3. Any state aid schemes instituted before the establishment of the state aid authority shall be aligned within a period of eight years from the date of entry into force of this Agreement. Without prejudice to other Chapters of this Agreement, the alignment period shall be extended for a maximum period of up to 10 years from the date of entry into force of this Agreement with regard to state aid schemes instituted under the Law of the Republic of Moldova on Free Economic Zones No 440-XV of 27 July 2001.
Article 342. Transparency
1. Each Party shall ensure transparency in the area of state aid. To that end, each Party shall, as of 1 January 2016, report every two years to the other Party, following the methodology and the presentation of the EU annual survey on state aid. That report is deemed to have been provided if the relevant information is made available by the Parties or on their behalf on a publicly accessible website.
2. Whenever a Party considers its trade relations to be affected by an individual case of state aid granted by the other Party, the Party concerned may request the other Party to provide information on the individual case of state aid.
Article 343. Confidentiality
When exchanging information under this Chapter, the Parties shall take into account the limitations imposed by the requirements of professional and business secrecy.
Article 344. Review Clause
The Parties shall keep under constant review the matters to which reference is made in this Chapter. Each Party may refer such matters to the Association Committee in Trade configuration, as set out in Article 438(4) of this Agreement. The Parties agree to review progress in implementing this Chapter every two years after the entry into force of this Agreement, unless both Parties agree otherwise.
Chapter 11. Trade-related Energy
Article 345. Definitions
For the purposes of this Chapter:
(1) "energy goods" means crude oil (HS code 27.09), natural gas (HS code 27.11) and electrical energy (HS code 27.16);
(2) "fixed infrastructure" means any transmission or distribution network, liquefied natural gas facility or storage facility, as defined in Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in natural gas and in Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity;
(3) "transport" means transmission and distribution, as defined in Directive 2003/54/EC and Directive 2003/55/EC, and the carriage or conveyance of oil through pipelines;
(4) "unauthorised taking" means any activity consisting of the unlawful taking of energy goods from fixed infrastructure.
Article 346. Domestic Regulated Prices
1. In accordance with the Protocol concerning the Accession of the Republic of Moldova to the Energy Community the price for the supply of gas and electricity for non-household customers shall be determined solely by supply and demand.
2. By way of derogation from paragraph 1, a Party may impose in the general economic interest (1) an obligation on undertakings which relates to the price of supply of natural gas and electricity (hereinafter referred to as "regulated price"). In case non-household customers are not able to agree with a supplier on a price for electricity or natural gas that is lower than or equal to the regulated price for natural gas or electricity, non-household customers shall have the right to enter into a contract for the supply of electricity or natural gas with a supplier against the regulated price applicable. In any case, the non-household customers shall be free to negotiate and sign a contract with any alternative supplier.
3. The Party imposing an obligation in accordance with paragraph 2 shall ensure that the obligation is clearly defined, transparent, proportionate, non-discriminatory, verifiable and of limited duration. When imposing any such obligation, the Party shall also guarantee equality of access for other undertakings to consumers.
4. Where the price at which natural gas and electricity are sold on the domestic market is regulated by a Party, that Party shall ensure that the methodology underlying the calculation of the regulated price is published prior to the entry into force of the regulated price.
Article 347. Prohibition of Dual Pricing
1. Without prejudice to the possibility of imposing regulated prices consistently with paragraphs 2 and 3 of Article 346 of this Agreement, a Party, or a regulatory authority of a Party, shall not adopt or maintain a measure resulting in a higher price for exports of energy goods to the other Party than the price charged for such goods when intended for domestic consumption.
2. The exporting Party shall upon request of the other Party provide evidence that a different price for the same energy goods sold on the domestic market and for export does not result from a measure prohibited by paragraph 1.
Article 348. Transit
The Parties shall take any necessary measures to facilitate transit, consistent with the principle of freedom of transit, and in accordance with Articles V.1, V.2, V.4 and V.5 of GATT 1994 and Articles 7.1 and 7.3 of the Energy Charter Treaty, which are incorporated into this Agreement and made part thereof.
Article 349. Transport
As regards transport of electricity and gas, in particular third party access to fixed infrastructure, the Parties shall adapt their legislation, as referred to in Annex VIII to this Agreement and in the Energy Community Treaty, in order to ensure that the tariffs, which shall be published prior to their entry into force, the capacity allocation procedures and all other conditions are objective, reasonable and transparent and that they do not discriminate on the basis of origin, ownership or destination of the electricity or gas.
Article 350. Unauthorised Taking of Goods In Transit
Each Party shall take all necessary measures to prohibit and address any unauthorised taking of energy goods in transit through its territory by any entity subject to that Party's control or jurisdiction.
Article 351. Uninterrupted Transit
1. A Party shall not interfere with the transit of energy goods through its territory, except where such interference is specifically provided for in a contract or other agreement governing such transit.
2. In the event of a dispute over any matter involving the Parties or one or more entities subject to the control or jurisdiction of one of the Parties, a Party through the territory of which energy goods transit shall not, prior to the conclusion of a dispute resolution procedure under the relevant contract or agreement or of an emergency procedure under Annex XXXI to this Agreement or under Chapter 14 (Dispute Settlement) of Title V (Trade and Trade-related Matters) of this Agreement, interrupt or reduce such transit, or permit any entity subject to its control or jurisdiction, including a state trading enterprise, to interrupt or reduce such transit, except under the circumstances provided in paragraph 1 of this Article.
3. A Party shall not be held liable for an interruption or reduction of transit pursuant to this Article where that Party is unable to supply or to transit energy goods as a result of actions attributable to a third country or an entity under the control or jurisdiction of a third country.
Article 352. Transit Obligation for Operators
Each Party shall ensure that fixed infrastructure operators take any necessary measures to:
(a) minimise the risk of accidental interruption or reduction of transit; and
(b) expeditiously restore the normal operation of such transit, which has been accidentally interrupted or reduced.
Article 353. Regulatory Authority for Electricity and Natural Gas
1. In accordance with Directive 2003/55/EC and Directive 2003/54/EC, a regulatory authority in the field of natural gas and electricity shall be legally distinct and functionally independent from any other public or private entity, and shall be sufficiently empowered to ensure effective competition and the efficient functioning of the market.
2. The decisions of a regulatory authority and the procedures used by it shall be impartial with respect to all market participants.
3. An operator affected by a decision of a regulatory authority shall have the right to appeal against that decision to an appeal body that is independent of the parties involved. Where the appeal body is not judicial in character, written reasons for its decision shall always be given and its decisions shall also be subject to review by an impartial and inde- pendent judicial authority. Decisions taken by appeal bodies shall be effectively enforced.
Article 354. Relationship with the Energy Community Treaty
1. In the event of a conflict between the provisions of this Chapter and the provisions of the Energy Community Treaty or the provisions of the Union legislation made applicable under the Energy Community Treaty, the provisions of the Energy Community Treaty or the provisions of the Union legislation made applicable under the Energy Community Treaty shall prevail to the extent of such conflict.
2. In implementing this Chapter, preference shall be given to the adoption of legislation or other acts which are consistent with the Energy Community Treaty or are based on the legislation applicable in the Union. In the event of a dispute as regards this Chapter, legislation or other acts which meet those criteria shall be presumed to conform to this Chapter. In assessing whether the legislation or other acts meet those criteria, any relevant decision taken under Article 91 of the Energy Community Treaty shall be taken into account.
3. Neither Party shall utilise the dispute settlement provisions of this Agreement in order to allege a violation of the provisions of the Energy Community Treaty.
Chapter 12. Transparency
Article 355. Definitions
For the purposes of this Chapter:
(1) "measures of general application" includes laws, regulations, judicial decisions, procedures and administrative rulings of general application and any other general or abstract act, interpretation or other requirement that may have an impact on any matter covered by Title V (Trade and Trade-related Matters) of this Agreement. It does not include a ruling that applies to a particular person;
(2) "interested person" means any natural or legal person that may be subject to any rights or obligations under measures of general application, within the meaning of Title V (Trade and Trade-related Matters) of this Agreement.
Article 356. Objective and Scope
Recognising the impact which the regulatory environment may have on trade and investment between the Parties, the Parties shall provide a predictable regulatory environment for economic operators and efficient procedures, taking due account of the requirements of legal certainty and proportionality.
Article 357. Publication
1. Each Party shall ensure that measures of general application:
(a) are promptly and readily available via an officially designated medium and, where feasible, electronic means, in such a manner as to enable any person to become acquainted with them;
(b) provide an explanation of the objective of, and the rationale for, such measures; and
(c) allow for sufficient time between publication and entry into force of such measure except in duly justified cases.
2. Each Party shall:
(a) endeavour to publish at an appropriate early stage any proposal to adopt or to amend any measure of general appli- cation, including an explanation of the objective of, and rationale for, the proposal;
(b) provide reasonable opportunities for interested persons to comment on such proposal, allowing, in particular, for sufficient time for such opportunities; and
(c) endeavour to take into account the comments received from interested persons with respect to such proposal.
Article 358. Enquiries and Contact Points
1. In order to facilitate the communication between the Parties on any matter covered by Title V (Irade and Trade-related Matters) of this Agreement, each Party shall designate a contact point acting as a coordinator.
2. Each Party shall maintain or establish appropriate mechanisms for responding to enquiries from any person regarding any measure of general application which is proposed or in force, and its application. Enquiries may be addressed through the contact point established under paragraph 1 or through any other mechanism, as appropriate.
3. The Parties recognise that any response provided for in paragraph 2 may not be definitive or legally binding but for information purposes only, unless otherwise provided in their respective laws and regulations.
4. Upon request of a Party, the other Party shall promptly provide information and respond to questions pertaining to any measure of general application or any proposal to adopt or to amend any measure of general application that the requesting Party considers might affect the operation of Title V (Trade and Trade-related Matters) of this Agreement, regardless of whether the requesting Party has been previously notified of that measure.
Article 359. Administration of Measures of General Application
Each Party shall administer in an objective, impartial and reasonable manner all measures of general application. To that end, each Party, in applying such measures to particular persons, goods or services of the other Party in specific cases, shall:
(a) endeavour to provide interested persons, that are directly affected by a proceeding, with reasonable notice, in accordance with its procedures, when a proceeding is initiated, including a description of the nature of the proceeding, a statement of the legal authority under which the proceeding is initiated, and a general description of any issues in controversy;
(b) afford such interested persons a reasonable opportunity to present facts and arguments in support of their positions prior to any final administrative action, when the time, the nature of the proceeding, and the public interest permit; and
(c) ensure that its procedures are based on and carried out in accordance with its law.
Article 360. Review and Appeal
1. Each Party shall establish or maintain judicial, arbitral or administrative tribunals or procedures for the purpose of the prompt review and, where warranted, the correction of administrative action relating to matters covered by Title V (Trade and Trade-related Matters) of this Agreement. Such tribunals or procedures shall be impartial and independent of the office or authority entrusted with administrative enforcement, and those responsible for them shall not have any substantial interest in the outcome of the matter.
2. Each Party shall ensure that, in any such tribunals or procedures, the parties to the proceeding are provided with the right to:
(a) a reasonable opportunity to support or defend their respective positions; and
(b) a decision based on the evidence and the submissions of record or, where required by the Party's law, the record compiled by the administrative authority.
3. Each Party shall ensure that, subject to appeal or further review as provided in its law, such decision shall be implemented by, and shall govern the practice of, the office or the competent authority with respect to the administrative action at issue.
Article 361. Regulatory Quality and Performance and Good Administrative Behaviour
1. The Parties agree to cooperate in promoting regulatory quality and performance, including through the exchange of information and best practices on their respective regulatory policies and regulatory impact assessments.
2. The Parties subscribe to the principles of good administrative behaviour (1), and agree to cooperate in promoting them, including through the exchange of information and best practices.
Article 362. Specific Rules
The provisions of this Chapter shall apply without prejudice to any specific rules on transparency established in other Chapters of Title V (Irade and Trade-related Matters) of this Agreement.
Chapter 13. Trade and Sustainable Development
Article 363. Context and Objectives
1. The Parties recall the Agenda 21 of the United Nations Conference on Environment and Development of 1992, the ILO Declaration on Fundamental Principles and Rights at Work of 1998, the Johannesburg Plan of Implementation on Sustainable Development of 2002, the Ministerial Declaration of the United Nations Economic and Social Council on Generating Full and Productive Employment and Decent Work for All of 2006, and the ILO Declaration on Social Justice for a Fair Globalisation of 2008. The Parties reaffirm their commitment to promote the development of international trade, in such a way as to contribute to the objective of sustainable development, for the welfare of present and future generations, and to ensure that that objective is integrated and reflected at every level of their trade relationship.
2. The Parties reaffirm their commitment to pursue sustainable development and recognise that economic development, social development and environmental protection are its interdependent and mutually reinforcing pillars. They underline the benefit of considering trade-related labour (1) and environmental issues as part of a global approach to trade and sustainable development.
Article 364. Right to Regulate and Levels of Protection
1. The Parties recognise the right of each Party to determine its sustainable development policies and priorities, to establish its own levels of domestic environmental and labour protection, and to adopt or modify accordingly its relevant law and policies, consistently with their commitment to the internationally recognised standards and agreements referred to in Articles 365 and 366 of this Agreement.
2. In that context, each Party shall strive to ensure that its law and policies provide for and encourage high levels of environmental and labour protection and shall strive to continue to improve those law and policies and the underlying levels of protection.
Article 365. Multilateral Labour Standards and Agreements
1. The Parties recognise full and productive employment and decent work for all as key elements for managing globalisation, and reaffirm their commitment to promote the development of international trade in a way that is conducive to full and productive employment and decent work for all. In that context, the Parties commit to consulting and cooperating, as appropriate, on trade-related labour issues of mutual interest.
2. In accordance with their obligations as members of the ILO and the ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up of 1998, the Parties commit to respecting, promoting and realising in their law and practice and in their whole territory the internationally recognised core labour standards, as embodied in the fundamental ILO conventions, and in particular:
(a) the freedom of association and the effective recognition of the right to collective bargaining;
(b) the elimination of all forms of forced or compulsory labour;
(c) the effective abolition of child labour; and
(d) the elimination of discrimination in respect of employment and occupation.
3. The Parties reaffirm their commitment to effectively implement in their law and in practice the fundamental, the priority and other ILO conventions ratified by the Member States and the Republic of Moldova, respectively.
4. The Parties will also consider the ratification of the remaining priority and other conventions that are classified as up-to-date by the ILO. In that context, the Parties shall regularly exchange information on their respective situation and advancement in the ratification process.
5. The Parties recognise that the violation of fundamental principles and rights at work cannot be invoked or otherwise used as a legitimate comparative advantage and that labour standards should not be used for protectionist trade purposes.
Article 366. Multilateral Environmental Governance and Agreements
1. The Parties recognise the value of international environmental governance and agreements as a response of the international community to global or regional environmental problems, and stress the need to enhance the mutual supportiveness between trade and environmental policies. In that context, the Parties commit to consulting and cooperating, as appropriate, with respect to negotiations on trade-related environmental issues and with respect to other trade-related environmental matters of mutual interest.
2. The Parties reaffirm their commitment to effectively implement in their law and in practice the multilateral environmental agreements (MEAs) to which they are party.
3. The Parties shall regularly exchange information on their respective situation and advancements as regards ratifications of MEAs or amendments to such agreements.
4. The Parties reaffirm their commitment to reaching the ultimate objective of the United Nations Framework Convention on Climate Change (UNFCCC) and its Kyoto Protocol. They commit to cooperating on the development of the future international climate change framework under the UNFCCC and its related agreements and decisions.
5. Nothing in this Agreement shall prevent the Parties from adopting or maintaining measures to implement the MEAs to which they are party, provided that such measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination between the Parties or a disguised restriction on trade.
Article 367. Trade and Investment Promoting Sustainable Development
The Parties reconfirm their commitment to enhance the contribution of trade to the goal of sustainable development in its economic, social and environmental dimensions. Accordingly, the Parties:
(a) recognise the beneficial role that core labour standards and decent work can have on economic efficiency, innovation and productivity, and shall seek greater policy coherence between trade policies, on the one hand, and labour poli- cies, on the other;
(b) shall strive to facilitate and promote trade and investment in environmental goods and services, including through addressing related non-tariff barriers;
(c) shall strive to facilitate the removal of obstacles to trade or investment concerning goods and services of particular relevance to climate change mitigation, such as sustainable renewable energy and energy efficient products and services, including through the adoption of policy frameworks conducive to the deployment of best available tech- nologies and through the promotion of standards that respond to environmental and economic needs and minimise technical obstacles to trade;
(d) agree to promote trade in goods that contribute to enhanced social conditions and environmentally sound practices, including goods that are the subject of voluntary sustainability assurance schemes such as fair and ethical trade schemes, eco-labels, and certification schemes for natural resource-based products;
(e) agree to promote corporate social responsibility, including through the exchange of information and best practices. In that regard, the Parties refer to the relevant internationally recognised principles and guidelines, such as the OECD Guidelines for Multinational Enterprises, the United Nations Global Compact, and the ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy.
Article 368. Biological Diversity
1. The Parties recognise the importance of ensuring the conservation and the sustainable use of biological diversity as a key element for the achievement of sustainable development, and reaffirm their commitment to conserve and sustain- ably use biological diversity, in accordance with the Convention on Biological Diversity and other relevant international instruments to which they are party.
2. To that end, the Parties commit to:
(a) promoting trade in natural resource-based products obtained through a sustainable use of biological resources and contributing to the conservation of biodiversity;
(b) exchanging information on actions on trade in natural resource-based products aimed at halting the loss of biolo- gical diversity and reducing pressures on biodiversity and, where relevant, cooperating to maximise the impact and to ensure the mutual supportiveness of their respective policies;
(c) promoting the listing of species under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) where the conservation status of those species is considered at risk; and
(d) cooperating at the regional and global levels with the aim of promoting the conservation and the sustainable use of biological diversity in natural or agricultural ecosystems, including endangered species, their habitat, specially protected natural areas and genetic diversity, the restoration of ecosystems, and the elimination or the reduction of negative environmental impacts resulting from the use of living and non-living natural resources or of ecosystems.
Article 369. Sustainable Management of Forests and Trade In Forest Products
1. The Parties recognise the importance of ensuring the conservation and the sustainable management of forests and of forests' contribution to the Parties' economic, environmental and social objectives.
2. To that end, the Parties commit to:
(a) promoting trade in forest products derived from sustainably managed forests, harvested in accordance with the domestic legislation of the country of harvest. Actions, in that regard, may include the conclusion of a Forest Law Enforcement Governance and Trade Voluntary Partnership Agreement;
(b) exchanging information on measures to promote the consumption of timber and timber products from sustainably managed forests and, where relevant, cooperate in the development of such measures;
(c) adopting measures to promote the conservation of forest cover and to combat illegal logging and related trade, including with respect to third countries, as appropriate;
(d) exchanging information on actions for improving forest governance and, where relevant, cooperating to maximise the impact and ensure the mutual supportiveness of their respective policies aiming at excluding illegally harvested timber and timber products from trade flows;
(e) promoting the listing of timber species under CITES where the conservation status of that species is considered at risk; and
(f) cooperating at the regional and global level with the aim of promoting the conservation of forest cover and the sustainable management of all types of forests, with use of certification promoting responsible management of the forests.
Article 370. Trade In Fish Products
Taking into account the importance of ensuring responsible management of fish stocks in a sustainable manner as well as promoting good governance in trade, the Parties commit to:
(a) promoting best practices in fisheries management with a view to ensuring the conservation and the management of fish stocks in a sustainable manner, and based on the ecosystem approach;
(b) taking effective measures to monitor and control fishing activities;
(c) ensuring full compliance with applicable conservation and control measures, adopted by Regional Fisheries Management Organisations as well as cooperating with and within Regional Fisheries Management Organisations as widely as possible; and
(d) cooperating in the fight against illegal, unreported and unregulated (IUU) fishing and fishing related activities with comprehensive, effective and transparent measures. The Parties shall also implement policies and measures to exclude IUU products from trade flows and their markets.
Article 371. Upholding Levels of Protection
1. The Parties recognise that it is inappropriate to encourage trade or investment by lowering the levels of protection afforded in domestic environmental or labour law.
2. A Party shall not waive or derogate from, or offer to waive or derogate from, its environmental or labour law as an encouragement for trade or the establishment, the acquisition, the expansion or the retention of an investment of an investor in its territory.
3. A Party shall not, through a sustained or recurring course of action or inaction, fail to effectively enforce its environmental and labour law, as an encouragement for trade or investment.
Article 372. Scientific Information
When preparing and implementing measures aimed at protecting the environment or labour conditions that may affect trade or investment, the Parties shall take account of available scientific and technical information, and relevant international standards, guidelines or recommendations if they exist, including the precautionary principle.
Article 373. Transparency
Each Party, in accordance with its domestic law and Chapter 12 (Transparency) of Title V (Trade and Trade-related Matters) of this Agreement, shall ensure that any measure aimed at protecting the environment or labour conditions that may affect trade or investment is developed, introduced and implemented in a transparent manner, with due notice and public consultation, and with appropriate and timely communication to, and consultation of, non-state actors.
Article 374. Review of Sustainability Impacts
The Parties commit to reviewing, monitoring and assessing the impact of the implementation of Title V (Trade and Trade-related Matters) of this Agreement on sustainable development through their respective participative processes and institutions, as well as those set up under this Agreement, for instance through trade-related sustainability impact assessments.
Article 375. Working Together on Trade and Sustainable Development
The Parties recognise the importance of working together on trade-related aspects of environmental and labour policies in order to achieve the objectives of Title V (Trade and Trade-related Matters) of this Agreement. They may cooperate in, inter alia, the following areas:
(a) labour or environmental aspects of trade and sustainable development in international fora, including in particular the WTO, the ILO, UNEP, and MEAs;