1. Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, or the provision of access to a communication network, each Party shall ensure that the service provider is not liable for the information transmitted, on condition that the provider:
(a) does not initiate the transmission;
(b) does not select the receiver of the transmission; and
(c) does not select or modify the information contained in the transmission.
2. The acts of transmission and of provision of access referred to in paragraph 1 include the automatic, intermediate and transient storage of the information transmitted in so far as it takes place for the sole purpose of carrying out the transmission in the communication network, and provided that the information is not stored for any period longer than is reasonably necessary for the transmission.
3. This Article shall not affect the possibility for a court or administrative authority, in accordance with the Parties' legal systems, of requiring the service provider to terminate or prevent an infringement.
Article 258. Liability of Intermediary Service Providers: "caching"
1. Where an information society service is provided that consists of the transmission in a communication network of information provided by a recipient of the service, each Party shall ensure that the service provider is not liable for the automatic, intermediate and temporary storage of that information, performed for the sole purpose of making more efficient the onward transmission of the information to other recipients of the service upon their request, on condition that:
(a) the provider does not modify the information;
(b) the provider complies with conditions on access to the information;
(c) the provider complies with rules regarding the updating of the information, specified in a manner widely recognised and used by industry;
(d) the provider does not interfere with the lawful use of technology, widely recognised and used by industry, to obtain data on the use of the information; and
(e) the provider acts expeditiously to remove or to disable access to the information it has stored upon obtaining actual knowledge of the fact that the information at the initial source of the transmission has been removed from the network, or access to it has been disabled, or that a court or an administrative authority has ordered such removal or disablement.
2. This Article shall not affect the possibility for a court or administrative authority, in accordance with the Parties' legal systems, of requiring the service provider to terminate or prevent an infringement.
Article 259. Liability of Intermediary Service Providers: "hosting"
1. Where an information society service is provided that consists of the storage of information provided by a recipient of the service, each Party shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that:
(a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or
(b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.
2. Paragraph 1 shall not apply when the recipient of the service is acting under the authority or the control of the provider.
3. This Article shall not affect the possibility for a court or administrative authority, in accordance with the Parties' legal systems, of requiring the service provider to terminate or prevent an infringement, nor does it affect the possibility for the Parties of establishing procedures governing the removal or disabling of access to information.
Article 260. No General Obligation to Monitor
1. The Parties shall not impose a general obligation on providers, when providing the services covered by Articles 257, 258 and 259 of this Agreement, to monitor the information which they transmit or store, nor shall they impose a general obligation to actively seek facts or circumstances indicating illegal activity.
2. A Party may establish obligations for information society service providers to promptly inform the competent public authorities of alleged illegal activities undertaken or information provided by recipients of their service or obligations to communicate to the competent authorities, at their request, information enabling the identification of recipients of their service with whom they have storage agreements.
Section 7. Exceptions
Article 261. General Exceptions
1. Without prejudice to general exceptions set in Articles 446 of this Agreement, the provisions of this Chapter and of Annexes XXVII-A and XXVII-E, XXVII-B and XXVII-F, XXVII-C and XXVII-G, XXVII-D and XXVII-H to this Agreement are subject to the exceptions provided for in this Article.
2. Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where like conditions prevail, or a disguised restriction on establishment or cross-border supply of services, nothing in this Chapter shall be construed to prevent the adoption or enforcement by any Party of measures:
(a) necessary to protect public security or public morals or to maintain public order;
(b) necessary to protect human, animal or plant life or health;
(c) relating to the conservation of exhaustible natural resources if such measures are applied in conjunction with restrictions on domestic entrepreneurs or on the domestic supply or consumption of services;
(d) necessary for the protection of national treasures of artistic, historic or archaeological value;
(e) necessary to secure compliance with laws or regulations which are not inconsistent with the provisions of this Chapter, including those relating to:
(i) the prevention of deceptive and fraudulent practices or dealing with the effects of a default on contracts;
(ii) the protection of the privacy of individuals in relation to the processing and dissemination of personal data and the protection of confidentiality of individual records and accounts;
(iii) safety;
(f) inconsistent with Articles 205(1) and 211 of this Agreement, provided that the difference in treatment is aimed at ensuring the effective or equitable imposition or collection of direct taxes in respect of economic activities, entrepreneurs or services suppliers of the other Party (1).
3. The provisions of this Chapter and of Annexes XXVII-A and XXVII-E, XXVII-B and XXVII-F, XXVII-C and XXVII-G, XXVIL-D and XXVII-H to this Agreement shall not apply to the Parties' respective social security systems or to activities in the territory of each Party which are connected, even occasionally, with the exercise of official authority.
Article 262. Taxation Measures
The most-favoured-nation treatment granted in accordance with the provisions of this Chapter shall not apply to the tax treatment that Parties are providing or will provide in future on the basis of agreements between the Parties designed to avoid double taxation.
Article 263. Security Exceptions
Nothing In this Agreement shall be construed to:
(a) require any Party to furnish any information, the disclosure of which it considers contrary to its essential security interests;
(b) prevent any Party from taking any action which it considers necessary for the protection of its essential security interests:
(i) connected with the production of, or trade, in arms, munitions or war materiel;
(ii) relating to economic activities carried out directly or indirectly for the purpose of provisioning a military estab- lishment;
(iii) relating to fissionable and fusionable materials or the materials from which they are derived; or
(iv) taken in time of war or other emergency in international relations; or
(c) prevent any Party from taking any action in pursuance of obligations it has accepted for the purpose of maintaining international peace and security.
Chapter 7. Current Payments and Movement of Capital
Article 264. Current Payments
The Parties undertake to authorise, in freely convertible currency, in accordance with the provisions of Article VIII of the Agreement of the International Monetary Fund, any payments and transfers on the current account of balance of payments between the Parties.
Article 265. Capital Movements
1. With regard to transactions on the capital and financial account of balance of payments, from the entry into force of this Agreement, the Parties shall ensure the free movement of capital relating to direct investments, including the acquisition of real estate, made in accordance with the laws of the host country, investments made in accordance with the provisions of Chapter 6 (Establishment, Trade in Services and Electronic Commerce) of Title V (Trade and Trade-related Matters) of this Agreement, and the liquidation or repatriation of invested capital and of any profit stemming therefrom.
2. With regard to transactions on the capital and financial account of balance of payments other than the transactions listed in paragraph 1, from the entry into force of this Agreement, each Party shall ensure, without prejudice to other provisions of this Agreement,
(a) the free movement of capital relating to credits for commercial transactions or for the provision of services in which a resident of one of the Parties is participating; and
(b) the free movement of capital relating to portfolio investments, financial loans and credits by the investors of the other Party.
Article 266. Safeguard Measures
Where, in exceptional circumstances, payments or movements of capital cause, or threaten to cause, serious difficulties for the operation of exchange rate policy or monetary policy, including serious balance of payments difficulties, in one or more Member States or in the Republic of Moldova, the Parties concerned may take safeguard measures for a period not exceeding six months if such measures are strictly necessary. The Party adopting the safeguard measure shall inform the other Party forthwith of the adoption of any safeguard measure and, as soon as possible, of a time schedule for its removal.
Article 267. Facilitation and Evolution Provisions
1. The Parties shall consult with a view to facilitating the movement of capital between the Parties in order to promote the objectives of this Agreement.
2. During the first four years following the date of entry into force of this Agreement, the Parties shall take measures permitting the creation of the necessary conditions for further gradual application of the Union rules on the free move- ment of capital.
3. By the end of the fifth year following the date of entry into force of this Agreement, the Association Committee in Trade configuration, as set out in Article 438(4) of this Agreement, shall review the measures taken and determine the modalities for further liberalisation.
Chapter 8. Public Procurement
Article 268. Objectives
1. The Parties recognise the contribution of transparent, non-discriminatory, competitive and open tendering to sustainable economic development and set as their objective the effective, reciprocal and gradual opening of their respective procurement markets.
2. This Chapter envisages mutual access to public procurement markets on the basis of the principle of national treatment at national, regional and local level for public contracts and concessions in the public sector as well as in the utilities sector. It provides for a gradual approximation of the public procurement legislation in the Republic of Moldova with the Union acquis on public procurement, accompanied with an institutional reform and the creation of an efficient public procurement system based on the principles governing public procurement in the Union and the terms and definitions set out in Directive 2004/18/EC of the European Parliament and of the Council of 31 March 2004 on the coordination of procedures for the award of public works contracts, public supply contracts and public service contracts and Directive 2004/17/EC of the European Parliament and of the Council of 31 March 2004 coordinating the procurement procedures of entities operating in the water, energy, transport and postal services sectors.
Article 269. Scope
1. This Chapter applies to works, supplies and services public contracts, as well as works, supplies and service contracts in the utilities sectors and works and services concessions.
2. This Chapter applies to any contracting authority and any contracting entity which meets the definitions of the Union acquis on public procurement (hereinafter referred to as the "contracting entities"). It also covers bodies governed by public law and public undertakings in the field of utilities, such as state-owned enterprises carrying out the relevant activities, and private undertakings operating on the basis of special and exclusive rights in the field of utilities.
3. This Chapter applies to contracts above value thresholds set out in Annex XXIX-A to this Agreement.
4. The calculation of the estimated value of a public contract shall be based on the total amount payable, net of taxes on value added. When applying those thresholds, the Republic of Moldova will calculate and convert contract values into its national currency, using the conversion rate of its National Bank.
5. Value thresholds shall be revised regularly every two years, beginning in the year of entry into force of this Agreement, based on the average daily value of the euro, expressed in Special Drawing Rights, over the 24 month period terminating on the last day of August preceding the revision, with effect from January 1. The value of the thresholds thus revised shall, where necessary, be rounded down to nearest thousand euro. The revision of the thresholds shall be adopted by decision of the Association Committee in Trade configuration, as set out in Article 438(4) of this Agreement.
Article 270. Institutional Background
1. Each Party shall establish or maintain an appropriate institutional framework and mechanisms necessary for the proper functioning of the public procurement system and the implementation of the provisions of this Chapter.
2. In the framework of institutional reform, the Republic of Moldova shall designate in particular:
(a) an executive body responsible for economic policy at central government level tasked with guaranteeing a coherent policy in all areas related to public procurement. Such a body shall facilitate and coordinate the implementation of this Chapter and guide the process of gradual approximation to the Union acquis; and
(b) an impartial and independent body tasked with the review of decisions taken by contracting authorities or entities during the award of contracts. In that context, "independent" means that that body shall be a public authority which is separate from all contracting entities and economic operators. There shall be a possibility to subject the decisions taken by that body to judicial review.
3. Each Party shall ensure that decisions taken by the authorities responsible for the review of complaints by economic operators concerning infringements of domestic law shall be effectively enforced.
Article 271. Basic Standards Regulating the Award of Contracts
1. No later than nine months from the entry into force of this Agreement, the Parties shall comply with a set of basic standards for the award of all contracts as stipulated in paragraphs 2 to 15. Those basic standards derive directly from the rules and principles of public procurement, as regulated in the Union acquis on public procurement, including the principles of non-discrimination, equal treatment, transparency and proportionality.
Publication
2. Each Party shall ensure that all intended procurements are published in an appropriate medium in a manner that is sufficient to:
(a) enable the market to be opened up to competition; and
(b) allow any interested economic operator to have appropriate access to information regarding the intended procurement prior to the award of the contract and to express its interest in obtaining the contract.
3. The publication shall be appropriate to the economic interest of the contract to economic operators.
4. The publication shall contain at least the essential details of the contract to be awarded, the criteria for qualitative selection, the award method, the contract award criteria and any other additional information that the economic operators reasonably need to decide on whether to express their interest in obtaining the contract.
Award of contracts
5. All contracts shall be awarded through transparent and impartial award procedures that prevent corrupt practices. That impartiality shall be ensured in particular through the non-discriminatory description of the subject matter of the contract, equal access for all economic operators, appropriate time-limits and a transparent and objective approach.
6. When describing the characteristics of the required work, supply or service, the contracting entities shall use general descriptions of performance and functions and international, European or national standards.
7. The description of the characteristics required of a work, supply or service shall not refer to a specific make or source, or a particular process, or to trademarks, patents, types or a specific origin or production unless such a reference is justified by the subject matter of the contract and accompanied by the words "or equivalent". Preference shall be given to the use of general descriptions of performance or functions.
8. Contracting entities shall not impose conditions resulting in direct or indirect discrimination against the economic operators of the other Party, such as the requirement that economic operators interested in the contract are required to be established in the same country, region or territory as the contracting entity.
Notwithstanding the first subparagraph, in cases where it is justified by the specific circumstances of the contract, the successful applicant may be required to establish certain business infrastructure at the place of performance.
9. The time-limits for expression of interest and for submission of offers shall be sufficiently long to allow economic operators from the other Party to make a meaningful assessment of the tender and prepare their offer.
10. All participants are required to know the applicable rules, selection criteria and award criteria in advance. Those rules must apply equally to all participants.
11. Contracting entities may invite a limited number of applicants to submit an offer, provided that:
(a) it is done in a transparent and non-discriminatory manner; and
(b) the selection is based only on objective factors such as the experience of the applicants in the sector concerned, the size and infrastructure of their businesses or their technical and professional abilities.
In inviting a limited number of applicants to submit an offer, account shall be taken of the need to ensure adequate competition.
12. Contracting entities may use negotiated procedures only in exceptional and defined cases when the use of such a procedure effectively does not distort competition.
13. Contracting entities may use qualification systems only under the condition that the list of qualified operators is compiled by means of a sufficiently advertised, transparent and open procedure. Contracts falling within the scope of such a system shall be awarded also on a non-discriminatory basis.
14. Each Party shall ensure that contracts are awarded in a transparent manner to the applicant who has submitted the economically most advantageous offer or the offer with the lowest price, based on the tender criteria and the procedural rules established and communicated in advance. The final decisions shall be communicated to all applicants without undue delay. Upon request of an unsuccessful applicant, reasons must be provided in sufficient detail to allow the review of such a decision.
Judicial protection
15. Each Party shall ensure that any person having or having had an interest in obtaining a particular contract and who has been, or risks being, harmed by an alleged infringement is entitled to effective, impartial judicial protection against any decision of the contracting entity related to the award of that contract. The decisions taken in the course and at the end of such review procedure shall be made public in a manner that is sufficient to inform all interested economic operators.
Article 272. Planning of Gradual Approximation
1. Prior to the commencement of gradual approximation, the Republic of Moldova shall submit to the Association Committee in Trade configuration, as set out in Article 438(4) of this Agreement, a comprehensive roadmap for the implementation of this Chapter with time schedules and milestones which shall include all reforms in terms of approximation to the Union acquis and institutional capacity building. This roadmap shall comply with the phases and time schedules set out in Annex XXIX-B to this Agreement.
2. The roadmap shall cover all aspects of the reform and the general legal framework for the implementation of public procurement activities, in particular, approximation for public contracts, contracts in the utilities sector, works concessions and review procedures, and strengthening of the administrative capacity at all levels, including review bodies and enforcement mechanisms.
3. Following a favourable opinion by the Association Committee in Trade configuration, the roadmap shall be considered as the reference document for the implementation of this Chapter. The Union shall make its best efforts in assisting the Republic of Moldova in the implementation of the roadmap.
Article 273. Gradual Approximation
1. The Republic of Moldova shall ensure that its existing and future legislation on public procurement will be gradually made compatible with the Union acquis on public procurement.
2. Approximation to the Union acquis shall be carried out in consecutive phases as set out in the schedule in Annex XXIX-B to this Agreement and further specified in Annexes XXIX-C to XXIX-F, XXIX-H, XXIX-I, and XXIX-K thereof. Annexes XXIX-G and XXIX-J to this Agreement identify non-mandatory elements that need not be approximated, whereas Annexes XXIX-L to XXIX-O to this Agreement identify elements of the Union acquis that remain outside the scope of approximation. In that process, due account shall be taken of the corresponding case law of the Court of Justice of the European Union and the implementing measures adopted by the European Commission, as well as, should it become necessary, of any modifications of the Union acquis occurring in the meantime. The implementation of each phase shall be evaluated by the Association Committee in Trade configuration, as set out in Article 438(4) of this Agreement, and, following a positive assessment by that Committee, it shall be linked to the reciprocal granting of market access as set out in Annex XXIX-B to this Agreement. The European Commission shall notify without undue delay the Republic of Moldova of any modifications to the Union acquis. It shall provide appropriate advice and technical assistance for the purpose of implementing such modifications.
3. The Association Committee in Trade configuration shall only proceed to the evaluation of a next phase once the measures to implement the previous phase have been carried out and approved according to the modalities set out in paragraph 2.
4. Each Party shall ensure that those aspects and areas of public procurement which are not covered by this Article comply with the principles of transparency, non-discrimination and equal treatment as set out under Article 271 of this Agreement.
Article 274. Market Access
1. The Parties agree that the effective and reciprocal opening of their respective markets shall be attained gradually and simultaneously. During the process of approximation, the extent of the market access mutually granted shall be linked to the progress made in that process as stipulated in Annex XXIX-B to this Agreement.
2. The decision to proceed to a further phase of market opening shall be made on the basis of an assessment of the quality of the legislation adopted as well as its practical implementation. Such assessment shall be carried out regularly by the Association Committee in Trade configuration, as set out in Article 438(4) of this Agreement.
3. In so far as a Party has, according to Annex XXIX-B to this Agreement, opened its procurement market to the other Party:
(a) the Union shall grant access to contract award procedures to companies of the Republic of Moldova, whether established or not in the Union, pursuant to Union public procurement rules under treatment no less favourable than that accorded to Union companies;
(b) the Republic of Moldova shall grant access to contract award procedures for Union companies, whether established or not in the Republic of Moldova, pursuant to national procurement rules under treatment no less favourable than that accorded to companies of the Republic of Moldova.
4. After the implementation of the last phase in the process of approximation, the Parties will examine the possibility to grant mutual market access with regard to procurements below the value thresholds set out in Annex XXIX-A to this Agreement.
5. Finland reserves its position with regard to the Aland Islands,
Article 275. Information
1. Each Party shall ensure that contracting entities and economic operators are appropriately informed about public procurement procedures, including through the publication of all relevant legislation and administrative rulings.
2. Each Party shall ensure the effective dissemination of information on tendering opportunities.
Article 276. Cooperation
1. The Parties shall enhance their cooperation through exchanges of experience and information relating to their best practices and regulatory frameworks.
2. The Union shall facilitate the implementation of this Chapter, including through technical assistance where appropriate. In line with the provisions in Title VI (Financial Assistance, and Anti-Fraud and Control Provisions) of this Agreement, specific decisions on financial assistance shall be taken through the relevant Union funding mechanisms and instruments.
3. An indicative list of issues for cooperation is included in Annex XXIX-P to this Agreement.
Chapter 9. Intellectual Property Rights
Section 1. General Provisions and Principles
Article 277. Objectives
The objectives of this Chapter are to:
(a) facilitate the production and commercialisation of innovative and creative products between the Parties; and
(b) achieve an adequate and effective level of protection and enforcement of intellectual property rights.
Article 278. Nature and Scope of Obligations
1. The Parties shall ensure the adequate and effective implementation of the international agreements dealing with intellectual property to which they are parties, including the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (‘the TRIPS Agreement’). The provisions of this Chapter shall complement and further specify the rights and obligations between the Parties under the TRIPS Agreement and other international agreements in the field of intellectual property.
2. For the purposes of this Agreement, the expression "intellectual property" refers at least to all categories of intellectual property covered by Articles 280 to 317 of this Agreement.
3. Protection of intellectual property includes protection against unfair competition as referred to in Article 10bis of the Paris Convention for the Protection of Industrial Property of 1967 ("the Paris Convention").
Article 279. Exhaustion
Each Party shall provide for a regime of domestic or regional exhaustion of intellectual property rights.
Section 2. Standards Concerning Intellectual Property Rights
Subsection 1. Copyright and Related Rights
Article 280. Protection Granted
The Parties shall comply with the rights and obligations set out in the following international agreements:
(a) the Berne Convention for the Protection of Literary and Artistic Works ("the Berne Convention");
(b) the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organisations of 1961;
(c) the TRIPS Agreement; the WIPO Copyright Treaty; and
(d) the WIPO Performances and Phonograms Treaty.
Article 281. Authors
Each Party shall provide for authors the exclusive right to authorise or prohibit: