() For the purposes of the function referred to in Article 10.63, service provider means a provider of transmission, routing, or connections for digital online communications without modification of their content between or among points specified by the user of material of the user's choosing, and for the purpose of the functions referred to in Articles 10.64 and 10.65 service provider means a provider or operator of facilities for online services or network access.
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 such storage 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, in accordance with the Parties' legal systems, of a judicial or administrative authority requiring the service provider to terminate or prevent an infringement.
Article 10.64. Liability of Online 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, the Parties 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 information's onward transmission to other recipients of the service upon their request, on condition that the provider:
(a) does not modify the information;
(b) complies with conditions on access to the information;
(c) complies with rules regarding updating of the information, specified in a manner widely recognised and used by industry;
(d) 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) 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 judicial or an administrative authority has ordered such removal or disablement.
2. This Article shall not affect the possibility, in accordance with the Parties' legal systems, of a judicial or administrative authority requiring the service provider to terminate or prevent an infringement.
Article 10.65. Liability of Online 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, the Parties 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 the provider:
(a) does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circum- stances from which the illegal activity or information is apparent; or
(b) 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, in accordance with the Parties' legal systems, of a judicial or administrative authority requiring the service provider to terminate or prevent an infringement, nor does it affect the possibility of the Parties establishing procedures governing the removal or disabling of access to information.
Article 10.66. No General Obligation to Monitor
1. The Parties shall not impose a general obligation on providers, when providing the services covered by Articles 10.63 through 10.65, to monitor the information which they transmit or store, nor a general obligation to actively seek facts or circumstances indicating illegal activity.
2. The Parties may establish obligations for information society service providers to promptly inform the competent authorities of alleged illegal activities undertaken or information provided by recipients of their service, or to communicate to the competent authorities, at their request, information enabling the identification of recipients of their service with whom they have storage agreements.
Subsection D. Other Provisions
Article 10.67. Border Measures
1. Each Party shall, unless otherwise provided for in this Section, adopt procedures (1) to enable a right holder, who has valid grounds for suspecting that the importation, exportation, re-exportation, customs transit, transhipment, placement under a free zone (1), placement under a suspensive procedure (2) or a bonded warehouse of goods infringing an intellectual property right (3) may take place, to lodge an application in writing with competent authorities, administrative or judicial, for the suspension by the customs authorities of the release into free circulation or the detention of such goods.
2. The Parties shall provide that when the customs authorities, in the course of their actions and before an application has been lodged by a right holder or granted, have sufficient grounds for suspecting that goods infringe an intellectual property right, they may suspend the release of the goods or detain them in order to enable the right holder to submit an application for action in accordance with the paragraph 1.
3. Any rights or obligations established in the implementation of Section 4 of Part II of the TRIPS Agreement concerning the importer shall also be applicable to the exporter or if necessary to the holder (4) of the goods.
4. Korea shall fully implement the obligation under paragraphs 1 and 2 with respect to subparagraph (c)(i) and (c)(iii) of footnote 27 within two years of the entry into force of this Agreement.
Article 10.68. Codes of Conduct
The Parties shall encourage:
(a) the development by trade or professional associations or organi- sations of codes of conduct aimed at contributing towards the enforcement of intellectual property rights, particularly by recom- mending the use on optical discs of a code enabling the identifi- cation of the origin of their manufacture; and
(b) the submission to the competent authorities of the Parties of draft codes of conduct and of any evaluations of the application of these codes of conduct.
Article 10.69. Cooperation
1. The Parties agree to cooperate with a view to supporting imple- mentation of the commitments and obligations undertaken under this Chapter. Areas of cooperation include, but are not limited to, the following activities:
(a) exchange of information on the legal framework conceming intel- lectual property rights and relevant rules of protection and enforcement; exchange of experiences on legislative progress;
(b) exchange of experiences on enforcement of intellectual property rights;
(c) exchange of experiences on enforcement at central and sub-central level by customs, police, administrative and judiciary bodies; coordination to prevent exports of counterfeit goods, including with other countries;
(d) capacity-building; and
(e) promotion and dissemination of information on intellectual property rights in, inter alia, business circles and civil society; promotion of public awareness of consumers and right holders.
2. Without prejudice and as a complement to paragraph 1, the European Union and Korea agree to establish and maintain an effective dialogue on intellectual property issues (IP Dialogue) to address topics relevant to the protection and enforcement of intellectual property rights covered by this Chapter, and any other relevant issue.
Chapter ELEVEN. COMPETITION
Section A. Competition
Article 11.1. Principles
1. The Parties recognise the importance of free and undistorted competition in their trade relations. The Parties undertake to apply their respective competition laws so as to prevent the benefits of the trade liberalisation process in goods, services and establishment from being removed or eliminated by anti-competitive business conduct or anti-competitive transactions.
2. The Parties shall maintain in their respective territories compre- hensive competition laws which effectively address restrictive agreements, concerted practices (1) and abuse of dominance by one or more enterprises, and which provide effective control of concentrations between enterprises.
3. The Parties agree that the following activities restricting competition are incompatible with the proper functioning of this Agreement, in so far as they may affect trade between them:
(a) agreements between enterprises, decisions by associations of enter- prises and concerted practices, which have as their object or effect the prevention, restriction or distortion of competition in the territory of either Party as a whole or in a substantial part thereof;
(b) any abuse by one or more enterprises of a dominant position in the territory of either Party as a whole or in a substantial part thereof, or
(c) concentrations between enterprises, which significantly impede effective competition, in particular as a result of the creation or strengthening of a dominant position in the territory of either Party as a whole or in a substantial part thereof.
Article 11.2. Definitions
For the purposes of this Section, competition laws means:
(a) for the European Union, Articles 101, 102 and 106 of the Treaty on the Functioning of the European Union, Council Regulation (EC) No 139/2004 on the control of concentrations between undertakings, and their implementing regulations and amendments;
(b) for Korea, the Monopoly Regulation and Fair Trade Act and its implementing regulations and amendments; and
(c) any changes that instruments set out in this Article may undergo after the entry into force of this Agreement.
Article 11.3. Implementation
1. The Parties shall maintain an authority or authorities responsible for, and appropriately equipped for, the implementation of the competition laws set out in Article 11.2.
2. The Parties recognise the importance of applying their respective competition laws in a transparent, timely and non-discriminatory manner, respecting the principles of procedural fairness and rights of defence of the parties concerned.
3. Upon request of a Party, the other Party shall make available to the requesting Party public information concerning its competition law enforcement activities and legislation related to the obligations covered by this Section.
Article 11.4. Public Enterprises and Enterprises Entrusted with Special Rights or Exclusive Rights (1)
1. With respect to public enterprises and enterprises entrusted with special rights or exclusive rights:
(a) neither Party shall adopt or maintain any measure contrary to the principles contained in Article 11.1; and
(b) the Parties shall ensure that such enterprises are subject to the competition laws set out in Article 11.2,
in so far as the application of these principles and competition laws does not obstruct the performance, in law or in fact, of the particular tasks assigned to them.
2. Nothing in paragraph 1 shall be construed to prevent a Party from establishing or maintaining a public enterprise, entrusting enterprises with special or exclusive rights or maintaining such rights.
Article 11.5. State Monopolies
1. Each Party shall adjust state monopolies of a commercial character so as to ensure that no discriminatory measure (1) regarding the conditions under which goods are procured and marketed exists between natural or legal persons of the Parties.
2. Nothing in paragraph 1 shall be construed to prevent a Party from establishing or maintaining a state monopoly.
3. This Article is without prejudice to the rights and obligations set out under Chapter Nine (Government Procurement).
Article 11.6. Cooperation
1. The Parties recognise the importance of cooperation and coordination between their respective competition authorities to further enhance effective competition law enforcement and to fulfil the objectives of this Agreement through the promotion of competition and the curtailment of anti-competitive business conduct or anti-competitive transactions.
2. The Parties shall cooperate in relation to their respective enforcement policies and in the enforcement of their respective competition laws, including through enforcement cooperation, notification, consultation and exchange of non-confidential information based on the Agreement between the European Community and the Government of the Republic of Korea concerning cooperation on anti-competitive activities signed on 23 May 2009.
Article 11.7. Consultation
1. In the absence of more specific rules in the agreement referred to in Article 11.6.2, a Party shall, on request of the other Party, enter into consultations regarding representations made by the other Party, to foster mutual understanding or to address specific matters that arise under this Section. In its request, the other Party shall indicate, if relevant, how the matter affects trade between the Parties.
2. The Parties shall promptly discuss, at the request of a Party, any questions arising from the interpretation or application of this Section.
3. To facilitate discussion of the matter that is the subject of the consultations, each Party shall endeavour to provide relevant non-confidential information to the other Party.
Article 11.8. Dispute Settlement
Neither Party may have recourse to Chapter Fourteen (Dispute Settlement) for any matter arising under this Section.
Section B. Subsidies
Article 11.9. Principles
The Parties agree to use their best endeavours to remedy or remove through the application of their competition laws or otherwise, distortions of competition caused by subsidies in so far as they affect international trade, and to prevent the occurrence of such situations.
Article 11.10. Definitions of a Subsidy and Specificity
1. A subsidy is a measure which fulfils the conditions set out in Article 1.1 of the SCM Agreement.
2. <A subsidy is specific if it falls within the meaning of Article 2 of the SCM Agreement. A subsidy shall be subject to this Section only if it is specific within the meaning of Article 2 of the SCM Agreement.
Article 11.11. Prohibited Subsidies (1) (2)
The following subsidies shall be deemed to be specific under the conditions of Article 2 of the SCM Agreement and shall be prohibited for the purposes of this Agreement in so far as they adversely affect international trade of the Parties (3):
(a) subsidies granted under any legal arrangement whereby a government or any public body is responsible for covering debts or liabilities of certain enterprises within the meaning of Article 2.1 of the SCM Agreement without any limitation, in law or in fact, as to the amount of those debts and liabilities or the duration of such responsibility, and
(b) subsidies (such as loans and guarantees, cash grants, capital injections, provision of assets below market prices or tax exemptions) to insolvent or ailing enterprises, without a credible restructuring plan based on realistic assumptions with a view to ensuring the return of the insolvent or ailing enterprise within a reasonable period of time to long-term viability and without the enterprise significantly contributing itself to the costs of restruc- turing. This does not prevent the Parties from providing subsidies by way of temporary liquidity support in the form of loan guar- antees or loans limited to the amount needed to merely keep an ailing enterprise in business for the time necessary to work out a restructuring or liquidation plan.
This subparagraph does not apply to subsidies granted as compensation for carrying out public service obligations and to the coal industry.
Article 11.12. Transparency
1. Each Party shall ensure transparency in the area of subsidies. To this end, each Party shall report annually to the other Party on the total amount, types and the sectoral distribution of subsidies which are specific and may affect international trade. Reporting should contain information concerning the objective, form, the amount or budget and where possible the recipient of the subsidy granted by a government or any public body.
2. Such report is deemed to have been provided if it is sent to the other Party, or if the relevant information is made available on a publicly accessible Internet website, by 31 December of the subsequent calendar year.
3. Upon request by a Party, the other Party shall provide further information on any subsidy schemes and particular individual cases of subsidy which is specific. The Parties shall exchange this information, taking into account the limitations imposed by the requirements of professional and business secrecy.
Article 11.13. Relation with the WTO Agreement
The provisions in this Section are without prejudice to the rights of a Party in accordance with the relevant provisions of the WTO Agreement to apply trade remedies or to take dispute settlement or other appro- priate action against a subsidy granted by the other Party.
Article 11.14. Monitoring and Review
The Parties shall keep under constant review the matters to which reference is made in this Section. Each Party may refer such matters to the Trade Committee. The Parties agree to review progress in imple- menting this Section every two years after the entry into force of this Agreement, unless both Parties agree otherwise.
Article 11.15. Scope
1. The provisions of Articles 11.9 through 11.14 shall apply to subsidies for goods with the exception of fisheries subsidies, subsidies related to products covered by Annex 1 of the Agreement on Agri- culture and other subsidies covered by the Agreement on Agriculture.
2. The Parties shall use their best endeavours to develop rules applicable to subsidies to services, taking into account developments at the multilateral level, and to exchange information upon the request of either Party. The Parties agree to hold the first exchange of views on subsidies to services within three years after the entry into force of this Agreement.
Chapter TWELVE. TRANSPARENCY
Article 12.1. Definitions
For the purposes of this Chapter:
measure of general application means any general or abstract act, procedure, interpretation or other requirement, including non-binding measures. It does not include a ruling that applies to a particular person; and
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 Article 12.2.
Article 12.2. Objective and Scope
Recognising the impact which their respective regulatory environment may have on trade between them, the Parties shall pursue an efficient and predictable regulatory environment for economic operators, especially small ones doing business in their territories. The Parties, reaffirming their respective commitments under the WTO Agreement, hereby lay down clarifications and improved arrangements for trans- parency, consultation and better administration of measures of general application, in so far as these may have an impact on any matter covered by this Agreement.
Article 12.3. Publication
1. Each Party shall ensure that measures of general application that may have an impact on any matter covered by this Agreement:
(a) are readily available to interested persons, in a non-discriminatory manner, via an officially designated medium, and where feasible and possible, electronic means, in such a manner as to enable interested persons and the other Party to become acquainted with them;
(b) provide an explanation of the objective of, and rationale for, such measures; and
(c) allow for sufficient time between publication and entry into force of such measures, taking due account of the requirements of legal certainty, legitimate expectations and proportionality.
2. Each Party shall:
(a) endeavour to publish in advance any measure of general application that it proposes to adopt or to amend, including an explanation of the objective of, and rationale for the proposal;
(b) provide reasonable opportunities for interested persons to comment on such proposed measure, 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 proposed measure.
Article 12.4. Enquiries and Contact Points
1. Each Party shall establish or maintain appropriate mechanisms for responding to enquiries from any interested person regarding any measures of general application which may have an impact on matters covered by this Agreement which are proposed or in force, and how they would be applied. Enquiries may be addressed through enquiry or contact points established under this Agreement or any other mechanism as appropriate.
2. The Parties recognise that such response provided for in paragraph 1 may not be definitive or legally binding but for information purposes only, unless otherwise provided for in their laws and regulations.
3. Upon request of a Party, the other Party shall promptly provide information and respond to questions pertaining to any actual or proposed measure of general application that the requesting Party considers might affect the operation of this Agreement, regardless of whether the requesting Party has been previously notified of that measure.
4. Each Party shall endeavour to identify or create enquiry or contact points for interested persons of the other Party with the task of seeking to effectively resolve problems for them that may arise from the appli- cation of measures of general application. Such processes should be easily accessible, time-bound, result-oriented and transparent. They shall be without prejudice to any appeal or review procedures which the Parties establish or maintain. They shall also be without prejudice to the Parties' rights and obligations under Chapter Fourteen (Dispute Settlement) and Annex 14-A (Mediation Mechanism for Non-Tariff Measures).
Article 12.5. Administrative Proceedings
With a view to administering in a consistent, impartial and reasonable manner all measures of general application which may have an impact on matters covered by this Agreement, 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 of the other Party, who 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, in so far as time, the nature of the proceeding and the public interest permit; and
(c) ensure that its procedures are based on, and in accordance with its law.
Article 12.6. Review and Appeal
1. Each Party shall establish or maintain judicial, quasi-judicial or administrative tribunals or procedures for the purposes of the prompt review and, where warranted, correction of administrative action relating to matters covered by this Agreement. Such tribunals shall be impartial and independent of the office or authority entrusted with administrative enforcement and 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 submissions of record or, where required by its law, the record compiled by the administrative authority.
3. Each Party shall ensure, subject to appeal or further review as provided for in its law, that such decision shall be implemented by, and shall govern the practice of, the office or authority with respect to the administrative action at issue.
Article 12.7. Regulatory Quality and Performance and Good Administrative Behaviour
1. The Parties agree to cooperate in promoting regulatory quality and performance, including through exchange of information and best practices on their respective regulatory reform processes and regulatory impact assessments.
2. The Parties subscribe to the principles of good administrative behaviour, and agree to cooperate in promoting it, including through exchange of information and best practices.
Article 12.8. Non-discrimination
Each Party shall apply to interested persons of the other Party trans- parency standards no less favourable than those accorded to its own interested persons, to the interested persons of any third country, or to any third country, whichever are the best.
Chapter THIRTEEN. TRADE AND SUSTAINABLE DEVELOPMENT
Article 13.1. Context and Objectives
1. Recalling Agenda 21 on Environment and Development of 1992, the Johannesburg Plan of Implementation on Sustainable Development of 2002 and the 2006 Ministerial Declaration of the UN Economic and Social Council on Full Employment and Decent Work, the Parties reaffirm their commitments to promoting the development of international trade in such a way as to contribute to the objective of sustainable development and will strive to ensure that this objective is integrated and reflected at every level of their trade relationship.
2. The Parties recognise that economic development, social development and environmental protection are interdependent and mutually reinforcing components of sustainable development. They underline the benefit of cooperation on trade-related social and environmental issues as part of a global approach to trade and sustainable development.
3. The Parties recognise that it is not their intention in this Chapter to harmonise the labour or environment standards of the Parties, but to strengthen their trade relations and cooperation in ways that promote sustainable development in the context of paragraphs 1 and 2.