(e) if they consider an application incomplete for processing under the Party's laws and regulations, within a reasonable period of time of the date on which the relevant competent authority determined that the application was incomplete, and to the extent practicable:
(i) inform the applicant that the application is incomplete;
(ii) at the request of the applicant identify the additional information required to complete the application or otherwise provide guidance on why the application is considered incomplete; and
(ii) provide the applicant with the opportunity to provide the additional information that is required to complete the application,
if the steps in points (i) to (iii) are not practicable, and the application is rejected due to incompleteness, ensure that they inform the applicant within a reasonable period of time; and
(f) if they reject an application, either on their own initiative or on request of the applicant, inform the applicant of the reasons for rejection and of the timeframe for an appeal against that decision and, if applicable, the procedures for resubmission of an application. An applicant should not be prevented from submitting another application solely on the basis of a previously rejected application.
2. Each Party shall ensure that its competent authorities grant an authorisation as soon as it is established, in the light of an appropriate examination, that an applicant meets the conditions for obtaining it.
3. Each Party shall ensure that its competent authorities ensure that authorisation, once granted, enters into effect without undue delay, subject to the applicable terms and conditions.
Article 10.31. Fees
1. For all economic activities covered by this Sub-Section other than financial services, each Party shall ensure that the authorisation fees (1) charged by its competent authorities are reasonable, transparent and do not in themselves restrict the supply of the relevant service or the pursuit of any other economic activity.
2. With regard to financial services, each Party shall ensure that its competent authorities, with respect to authorisation fees that they charge, provide applicants with a schedule of fees or information on how fee amounts are determined, and do not use the fees as a means of avoiding the Party's commitments or obligations.
Article 10.32. Assessment of Qualifications
If a Party requires an examination for authorisation, it shall ensure that its competent authorities schedule such an examination at reasonably frequent intervals and provide a reasonable period of time to enable applicants to request to take the examination. To the extent practicable, each Party shall consider accepting requests in electronic format to take such examinations and the use of electronic means in other aspects of the examination processes.
Article 10.33. Objectivity, Impartiality and Independence
If a Party adopts or maintains a measure relating to authorisation, it shall ensure that its competent authorities process applications, reach and administer decisions objectively and impartially and in a manner independent from any person carrying out the economic activity for which authorisation is required.
Article 10.34. Publication and Information Available
If a Party requires authorisation, the Party shall promptly publish (1) the information necessary for service suppliers, including those seeking to supply a service, and for persons carrying out or seeking to carry out the economic activity for which the licence or authorisation is required, to comply with the requirements and procedures for obtaining, maintaining, amending and renewing such licence or authorisation. Such information shall include, where it exists:
(a) the requirements and procedures;
(b) contact information of relevant competent authorities;
(c) authorisation fees;
(d) applicable technical standards;
(e) procedures for appeal or review of decisions concerning applications;
(f) procedures for monitoring or enforcing compliance with the terms and conditions of licences or qualifications;
(g) opportunities for public involvement, such as through hearings or comments; and
(h) indicative timeframes for the processing of an application.
Article 10.35. Technical Standards
A Party shall encourage its competent authorities, when adopting technical standards, to adopt technical standards developed through open and transparent processes, and shall encourage all persons or entities, including relevant international organisations, designated to develop technical standards, to do so through open and transparent processes.
Article 10.36. Development of Measures
If a Party adopts or maintains measures relating to authorisation, it shall ensure that:
(a) such measures are based on clear, objective and transparent criteria (1);
(b) the procedures are impartial, easily accessible to all applicants and are adequate for applicants to demonstrate whether they meet the requirements, where requirements exist; and
(c) the procedures do not in themselves unjustifiably prevent fulfilment of requirements.
Article 10.37. Limited Numbers of Licences
If the number of licences available for a given activity is limited because of the scarcity of available natural resources or technical capacity, a Party shall, in accordance with its laws and regulations, apply a selection procedure to potential candidates that provides full guarantees of impartiality and transparency, including, in particular, adequate publicity about the launch, conduct and completion of the procedure. In establishing the rules for the selection procedure, a Party may take into account legitimate policy objectives, including considerations of health, safety, protection of the environment and preservation of cultural heritage.
Article 10.38. Review Procedures for Administrative Decisions
A Party shall maintain judicial, arbitral or administrative tribunals or procedures that provide, at the request of an affected investor or service supplier of the other Party, for a prompt review of, and where justified, appropriate remedies for, administrative decisions that affect establishment or operation, cross-border trade in services or the supply of a service through the presence of a natural person of a Party in the territory of the other Party. If such procedures are not independent of the authority entrusted with the administrative decision concerned, a Party shall ensure that the procedures provide for an objective and impartial review in fact.
Subsection 2. PROVISIONS OF GENERAL APPLICATION
Article 10.39. Mutual Recognition of Professional Qualifications
1. For the purposes of this Article, the term "professional qualifications" means formal qualifications, professional experience, professional registration or other attestation of competence.
2. Nothing in this Article shall prevent a Party from requiring that natural persons possess the necessary professional qualifications specified in the territory where the service is supplied, for the sector of activity concerned.
3. Where appropriate, the Parties shall encourage the establishment of dialogue between their relevant experts, regulators and industry bodies to share and facilitate understanding of their respective professional qualifications, registration requirements and processes, and cooperate with a view to achieving mutual recognition of professional qualifications.
4. The Parties shall encourage the relevant professional bodies or authorities in their respective territories to develop and provide a joint recommendation on mutual recognition of professional qualifications to the Committee on Investment, Services, Digital Trade, Government Procurement and Intellectual Property, including Geographical Indications, established pursuant to Article 24.4 (Specialised committees). That joint recommendation shall be supported by evidence of:
(a) the economic value of an envisaged instrument on mutual recognition of professional qualifications (hereinafter referred to as "mutual recognition instrument"); and
(b) the compatibility of the respective regimes, being the extent to which the criteria applied by each Party for the authorisation, licensing, operation and certification of professionals are compatible.
5. On receipt of a joint recommendation referred to in paragraph 4, the Committee on Investment, Services, Digital Trade, Government Procurement and Intellectual Property, including Geographical Indications, shall review the consistency of that joint recommendation with this Chapter within a reasonable period of time. Following such review, the Committee on Investment, Services, Digital Trade, Government Procurement and Intellectual Property, including Geographical Indications, may develop a mutual recognition instrument (1) and the Trade Committee may adopt it by means of decision as an annex to this Agreement.
Subsection 3. DELIVERY SERVICES
Article 10.40. Scope and Definitions
1. This Sub-Section sets out principles of the regulatory framework for the supply of delivery services and applies to measures of a Party affecting trade in delivery services.
2. For the purposes of this Sub-Section, the following definitions apply:
(a) "delivery services" means postal services, courier services, express delivery services or express mail services, which include the collection, sorting, transport and delivery of postal items;
(b) "express delivery services" means the collection, sorting, transport and delivery of postal items at accelerated speed and reliability and may include value added elements such as collection from point of origin, personal delivery to the addressee, tracing, possibility of changing the destination and addressee in transit, or confirmation of receipt;
(c) "express mail services" means international express delivery services supplied through the EMS Cooperative, the voluntary association of designated postal operators under the Universal Postal Union;
(d) "licence" means an authorisation that a regulatory authority of a Party may require of an individual supplier in order for that supplier to offer postal and courier services; "postal item" means an item up to 31,5 kg addressed in the final form in which it is to be carried by any type of supplier of delivery services, whether public or private, and may include items such as a letter, parcel, newspaper or catalogue;
(e) "postal monopoly" means the exclusive right to supply specified delivery services within a Party's territory or a subdivision thereof pursuant to a legislative measure; and
(g) "universal service" means the permanent supply of a delivery service of specified quality at all points in the territory of a Party or a subdivision of a Party at an affordable price for all users.
Article 10.41. Universal Service
1. Each Party has the right to define the kind of universal service obligation it wishes to maintain and to decide on the scope and implementation of such obligation. Each Party shall administer any universal service obligation in a transparent, non-discriminatory and neutral manner with regard to all suppliers subject to that universal service obligation.
2. Ifa Party requires inbound express mail services to be supplied on a universal service basis, it shall not accord preferential treatment to those express mail services over other international express delivery services.
Article 10.42. Universal Service Funding
A Party shall not impose fees or other charges on the supply of a delivery service that is not a universal delivery service for the purpose of funding the supply of a universal service. (1)
Article 10.43. Prevention of Market Distortive Practices
Each Party shall ensure that suppliers of delivery services subject to a universal service obligation or postal monopoly do not engage in market distortive practices such as:
(a) using revenues derived from the supply of the service subject to a universal service obligation or from the monopoly to cross-subsidise the supply of an express delivery service or any delivery service that is not subject to a universal service obligation; or
(b) unjustifiably differentiating among customers with respect to tariffs or other terms and conditions for the supply of a service subject to a universal service obligation or a postal monopoly.
Article 10.44. Licences
1. If a Party requires a licence for the provision of delivery services, it shall make publicly available:
(a) all the licensing requirements and the period of time normally required to reach a decision concerning an application for a licence; and
(b) the terms and conditions of licences.
2. Each Party shall ensure that the procedures, obligations and requirements of a licence are transparent, non-discriminatory and based on objective criteria.
3. Each Party shall ensure, if a licence application is rejected by a competent authority, that the competent authority informs the applicant of the reasons for the rejection in writing. Each Party shall establish an appeal procedure through an independent body to be available to applicants whose application for a licence has been rejected. Such body may be a court.
Article 10.45. Independence of the Regulatory Body
1. Each Party shall establish or maintain a regulatory body that shall be legally distinct and functionally independent from any supplier of delivery services. If a Party owns or controls a supplier of delivery services, it shall ensure effective structural separation of the regulatory function from activities associated with ownership or control.
2. Each Party shall ensure that the regulatory body performs its tasks in a transparent and timely manner and has adequate financial and human resources to carry out the task assigned to it, and that the regulatory body's decisions are impartial with respect to all market participants.
Subsection 4. TELECOMMUNICATIONS SERVICES
Article 10.46. Scope
1. This Sub-Section sets out principles of the regulatory framework affecting telecommunications networks and services and applies to measures of a Party affecting trade in telecommunications services.
2. This Sub-Section does not apply to measures affecting:
(a) broadcasting services as defined in the laws and regulations of each Party; and
(b) services providing, or exercising editorial control over, content transmitted using telecommunications networks and services.
3. Notwithstanding point (a) of paragraph 2, a supplier of broadcasting services shall be considered as a supplier of public telecommunications services, and the networks of that supplier of broadcasting services shall be considered as public telecommunications networks when and to the extent that those public telecommunications networks are also used for providing public telecommunications services.
4. Nothing in this Sub-Section shall be construed as requiring a Party:
(a) to authorise a service supplier of the other Party to establish, construct, acquire, lease, operate or supply telecommunications networks or services other than as provided for in this Agreement; or
(b) to establish, construct, acquire, lease, operate or supply telecommunications networks or services not offered to the public generally, or to oblige a service supplier under its jurisdiction to do so.
Article 10.47. Definitions
For the purposes of this Sub-Section, the following definitions apply:
(a) "associated facilities" means services, physical infrastructure and other facilities associated with a telecommunications network or telecommunications service that enable or support the supply of services via that network or that service or have the potential to do so;
(b) "essential facilities" means facilities of a public telecommunications network or telecommunications service that:
(i) are exclusively or predominantly provided by a single or limited number of suppliers; and
(ii) cannot feasibly be economically or technically substituted in order to provide a service;
(c) "interconnection" means the linking of public telecommunications networks used by the same or different suppliers of telecommunications networks or telecommunications services in order to allow the users of one supplier to communicate with users of the same or another supplier or to access services provided by another supplier. Services may be provided by the suppliers involved or any other supplier who has access to the network;
(d) "leased circuit" means telecommunications services or facilities, including those of a virtual nature, that set aside capacity for the dedicated use of, or availability to, a user between two or more designated points;
(e) "major supplier" means a supplier of telecommunications networks or telecommunications services which has the ability to materially affect the terms of participation (having regard to price and supply) in a relevant market for telecommunications networks or telecommunications services as a result of control over essential facilities or the use of its position in such market;
(f) "network element" means a facility or equipment used in supplying a telecommunications service, including features, functions and capabilities provided by means of such facility or equipment;
(g) "number portability" means the ability of subscribers who so request to retain the same telephone numbers, at the same location in the case of a fixed line, without impairment of quality, reliability or convenience when switching between the same category of suppliers of public telecommunications services;
(h) "public telecommunications network" means any telecommunications network used wholly or mainly for the provision of public telecommunications services between network termination points;
(i) "public telecommunications service" means any telecommunications service that is offered to the public generally;
(j) "subscriber" means any natural or juridical person that is a party to a contract with a supplier of public telecommunications services for the supply of public telecommunications services;
(k) "telecommunications" means the transmission and reception of signals by any electromagnetic means;
(l) "telecommunications network" means transmission systems and, where applicable, switching or routing equipment and other resources, including network elements that are not active, which permit the transmission and reception of signals by wire, radio, optical or other electromagnetic means;
(m) "telecommunications regulatory authority" means the body or bodies charged by a Party with the regulation of telecommunications networks and telecommunications services covered by this Sub-Section;
(n) "telecommunications service" means a service that consists wholly or mainly in the transmission and reception of signals, including broadcasting signals, over telecommunications networks, including those used for broadcasting, but not a service providing or exercising editorial control over content transmitted using telecommunications networks and telecommunications services;
(o) "universal service" means the minimum set of services of specified quality that must be made available to all users, or to a set of users, in the territory of a Party, or in a subdivision of a Party, regardless of their geographical location and at an affordable price; and
(p) "user" means any person using a public telecommunications service.
Article 10.48. Approaches to Regulation
1. The Parties recognise the value of competitive markets to deliver a wide choice in the supply of telecommunications services and to enhance consumer welfare, and that economic regulation may not be needed if there is effective and sustainable competition. Accordingly, the Parties recognise that regulatory needs and approaches differ market by market, and that a Party may determine how to implement its obligations under this Sub-Section.
2. In that respect, the Parties recognise that each Party may:
(a) engage in direct regulation either in anticipation of an issue that the Party expects may arise or to resolve an issue that has already arisen in the market;
(b) rely on the role of market forces, particularly with respect to market segments that are competitive or that have low barriers to entry, such as services provided by suppliers of telecommunications services that do not own network facilities; or
(c) rely on market structure rules that restrict the activities of some suppliers of telecommunications services that own network facilities, for example by requiring provision of wholesale services on a non-discriminatory basis or prohibiting participation in a retail market, with a view to ensuring market behaviour equivalent to that of participants in a competitive market.
3. For greater certainty, a Party that refrains from engaging in regulation in accordance with point (b) of paragraph 2 of this Article remains subject to the obligations under this Sub-Section.
Nothing in this Article shall prevent a Party from regulating telecommunications services.
Article 10.49. Telecommunications Regulatory Authority
1. Each Party shall establish or maintain a telecommunications regulatory authority that:
(a) is legally distinct and functionally independent from any supplier of telecommunications networks, telecommunications services or telecommunications equipment;
(b) uses procedures and issues decisions that are impartial with respect to all market participants;
(c) acts independently and does not seek or take instructions from any other body in relation to the exercise of the tasks assigned to it by law to enforce the obligations set out in Articles 10.51 (Interconnection), 10.52 (Access and use), 10.53 (Resolution of telecommunications disputes), 10.55 (Interconnection with major suppliers) and 10.56 (Access to major suppliers' essential facilities);
(d) is sufficiently empowered to carry out the tasks referred to in point (c);
(e) has the power to ensure that suppliers of telecommunications networks or telecommunications services provide it, promptly upon request, with all the information (1), including financial information, necessary to carry out the tasks referred to in point (c); and (f) exercises its powers transparently and in a timely manner.
2. Each Party shall ensure that the tasks to be undertaken by its telecommunications regulatory authority are made public in an easily accessible and clear form, in particular where those tasks are assigned to more than one body.
3. A Party that retains ownership or control of suppliers of telecommunications networks or telecommunications services shall ensure effective structural separation of the regulatory function from activities associated with ownership or control.
4. Each Party shall ensure that a user or supplier of telecommunications networks or telecommunications services affected by a decision of its telecommunications regulatory authority has a right of appeal before an appeal body that is independent of both the regulatory authority and other affected parties. Pending the outcome of the appeal, the decision shall stand, unless interim measures are granted in accordance with the law of the Party concerned.
Article 10.50. Authorisation to Provide Telecommunications Networks or Telecommunications Services
1. Ifa Party requires authorisation for the provision of telecommunications networks or telecommunications services, it shall make publicly available the types of telecommunications services requiring authorisation, together with all authorisation criteria, applicable procedures, and terms and conditions generally associated with the authorisation.
2. Each Party shall endeavour to authorise the provision of telecommunications networks or telecommunications services without a formal procedure and permit the supplier to start providing its telecommunications networks or telecommunications services without having to wait for a decision by its telecommunications regulatory authority. If a Party requires a formal authorisation decision, it shall state a reasonable period of time normally required to obtain such a decision and communicate this in a transparent manner. The Party shall endeavour to ensure that the decision is taken within the stated period of time.
3. Each Party shall ensure that any authorisation criteria or applicable procedure, and any obligation or condition imposed on or associated with an authorisation, is objective, transparent, non-discriminatory, related to the service provided and not more burdensome than necessary for the kind of service provided.
4. Each Party shall ensure that an applicant receives in writing the reasons for the denial or revocation of an authorisation, or the imposition of supplier-specific conditions. In such cases, an applicant shall have a right of appeal before an appeal body.
5. Each Party shall ensure that administrative fees imposed on suppliers are objective, transparent, non-discriminatory and commensurate with the administrative costs reasonably incurred in the management, control and enforcement of the obligations set out in this Sub-Section. (1)
Article 10.51. Interconnection
1. The Parties recognise that interconnection should in principle be agreed on the basis of commercial negotiation between the suppliers of public telecommunications networks or public telecommunications services concerned.
2. To this end each Party shall ensure that a supplier of public telecommunications networks or public telecommunications services in its territory has the right and, when requested by another supplier of public telecommunications networks or public telecommunications services, the obligation to negotiate interconnection for the purpose of providing public telecommunications
networks or public telecommunications services.
Article 10.52. Access and Use
1. Each Party shall ensure that any covered enterprise or service supplier of the other Party is accorded access to and use of public telecommunications networks or public telecommunications services on reasonable and non-discriminatory (1) terms and conditions. This obligation shall be carried out, inter alia, in line with paragraphs 2 to 5 of this Article.
2. Each Party shall ensure that covered enterprises or service suppliers of the other Party have access to and use of any public telecommunications network or public telecommunications service offered within or across its border, including private leased circuits, and to that end shall ensure, subject to paragraph 5, that such enterprises and suppliers are permitted:
(a) to purchase or lease and attach terminal or other equipment that interfaces with the public telecommunications network and that is necessary to conduct their operations;
(b) to interconnect private leased or owned circuits with public telecommunications networks or with circuits leased or owned by another covered enterprise or service supplier; and
(c) to use operating protocols of their choice in their operations, other than as necessary to ensure the availability of the public telecommunications services.
3. Each Party shall ensure that covered enterprises or service suppliers of the other Party may use public telecommunications networks and public telecommunications services for the movement of information within and across borders, including for their intra-corporate communications, and for access to information contained in data bases or otherwise stored in machine-readable form in the territory of either Party.
4. Notwithstanding paragraph 3, a Party may take measures that are necessary to ensure the security and confidentiality of communications, subject to the requirement that such measures are not applied in a manner that would constitute either a disguised restriction on trade in services or on the pursuit of any other economic activity covered by this Chapter or a means of arbitrary or unjustifiable discrimination.
5. Each Party shall ensure that no condition is imposed on access to and use of public telecommunications networks or public telecommunications services other than as necessary:
(a) to safeguard the public service responsibilities of suppliers of public telecommunications networks or public telecommunications services, in particular their ability to make their public telecommunications services available; or