(a) agreements, concerted practices and decisions by associations of undertakings, which have the object or effect of impeding, restricting, distorting or substantially lessening competition in the territory of either Party,
(b) the abuse by one or more undertakings of a dominant position in the territory of either Party; or;
(c) concentrations between undertakings, which result in monopolisation or a substantial restriction of competition in the market in the territory of either Party.
Article 244. Implementation
1. The United Kingdom and Ukraine shall maintain competition laws which effectively address the practices and transactions referred to in Article 243(a) (b) and (c).
2. The Parties shall maintain authorities responsible, and appropriately equipped, for the effective enforcement of the competition laws set out in paragraph 1 of this Article.
3. 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. Each Party in particular shall ensure that:
(a) before a competition authority of one of the Parties imposes a sanction or remedy against any natural or legal person for violating its competition law, it affords the person the right to be heard and to present evidence within a reasonable time to be defined in the respective competition laws of the Parties after it has communicated to the natural or legal person concerned its provisional conclusions as to the existence of the violation; and
(b) acourt or other independent tribunal established under that Party's laws imposes or, at the person's request, reviews any such sanction or remedy.
4. Upon request of a Party, each Party shall make available to the other Party public information concerning enforcement activities of its competition laws and legislation related to the obligations covered by this Section.
5. The competition authority shall adopt and publish a document explaining the principles to be used in the setting of any pecuniary sanctions imposed for infringements of the competition laws.
6. The competition authority shall adopt and publish a document explaining the principles used in the assessment of horizontal mergers.
Article 245. Public Enterprises and Enterprises Entrusted with Special or Exclusive Rights
1. With respect to public enterprises and enterprises entrusted with special or exclusive rights:
(a) neither Party shall enact or maintain in force any measure contrary to the principles contained in Articles 243 and Article 246(1) of this Agreement; and
(b) the Parties shall ensure that such enterprises are subject to the competition laws referred to in Article 242(2) of this Agreement insofar as the application of the above-mentioned competition laws and principles does not obstruct the performance, in law or in fact, of the particular tasks assigned to the enterprises in question.
2. Nothing in the previous paragraph shall be construed as preventing a Party from establishing or maintaining a public enterprise, entrusting enterprises with special or exclusive rights or maintaining such rights.
Article 246. State Monopolies
1. Each Party shall ensure that the operations of state monopolies of a commercial character do not constitute or give rise to discriminatory measures regarding the conditions under which goods are procured and marketed between natural and legal persons of the Parties.
2. Nothing in this Article shall prejudge the rights and obligations of the Parties under Chapter 8 (Public Procurement) of Title IV of this Agreement.
3. Nothing in paragraph 1 shall be construed as preventing a Party from establishing or maintaining a state monopoly.
Article 247. Exchange of Information and Enforcement Cooperation
1. The Parties recognise the importance of co-operation and co-ordination 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. To this end, the competition authority of a Party may inform the competition authority of the other Party of its willingness to cooperate with respect to enforcement activity. This cooperation shall not prevent the Parties from taking independent decisions.
3. With a view to facilitating the effective application of their respective competition laws, the competition authorities of the Parties may exchange information including on legislation and enforcement activities, within the limits imposed by their respective legislations and taking into account their essential interests.
Article 248. Consultations
1. Each Party shall, at the 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. The requesting Party shall indicate how the matter affects trade between the Parties.
2. The Parties shall promptly discuss, at the request of either 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, within the limits imposed by their respective legislations and taking into account their essential interests.
Article 249.
No Party may have recourse to dispute settlement under Chapter 14 (Dispute Settlement) of Title IV of this Agreement with respect to any issue arising under this Section.
Section 2. STATE AID
Article 250. General Principles
1. Any aid granted by Ukraine or the United Kingdom through state resources which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods is incompatible with the proper functioning of this Agreement in so far as it may affect trade between the Parties.
2. Terms used in this Section are further explained in Annex XVII.
Article 251. Transparency
1. Each Party shall ensure transparency in the area of state aid. To this end, each Party shall notify annually to the other Party the total amount, types and the sectoral distribution of state aid which may affect trade between the Parties. Respective notifications should contain information concerning the objective, form, the amount or budget, the granting authority and where possible the recipient of the aid. For the purposes of this Article, any aid below the threshold of EUR 200.000 per undertaking over a period of three years does not need to be notified. Such notification 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.
2. Upon request by a Party, the other Party shall provide further information on any state aid scheme and particular individual cases of state aid affecting trade between the Parties. The Parties shall exchange this information taking into account the limitations imposed by the requirements of professional and business secrecy.
3. The Parties shall ensure that financial relations between public authorities and public undertakings are transparent, so that the following emerge clearly:
(a) public funds made available directly or indirectly (for example through the intermediary of public undertakings or financial institutions) by public authorities to the public undertakings concerned;
(b) the use to which these public funds are actually put into.
4. The Parties shall moreover ensure that the financial and organisational structure of any undertaking that enjoys a special or exclusive right granted by Ukraine or the United Kingdom or is entrusted with the operation of a service of general economic interest, that receives public service compensation in any form whatsoever in relation to such service, is correctly reflected in separate accounts, so that the following emerge clearly:
(a) the costs and revemies associated with all products or services in respect of which a special or exclusive right is granted to an undertaking or all services of general economic interest with which an undertaking is entrusted and, on the other hand, each other separate product or service in respect of which the undertaking is active;
(b) full details of the methods by which costs and revenues are assigned or allocated to different activities. These methods shall operate on the basis of accounting principles of causality, objectivity, transparency and consistency, according to internationally recognised accounting methodologies such as activity based costing, and be based on audited data.
Article 252. Interpretation
Any practices contrary to this section shall be assessed by the Parties in accordance with their own domestic legislation.
Article 253. Relationship with WTO
These provisions are without prejudice to the right of the Parties to apply trade remedies or other appropriate action against a subsidy or have recourse to dispute settlement in accordance with the relevant WTO provisions.
Article 254. Scope
The provisions of this Section shall apply to goods and to those services which have been listed in Annex XII to Chapter 6 (Establishment, Trade in Services and Electronic Commerce) of Title IV of this Agreement, in accordance with the mutually agreed decision on market access, with the exception of subsidies to products covered by Annex 1 to the WTO Agreement on Agriculture and other subsidies covered by the Agreement on Agriculture.
Chapter 11. TRADE-RELATED ENERGY
Article 255. Definitions
For the purposes of this Chapter, and without prejudice to the provisions set out in Chapter 5 (Customs and Trade Facilitation) of Title IV of this Agreement:
1. "energy goods" means natural gas (HS code 27.11), electrical energy (HS code 27.16) and crude oil (HS code: 27.09);
2. "fixed infrastructure" means any transmission or distribution network, Liquefied Natural Gas facility and storage facility, as defined in Directive 2003/54/EC of the European Parliament and of the Council of 26 June 2003 concerning common rules for the internal market in electricity (hereinafter referred to as "Directive 2003/54/EC") and Directive 2003/55/EC of the European Parliament and of the Council of 26 June 2003 concerning common tules for the internal market in natural gas (hereinafter referred to as "Directive 2003/55/EC);
3. "transit means transit, as described in Chapter 5 (Customs and Trade Facilitation) of Title IV of this Agreement, of energy goods through a fixed infrastructure or oil pipeline;
4. "transport" means transmission and distribution, as defined in Directive 2003/54/EC and Directive 2003/55/EC, and the carriage or conveyance of oil through pipelines;
5. "unauthorised taking" means any activity consisting in unlawful taking of energy goods from fixed infrastructure.
Article 256. Domestic Regulated Prices
1. The price for the supply of gas and electricity to industrial consumers shall be determined solely by supply and demand.
2. By way of derogation from paragraph 1 of this Article, the Parties may impose in the general economic interest an obligation on undertakings which relates to the price of supply of gas and electricity, (hereinafter referred to as "regulated price").
3. The Parties shall ensure that this obligation is clearly defined, transparent, proportionate, non-discriminatory, verifiable and of limited duration. In applying this obligation, the Parties shall also guarantee equality of access to consumers for other undertakings.
4. Where the price, at which gas and electricity are sold on the domestic market, is regulated, the Party concerned shall ensure that the methodology underlying the calculation of the regulated price is published prior to the entry into force of the regulated price.
Article 257. Prohibition of Dual Pricing
1. Without prejudice to the possibility to impose domestic regulated prices consistently with paragraphs 2 and 3 of Article 256 of this Agreement, neither Party or a regulatory authority thereof, shall adopt or maintain a measure resulting in a higher price for exports of energy goods to the other Party than the price charged for such goods when intended for domestic consumption.
2. The exporting Party shall at the request of the other Party provide evidence that a different price for the same energy goods sold on the domestic market and for export does not result from a measure prohibited by paragraph 1 of this Article.
Article 258. Customs Duties and Quantitative Restrictions
1. Customs duties and quantitative restrictions on the import and export of energy goods and all measures having equivalent effect shall be prohibited between the Parties. This prohibition shall also apply to customs duties of a fiscal nature.
2. Paragraph 1 shall not preclude quantitative restrictions or measures having equivalent effect, justified on grounds of public policy or public security; protection of human, animal or plant life or health, or the protection of industrial and commercial property. Such restrictions or measures shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between the Parties.
Article 259. Transit
The Parties shall take the necessary measures to facilitate transit, consistent with the principle of freedom of transit, and in accordance with Article V.2, V.4 and V.5 of GATT 1994 and Articles 7.1 and 7.3 of the Energy Charter Treaty of 1994, which are incorporated into and made part of this Agreement.
Article 260. Transport
As regards transport of electricity and gas, and in particular third-party access to fixed infrastructure, the Parties shall adapt their legislation in order to ensure that the tariffs, published prior to their entry into force, the capacity allocation procedures and all other conditions are objective, reasonable and transparent and shall not discriminate on the basis of origin, ownership or destination of the electricity or gas.
Article 261. Cooperation on Infrastructure
The Parties shall endeavour to facilitate the use of gas transmission infrastructure and gas storage facilities and shall consult or coordinate, as appropriate, with each other on infrastructure developments. The Parties shall cooperate on matters related to trade in natural gas, sustainability and security of supply. With a view to further integrate markets of energy goods, each Party shall take into account the energy networks and capacities of the other Party when developing policy documents regarding demand and supply scenarios, interconnections, energy strategies and infrastructure development plans.
Article 262. Unauthorised Taking of Energy Goods
Each Party shall take all necessary measures to prohibit and address the unauthorised taking of energy goods transited or transported through its area.
Article 263. Interruption
1. Each Party shall ensure that transmission system operators take the necessary measures to:
(a) minimise the risk of accidental interruption, reduction or stoppage of transit and transport;
(b) expeditiously restore the normal operation of such transit or transport, which has been accidentally interrupted, reduced or stopped.
2. A Party through whose territory energy goods transit or are transported shall not, in the event of a dispute over any matter involving the Parties or one or more entities subject to the control or jurisdiction of one of the Parties, interrupt or reduce, permit any entity subject to its control or jurisdiction, including a state trading enterprise, to interrupt or reduce, or require any entity subject to its jurisdiction to interrupt or reduce the existing transport or transit of energy goods, except where this is specifically provided for in a contract or other agreement governing such transit or transport, prior to the conclusion of a dispute resolution procedure under the relevant contract.
3. The Parties agree that a Party shall not be held liable for an interruption or reduction pursuant to this Article where that Party is in an impossibility to supply, transit or transport energy goods as a result of actions attributable to a third country or an entity under the control or jurisdiction of a third country.
Article 264. Regulatory Authority for Electricity and Gas
1. A regulatory authority shall be legally distinct and functionally independent from any public or private entity, and sufficiently empowered to ensure effective competition and the efficient functioning of the market.
2. The decisions of and the procedures used by a regulatory authority shall be impartial with respect to all market participants.
3. An operator affected by any decision of a regulatory authority shall have the right to appeal against that decision to an appeal body which is independent of the parties involved. Where the appeal body is not judicial in character, written reasons for its decision shall always be given and its decisions shall also be subject to review by an impartial and independent judicial authority. Decisions taken by appeal bodies shall be effectively enforced.
Article 265. Access to and Exercise of the Activities of Prospecting, Exploring for and Producing Hydrocarbons
1. Each Party has, in accordance with international law including the United Nations Convention on the Law of the Sea of 1982, full sovereignty over hydrocarbon resources located in its territory as well as in its archipelagic and territorial waters in addition to sovereign rights for the purposes of exploring and exploiting hydrocarbon resources located in its exclusive economic zone and continental shelf.
2. Each Party retains the right to determine the areas within its territory as well as in its archipelagic and territorial waters, exclusive economic zone and continental shelf to be made available for the exercise of the activities of prospecting, exploring for and producing hydrocarbons.
3. Whenever an area is made available for the exercise of these activities, each Party shall ensure that entities, as regards access to and exercise of these activities, are treated on an equal basis.
4. Each Party may require an entity, which has been granted an authorisation for the exercise of the activities of prospecting, exploring for and producing hydrocarbons, to pay a financial contribution or a contribution in hydrocarbons. The detailed arrangements of such contribution shall be fixed in such a way so as not to interfere in the management process and decision-making of entities.
Article 266. Licensing and Licensing Conditions
1. Parties shall take the necessary measures to ensure that licences, through which an entity is entitled to exercise, on its own behalf and at its own risk, the right to prospect or explore for or produce hydrocarbons in a geographical area, are granted following a published procedure and invite potentially interested applicants to submit applications by means of a notice.
2. The notice shall specify the type of licence, the relevant geographical area or part thereof and the proposed date or time limit for granting a licence.
3. Article 100 and Article 101 of this Agreement shall apply to the licensing conditions and the licensing authorisation procedure.
Chapter 12. TRANSPARENCY
Article 267. Definitions
For the purposes of this Chapter:
1. "Measures of general application" include laws, regulations, judicial decisions, procedures and administrative rulings of general application and any other general or abstract act, interpretation or other requirement that may have an impact on any matter covered by this Agreement. It does not include a ruling that applies to a particular person; and
2. "Interested person" means any natural or legal person that may be subject to any rights or duties under measures of general application, within the meaning of Article 268 of this Agreement.
Article 268. Objective and Scope
1. Cognisant of the impact which their respective regulatory environment may have on trade between them, the Parties shall establish and maintain an effective and predictable regulatory environment for economic operators doing business in their territory, especially small ones, due account being taken of the requirements of legal certainty and proportionality.
2. The Parties, reaffirming their respective commitments under the WTO Agreement hereby lay down clarifications and improved arrangements for transparency, consultation, and better administration of measures of general application, insofar as these may have an impact on any matter covered by this Agreement.
Article 269. Publication
1. Each Party shall ensure that measures of general application:
(a) are promptly published or are otherwise made readily available to interested persons, in a non-discriminatory manner, via an officially designated medium, and where feasible and possible, electronic means, in such 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 measure; and
(c) allow for sufficient time between publication and entry into force of such measure except where this is not possible because of an emergency.
2. Each Party shall:
(a) endeavour to publish in advance any proposal to adopt or amend any measure of general application, 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 270. Enquiries and Contact Points
1. Each Party shall maintain or establish appropriate mechanisms for responding to enquiries from any interested person regarding any measures of general application which are proposed or in force, and how they would be applied in general.
In particular, in order to facilitate communication between the Parties on any matter covered by this Agreement, each Party shall designate a contact point. Upon request of either Party, the contact point shall indicate the office or official responsible for the matter and shall provide the required support to facilitate communication with the requesting Party.
Enquiries may be addressed through such mechanisms established under this Agreement.
2. The Parties recognise that a response as provided for in paragraph 1 of this Article may not be definitive or legally binding but will be for information purposes only, unless otherwise provided in the internal law and regulations of the Parties.
3. Upon request by the other Party, a 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 implementation of this Agreement, regardless of whether the requesting Party has been previously notified of that measure.
4. Each Party shall maintain or establish appropriate mechanisms for interested persons tasked with seeking to effectively resolve problems for interested persons of the other Party that may arise from the application of any measures of general application and administrative proceedings as mentioned in Article 271 of this Agreement. Such mechanisms 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 14 (Dispute Settlement) and Chapter 15 (Mediation) of Title IV of this Agreement.
Article 271. Administrative Proceedings
Each Party shall administer in a consistent, impartial, and reasonable manner all measures of general application referred to in Article 267 of this Agreement. To this end, in applying those measures to particular persons, goods, services or establishments of the other Party in specific cases, each Party shall:
(a) endeavour to provide interested persons of the other Party, that are directly affected by a proceeding and in accordance with the Party's procedures, with reasonable notice 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, when 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 domestic law.
Article 272. Review and Appeal
1. Each Party shall establish or maintain courts or other independent tribunals, including, where relevant, quasi-judicial or administrative tribunals, or procedures for the purpose of the prompt review and, where warranted, correction of administrative action in areas covered by this Agreement. Such courts, tribunals or procedures 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 courts, tribunals or procedures, the parties to the proceeding are provided with the right to:
(a) areasonable opportunity to support or defend their respective positions; and
(b) a decision based on the evidence and submissions of record or, where required by the Party's law, the record compiled by the administrative authority.
3. Subject to appeal or further review as provided in its domestic law, each Party shall ensure, that such decision shall be implemented by, and shall govern the practice of, the office or authority competent with respect to the administrative action at issue.
Article 273. 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 them, including through exchange of information and best practices.
Article 274. Non-discrimination
Each Party shall apply to interested persons of the other Party transparency standards no less favourable than those accorded to its own interested persons.
Chapter 13. TRADE AND SUSTAINABLE DEVELOPMENT
Article 275. Context and Objectives
1. The Parties recall Agenda 21 on Environment and Development of 1992, the Johannesburg Plan of Implementation on Sustainable Development of 2002 and the internationally agreed policy agendas in the employment and social policy fields, in particular the International Labour Organization (hereinafter referred to as the "ILO") Decent Work Agenda and the 2006 Ministerial declaration of the UN Economic and Social Council on Full Employment and Decent Work. The Parties reaffirm their commitment to promoting the development of international trade, in such a way as to contribute to the objective of sustainable development and to ensuring that this objective is integrated and reflected at every level of their trade relationship.
2. To this end, the Parties recognise the importance of taking fully into account the economic, social and environmental best interests of not only their respective populations, but also future generations and shall ensure that economic development, environmental and social policies are mutually supportive.
Article 276. Right to Regulate
1. Recognising the right of the Parties to establish and regulate their own levels of domestic environmental and labour protection and sustainable development policies and priorities, in line with relevant internationally recognised principles and agreements, and to adopt or modify their legislation accordingly, the Parties shall ensure that their legislation provides for high levels of environmental and labour protection and shall strive to continue to improve that legislation.
Article 277. Multilateral Labour Standards and Agreements
1. The Parties recognise full and productive employment and decent work for all as key elements for trade in the context of globalisation. The Parties reaffirm their commitments to promote the development of trade in a way that is conducive to full and productive employment and decent work for all, including men, women and young people.
2. The Parties shall promote and implement in their laws and practices the internationally recognised core labour standards, namely:
(a) the freedom of association and the effective recognition of the right to collective bargaining;
(b) elimination of all forms of forced or compulsory labour;
(c) effective abolition of child labour; and
(d) elimination of discrimination in respect of employment and occupation.
3. The Parties reaffirm their commitment to effectively implement the fundamental and priority ILO Conventions that they have ratified, and the ILO 1998 Declaration on Fundamental Rights and Principles at Work. The Parties will also consider ratification and implementation of other ILO Conventions that are classified as up to date by the ILO.
4. The Parties stress that labour standards should not be used for protectionist trade purposes. The Parties note that their comparative advantage should in no way be called into question.