Parties agree to add an ACAA as a Protocol to this Agreement, covering one or more sectors listed in Annex II to this Agreement once they have agreed that the relevant Ukrainian sectoral and horizontal legislation, institutions and standards have been fully aligned with those of the EU.
2. The ACAA will provide that trade between the Parties in goods in the sectors that it covers shall take place under the same conditions as those applying to trade in such goods between the Member States of the European Union.
3. Following a check by the EU Party and agreement on the state of alignment of relevant Ukrainian technical legislation, standards and infrastructure, the ACAA shall be added as a Protocol to this Agreement by agreement between the Parties according to the procedure for amending this Agreement, covering such sectors from the list in Annex III to this Agreement as are considered to be aligned. It is intended that the ACAA will ultimately be extended to cover all the sectors listed in Annex II to this Agreement, in accordance with the aforementioned procedure.
4. Once the sectors on the list have been covered by the ACAA, the Parties, by mutual agreement and in accordance with the procedure for amending this Agreement, undertake to consider extending its scope to cover other industrial sectors.
5. Until a product is covered under the ACAA, the relevant existing legislation of the Parties shall apply to it, taking into account the provisions of the TBT Agreement.
Article 58. Marking and Labelling
1. Without prejudice to Articles 56 and 57 of this Agreement, with respect to technical regulations relating to labelling or marking requirements, the Parties reaffirm the principles of Article 2.2 of the TBT Agreement whereby such requirements are not prepared, adopted or applied with a view to, or with the effect of, creating unnecessary obstacles to international trade. For this purpose, such labelling or marking requirements shall not be more trade-restrictive than necessary to fulfil a legitimate objective, taking account of the risks that non-fulfilment would create.
2. In particular, regarding mandatory marking or labelling, the Parties agree that:
(a) they will endeavour to minimise their requirements for marking or labelling, except as required for the adoption of the EU acquis in this area and for marking and labelling for the protection of health, safety, or the environment, or for other reasonable public policy purposes;
(b) a Party may determine the form of labelling or marking, but shall not require the approval, registration or certification of labels; and
(c) the Parties retain the right to require the information on a label or marks to be in a specific language.
Chapter 4. Sanitary and Phytosanitary Measures
Article 59. Objective
1. The objective of this Chapter is to facilitate trade in commodities covered by sanitary and phytosanitary measures between the Parties, whilst safeguarding human, animal and plant life or health, by:
(a) ensuring full transparency as regards sanitary and phytosanitary measures applicable to trade;
(b) approximating Ukraine's laws to those of the EU;
(c) recognising the animal and plant health status of the Parties and applying the principle of regionalisation;
(d) establishing a mechanism for the recognition of equivalence of sanitary or phytosanitary measures maintained by a Party;
(e) further implementing the principles of the SPS Agreement;
(f) establishing mechanisms and procedures for trade facilitation; and
(g) improving communication and cooperation between the Parties on sanitary and phytosanitary measures.
2. This Chapter also aims at reaching a common understanding between the Parties concerning animal welfare standards.
Article 60. Multilateral Obligations
The Parties re-affirm their rights and obligations under the SPS Agreement.
Article 61. Scope
This Chapter shall apply to all sanitary and phytosanitary measures of a Party that may, directly or indirectly, affect trade between the Parties, including the measures listed in Annex IV to this Agreement.
Article 62. Definitions
For the purposes of this Chapter, the following definitions shall apply:
1. "sanitary and phytosanitary measures" means measures as defined in paragraph 1 of Annex A to the SPS Agreement, falling within the scope of this Chapter;
2. "animals" means terrestrial and aquatic animals, as defined in the Terrestrial Animal Health Code or the Aquatic Animal Health Code of the World Organisation for Animal Health (hereinafter referred to as the "OIE") accordingly;
3. "animal products" means products of animal origin, including aquatic animal products, as defined in the Terrestrial Animal Health Code and the Aquatic Animal Health Code of the OIE;
4. "animal by-products not intended for human consumption" means animal products as listed in Annex IV-A, Part 2 (II) to this Agreement;
5. "plants" means living plants and specified living parts thereof, including seeds:
(a) fruit, in the botanical sense, other than those preserved by deep freezing;
(b) vegetables, other than those preserved by deep freezing;
(c) tubers, corms, bulbs, rhizomes;
(d) cut flowers;
(e) branches with foliage;
(f) cut trees retaining foliage;
(g) plant tissue cultures;
(h) leaves, foliage;
(i) live pollen; and
(j) bud-wood, cuttings, scions.
6. "plant products" means products of plant origin, unprocessed or having undergone simple preparation in so far as these are not plants, set out in Annex IV-A, Part 3 to this Agreement;
7. "seeds" means seeds in the botanical sense, intended for planting;
8. "pests (harmful organisms)" means any species, strain or biotype of plant, animal or pathogenic agent injurious to plants or plant products;
9. "protected zones" mean, in the case of the EU Party, zones within the meaning of Article 2(1)(h) of Council Directive 2000/29/EC of 8 May 2000 on protective measures against the introduction into Community of organisms harmful to plants or plant products and against their spread within the Community or any successor provision (hereinafter referred to as "Directive 2000/29/EC");
10. "animal disease" means a clinical or pathological manifestation of an infection in animals;
11. "aquaculture disease" means clinical or non-clinical infection with one or more of the aetiological agents of the diseases referred to in the Aquatic Animal Health Code of the OIE;
12. "infection in animals" means the situation where animals maintain an infectious agent with or without the presence of clinical or pathological manifestation of an infection;
13. "animal welfare standards" means standards for the protection of animals as developed and applied by the Parties and, as appropriate, in line with the OIE standards and falling within the scope of this Agreement;
14. "appropriate level of sanitary and phytosanitary protection" means the appropriate level of sanitary and phytosanitary protection as defined in paragraph 5 of Annex A to the SPS Agreement;
15. "region" means, as regards animal health, zones or regions as defined in the Terrestrial Animal Health Code of the OIE, and for aquaculture as defined in the International Aquatic and Animal Health Code of the OIE, on the understanding that as regards the territory of the EU Party its specificity shall be taken into account, recognising the EU Party as an entity;
16. "pest-free area" means an area in which a specific pest does not occur as demonstrated by scientific evidence and in which, where appropriate, this condition is being officially maintained;
17. "regionalisation" means the concept of regionalisation as described in Article 6 of the SPS Agreement;
18. "consignment" means a quantity of animal products of the same type, covered by the same certificate or document, conveyed by the same means of transport, consigned by a single consignor and originating in the same exporting country or part of such country. A consignment may be composed of one or more lots;
19. "consignment of plants or plant products" means a quantity of plants, plant products and/or other articles being moved from one country to another and covered, when required, by a single phytosanitary certificate (a consignment may be composed of one or more commodities or lots);
20. "lot" means a number or units of a single commodity, identifiable by its homogeneity of composition and origin, and forming part of a consignment;
21. "equivalence for trade purposes" (hereinafter referred to as "equivalence") means the situation where the importing Party shall accept the sanitary or phytosanitary measures of the exporting Party as equivalent, even if these measures differ from its own, if the exporting Party objectively demonstrates to the importing Party that its measures achieve the importing Party's appropriate level of sanitary or phytosanitary protection;
22. "sector" means the production and trade structure for a product or category of products in a Party;