2. Each Party shall ensure that services suppliers that acquire information from another supplier during the process of negotiating interconnection arrangements use that information solely for the purpose for which it was supplied and respect at all times the confidentiality of information transmitted or stored.
3. Each Party shall ensure that upon the finding in accordance with Article 232 of this Agreement that a relevant market is not effectively competitive, the regulatory authority shall have the power to impose on the supplier designated as having significant market power one or more of the following obligations in relation to interconnection and/or access:
(a) obligation on non-discrimination to ensure that the operator applies equivalent conditions in equivalent circumstances to other suppliers providing equivalent services, and provides services and information to others under the same conditions and of the same quality as it provides for its own services or those of its subsidiaries or partners;
(b) obligation of a vertically integrated company to make transparent its wholesale prices and its internal transfer prices, where there is a requirement for non-discrimination or for prevention of unfair cross-subsidy. The regulatory authority may specify the format and accounting methodology to be used;
(c) obligations to meet reasonable requests for access to, and use of, specific network elements and associated facilities, including unbundled access to the local loop, inter alia, in situations where the regulatory authority considers that denial of access or unreasonable terms and conditions having a similar effect would hinder the emergence of a sustainable competitive market at the retail level or would not be in the end user's interest.
Regulatory authorities may attach conditions covering fairness, reasonableness and timeliness to the obligations included under this point;
(d) to provide specified services on a wholesale basis for resale by third parties; to grant open access to technical interfaces, protocols or other key technologies that are indispensable for the interoperability of services or virtual network services; to provide co-location or other forms of facility sharing, including duct, building or mast sharing; to provide specified services needed to ensure interoperability of end-to-end services to users, including facilities for intelligent network services; to provide access to operational support systems or similar software systems necessary to ensure fair competition in the provision of services; and to interconnect networks or network facilities.
Regulatory authorities may attach conditions covering fairness, reasonableness and timeliness to the obligations included under this point;
(e) obligations relating to cost recovery and price controls, including obligations for cost orientation of prices and obligations concerning cost accounting systems, for the provision of specific types of interconnection and/or access, in situations where a market analysis indicates that a lack of effective competition means that the operator concerned might sustain prices at an excessively high level, or apply a price squeeze, to the detriment of end-users.
Regulatory authorities shall take into account the investment made by the operator and allow him a reasonable rate of return on adequate capital employed, taking into account the risks involved;
(f) to publish the specific obligations imposed on services suppliers by the regulatory authority identifying the specific product/service and geographical markets. Up-to-date information, provided that it is not confidential and it does not comprise business secrets is made publicly available in a manner that guarantees all interested parties easy access to that information;
(g) obligations for transparency requiring operators to make public specified information; in particular, where an operator has obligations of non-discrimination, the regulatory authority may require that operator to publish a reference offer, which shall be sufficiently unbundled to ensure that services suppliers are not required to pay for facilities which are not necessary for the service requested, giving a description of the relevant offerings broken down into components according to market needs, and the associated terms and conditions, including prices.
4. Fach Party shall ensure that a service supplier requesting interconnection with a supplier designated as having significant market power shall have recourse, either at any time or after a reasonable period of time which has been made publicly known, to an independent domestic body, which may be a regulatory body as referred to in Article 231(2)(d) of this Agreement to resolve disputes regarding terms and conditions for interconnection and/or access,
Article 235. Scarce Resources
1. Each Party shall ensure that any procedures for the allocation and use of scarce resources, including frequencies, numbers and rights of way, shall be carried out in an objective, proportionate, timely, transparent and non-discriminatory manner. The current state of allocated frequency bands shall be made publicly available, but detailed identification of frequencies allocated for specific government uses is not required.
2. Each Party shall ensure the effective management of radio frequencies for electronic communication services in their territory with a view to ensuring effective and efficient use of the spectrum. Where demand for specific frequencies exceeds their availability, appropriate and transparent procedures shall be followed for the assignment of those frequencies in order to optimise their use and facilitate the development of competition.
3. Each Party shall ensure that the assignment of national numbering resources and the management of the national numbering plans are entrusted to the regulatory authority.
4. Where public or local authorities retain ownership or control of suppliers operating public communication networks and/or services, effective structural separation needs to be ensured between the function responsible for granting the rights of way from activities associated with ownership or control.
Article 236. Universal Service
1. Each Party has the right to define the kind of universal service obligations it wishes to maintain.
2. Such obligations will not be regarded as anti-competitive per se, provided they are administered in a transparent, objective and non-discriminatory way. The administration of such obligations shall also be neutral with respect to competition and shall not be more burdensome than necessary for the kind of universal service defined by the Party.
3. Each Party shall ensure that all suppliers are eligible to ensure universal service and no services supplier is excluded a priori. The designation shall be made through an efficient, transparent, objective and non-discriminatory mechanism. Where necessary, each Party shall assess whether the provision of universal service represents an unfair burden on organisation(s) designated to provide universal service. Where justified on the basis of such calculation, and taking into account the market benefit, if any, which accrues to an organisation that offers universal service, regulatory authorities shall determine whether a mechanism is required to compensate the services supplier(s) concerned or to share the net cost of universal service obligations.
4. Each Party shall ensure that:
(a) directories of all subscribers are available to users, whether printed or electronic, or both, and are updated on a regular basis, and at least once a year; and
(b) organisations that provide the services referred to in point (a) apply the principle of non-discrimination to the treatment of information that has been provided to them by other organisations.
Article 237. Cross-border Provision of Electronic Communication Services
Neither Party may require a service supplier of the other Party to set up an establishment, to establish any form of presence, or to be resident in its territory as a condition for the cross-border supply of a service.
Article 238. Confidentiality of Information
Each Party shall ensure the confidentiality of electronic communications and related traffic data by means of a public communication network and publicly available electronic communication services without restricting trade in services.
Article 239. Disputes between Services Suppliers
1. Each Party shall ensure that in the event of a dispute arising between suppliers of electronic communication networks or services in connection with rights and obligations referred to in this Chapter, the regulatory authority concerned shall, at the request of either party, issue a binding decision to resolve the dispute in the shortest possible timeframe and in any case within four months.
2. The decision of the regulatory authority shall be made available to the public, having regard to the requirements of business confidentiality. The service suppliers concerned shall be given a full statement of the reasons on which it is based.
3. When such a dispute concerns the cross-border provision of services, the regulatory authorities concerned shall coordinate their efforts in order to bring about a resolution of the dispute.
Article 240. Gradual Approximation
Each Party recognises the importance of the gradual approximation of the Republic of Moldova's existing and future legislation to the list of the Union acquis set out in Annex XXVIII-B to this Agreement.
Subsection 6. Financial Services
Article 241. Scope and Definition
1. This section sets out the principles of the regulatory framework for all financial services liberalised pursuant to Section 2 (Establishment), Section 3 (Cross-border Supply of Services) and Section 4 ([emporary Presence of Natural Persons for Business Purposes) of this Chapter.
2. For the purposes of this Sub-Section and of Section 2 (Establishment), Section 3 (Cross-border Supply of Services) and Section 4 (Temporary Presence of Natural Persons for Business Purposes) of this Chapter:
(a) "financial service" means any service of a financial nature offered by a financial service supplier of a Party. Financial services comprise the following activities:
(i) insurance and insurance-related services:
(1) direct insurance (including co-insurance):
(a) life;
(b) non-life;
(2) reinsurance and retrocession;
(3) insurance inter-mediation, such as brokerage and agency; and
(4) services auxiliary to insurance, such as consultancy, actuarial, risk assessment and claim settlement services;
(i) banking and other financial services (excluding insurance):
(1) acceptance of deposits and other repayable funds from the public;
(2) lending of all types, including consumer credit, mortgage credit, factoring and financing of commercial transaction;
(3) financial leasing;
(4) all payment and money transmission services, including credit, charge and debit cards, travellers cheques and bankers drafts;
(5) guarantees and commitments;
(6) trading for own account or for account of customers, whether on an exchange, in an over-the-counter market or otherwise, the following:
(a) money market instruments (including cheques, bills, certificates of deposits);
(b) foreign exchange;
(c) derivative products including, but not limited to, futures and options;
(d) exchange rate and interest rate instruments, including products such as swaps and forward rate agree- ments;
(e) transferable securities; (other negotiable instruments and financial assets, including bullion;
(7) participation in issues of all kinds of securities, including underwriting and placement as agent (whether publicly or privately) and provision of services related to such issues;
(8) money broking;
(9) asset management, such as cash or portfolio management, all forms of collective investment management, pension fund management, custodial, depository and trust services;
(10) settlement and clearing services for financial assets, including securities, derivative products, and other negotiable instruments;
(11) provision and transfer of financial information, and financial data processing and related software;
(12) advisory, intermediation and other auxiliary financial services on all the activities listed in points (1) to (11), including credit reference and analysis, investment and portfolio research and advice, advice on acquisitions and on corporate restructuring and strategy;
(b) "financial service supplier" means any natural or juridical person of a Party that seeks to provide or provides financial services. The term "financial service supplier" does not include a public entity;
(c) "public entity" means:
(i) a government, a central bank or a monetary and financial authority, of a Party, or an entity owned or controlled by a Party, that is principally engaged in carrying out governmental functions or activities for governmental purposes, not including an entity principally engaged in supplying financial services on commercial terms; or
(ii) a private entity, performing functions normally performed by a central bank or monetary and financial authority, when exercising those functions;
(d) "new financial service" means a service of a financial nature, including services related to existing and new products or the manner in which a product is delivered, that is not supplied by any financial service supplier in the territory of a Party but which is supplied in the territory of the other Party.
Article 242. Prudential Carve-out
1. Each Party may adopt or maintain measures for prudential reasons, such as:
(a) the protection of investors, depositors, policy-holders or persons to whom a fiduciary duty is owed by a financial service supplier; and
(b) ensuring the integrity and stability of a Party's financial system.
2. Those measures shall not be more burdensome than necessary to achieve their aim, and shall not discriminate against financial service suppliers of the other Party in comparison to its own like financial service suppliers.
3. Nothing in this Agreement shall be construed to require a Party to disclose information relating to the affairs and accounts of individual consumers or any confidential or proprietary information in the possession of public entities.
Article 243. Effective and Transparent Regulation
1. Each Party shall make its best endeavours to provide in advance to all interested persons any measure of general application that the Party proposes to adopt in order to allow an opportunity for such persons to comment on the measure. Such measure shall be provided:
(a) by means of an official publication; or
(b) in other written or electronic form.
2. Each Party shall make available to interested persons its requirements for completing applications relating to the supply of financial services.
On the request of an applicant, the concerned Party shall inform the applicant of the status of its application. If the concerned Party requires additional information from the applicant, it shall notify the applicant without undue delay.
3. Each Party shall make its best endeavours to ensure that internationally agreed standards for regulation and super-vision in the financial services sector and for the fight against tax evasion and avoidance are implemented and applied in its territory. Such internationally agreed standards are, inter alia, the "Core Principles for Effective Banking Supervision" of the Basel Committee on Banking Supervision, the International Association of Insurance Supervisors' "Insurance Core Principles", the International Organisation of Securities Commissions' "Objectives and Principles of Securities Regulation", the "Agreement on Exchange of Information on Tax Matters" of the Organisation for Economic Cooperation and Development (OECD), the G20 "Statement on Transparency and Exchange of Information for Tax Purposes" and the Financial Action Task Force's "Forty Recommendations" on money laundering and "Nine Special Recommendations" on terrorist financing.
The Parties also take note of the "Ten Key Principles for Information Exchange", promulgated by the G7 Finance Ministers, and will take all steps necessary to try to apply them in their bilateral contacts.
Article 244. New Financial Services
Each Party shall permit a financial service supplier of the other Party to provide any new financial service of a type similar to those services that the Party would permit its own financial service suppliers to provide under its domestic law in like circumstances. A Party may determine the juridical form through which the service may be provided and may require authorisation for the provision of the service. Where such authorisation is required, a decision shall be made within a reasonable time and the authorisation may only be refused for prudential reasons.
Article 245. Data Processing
1. Each Party shall permit a financial service supplier of the other Party to transfer information in electronic or other form, into and out of its territory, for data processing where such processing is required in the ordinary course of busi- ness of such financial service supplier.
2. Each Party shall adopt adequate safeguards for the protection of privacy and fundamental rights and freedoms of individuals, in particular with regard to the transfer of personal data.
Article 246. Specific Exceptions
1. Nothing in this Chapter shall be construed to prevent a Party, including its public entities, from exclusively conducting or providing in its territory activities or services forming part of a public retirement plan or statutory system of social security, except when those activities may be carried out, as provided by the Party's domestic regulation, by financial service suppliers in competition with public entities or private institutions.
2. Nothing in this Agreement applies to activities conducted by a central bank or monetary authority or by any other public entity in pursuit of monetary or exchange rate policies.
3. Nothing in this Chapter shall be construed to prevent a Party, including its public entities, from exclusively conducting or providing in its territory activities or services for the account, or with the guarantee, or using the financial resources, of the Party or its public entities.
Article 247. Self-regulatory Organisations
When a Party requires membership or participation in, or access to, any self-regulatory body, securities or futures exchange or market, clearing agency, or any other organisation or association, in order for financial service suppliers of the other Party to supply financial services on an equal basis with financial service suppliers of the Party, or when the Party provides such entities, directly or indirectly, with privileges or advantages in supplying financial services, the Party shall ensure observance of the obligations of Article 205(1) and Article 211 of this Agreement.
Article 248. Clearing and Payment Systems
Under the terms and conditions that accord national treatment, each Party shall grant to financial service suppliers of the other Party established in its territory access to payment and clearing systems operated by public entities, and to official funding and refinancing facilities available in the normal course of ordinary business. This Article does not confer access to the Party's lender to last resort facilities.
Article 249. Gradual Approximation
Each Party recognises the importance of the gradual approximation of the Republic of Moldova's existing and future legislation to the international best practice standards listed under Article 243(3) of this Agreement as well as to the list of the Union acquis set out in Annex XXVIII-A to this Agreement.
Subsection 7. Transport Services
Article 250. Scope
This Section sets out the principles regarding the liberalisation of international transport services pursuant to Section 2 (Establishment), Section 3 (Cross-border Supply of Services) and Section 4 (Iemporary Presence of Natural Persons for Business Purposes) of this Chapter.
Article 251. International Maritime Transport
1. For the purposes of this Sub-Section and Section 2 (Establishment), Section 3 (Cross-border supply of services) and Section 4 (Temporary presence of natural persons for business purposes) of this Chapter:
(a) "international maritime transport" includes door to door and multi-modal transport operations, which is the carriage of goods using more than one mode of transport, involving a sea-leg, under a single transport document, and to that effect the right to directly contract with providers of other modes of transport;
(b) "maritime cargo handling services" means activities exercised by stevedore companies, including terminal operators, but not including the direct activities of dockers, when that workforce is organised independently of the stevedoring or terminal operator companies. The activities covered include the organisation and supervision of:
(i) the loading/discharging of cargo to/from a ship;
(ii) the lashing/unlashing of cargo; and
(iii) the reception/delivery and safekeeping of cargoes before shipment or after discharge;
(c) "customs clearance services" (alternatively "customs house brokers' services") means activities consisting in carrying out on behalf of another Party customs formalities concerning import, export or through transport of cargoes, whether that service is the main activity of the service provider or a usual complement of its main activity;
(d) "container station and depot services" means activities consisting in storing containers, whether in port areas or inland, with a view to their stuffing/stripping, repairing and making them available for shipments;
(e) "maritime agency services" means activities consisting in representing, within a given geographic area, as an agent the business interests of one or more shipping lines or shipping companies, for the following purposes:
(i) marketing and sales of maritime transport and related services, from quotation to invoicing, and issuance of bills of lading on behalf of the companies, acquisition and resale of the necessary related services, preparation of documentation, and provision of business information;
(ii) acting on behalf of the companies organising the call of the ship or taking over cargoes when required;
(f) "freight forwarding services" means the activity consisting of organising and monitoring shipment operations on behalf of shippers, through the acquisition of transport and related services, preparation of documentation and provision of business information;
(g) "feeder services" means the pre- and onward transportation of international cargoes by sea, notably containerised, between ports located in a Party.
2. As regards international maritime transport, each Party agrees to ensure effective application of the principle of unrestricted access to cargoes on a commercial basis, the freedom to provide international maritime services, as well as national treatment in the framework of the provision of such services.
In view of the existing levels of liberalisation between the Parties in international maritime transport:
(a) each Party shall apply effectively the principle of unrestricted access to the international maritime markets and trades on a commercial and non-discriminatory basis;
(b) each Party shall grant to ships flying the flag of the other Party, or operated by service suppliers of the other Party, treatment no less favourable than that accorded to its own ships or those of any third country, whichever is the better, with regard to, inter alia, access to ports, the use of infrastructure and services of ports, and the use of maritime auxiliary services, as well as related fees and charges, customs facilities and the assignment of berths and facilities for loading and unloading.
3. In applying those principles, the Parties shall:
(a) not introduce cargo-sharing arrangements in future agreements with third countries concerning maritime transport services, including dry and liquid bulk and liner trade, and terminate, within a reasonable period of time, such cargo-sharing arrangements in case they exist in previous agreements; and
(b) upon the entry into force of this Agreement, abolish and abstain from introducing any unilateral measures and administrative, technical and other obstacles which could constitute a disguised restriction or have discriminatory effects on the free supply of services in international maritime transport.
4. Each Party shall permit international maritime transport service suppliers of the other Party to have an establishment in its territory under conditions of establishment and operation no less favourable than those accorded to its own service suppliers or those of any third country, whichever are the better.
5. Each Party shall make available to maritime transport service suppliers of the other Party on reasonable and non-discriminatory terms and conditions the following services at the port: pilotage, towing and tug assistance, provisioning, fuelling and watering, garbage collecting and ballast waste disposal, port captain's services, navigation aids, shore-based operational services essential to ship operations, including communications, water and electrical supplies, emergency repair facilities, anchorage, berth and berthing services.
6. Each Party shall permit the movement of equipment such as empty containers, not being carried as cargo against payment, between ports of a Member State or between ports of the Republic of Moldova.
7. Each Party, subject to the authorisation of the competent authority, shall permit international maritime transport service suppliers of the other Party to provide feeder services between their national ports.
Article 252. Air Transport
A progressive liberalisation of air transport between the Parties, adapted to their reciprocal commercial needs and the conditions of mutual market access, is dealt with by the Common Aviation Area Agreement between the EU and its Member States and the Republic of Moldova.
Article 253. Gradual Approximation
Each Party recognises the importance of the gradual approximation of the Republic of Moldova's existing and future legislation to the list of the Union acquis set out in Annex XXVIII-D to this Agreement.
Subsection 6. Electronic Commerce
Subsection 1. General Provisions
Article 254. Objective and Principles
1. The Parties, recognising that electronic commerce increases trade opportunities in many sectors, agree to promote the development of electronic commerce between them, in particular by cooperating on the issues raised by electronic commerce under the provisions of this Chapter.
2. The Parties agree that the development of electronic commerce must be fully compatible with the highest international standards of data protection, in order to ensure the confidence of users of electronic commerce.
3. The Parties agree that electronic transmissions shall be considered as the provision of services, within the meaning of Section 3 (Cross-border Supply of Services) of this Chapter, which cannot be subject to customs duties.
Article 255. Cooperation In Electronic Commerce
1. The Parties shall maintain a dialogue on regulatory issues raised by electronic commerce, which will address, inter alia, the following issues:
(a) the recognition of certificates of electronic signatures issued to the public and the facilitation of cross-border certification services;
(b) the liability of intermediary service providers with respect to the transmission or storage of information;
(c) the treatment of unsolicited electronic commercial communications;
(d) the protection of consumers in the ambit of electronic commerce; and
(e) any other issue relevant for the development of electronic commerce.
2. Such cooperation can take the form of exchange of information on the Parties' respective legislation on those issues as well as on the implementation of such legislation.
Subsection 2. Liability of Intermediary Service Providers
Article 256. Use of Intermediaries' Services
1. The Parties recognise that the services of intermediaries can be used by third parties for infringing activities and shall provide the measures set out in this Sub-Section in respect of intermediary service providers.
2. For the purposes of Article 257 of this Agreement, "service provider" means a provider of transmission, routing, or connections for digital online communication between or among points specified by the user, of material of the user's choice without modifying its content. For the purposes of Articles 258 and 259 of this Agreement, "service provider" means a provider or operator of facilities for online services or network access.