2. Each Party shall ensure that its competent investigating authority completes any such investigation within twelve months of its date of initiation.
Article 113. Evidence of Injury and Causal Link
1. In conducting its proceeding, the competent investigating authority shall evaluate all relevant factors of an objective and quantifiable nature having a bearing on the situation of the domestic industry, in particular the rate and amount of the increase in imports of the good concerned in absolute terms or relative to domestic production, the share of the domestic market taken by increased imports, and changes in the level of sales, production, productivity, capacity utilisation, profits and losses, and employment.
2. The determination whether increased imports have caused or are threatening to cause the situations described in Article 104 or 109, shall not be made, unless the investigation demonstrates, on the basis of objective evidence, the existence of a clear causal link between increased imports of the good concerned and the situations described in Article 104 or 109. Where factors other than increased imports are, at the same time, causing the situations described in Article 104 or 109, such injury or serious deterioration in the economic situation shall not be attributed to increased imports.
Article 114. Hearings
In the course of each proceeding, the competent investigating authority shall: (a) hold a public hearing, after providing reasonable notice, to allow all interested parties and any representative consumer association, to appear in person or by counsel, to present evidence and to be heard on serious injury or threat of serious injury, and the appropriate remedy; or (b) provide an opportunity to all interested parties to be heard where they have made a written application within the period laid down in the notice of initiation showing that they are actually likely to be affected by the outcome of the investigation and that there are special reasons for them to be heard orally.
Article 115. Confidential Information
Any information which is by nature confidential or which is provided on a confidential basis shall, upon cause being shown, be treated as such by the competent investigating authority. Such information shall not be disclosed without permission of the Party submitting it. Parties providing confidential information may be requested to furnish non-confidential summaries thereof or, if such parties indicate that such information cannot be summarised, the reasons why a summary cannot be provided. However, if the competent investigating authority finds that a request for confidentiality is not warranted and if the party concerned is either unwilling to make the information public or to authorise its disclosure in generalised or summary form, the authority may disregard such information unless it can be demonstrated to their satisfaction from appropriate sources that the information is correct.
Article 116. Notifications and Publications
1. Where a Party takes the view that one of the circumstances set out in Article 104 or 109 exists, it shall immediately refer the matter to the Association Committee for examination. The Association Committee may make any recommendation needed to remedy the circumstances which have arisen. If no recommendation has been made by the Association Committee aimed at remedying the circumstances, or no other satisfactory solution has been reached within thirty days of the matter being referred to the Association Committee, the importing Party may adopt the appropriate measures to remedy the circumstances in accordance with this Sub-Section.
2. The competent investigating authority shall provide the exporting Party with all pertinent information, which shall include evidence of injury or serious deterioration in the economic situation, caused by increased imports, precise description of the product involved and the proposed measures, proposed date of imposition and expected duration.
3. The competent investigating authority shall also publish its findings and reasoned conclusions reached on all pertinent issues of fact and law in the official journal of the Party, including the description of the imported good and the situation which has given rise to the imposition of measures in accordance with Article 104 or 109, the causal link between such situation and the increased imports, and the form, level and duration of the measures.
4. The competent investigating authority shall not disclose any information provided pursuant to any undertaking concerning confidential information that may have been made in the course of the proceedings.
Chapter 3. Customs and Trade Facilitation
Article 117. Objectives
1. The Parties recognise the importance of customs and trade facilitation matters in the evolving global trading environment. The Parties agree to reinforce cooperation in this area with a view to ensuring that the relevant legislation and procedures, as well as the administrative capacity of the relevant administrations, fulfil the objectives of effective control and the promotion of trade facilitation, and help promote the development and regional integration of the Republics of the CA Party.
2. The Parties recognise that legitimate public policy objectives, including in relation to security and the prevention of fraud, shall not be compromised in any way.
Article 118. Customs and Trade-related Procedures
1. The Parties agree that their respective customs legislation, provisions and procedures shall be based upon:
(a) the international instruments and standards applicable in the field of customs including the WCO Framework of Standards to Secure and Facilitate Global Trade as well as the International Convention on the Harmonized Commodity Description and Coding System;
(b) the protection and facilitation of legitimate trade through effective enforcement of and compliance with the requirements set out in the customs legislation;
(c) legislation that avoids unnecessary or discriminatory burdens, safeguards against customs fraud and provides for further facilitation for high levels of compliance;
(d) the application of modern customs techniques, including risk management, simplified procedures for entry and release of goods, post release controls, and company audit methods;
(e) a system of binding rulings on customs matters, notably on tariff classification and rules of origin, in accordance with rules laid down in the legislation of the Parties;
(f) the progressive development of systems, including those based upon information technology, to facilitate the electronic exchange of data within customs administrations and with other related public institutions;
(g) rules that ensure that any penalties imposed for minor breaches of customs regulations or procedural requirements are proportionate and non-discriminatory and, in their application, do not result in unwarranted delays;
(h) fees and charges that are reasonable and limited in amount to the cost of the service provided in relation to any specific transaction, and are not calculated on an ad valorem basis. Fees and charges shall not be imposed for consular services; and
(i) the elimination of any requirements for the mandatory use of pre-shipment inspections as defined in the WTO Agreement on Preshipment Inspection, or any other inspection activity performed at destination, before customs clearance, by private companies.
2. The Parties agree that their respective customs legislation, provisions and procedures shall, to the extent possible, draw upon the substantive elements of the International Convention on the Simplification and Harmonization of Customs Procedures, as amended (Revised Kyoto Convention) and its Annexes.
3. In order to improve working methods, as well as to ensure non-discrimination, transparency, efficiency, integrity and accountability of operations, the Parties shall:
(a) take steps, to the extent possible, towards the reduction, simplification and standardisation of data and documentation required by customs and other related public institutions;
(b) simplify requirements and formalities wherever possible, in respect of the rapid release and clearance of goods;
(c) provide effective, prompt, non-discriminatory and easily accessible procedures enabling the right of appeal, according to the legislation of each Party, against customs administrative actions, rulings and decisions affecting imports, exports or goods in transit. Charges, if any, shall be commensurate with costs of the appeals procedures; and
(d) take measures in order to ensure that the highest standards of integrity are maintained.
4. The Parties shall ensure that legislation regarding customs brokers is based on transparent and proportionate rules. Where a Party requires compulsory use of customs brokers, legal persons may operate with their own in-house customs brokers licensed by the competent authority for this purpose. This provision is without prejudice to the Parties' position in multilateral negotiations.
Article 119. Transit Movements
1. The Parties shall ensure freedom of transit through their territory in conformity with the principles of Article V of GATT 1994.
2. Any restrictions, controls or requirements must pursue a legitimate public policy objective, be non-discriminatory, proportionate and applied uniformly.
3. Without prejudice to legitimate customs control and supervision of goods in transit, each Party shall grant to traffic in transit to or from the territory of any Party, treatment not less favourable than that granted to traffic in transit through its territory.
4. In conformity with the principles of Article V of GATT 1994, the Parties shall operate regimes that allow the transit of goods without levying any customs duties, any transit duties or other charges imposed in respect of transit, except charges for transportation or those commensurate with administrative expenses entailed by transit or with the cost of services rendered; and subject to the provision of an appropriate guarantee.
5. The Parties shall promote and implement regional transit arrangements with a view to reducing trade barriers.
6. The Parties shall ensure cooperation and coordination between all concerned authorities and agencies in their territory to facilitate traffic in transit and promote cooperation across borders.
Article 120. Relations with the Business Community
The Parties agree:
(a) to ensure that all legislation, procedures and fees and charges are made publicly available, as far as possible through electronic means, together with necessary additional information. The Parties shall make publicly available relevant notices of an administrative nature, including requirements and entry procedures for goods, hours of operation and operating procedures for customs offices and points of contact for information enquiries;
(b) on the need for timely and regular consultations with representatives of interested parties on customs related legislative proposals and procedures. To this end, appropriate and regular consultation mechanisms shall be established by each Party;
(c) that there shall be a reasonable time period between the publication of new or amended legislation, procedures and fees or charges and their entry into force (6);
(d) to foster cooperation with the business community via the use of non-arbitrary and publicly accessible procedures, such as Memoranda of Understanding, based on those promulgated by the WCO; and
(e) to ensure that their respective customs and related requirements and procedures continue to meet the needs of the trading community, follow best practices, and remain as little trade-restrictive as possible.
Article 121. Customs Valuation
The WTO Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade 1994 (hereinafter referred to as the "Customs Valuation Agreement") shall govern customs valuation rules applied to reciprocal trade between the Parties.
Article 122. Risk Management
Each Party shall use risk management systems that enable its customs authorities to focus inspection activities on high-risk goods and that facilitate the clearance and movement of low-risk goods.
Article 123. Sub-committee on Customs, Trade Facilitation and Rules of Origin
1. The Parties hereby establish a Sub-Committee on Customs, Trade Facilitation and Rules of Origin, in accordance with Article 348 and as set out in Annex XXI (Sub-Committees).
2. The functions of the Sub-Committee shall include:
(a) monitoring the implementation and the administration of this Chapter and of Annex II (Concerning the Definition of the Concept of "Originating Products" and Methods of Administrative Cooperation) of this Agreement;
(b) providing a forum to consult and discuss all issues concerning customs, including in particular customs procedures, customs valuation, tariff regimes, customs nomenclature, customs cooperation and mutual administrative assistance in customs matters;
(c) providing a forum to consult and discuss issues relating to rules of origin and administrative cooperation;
(d) enhancing cooperation on the development, the application and the enforcement of customs procedures, mutual administrative assistance in customs matters, rules of origin and administrative cooperation;
(e) attending requests of modifications of the rules of origin and submitting to the Association Committee the results of the analyses and the recommendations;
(f) carrying out the tasks and functions established in Annex II (Concerning the Definition of the Concept of "Originating Products" and Methods of Administrative Cooperation) of this Agreement;
(g) enhancing cooperation on capacity building and technical assistance; and (h) any other issue instructed by the Association Committee.
3. The Parties may agree to hold ad hoc meetings for customs cooperation, for rules of origin or mutual administrative assistance.
Article 124. Cooperation and Technical Assistance on Customs and Trade Facilitation
The technical assistance measures required for the implementation of this Chapter are established in Articles 53 and 54 of Title VI (Economic and Trade Development) of Part III of this Agreement.
Chapter 4. Technical Barriers to Trade
Article 125. Objectives
1. The objective of this Chapter is to facilitate and increase trade in goods by identifying, preventing and eliminating unnecessary barriers to trade between the Parties, which may arise as a result of the preparation, adoption and application of technical regulations, standards and conformity assessment procedures within the terms of the WTO Agreement on Technical Barriers to Trade (hereinafter referred to as the "TBT Agreement").
2. The Parties undertake to cooperate in strengthening regional integration within the Parties on matters concerning technical barriers to trade.
3. The Parties undertake to establish and enhance technical capacity on matters concerning technical barriers to trade with the aim of improving access to their respective markets.
Article 126. General Provisions
The Parties reaffirm 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. The Parties take special account of Article 12 of the TBT Agreement on special and differential treatment.
Article 127. Scope and Coverage
1. This Chapter applies to the preparation, adoption and application of technical regulations, standards and conformity assessment procedures as defined in the TBT Agreement, which may affect trade in goods between the Parties.
2. Notwithstanding paragraph 1, this Chapter does not apply to sanitary and phytosanitary measures as defined in Annex A of the WTO Agreement on the Application of Sanitary and Phytosanitary Measures (hereinafter referred to as the "SPS Agreement"), nor to purchasing specifications prepared by governmental bodies for production or consumption requirements of governmental bodies which will be regulated by Title V (Government Procurement) of Part IV of this Agreement.
Article 128. Definitions
For the purposes of this Chapter, the definitions of Annex I to the TBT Agreement shall apply.
Article 129. Technical Regulations
The Parties agree to make the best use of good regulatory practices, as indicated in the TBT Agreement. In particular, the Parties agree to:
(a) use relevant international standards as a basis for technical regulations including conformity assessment procedures, except when such international standards would be an ineffective or inappropriate means for the fulfilment of the legitimate objectives pursued; and where international standards have not been used as a basis, to explain, upon request of the other Party, the reasons why such standards have been judged inappropriate or ineffective for the aim being pursued;
(b) promote the development of regional technical regulations and that these replace any existing national ones, in order to facilitate trade with and between the Parties;
(c) establish mechanisms for improved information to the other Party' industries on technical regulations (for example, through a public website); and
(d) provide upon request and without undue delay, information, and where appropriate, written guidance on compliance with their technical regulations to the other Party or its economic operators.
Article 130. Standards
1. The Parties confirm their obligation under Article 4.1 of the TBT Agreement to ensure that their standardising bodies accept and comply with the "Code of Good Practice for the Preparation, Adoption and Application of Standards" in Annex 3 to the TBT Agreement.
2. The Parties undertake to:
(a) ensure appropriate interaction of regulatory authorities and national, regional or international standardisation bodies;
(b) ensure the application of the principles set out in the "Decision of the Committee on Principles for the Development of International Standards, Guides and Recommendations with relation to Articles 2, 5 and Annex 3 of the Agreement", adopted by the WTO TBT Committee on 13 November 2000;
(c) ensure that their standards bodies cooperate in order that international standardisation work is, where possible, used as a basis for the development of standards at regional level;
(d) promote the development of regional standards. When a regional standard is adopted, it will fully replace all existing national standards;
(e) exchange information on the Parties' use of standards in connection with technical regulations and to provide as far as possible, that standards shall not be made mandatory; and
(f) exchange information and expertise on the work done by international, regional and national standardisation bodies, and on the extent to which international standards are used as a basis for their national and regional standards; as well as general information on cooperation agreements used by either Party in standardisation.
Article 131. Conformity Assessment and Accreditation
1. The Parties recognise that a broad range of conformity assessment mechanisms exists to facilitate the acceptance of products in the territory of the Parties, including:
(a) acceptance of a supplier's declaration of conformity;
(b) designation of conformity assessment bodies located in the other Party's territory;
(c) acceptance of the results of conformity assessment procedures by bodies located in the other Party's territory; and
(d) voluntary arrangements between conformity assessment bodies in each Party's territory.
2. In line with this, the Parties undertake:
(a) in conformity with Article 5.1.2 of the TBT Agreement, to require conformity assessment procedures that are not stricter than necessary;
(b) to ensure that, where several conformity assessment bodies have been authorised by a Party in accordance with its applicable domestic legislation, legislative measures adopted by such Party will not restrict the operators' freedom to choose where to carry out the relevant conformity assessment procedures; and
(c) to exchange information on accreditation policy, and to consider how to make best use of the international standards for accreditation, and international agreements involving the Parties' accreditation bodies, for example, through the mechanisms of International Laboratory Accreditation Cooperation (ILAC) and International Accreditation Forum (IAF).
Article 132. Special and Differential Treatment
In accordance with the provisions of Article 126 of this Chapter, the Parties agree to:
(a) ensure that legislative measures do not restrict the conclusion of voluntary agreements between conformity assessment bodies located in the Republics of the CA Party and those located in the EU Party and promote the participation of such bodies in these agreements;
(b) when one of the Parties identifies a particular problem related to an actual or proposed technical regulation, standard or conformity assessment procedure that may affect trade between the Parties, that exporting Party may seek clarification and guidance on how to comply with the measure of the importing Party. The latter will promptly give due attention to this request and take into consideration the concerns expressed by the exporting Party;
(c) at the request of the exporting Party, the importing Party shall undertake to promptly deliver through its competent authorities information with respect to the technical regulations, standards and conformity assessment procedures applicable to a group of goods or a particular good for its commercialization in the territory of the importing Party; and
(d) in accordance with Article 12.3 of the TBT Agreement, the EU Party, in the preparation or application of technical regulations, standards and conformity assessment procedures, shall take into account the special development, financial and trade needs of the Republics of the CA Party, with a view to ensuring that such technical regulations, standards and conformity assessment procedures do not create unnecessary obstacles to their exports.
Article 133. Cooperation and Technical Assistance
The Parties agree that it is in their common interest to promote mutual cooperation and technical assistance initiatives on issues related to technical barriers to trade. In this respect, the Parties have identified a number of cooperation activities which are set out in Article 57 of Title VI (Economic and Trade Development) of Part III of this Agreement.
Article 134. Collaboration and Regional Integration
The Parties agree that collaboration between national and regional authorities dealing with technical barriers to trade matters, within both the public and private sectors, is important to facilitate trade within the regions and between the Parties themselves. To this end, the Parties undertake to carry out joint actions that may include:
(a) strengthening their cooperation in the field of standards, technical regulations, metrology, accreditation and conformity assessment with a view to increasing mutual understanding of their respective systems and, in areas of common interest, explore trade facilitation initiatives which lead to the convergence of their regulatory requirements. To this end, they may establish regulatory dialogues at both horizontal and sectoral levels;
(b) seeking to identify, develop and promote trade facilitating initiatives which may include, but are not limited to:
(i) reinforcing regulatory cooperation through, for example, the exchange of information, expertise and data, and scientific and technical cooperation with a view to improving the way technical regulations are developed, in terms of transparency and consultation, and making an efficient use of regulatory resources;
(ii) simplifying procedures and requirements; and
(iii) promoting and encouraging bilateral cooperation between their respective organisations, public or private, responsible for metrology, standardisation, testing, certification and accreditation;
(c) on request, a Party shall give appropriate consideration to proposals that the other Party makes for cooperation under the terms of this Chapter.
Article 135. Transparency and Notification Procedures
The Parties agree:
(a) to fulfil the transparency obligations of the Parties as indicated in the TBT Agreement and provide early warning of the introduction of technical regulations and conformity assessment procedures having a significant effect on trade between the Parties, and when such technical regulations and conformity assessment procedures are introduced, to leave sufficient time between their publication and entry into force for economic operators to adapt to them;
(b) when making notifications in accordance with the TBT Agreement, to allow the other Party at least sixty days following the notification to provide comments in writing on the proposal except where urgent problems of safety, health, environmental protection or national security arise or threaten to arise and, where practicable, to give appropriate consideration to reasonable requests for extending the comment period. This period will be extended if the WTO TBT Committee so recommends; and
(c) to give appropriate consideration to the other Party's views where part of the process in the development of a technical regulation or conformity assessment procedure is, prior to the WTO notification process, open to public consultation in accordance with the procedures of each region; and on request to provide written responses to the comments made by the other Party.
Article 136. Market Surveillance
The Parties undertake to: (a) exchange views on market surveillance and enforcement activities; and (b) ensure that market surveillance is carried out by the competent authorities in an independent manner, with a view to avoid conflicts of interest.
Article 137. Fees
The Parties undertake to ensure that:
(a) any fees imposed for assessing the conformity of products originating in the territory of one Party are equitable in relation to any fees chargeable for assessing the conformity of like products of national origin or originating in the territory of the other Party, taking into account communication, transportation and other costs arising from differences between the location of the facilities of the applicant and the conformity assessment body;
(b) a Party shall give an opportunity to the other Party to make a representation against the amount charged for assessing the conformity of products when the fee is excessive in relation to the cost of the certification service and where this undermines the competitiveness of its products; and
(c) the anticipated processing period for any mandatory conformity assessment is reasonable and equitable for imported and domestic goods.
Article 138. Marking and Labelling
1. The Parties recall, as stated in Article 1 of Annex 1 of the TBT Agreement, that a technical regulation may include or deal exclusively with marking or labelling requirements, and agree that where their technical regulations require any marking or labelling requirements, they will observe the principles of Article 2.2 of the TBT Agreement.
2. In particular, the Parties agree:
(a) to require only marking or labelling relevant to consumers or users of the product or to indicate the product's conformity with the mandatory technical requirements (7);
(b) if it is necessary in view of the risk of the products to human, animal or plant health or life, the environment, or national safety, the Parties may:
(i) require the approval, registration or certification of labels or markings as a precondition for sale on their respective markets; or
(ii) establish requirements on the physical characteristics or design of a label, in particular that the information be placed in a specific part of the product or in a given format or size. The above is understood without prejudice to the measures adopted by the Parties pursuant to their internal rules to check the compliance of labels with the mandatory requirements and measures they take to control practices which may mislead consumers;
(c) where a Party requires the use of a unique identification number by economic operators, it shall issue such a number to the other Party's economic operators without undue delay and on a non-discriminatory basis;
(d) provided it is not misleading, contradictory or confusing in relation to the information required in the country of destination of the goods, the Parties shall permit the following:
(i) information in other languages in addition to the language required in the country of destination of the goods;
(ii) international nomenclatures, pictograms, symbols or graphics; and
(iii) additional information to that required in the country of destination of the goods;
(e) the Party shall, where legitimate objectives under the TBT Agreement are not compromised and the information can properly reach the consumer, endeavour to accept non-permanent or detachable labels, or marking or labelling in the accompanying documentation rather than physically attached to the product; and
(f) the Parties shall allow that labelling and corrections to labelling take place in the country of destination prior to the commercialisation of the goods.
3. Taking into account paragraph 2, the Parties agree that, when a Party requires marking or labelling of textiles, clothing or footwear, the following information alone may be required to be permanently marked:
(a) in the case of textiles and clothing: fibre content, country of origin, safety instructions for specific uses and care instructions; and
(b) in the case of footwear: the predominant materials of the main parts, safety instructions for specific uses and country of origin.
4. The Parties shall apply the provisions of this Article within one year from the entry into force of this Agreement at the latest.