Article 139. Sub-committee on Technical Barriers to Trade
1. The Parties hereby establish a Sub-Committee on Technical Barriers to Trade, in accordance with Article 348 and as set out in Annex XXI (Sub-Committees).
2. The Sub-Committee shall have the following functions:
(a) discuss any matter relating to the application of this Chapter that could affect trade between the Parties;
(b) monitor the implementation and administration of this Chapter; promptly addressing any issue that either Party raises related to the development, adoption, application, or enforcement of standards, technical regulations, and conformity assessment procedures; and at either Party's request, consulting on any matter arising under this Chapter;
(c) facilitate the exchange of information on technical regulations, standards and conformity assessment procedures;
(d) provide a forum for discussion in order to solve problems or issues that hinder or limit trade, within the limits of the scope and objective of this Chapter;
(e) enhance cooperation in the development and improvement of standards, technical regulations, and conformity assessment procedures; including the exchange of information between the relevant public or private bodies working on these matters and encourage direct interaction between non-governmental actors, such as standard bodies, accreditators and certifiers;
(f) facilitate the exchange of information about the work being done in non-governmental, regional and multilateral fora engaged in activities related to technical regulations, standardisation and conformity assessment procedures;
(g) explore ways to facilitate trade between the Parties;
(h) report on the cooperation programs established under Article 57 of Title VI (Economic and Trade Development) of Part III of this Agreement, their achievements and the impact of these projects in facilitating trade and in implementing the provisions of this Chapter;
(i) review this Chapter in the light of any developments under the TBT Agreement;
(j) report to the Association Committee on the implementation of the provisions of this Chapter, in particular the advances in the fulfilment of the goals established and the provisions related to special and differential treatment;
(k) take any other steps the Parties consider will assist them in implementing this Chapter;
(l) establish dialogues between regulators in accordance with Article 134(a) of this Chapter and, where appropriate, working groups to discuss different topics of interest to the Parties. The working groups may include or consult with non-governmental experts and stakeholders; and
(m) any other issue instructed by the Association Committee.
Chapter 5. Sanitary and Phytosanitary Measures
Article 140. Objectives
The objectives of this Chapter are to:
(a) protect human, animal or plant life or health in the territory of the Parties while facilitating trade between them under the scope of the implementation of this Chapter;
(b) collaborate for the further implementation of the SPS Agreement;
(c) ensure that sanitary and phytosanitary measures do not create unjustified barriers to trade between the Parties;
(d) consider the asymmetries between the regions;
(e) enhance cooperation in the sanitary and phytosanitary field in line with Part III of this Agreement, with the aim of strengthening the capacities of a Party on sanitary and phytosanitary matters in order to improve access to the market of the other Party whilst safeguarding the level of protection of humans, animals and plants; and
(f) progressively implement the region to region approach in trade of goods subject to sanitary and phytosanitary measures.
Article 141. Multilateral Rights and Obligations
The Parties reaffirm their rights and obligations under the SPS Agreement.
Article 142. Scope
1. This Chapter applies to all sanitary and phytosanitary measures of a Party that may, directly or indirectly, affect trade between the Parties.
2. This Chapter shall not apply to the standards, technical regulations and conformity assessment procedures as defined in the TBT Agreement.
3. Additionally, this Chapter shall apply to the cooperation on animal welfare matters.
Article 143. Definitions
For the purposes of this Chapter, the definitions contained in Annex A of the SPS Agreement shall apply.
Article 144. Competent Authorities
The Competent Authorities of the Parties are the authorities competent for the implementation of this Chapter, as provided for in Annex VI (Competent Authorities). The Parties shall, in accordance with Article 151 of this Chapter, inform each other of any change concerning such Competent Authorities.
Article 145. General Principles
1. The sanitary and phytosanitary measures applied by the Parties shall follow the principles established in Article 3 of the SPS Agreement.
2. The sanitary and phytosanitary measures cannot be used so as to create unjustified barriers to trade.
3. The procedures established under the scope of this Chapter shall be applied in a transparent manner, without undue delays and in conditions and requirements including costs, which shall be no higher than the actual cost of the service and be equitable in relation to any fee charged on like domestic products of the Parties.
4. The Parties will neither use the procedures mentioned in paragraph 3 nor the requests of additional information to delay the access to the market without scientific and technical justification.
Article 146. Import Requirements
1. The exporting Party shall ensure that products exported to the importing Party comply with the sanitary and phytosanitary requirements of the importing Party.
2. The importing Party shall ensure that its import conditions are applied in a proportional and non discriminatory manner.
Article 147. Trade Facilitation
1. List of establishments:
(a) For the import of animal products, the exporting Party shall inform the importing Party of its list of establishments complying with the importing Party's requirements;
(b) Upon request of the exporting Party, accompanied by the appropriate sanitary guarantees, the importing Party shall approve establishments as referred to in Annex VII (Requirements and Provisions for Approval of Establishments for Products of Animal Origin) which are situated on the territory of the exporting Party, without prior inspection of individual establishments. Such approval shall be consistent with the requirements and provisions set out in Annex VII, and it is limited to those categories of products for which imports are authorised;
(c) The sanitary guarantees referred in this Article may include relevant and justified information to ensure the sanitary status of the live animals and animal products to be imported;
(d) Unless additional information is requested, the importing Party shall take the necessary legislative or administrative measures, in accordance with its applicable legal procedures, to allow import on that basis within forty working days after having received the request of the exporting Party accompanied by the appropriate sanitary guarantees;
(e) The importing Party will regularly submit a record of rejected requests for approval, including information about the non-conformities upon which the rejection to approve an establishment was based.
2. Import checks and inspection fees: any fees imposed for the procedures on imported products may only cover the cost incurred by the Competent Authority for performing import checks; they shall be no higher than the actual cost of the service and shall be equitable in relation to any fees charged on like domestic products.
Article 148. Verifications
1. In order to maintain confidence in the effective implementation of the provisions of this Chapter and within its scope, each Party has the right to:
(a) carry out verification of all or part of the other Party's authorities' control system, in accordance with the guidelines described in Annex VIII (Guidelines for Conducting Verifications). The expenses of such verification shall be borne by the Party carrying out the verification; and
(b) receive information from the other Party about its control system and be informed of the results of the controls carried out under that system.
2. The Parties shall share the results and conclusions of the verifications carried out in the territory of the other Party and make them publicly available.
3. When the importing Party decides to carry out a verification visit to the exporting Party, this visit shall be notified to the other Party at least sixty working days before such verification is carried out, except in emergency cases or if the Parties concerned agree differently. Any modification to this visit shall be agreed by the Parties concerned.
Article 149. Measures Linked to Animal and Plant Health
1. The Parties shall recognise the concept of pest- or disease-free areas and areas of low pest or disease prevalence, in accordance with the SPS Agreement as well as the standards, guidelines or recommendations of the World Organisation for Animal Health (hereinafter referred to as the "OIE") and the International Plant Protection Convention (hereinafter referred to as the "IPPC"). The Sub-Committee referred to in Article 156 of this Chapter may define further details for the procedure for the recognition of such areas, taking into account the SPS Agreement, the OIE and the IPPC relevant standards, guidelines or recommendations. This procedure will include situations related to outbreaks and reinfestations.
2. When determining pest- or disease-free areas and areas of low pest or disease prevalence, the Parties shall consider factors such as geographical location, ecosystems, epidemiological surveillance and the effectiveness of sanitary or phytosanitary controls in such areas.
3. The Parties shall establish close cooperation on the determination of pest- or disease-free areas and areas of low pest and disease prevalence with the objective of acquiring confidence in the procedures followed by each Party for the determination of such areas.
4. When determining such areas, whether for the first time or after an outbreak of an animal disease or a re-introduction of a plant pest, the importing Party shall in principle base its own determination of the animal and plant health status of the exporting Party or parts thereof, on the information provided by the exporting Party in accordance with the SPS Agreement, the OIE and the IPPC relevant standards, guidelines or recommendations, and take into consideration the determination made by the exporting Party.
5. If the importing Party does not accept the above mentioned determination made by the exporting Party, it shall explain the reasons and shall be ready to enter into consultations.
6. The exporting Party shall provide the necessary evidence to objectively demonstrate to the importing Party that such areas are, and are likely to remain, pest- or disease-free areas or areas of low pest or disease prevalence, respectively. For this purpose, reasonable access shall be given, upon request, to the importing Party for inspection, testing and other relevant procedures.
7. The Parties recognise the principle of compartmentalisation of the OIE and pest-free production places and sites of the IPPC. They will consider their future recommendations on the matter and the Sub-Committee set up in Article 156 of this Chapter will recommend accordingly.
Article 150. Equivalence
Through the Sub-Committee on Sanitary and Phytosanitary Matters established by Article 156, the Parties may develop provisions on equivalence and will make recommendations according to the procedures set up in the institutional provisions of this Agreement.
Article 151. Transparency and Exchange of Information
The Parties shall:
(a) pursue transparency as regards sanitary and phytosanitary measures applicable to trade;
(b) enhance mutual understanding of each Party's sanitary and phytosanitary measures and their application;
(c) exchange information on matters related to the development and the application of sanitary and phytosanitary measures that affect, or may affect, trade between the Parties with a view to minimising their negative trade effects; and
(d) communicate, upon request of a Party, the requirements that apply to the import of specific products.
Article 152. Notification and Consultation
1. Each Party shall notify in writing to the other Party, within three working days, any serious or significant risk to human, animal or plant life or health, including any food emergencies.
2. Notifications shall be made to the contact points set up in Annex IX (Contact Points and Web-Sites). Written notification means notification by mail, fax or e-mail.
3. Where a Party has serious concerns regarding a risk to human, animal or plant life or health, involving products for which trade takes place, consultations regarding the situation shall, on request, take place as soon as possible. Each Party shall endeavour, in such conditions, to provide all the information necessary to avoid disruptions to trade.
4. Consultations referred to in paragraph 3 could be held by e-mail, video, audio conference or any other means mutually agreed by the Parties. The requesting Party should ensure the preparation of the minutes of the consultation, which shall be formally approved by the Parties.
Article 153. Emergency Measures
1. In case of serious risk to human, animal or plant life or health, the importing Party may take, without previous notification, measures necessary for the protection of human, animal or plant life or health. For consignments in transit between the Parties, the importing Party shall consider the most suitable and proportional solution in order to avoid unnecessary disruptions to trade.
2. The Party taking the measures shall inform the other Party as soon as possible and in any case not later than one working day after the adoption of the measure. The Parties may request any information related to the sanitary and phytosanitary situation and measures adopted and the Parties shall answer as soon as the requested information is available.
3. Upon request of either Party and in accordance with the provisions of Article 152 of this Chapter, the Parties shall hold consultations regarding the situation within fifteen working days of the notification. These consultations will be carried out in order to avoid unnecessary disruptions to trade. The Parties may consider options for the facilitation of the implementation or the replacement of the measures.
Article 154. Cooperation and Technical Assistance
1. The cooperation and technical assistance measures required for the implementation of this Chapter are established in Article 62 of Title VI (Economic and Trade Development) of Part III of this Agreement.
2. The Parties will establish through the Sub-Committee on Sanitary and Phytosanitary Matters set up in Article 156 of this Chapter, a working programme, including the identification of cooperation and technical assistance necessities to build and/or strengthen the capacity of the Parties on human, animal, or plant health and food safety issues of common interest.
Article 155. Special and Differential Treatment
Any Republic of the CA Party may directly consult with the EU Party when it identifies a particular problem related to a proposed measure of the EU Party that may affect their trade. For such consultations, the decisions of the WTO/SPS Committee such as document G/SPS/33 and its modifications may be used as guidance.
Article 156. Sub-committee on Sanitary and Phytosanitary Matters
1. The Parties hereby establish a Sub-Committee on Sanitary and Phytosanitary Matters, in accordance with Article 348 and as set out in Annex XXI (Sub-Committees).
2. The Sub-Committee may address any matter related to the rights and obligations of this Chapter. In particular, it shall have the following responsibilities and functions:
(a) recommend the development of the necessary procedures or arrangements for the implementation of this Chapter;
(b) to monitor the progress of the implementation of this Chapter;
(c) to provide a forum for discussion of problems arising from the application of certain sanitary or phytosanitary measures with a view to reaching mutually acceptable alternatives. To this end, the Sub-Committee shall be convened as a matter of urgency, at the request of a Party, so as to carry out consultations;
(d) to conduct, if necessary, the consultations established in Article 155 of this Chapter concerning the special and differential treatment;
(e) to conduct, if necessary, the consultations established in Article 157 of this Chapter concerning the settlement of disputes arising under this Chapter;
(f) to promote cooperation on animal welfare between the Parties; and
(g) any other issue instructed by the Association Committee.
3. The Sub-Committee shall agree, at its first meeting, on its rules of procedure for approval by the Association Committee.
Article 157. Dispute Settlement
1. When a Party considers that a measure of the other Party is or might be contrary to the obligations under this Chapter, it may request technical consultations in the Sub-Committee established in Article 156. The Competent Authorities identified in Annex VI (Competent Authorities) will facilitate these consultations.
2. Unless otherwise agreed by the Parties to the dispute, when a dispute is the object of consultations in the Sub-Committee according to paragraph 1, those consultations shall replace the consultations foreseen in Article 310 of Title X (Dispute Settlement) of Part IV of this Agreement. Consultations in the Sub-Committee shall be deemed concluded within thirty days following the date of submission of the request, unless the consulting Parties agree to continue with the consultations. These consultations could be made via phone conference, videoconference, or any other means mutually agreed by the Parties.
Chapter 6. Exceptions Related to Goods
Article 158. General Exceptions
1. Article XX of GATT 1994, including its interpretative notes, is incorporated into and made an integral part of this Agreement.
2. The Parties acknowledge that Article XX (b) of GATT 1994 may also apply to environmental measures necessary to protect human, animal, or plant life or health, and that Article XX (g) of GATT 1994 applies to measures relating to the conservation of living and non-living exhaustible natural resources.
3. The Parties acknowledge that, at the request of a Party and prior to taking any measures provided for in Article XX (i) and Article XX (j) of GATT 1994, the exporting Party seeking to take the measures shall supply the other Party with all relevant information. The Parties may agree on any means required to put an end to the conditions necessitating the measures. If no agreement is reached within thirty days, the exporting Party may apply measures under this Article to the exportation of the product concerned. Where exceptional and critical circumstances requiring immediate action make prior information or examination impossible, the Party seeking to take the measures may apply forthwith the precautionary measures strictly necessary to address the situation and shall promptly inform the other Party.
Title III. ESTABLISHMENT, TRADE IN SERVICES AND ELECTRONIC COMMERCE
Chapter 1. General Provisions
Article 159. Objective, Scope and Coverage
1. The Parties, reaffirming their commitments under the WTO Agreement, hereby lay down the necessary provisions for the progressive liberalisation of establishment and trade in services and for cooperation on electronic commerce (hereinafter referred to as "e-commerce").
2. Nothing in this Title shall be construed to require the privatisation of public undertakings or public utilities services supply in the exercise of governmental authority or to impose any obligation with respect to government procurement.
3. The provisions of this Title shall not apply to subsidies granted by the Parties.
4. Consistent with the provisions of this Title, each Party retains the right to regulate and to introduce new regulations to meet legitimate national policy objectives.
5. This Title shall not apply to measures affecting natural persons seeking access to the employment market of a Party, nor shall it apply to measures regarding citizenship, residence or employment on a permanent basis.
6. Nothing in this Title shall prevent a Party from applying measures to regulate the entry of natural persons into, or their temporary stay within its territory, including those measures necessary to protect the integrity, and to ensure the orderly movement of natural persons across its borders, provided that such measures are not applied in such a manner as to nullify or impair the benefits accruing to any Party under the terms of a specific commitment (8).
Article 160. Definitions
For the purposes of this Title:
(a) "measure" means any measure by a Party, whether in the form of a law, regulation, rule, procedure, decision, administrative action, or any other form;
(b) "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;
(c) "natural person of a Party" means a national of one of the Member States of the European Union or of a Republic of the CA Party according to their respective legislation;
(d) "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;
(e) an "EU Party juridical person" or a "juridical person of a Republic of the CA Party" means a juridical person established in accordance with the laws of a Member State of the European Union or of a Republic of the CA Party respectively, and having its registered office, central administration, or principal place of business within the territory of the EU Party or the territory of a Republic of the CA Party, respectively. Where the juridical person has only its registered office or central administration within the territory of the EU Party or within the territory of a Republic of the CA Party, respectively, it shall not be considered as an EU Party juridical person or a juridical person of a Republic of the CA Party respectively, unless it is engaged in substantive business operations within the territory of a Member State of the European Union or within the territory of a Republic of the CA Party, respectively (9); and
(f) Notwithstanding the preceding subparagraph, shipping companies established outside the EU Party or the Republics of the CA Party and controlled by nationals of a Member State of the European Union or of a Republic of the CA Party, respectively, shall also be beneficiaries of the provisions of this Agreement, if their vessels are registered in accordance with their respective legislation, in that Member State of the European Union or in a Republic of the CA Party and carry the flag of a Member State of the European Union or of a Republic of the CA Party.
Article 161. Cooperation on Establishment, Trade In Services and E-commerce
The Parties agree that it is in their common interest to promote mutual cooperation and technical assistance initiatives on issues related to Establishment, Trade in Services and E-Commerce. In this sense, the Parties have identified a number of cooperation activities which are set out in Article 56 of Title VI (Economic and Trade Development) of Part III of this Agreement.
Chapter 2. Establishment
Article 162. Definitions
For the purposes of this Chapter:
(a) "branch of a juridical person of a Party" means a place of business not having legal personality which has the appearance of permanency, such as the extension of a parent body, has a management and is materially equipped to negotiate business with third parties so that the latter, although knowing that there will if necessary be a legal link with the parent body, the head office of which is abroad, does not have to deal directly with such parent body but may transact business at the place of business constituting the extension;
(b) "economic activity" covers the activities committed in Annex X (Lists of Commitments on Establishment). "Economic activity" does not include activities carried out in the exercise of governmental authority, for example, activities carried out neither on a commercial basis nor in competition with one or more economic operators;
(c) "establishment" means:
(i) the constitution, acquisition or maintenance of a juridical person (10); or
(ii) the creation or maintenance of a branch or representative office, within the territory of a Party for the purpose of performing an economic activity;
(d) "investor of a Party" means any natural or juridical person of a Party that seeks to perform or performs an economic activity through setting up an establishment; and
(e) "subsidiary of a juridical person of a Party" means a juridical person which is effectively controlled by another juridical person of that Party (11).
Article 163. Coverage
This Chapter applies to measures by the Parties affecting establishment (12) in all economic activities as defined in Article 162, with the exception of:
(a) mining, manufacturing and processing of nuclear materials;
(b) production of or trade in arms, munitions and war material;
(c) audio-visual services; (d) national and inland waterway cabotage transport (13); and
(e) national 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;