Article 2.59. Authorised Economic Operator
1. Each Party shall establish or maintain a trade facilitation partnership programme for operators who meet specified criteria, hereinafter referred to as the Authorised Economic Operator (AEO) programme, in accordance with the SAFE Framework.
2. The specified criteria to qualify as an AEO shall be published and relate to compliance, or the risk of non-compliance, with requirements specified in the Parties’ law or procedures. The Parties may use the criteria set out in paragraph 7.2 (a) of Article 7 of the WTO Agreement on Trade Facilitation.
3. The specified criteria to qualify as an AEO shall not be designed or applied so as to afford or create arbitrary or unjustifiable discrimination between operators where the same conditions prevail and shall allow the participation of small and medium-sized enterprises.
4. The AEO programme shall include specific benefits for such operators, taking into account the commitments of the Parties under paragraph 7.3 of Article 7 of the WTO Agreement on Trade Facilitation.
5. The Parties may cooperate in establishing, where relevant and appropriate, the mutual recognition of their AEO programmes, provided that the programmes are compatible and based on equivalent criteria and benefits.
6. This Article shall not apply to the Bailiwick of Jersey or the Bailiwick of Guernsey.
Article 2.60. Review and Appeal
1. Each Party shall provide effective, prompt, non-discriminatory and easily accessible procedures to guarantee the right of appeal against an administrative decision on a customs matter.
2. Each Party shall ensure that any person to whom it issues an administrative decision on a customs matter has access to:
(a) an administrative appeal to or review by an administrative authority higher than or independent of the official or office that issued the decision; and
(b) a judicial appeal or review of the decision.
3. Each Party shall provide that any person who has applied to the customs authorities for a decision and has not obtained an administrative decision on that application within the relevant time-limits shall also be entitled to exercise the right of appeal.
4. Each Party shall provide a person to whom it issues an administrative decision with the reasons for the administrative decision, so as to enable such a person to have recourse to appeal procedures where necessary.
Article 2.61. Penalties
1. Each Party shall provide for penalties for failure to comply with its law or procedural requirements related to customs.
2. Each Party shall ensure that its law provides that any penalties imposed for breaches of customs law or procedural requirements be proportionate and non-discriminatory. A penalty for minor breaches, such as inadvertent omissions or mistakes, including mistakes in interpretation of a customs law or procedural requirement relevant to international trade in goods, made without fraudulent intent or gross negligence, shall not be greater than necessary to discourage a repetition of such errors.
3. Each Party shall ensure that a penalty imposed by its customs authorities for a breach of its customs law or procedural requirements is imposed only on the person(s) legally responsible for the breach.
4. Each Party shall ensure that the penalty imposed depends on the facts and circumstances of the case and is commensurate with the degree and severity of the breach.
5. Each Party shall avoid incentives or conflicts of interest in the assessment and collection of penalties and duties.
6. Each Party shall require its customs authorities, when imposing a penalty for a breach of its customs law or procedural requirements, to consider as a potential mitigating factor the voluntary disclosure of the breach prior to its discovery by the customs authorities.
7. Each Party shall ensure that if a penalty is imposed for a breach of customs law or procedural requirements, an explanation in writing is provided to the person(s) upon whom the penalty is imposed, specifying the nature of the breach and the applicable law or procedure under which the amount or range of penalty for the breach has been prescribed.
8. Each Party shall provide in its law or procedures, or otherwise give effect to, a fixed and finite period within which its customs authorities may initiate proceedings to impose a penalty relating to a breach of a customs law or procedural requirement.
Article 2.62. Customs Cooperation and Mutual Administrative Assistance
1. Without prejudice to other forms of cooperation provided for in this Agreement, the customs authorities of the Parties shall cooperate, including by exchanging information, and provide mutual administrative assistance in the matters referred to in this Section in accordance with the provisions of Annex XV (Mutual Administrative Assistance in Customs Matters).
2. The customs authorities of the Parties shall enhance cooperation on the matters referred to in this Section with a view to further developing trade facilitation while ensuring compliance with their respective customs law and procedural requirements, and improving supply chain security, in the following areas:
(a) cooperation on harmonisation of data requirements for customs purposes, in line with applicable international standards such as the WCO standards;
(b) cooperation on further development of the customs-related aspects of securing and facilitating the international trade supply chain in accordance with the SAFE Framework; and
(c) cooperation on improvement of their risk management techniques, including sharing best practices and, if appropriate, risk information and control results.
3. The customs authorities of the Parties shall ensure the exchange of information necessary for the purposes of paragraph 2.
Article 2.63. Single Window
Each Party shall endeavour to develop or maintain single window systems to facilitate a single, electronic submission of all information required by customs and other legislation for the exportation, importation and transit of goods.
Article 2.64. Transit and Transhipment
Each Party shall:
(a) ensure the facilitation and effective control of transhipment operations and transit movements through that Party;
(b) endeavour to promote and implement regional transit arrangements with a view to facilitating trade;
(c) ensure cooperation and coordination between all concerned authorities and agencies in that Party to facilitate traffic in transit; and
(d) allow goods intended for import to be moved within that Party under customs control from a customs office of entry to another customs office in the Party from where the goods would be released or cleared.
Article 2.65. Post-Clearance Audit
1. With a view to expediting the release of goods, each Party shall:
(a) adopt or maintain post-clearance audit to ensure compliance with customs and other related law;
(b) conduct post-clearance audits in a risk-based manner, which may include appropriate selectivity criteria;
(c) conduct post-clearance audits in a transparent manner. Where an audit is conducted and conclusive results have been achieved the Party shall, without delay, notify the person whose record is audited of the results, the reasons for the results and the audited person's rights and obligations; and
(d) wherever practicable, use the result of post-clearance audits in applying risk management.
2. The Parties acknowledge that the information obtained in a post-clearance audit may be used in further administrative or judicial proceedings.
Article 2.66. Customs Brokers
The Parties:
(a) agree that their respective customs provisions and procedures shall not require the mandatory use of customs brokers;
(b) shall publish measures on the use of customs brokers; and
(c) shall apply transparent, non-discriminatory and proportionate rules if and when licensing customs brokers.
Article 2.67. Competent Customs Offices
1. Each Party shall determine the location and competence of its customs offices.
2. Each Party shall ensure that reasonable and appropriate official opening hours are fixed for those offices, taking into account the nature of the traffic and of the goods and the customs procedures under which they are to be placed, so that the flow of traffic is neither hindered nor distorted.
Article 2.68. Border Agency Cooperation
Each Party shall ensure that its authorities and agencies involved in border and other import and export controls cooperate and coordinate its procedures in order to facilitate trade.
Article 2.69. Confidentiality
1. Each Party shall maintain, in conformity with its law, the confidentiality of information collected as part of its customs processes and shall protect that information from use or disclosure that could prejudice the competitive position of the trader to whom the confidential information relates. If the Party receiving or obtaining the information is required by its law to disclose the information, that Party shall notify the person or Party who provided that information.
2. Each Party shall ensure that the confidential information collected as part of Iits customs processes shall not be used or disclosed for purposes other than the administration and enforcement of customs matters or as otherwise provided for under the Party’s law, except with the permission of the person or Party who provided the confidential information.
3. Notwithstanding paragraph 2, a Party may allow information collected as part of its customs processes to be used and disclosed in any administrative, judicial, or quasi-judicial proceedings instituted for failure to comply with customs related law. A Party shall notify the person or Party who provided the information in advance of such use.
4. If confidential information is used or disclosed other than in accordance with this Article, the Party concerned shall address the incident, in accordance with its law or procedures, and review or update its processes and safeguards, as appropriate, to prevent a reoccurrence.
5. The Parties shall exchange information on their respective law for the purpose of facilitating the operation and application of paragraph 2.
Section 2.5. TRADE REMEDIES
GENERAL PROVISIONS
Article 2.70. Dispute Settlement
Except for paragraph 1 of Article 2.73 (Lesser Duty Rule and Public Interest), Chapter 16 (Dispute Settlement) shall not apply to this Section.
ANTI-DUMPING AND COUNTERVAILING MEASURES
Article 2.71. General Provisions
1. The Parties shall endeavour to refrain from initiating anti-dumping procedures against each other.
2. Notwithstanding paragraph 1 of this Article, the Parties reaffirm their rights and obligations under Article VI of GATT 1994, the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 (Anti-Dumping Agreement) and the SCM Agreement.
Article 2.72. Investigations
1. After receipt by a Party’s investigating authority of a properly documented application for an anti-dumping or a countervailing investigation with respect to imports from another Party, and, before initiating an investigation, the Party shall provide written notification to the Party concerned of its receipt of the application.
2. Before initiating a countervailing investigation, the Party shall also afford the Party concerned a meeting to consult with its investigating authority regarding the application.
3. Provided it does not unnecessarily delay the conduct of the investigation, each interested party in an anti-dumping or countervailing investigation (12) shall be granted a full opportunity to defend its interests.
4. Each Party shall ensure, before a final determination is made, full disclosure of the essential facts under consideration which form the basis for the decision as to whether to apply definitive measures. The full disclosure of essential facts is without prejudice to the requirements to confidentiality referred to in Article 6.5 of the Anti-Dumping Agreement and Article 12.4 of the SCM Agreement. Such disclosure shall be made in writing and should take place in sufficient time for interested parties to defend their interests.
5. A Party proposing to take a countervailing measure shall, upon request, consult with the Party concerned as far in advance of applying a measure as practicable, with the view of reviewing the information arising from the investigation and exchanging views on the proposed measure.
6. The disclosure of the essential facts, which is made in accordance with paragraph 3, shall contain in particular:
(a) in the case of an anti-dumping investigation, the margins of dumping established, a sufficiently detailed explanation of the basis and methodology upon which normal values and export prices were established and of the methodology used in the comparison of the normal values and export prices, including any adjustments;
(b) in the case of a countervailing duty investigation, the determination of countervailable subsidisation, including sufficient details on the calculation of the amount and methodology followed to determine the existence of subsidisation;
(c) in the case of an anti-dumping investigation, information relevant to the determination of injury, including information concerning the volume of the dumped imports and the effect of the dumped imports on prices in the domestic market for like products, the detailed methodology used in the calculation of price undercutting, the consequent impact of the dumped imports on the domestic industry, and the demonstration of a causal relationship including the examination of factors other than the dumped imports as referred to in Article 3.5 of the Anti-Dumping Agreement; and
(d) in the case of a countervailing duty investigation, information relevant to the determination of injury, including information on the volume of the subsidised imports and the effect of the subsidised imports on prices in the domestic market for like products, the consequent impact of the subsidised imports on the domestic industry, and the demonstration of a causal relationship including the examination of factors other than the subsidised imports as referred to in Article 15.5 of the SCM Agreement.
7. In cases in which an investigating authority of a Party intends to make use of the facts available pursuant to Article 6.8 of the Anti-Dumping Agreement or Article 12.7 of the SCM Agreement, the investigating authority shall inform the interested party concerned of its intentions and give a clear indication of the reasons which may lead to the use of the facts available. If, after having been given the opportunity to provide further explanations within a reasonable time period, the explanations given by the interested party concerned are considered by the investigating authority as not being satisfactory, the disclosure of essential facts shall contain a clear indication of the facts available that the investigating authority has used instead.
Article 2.73. Lesser Duty Rule and Public Interest
1. If a Party decides to impose an anti-dumping or a countervailing duty, the Party shall apply the “lesser duty” rule by determining a duty which is less than the dumping margin or amount of subsidy, when such lesser duty would be adequate to remove the injury to the domestic industry.
2. Each Party’s investigating authority shall consider information provided in accordance with the Party’s law as to whether imposing an anti-dumping or a countervailing duty would not be in the public interest.
SAFEGUARD MEASURES
Article 2.74. General Provisions and Transparency
1. The Parties reaffirm their rights and obligations concerning global safeguard measures under Article XIX of GATT 1994 and the Agreement on Safeguards.
2. At the request of the Party concerned, the Party intending to take safeguard measures shall provide immediately ad hoc written notification of all pertinent information on the initiation of a safeguard investigation, the provisional findings, and the final findings of the investigation.
3. When imposing safeguard measures, the Parties shall endeavour to impose them in a way that least affects bilateral trade.
Chapter 3. SERVICES AND INVESTMENT
Section 3.1. GENERAL PROVISIONS ON SERVICES AND INVESTMENT
Article 3.1. Scope
1. This Chapter does not apply to:
(a) activities performed in the exercise of governmental authority; and
(b) audio-visual services.
2. This Chapter does not apply to any measure of a Party with respect to procurement by a Party.
3. Except for Article 3.10 (Performance Requirements), this Chapter does not apply to subsidies or grants provided by a Party, including governmentsupported loans, guarantees and insurances.
4. This Chapter does not apply to measures affecting natural persons of a Party seeking access to the employment market of another Party, nor to measures regarding nationality or citizenship, residence or employment on a permanent basis.
5. This Chapter shall not prevent a Party from applying measures to regulate the entry of natural persons into, or their temporary stay in, the Party, including those measures necessary to protect the integrity of, and to ensure the orderly movement of natural persons across, its borders, provided that such measures are not applied in such a manner as to nullify or impair the benefits accruing to another Party under the terms of this Chapter. (13)
6. This Chapter does not apply to air services, including domestic and international air transportation services, whether scheduled or nonscheduled, or to related services in support of air services, other than the following:
(a) repair or maintenance services on an aircraft or a part thereof during which the aircraft or the part is withdrawn from service, excluding socalled line maintenance;
(b) selling and marketing of air transport services;
(c) computer reservation system services;
(d) specialty air services; (14)
(e) airport operation services; and
(f) ground handling services.
7. In the event of any inconsistency between this Chapter and a bilateral, plurilateral or multilateral air services agreement to which the United Kingdom and one or more EEA EFTA States are party, the air services agreement shall prevail in determining the rights and obligations of those Parties that are party to that air services agreement.
8. If the United Kingdom and one or more EEA EFTA States have the same obligations under this Agreement and a bilateral, plurilateral or multilateral air services agreement, those Parties may invoke the dispute settlement procedures of this Agreement only after any dispute settlement procedures in the other agreement have been exhausted.
Article 3.2. Definitions
1. For the purposes of this Chapter:
(a) “activities performed in the exercise of governmental authority” means activities which are performed, including services which are supplied, neither on a commercial basis nor in competition with one or more economic operators;
(b) “airport operation services” means the operation or management, on a fee or contract basis, of airport infrastructure, including terminals, runways, taxiways and aprons, parking facilities, and intra-airport transportation systems. For greater certainty, airport operation services do not include the ownership of, or investment in, airports or airport lands, or any of the functions carried out by a board of directors. Airport operation services do not include air navigation services;
(c) “computer reservation system services” means the supply of a service by computerised systems that contain information about air carriers’ schedules, availability, fares and fare rules, through which reservations can be made or tickets may be issued;
(d) “covered enterprise” means an enterprise established in a Party, directly or indirectly, by an investor of another Party, in accordance with the applicable law, existing on the date of entry into force of this Agreement or established thereafter;
(e) “cross-border trade in services” or “cross-border supply of services” means the supply of a service:
(i) from within a Party into another Party; or
(ii) within a Party to the service consumer of another Party;
(f) “economic activity” means any activity of an industrial, commercial or professional character or activities of craftsmen, including the supply of services, except for activities performed in the exercise of governmental authority;
(g) “enterprise” means a legal person, or a branch or a representative office of a legal person;
(h) “establishment” means the setting-up, acquisition, or expansion of an enterprise;
(i) “ground handling services” means the supply of a service on a fee or contract basis for: airline representation, administration and supervision, ground administration and supervision, including load control and communications; passenger handling; baggage handling; ramp services; cargo and mail handling; fuel and oil handling; aircraft line maintenance; flight operations, crew administration and flight planning; aircraft servicing and cleaning; surface transport; and catering services. Ground handling services do not include: selfhandling; security services; fixed intra-airport transport systems; aircraft repair and maintenance; or the operation or management of centralised airport infrastructure such as baggage handling systems, de-icing facilities, or fuel distribution systems;
(j) “investor of another Party” means:
(i) a natural person of a Party;
(ii) a legal person of a Party; or
(iii) a Party
that seeks to establish, is establishing, or has established, an enterprise;
(k) “legal person” means any legal entity duly constituted or otherwise organised under applicable law, whether for profit or otherwise, and whether privately-owned or governmentally-owned, including any corporation, trust, partnership, joint venture, sole proprietorship or association;
(l) “legal person of a Party” means a legal person constituted or organised under the law of a Party and that carries out substantial business activities in that Party; (15)
For the purposes of Section 3.3 (Cross-Border Trade in Services) and Sub-Section 3.5.5 (International Maritime Transport Services), “legal person of a Party” includes a legal person of a non-Party owned or controlled by a person of a Party, if any of its vessels are registered in accordance with the law of that Party and flying the flag of that Party, when supplying services using those vessels;
(m) “measure” means any measure by a Party, whether in the form of a law, regulation, rule procedure, decision, administrative action, requirement, practice or in any other form; (16)
(n) “measures of a Party” means measures adopted or maintained by:
(i) central, regional or local governments or authorities; and
(ii) non-governmental bodies in the exercise of powers delegated by central, regional or local governments or authorities;
(o) “natural person of a Party” means:
(i) in respect of the United Kingdom, a British citizen in accordance with its applicable law;
(ii) in respect of the EEA EFTA States, a natural person who has the nationality of an EEA EFTA State in accordance with its applicable law;
(p) “operation” means the conduct, management, maintenance, use, enjoyment and sale or other disposal of an enterprise;
(q) “person” means a natural person or a legal person;
(r) “person of a Party” means a natural person of a Party or a legal person of a Party;
(s) “selling and marketing of air transport services” means opportunities for the air carrier concerned to sell and market freely its air transport services including all aspects of marketing such as market research, advertising and distribution, but does not include the pricing of air transport services or the applicable conditions;
(t) “service supplier of a Party” means a person of a Party that supplies, or seeks to supply, a service; and
(u) “specialty air service” means a specialised commercial operation using an aircraft whose primary purpose is not the transportation of goods or passengers, such as aerial fire-fighting, aerial advertising, flight training, sightseeing, spraying, surveying, mapping, photography, parachute jumping, glider towing, and helicopter-lift for logging and construction, and other airborne agricultural, industrial, and inspection services.
Article 3.3. Sub-Committee on Services and Investment
1. The Parties hereby establish a Sub-Committee on Services and Investment, which shall be responsible for the effective implementation and operation of this Chapter.
2. The Sub-Committee on Services and Investment shall have the following functions: