Article 226. 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 227. 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 Partiesâ respective legislation on those issues as well as on the implementation of such legislation.
Subsection 2. LIABILITY OF INTERMEDIARY SERVICE PROVIDERS
Article 228. 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 229 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 230 and 231 of this Agreement, "service provider" means a provider or operator of facilities for online services or network access.
Article 229. Liability of Intermediary Service Providers: "mere Conduit"
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 230. 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 231. 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 232. No General Obligation to Monitor
1. The Parties shall not impose a general obligation on providers, when providing the services covered by Articles 229, 230 and 231 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 233. General Exceptions
1. Without prejudice to general exceptions set in Article 379 of this Agreement, the provisions of this Chapter and of Annexes XI-A and XIJ-E, XI-B and XI-F, XI-C and XI-G, XI-D and XI-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 180(1) and 186 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 XI-A and XI-E, XI-B and XI-F, XI-C and XI-G, XI-D and XI-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 234. Recognition and Taxation Measures
The most-favoured-nation treatment granted in accordance with the provisions of this Chapter shall not apply to:
(a) treatment granted under measures providing for recognition of qualifications, licences, or prudential measures in accordance with Article VII of GATS or its Annex on Financial Services;
(b) the tax treatment granted under any international agreement or arrangement relating wholly or mainly to taxation.
Article 235. 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 establishment;
(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 236. 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 237. Capital Movements
1. With regard to transactions on the capital and financial account of balance of payments, from 1st September 2014, 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 1 September 2014, 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 238. 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 the United Kingdom 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 239. Facilitation and Evolution Provisions
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.
Chapter 8. PUBLIC PROCUREMENT
Article 240. 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.
Article 241. 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 UK or the Republic of Moldova public procurement domestic law (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 XII- 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 first even year following the 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 Political and Strategic Dialogue in Trade configuration, as set out in Article 375(3) of this Agreement.
Article 242. 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. 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;
(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 243. Basic Standards Regulating the Award of Contracts
1. 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, 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 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 244. Market Access
1. The Parties agree that the effective and reciprocal opening of their respective markets shall be attained gradually and simultaneously.
2. In so far as a Party has, according to Annex XII-B to this Agreement, opened its procurement market to the other Party:
(a) the UK shall grant access to contract award procedures to companies of the Republic of Moldova, whether established or not in the UK, pursuant to national public procurement rules under treatment no less favourable than that accorded to UK companies;
(b) the Republic of Moldova shall grant access to contract award procedures for UK 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.
3. The Parties will examine the possibility to grant mutual market access with regard to procurements below the value thresholds set out in Annex XII-A to this Agreement.
Article 245. 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 246. Cooperation
1. The Parties shall enhance their cooperation through exchanges of experience and information relating to their best practices and regulatory frameworks.
2. The UK shall facilitate the implementation of this Chapter, including through technical assistance where appropriate. In line with the provisions in Articles 5 and 6 of this Agreement, specific decisions on financial assistance shall be taken through the relevant UK funding mechanisms and instruments.
3. An indicative list of issues for cooperation is included in Annex XII-C to this Agreement.
Chapter 9. INTELLECTUAL PROPERTY RIGHTS
Section 1. GENERAL PROVISIONS AND PRINCIPLES
Article 247. 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 248. 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 250 to 287 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 249. Exhaustion
The Parties shall be free to establish their own regime for exhaustion of intellectual property rights, subject to the provisions of the TRIPS Agreement.
Section 2. STANDARDS CONCERNING INTELLECTUAL PROPERTY RIGHTS
Subsection 1. COPYRIGHT AND RELATED RIGHTS
Article 250. 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);