1. Subject to the provisions of Article 34, the Parties undertake to allow all payments for current transactions between residents of the Community and of South Africa to be made in freely convertible currency.
2. South Africa may take the necessary measures to ensure that the provisions of paragraph 1, which liberalise current payments, are not used by its residents to make unauthorised capital outflows.
Article 33. Capital Movements
1. With regard to transactions on the capital account of balance of payments, the Community and South Africa shall ensure, from the entry into force of this Agreement, that capital relating to direct investments in South Africa in companies formed in accordance with current laws can move freely, and that such investment and any profit stemming therefrom can be liquidated and repatriated.
2. The Parties shall consult each other with a view to facilitating and eventually achieving full liberalisation of the movement of capital between the Community and South Africa.
Article 34. Balance of Payment Difficulties
Where one or more Member States of the Community, or South Africa, is in serious balance of payments difficulties, or under threat thereof, the Community or South Africa, as the case may be, may, in accordance with the conditions established under the General Agreement on Tariffs and Trade and Articles VIII and XIV of the Articles of Agreement of the International Monetary Fund, adopt restrictions on current transactions which shall be of limited duration and may not go beyond what is necessary to remedy the balance of payments situation. The Community or South Africa, as the case may be, shall inform the other Party forthwith and shall submit to it as soon as possible a timetable for the elimination of the measures concerned.
Section D. Competition Policy
Article 35. Definition
The following are incompatible with the proper functioning of this Agreement, in so far as they may affect trade between the Community and South Africa:
(a) agreements and concerted practices between firms in horizontal relationships, decisions by associations of firms, and agreements between firms in vertical relationships, which have the effect of substantially preventing or lessening competition in the territory of the Community or of South Africa, unless the firms can demonstrate that the anti-competitive effects are outweighed by pro-competitive ones;
(b) abuse by one or more firms of market power in the territory of the Community or of South Africa as a whole or in a substantial part thereof.
Article 36. Implementation
If, at the entry into force of this Agreement, either Party has not yet adopted the necessary laws and regulations for the implementation of Article 35, in their jurisdictions it shall do so within a period of three years.
Article 37. Appropriate Measures
If the Community or South Africa considers that a particular practice in its domestic market is incompatible with the terms of Article 35, and:
(a) is not adequately dealt with under the implementing rules referred to in Article 36, or
(b) in the absence of such rules, and if such practice causes or threatens to cause serious prejudice to the interests of the other Party or material injury to its domestic industry, including its services industry, the Party concerned may take appropriate measures consistent with its own laws, after consultation within the Cooperation Council, or after 30 working days following referral for such consultation. The appropriate measures to be taken shall respect the powers of the Competition Authority concerned.
Article 38. Comity
1. The Parties agree that, whenever the Commission or the South African Competition Authority has reason to believe that anti-competitive practices, defined under Article 35, are taking place within the territory of the other authority and are substantially affecting important interests of the Parties, it may request the other Party's competition authority to take appropriate remedial action in terms of that authority's rules governing competition.
2. Such a request shall not prejudice any action under the requesting authority's competition laws that may be deemed necessary and shall not in any way encumber the addressed authority's decision-making powers or its independence.
3. Without prejudice to its respective functions, rights, obligations or independence, the competition authority so addressed shall consider and give careful attention to the views expressed and documentation provided by the requesting authority and, in particular, pay heed to the nature of the anti-competitive activities in question, the firm or firms involved, and the alleged harmful effect on the important interests of the aggrieved Party.
4. When the Commission or the Competition Authority of South Africa decides to conduct an investigation or intends to take any action that may have important implications for the interests of the other Party, the Parties must consult, at the request of either Party and both shall endeavour to find a mutually acceptable solution in the light of their respective important interests, giving due regard to each other's laws, sovereignty, the independence of the respective competition authorities and to considerations of comity.
Article 39. Technical Assistance
The Community shall provide South Africa with assistance in the restructuring of its competition policy, which may include among others: technical law and
(a) the exchange of experts;
(b) organisation of seminars;
(c) training activities.
Article 40. Information
The Parties shall exchange information taking into account the limitations imposed by the requirements of professional and business secrecy.
Section E. Public Aid
Article 41. Public Aid
1. In so far as it may affect trade between the Community and South Africa, public aid favouring certain firms or the production of certain goods, which distorts or threatens to distort competition, and which does not support a specific public policy objective or objectives of either Party, is incompatible with the proper functioning of this Agreement.
2. The Parties agree that it is in their interests to ensure that public aid is granted in a fair, equitable and transparent manner.
Article 42. Remedial Measures
1. If the Community or South Africa considers that a particular practice is incompatible with the terms of Article 41, and that such practice causes or threatens to cause serious prejudice to the interests of the other Party or material injury to its domestic industry, the Parties agree, where it is not adequately dealt with under existing rules and procedures, to enter into consultations with a view to finding a mutually satisfactory solution. Such consultations will be without prejudice to the Parties' rights and obligations in terms of their respective laws and international commitments.
2. Either Party may invite the Cooperation Council to examine, in the context of such consultation, the Parties' public policy objectives justifying the grant of public aid referred to in Article 41.
Article 43. Transparency
Each Party shall ensure transparency in the area of public aid. In particular, where a Party so requests, the other Party shall provide information on aid schemes, on particular individual cases of public aid, or on the total amount and the distribution of aid given. The exchange of information between the Parties shall take into account Party's laws relating to professional secrecy. the the limitations requirements imposed by of business either and
Article 44. Review
1. In the absence of any rules or procedures for the implementation of Article 41, the provisions of Article VI and XVI of the General Agreement on Tariffs and Trade 1994 as well as the WTO Agreement on Subsidies and Countervailing Measures shall apply to public aid or subsidies.
2. The Cooperation Council shall periodically review the progress made in these matters. In particular it shall continue to develop cooperation and understanding on the measures taken by each Party with regard to the operation of Article 41.
Section F. Other Trade-related Provisions
Article 45. Government Procurement
1. The Parties agree to cooperate to ensure that access to the Parties' procurement contracts is governed by a system which is fair, equitable and transparent.
2. The Cooperation Council shall periodically review the progress made in this matter.
Article 46. Intellectual Property
1. The Parties shall ensure adequate and effective protection of intellectual property rights in conformity with the highest international standards. The Parties apply the WTO Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPs) from 1 January 1996 and undertake to improve, where appropriate, the protection provided for under that Agreement.
2. If problems in the area of intellectual property protection affecting trading conditions were to occur, urgent consultations shall be undertaken, at the request of either Party, with a view to reaching mutually satisfactory solutions.
3. The Community and its Member States confirm the importance they attach to the obligations arising from the:
(a) Protocol to the Madrid Agreement concerning the International Registration of Marks (Madrid 1989);
(b) International Convention for the Protection of Performers, Producers of Phonogram and Broadcasting Organisations (Rome 1961);
(c) Patent Cooperation Treaty (Washington 1979 as amended and modified in 1984).
4. Without prejudice to the obligations arising from the WTO Agreement on TRIPs, South Africa could favourably consider accession to the multilateral conventions referred to in paragraph 3.
5. The Parties confirm the importance they attach to the following instruments:
(a) the provisions of the Nice Agreement concerning the International Classification of Goods and Services for the Purposes of the Registration of Marks (Geneva 1977 and amended in 1979);
(b) Berne Convention for the Protection of Literary and Artistic Works (Paris Act, 1971);
(c) International Convention for the Protection of New Varieties of Plants (UPOV) (Geneva Act, 1978);
(d) Budapest Treaty on the International Recognition of the Deposit of Micro-organisms for the Purposes of Patent Procedure (1977 modified in 1980);
(e) Paris Convention for the Protection of Industrial Property (Stockholm Act, and amended in 1979) WIPO;
(f) WIPO Copyright Treaty (WCT), 1996.
6. In order to facilitate the implementation of this Article, the Community may provide, on request and on mutually agreed terms and conditions, technical assistance to South Africa in, among other things, the preparation of laws and regulations for the protection and enforcement of intellectual property rights, the prevention of the abuse of such rights, the establishment and reinforcement of domestic offices and other agencies involved in enforcement and protection, including the training of personnel.
7. The Parties agree that for the purpose of this Agreement, intellectual property includes in particular copyright, including the copyright on computer programmes and neighbouring rights, utility models, patents, including biotechnical inventions, industrial designs, geographical indications, including appellations of origin, trade marks and service marks, topographies of integrated circuits, as well as the legal protection of databases and the protection against unfair competition as referred to in Article 10 bis of the Paris Convention for the Protection of Industrial Property and protection of undisclosed information on know-how.
Article 47. Standardisation and Conformity Assessment
The Parties will cooperate in the field of standardisation, metrology, certification and quality assurance in order to reduce differences between the Parties in these areas, remove technical barriers and facilitate bilateral trade. This cooperation shall include:
(a) measures, in accordance with the provisions of the WTO TBT Agreement, to promote greater use of international technical regulations, standards and conformity assessment procedures, including sector specific measures;
(b) developing agreements on mutual recognition of conformity assessment in sectors of mutual economic interest;
(c) cooperation in the area of quality management and assurance in selected sectors of importance to South Africa;
(d) facilitation of technical assistance for southern African capacity building initiatives in the fields of accreditation, metrology and standardisation;
(e) developing practical links between South African and European standardisation, accreditation and certification organisations.
Article 48. Customs
1. The Parties shall promote and facilitate cooperation between their customs services in orde to ensure that the provisions on trade are observed and to guarantee fair trade. The cooperation shall give rise, among other things, to the exchange of information and training schemes.
2. Without prejudice to other forms of cooperation envisaged in this Agreement, in particular under Article 90, the Contracting Parties' administrative authorities shall provide mutual assistance in accordance with the provisions of Protocol 2 of this Agreement.
Article 49. Statistics
The Parties agree to cooperate in this field. The cooperation will be geared mainly to the harmonisation of statistical methods and practice to enable processing, according to mutually agreed bases, of data on trade in goods and services and, more generally, on any field covered by the Agreement lending itself to statistical treatment.
Title IV. ECONOMIC COOPERATION
Article 50. Introduction
The Parties agree to develop and promote cooperation on economic and industrial matters to their mutual advantage and in the interest of the southern African region as a whole, by diversifying and strengthening their economic links, promoting sustainable development in their economies, supporting patterns of regional economic cooperation, promoting cooperation between small and medium-sized enterprises, protecting and improving the environment, promoting the economic empowerment of historically disadvantaged groups, including women, protecting and promoting worker and trade union rights.
Article 51. Industry
The aim of cooperation in this area is to facilitate the restructuring and modernisation of the South African industry while fostering its competitiveness and growth and to create conditions favourable to mutually beneficial cooperation between South African and Community industry. The aim of the cooperation shall be, inter alia:
(a) to encourage cooperation between the Parties' economic operators (companies, professionals, sectoral and other business organisations, organised labour, etc.);
(b) to back the efforts of South Africa's public and private sectors to restructure and modernise industry, under conditions ensuring environmental protection, sustainable development and economic empowerment;
(c) to foster an environment which favours private initiatives, with the aim of stimulating and diversifying output for the domestic and export markets;
(d) to promote improved utilisation of South Africa's human resources and industrial potential through, inter alia, the facilitation of access to credit and investment finance and support to industrial innovation, technology transfer, training, research and technological development.
Article 52. Investment Promotion and Protection
Cooperation between the Parties shall aim to establish a climate which favours and promotes mutually beneficial investment, both domestic and foreign, especially through improved conditions for investment protection, investment promotion, the transfer of capital and the exchange of information on investment opportunities. The aims of cooperation shall be, inter alia, to facilitate and encourage:
(a) the conclusion, where appropriate, between the Member States and South Africa of agreements for the promotion and protection of investment;
(b) the conclusion, where appropriate, between the Member States and South Africa of agreements to avoid double taxation;
(c) the exchange of information on investment opportunities;
(d) work towards harmonised and simplified procedures and administrative practices in the field of investment;
(e) support, through appropriate instruments, the promotion and encouragement of investment in South Africa and in the Southern African region.
Article 53. Trade Development
1. The Parties undertake to develop, diversify and increase trade between them and to improve the competitiveness of South African production on domestic, regional and international markets.
2. Cooperation in the field of trade development shall in particular focus on the following:
(a) drawing up appropriate trade development strategies and creation of a trade environment supportive of competitiveness;
(b) capacity building and development of human resources and professional skills in the field of trade and support services in both the public and private sector, including labour;
(c) exchanges of information on market requirements;
(d) know-how and technology transfer through investment and joint ventures;
(e) development of the private sector, in particular small and medium-sized enterprises engaged in trade;
(f) establishment, adaptation and strengthening of organisations concerned with the development of trade and support services;
(g) regional cooperation for the development of trade and trade-related infrastructure and services in southern Africa.
Article 54. Micro-enterprises and Small and Medium-sized Enterprises
The Parties shall aim to develop and strengthen micro enterprises (MEs) and small and medium-sized enterprises (SMEs) in South Africa, as well as to promote cooperation between SMEs in the Community and in South Africa and the region in a manner that is sensitive to gender equality. The Parties shall, inter alia:
(a) cooperate, where appropriate, in the creation of enabling legal, administrative, institutional, technical, tax and financial frameworks for the setting up and expansion of MEs and SMEs;
(b) provide assistance required by MEs and SMEs, whatever their legal status, in areas such as financing, skills training, technology and marketing;
(c) provide assistance to companies, organisations, policy makers and agencies providing services referred to under paragraph b through appropriate technical support, information exchange and capacity building;
(d) establish and facilitate appropriate links between South African, southern African and Community private sector operators in order to improve the flow of information (relating to strategy formulation and implementation, business trends and opportunities, networking, joint ventures and transfer of skills).
Article 55. Information Society -telecommunications and Information Technology
1. The Parties agree to cooperate in the area of information and communication technology (ICT) which they consider as key sectors of modern society and which are vital to economic and social development and to the development of an information society. Communication in this context encompasses post, broadcasting, telecommunications, information technologies. The aim of cooperation shall be to:
(a) improve the access of South African public and private entities to means of communications, electronics and information technologies through support to the development of infrastructural networks, human resources and appropriate information society policies in South Africa;
(b) support cooperation between the countries of the southern African region in this area, in particular in the context of satellite technology;
(c) address the challenges of globalisation, new technologies, institutional and sector restructuring, and the developing gap in basic information services and in advanced services.
2. Cooperation shall include among others:
(a) dialogue on different aspects of information society, including regulatory aspects and communications policy;
(b) information exchanges and possible technical assistance on regulation, standardisation, conformity testing and certification of information and communications technologies and the use of frequencies;
(c) dissemination of new information and communication technologies, and the development of new facilities, particularly in relation to interconnection of networks and interoperability of applications;
(d) promotion and implementation of joint research, technological development on projects in the field of new technologies related to the information society;
(e) access for South African organisations to Community projects or programmes on the basis of the arrangements applying in the various fields concerned, and access for European Union organisations to operations initiated by South Africa under the same conditions.
Article 56. Postal Cooperation
Cooperation in this area shall include:
(a) exchange of information and dialogue on postal matters in relation to, inter alia, regional and international activities, regulatory aspects and policy decisions;
(b) technical assistance on regulation, operational standards and human resource development;
(c) promotion and implementation of joint projects, including research, on technological development in this sector.
Article 57. Energy
1. Cooperation in this area shall include the aim of cooperation in this area shall be:
(a) to improve the access of South Africans to affordable, reliable and sustainable sources of energy;
(b) to reorganise and modernise the energy producing, distributing and consuming subsectors so that appropriate services are provided on optimum terms of economic efficiency, social development and environmental acceptability;
(c) to support cooperation between countries in the southern African region to exploit locally available energy resources in an efficient and environmentally friendly manner.
2. Cooperation shall specifically aim:
(a) to support the development of appropriate energy policies and infrastructure in South Africa;
(b) to diversify energy supplies in South Africa;
(c) to improve energy operators performance standards in technical, economic and financial terms especially in the electricity and liquid fuels sectors;
(d) to facilitate capacity building of local expertise especially by general and technical training;
(e) to develop new and renewable forms of energy and support infrastructure especially for rural energy power supply;
(f) to improve the rational use of energy notably by the promotion of energy systems' efficiency;
(g) to promote transfer and use of environmentally friendly technologies;
(h) to promote regional energy cooperation in southern Africa.
Article 58. Mining and Minerals
1. The aim of cooperation in this area is, inter alia:
(a) to support and promote policy measures that improve health and safety standards in the mining industry as well as conditions of employment;
(b) to make mineral resources and geoscience information accessible for exploration and mining investment. The cooperation should also create a mutually beneficial climate for attracting investment in the sector, including SMEs (and previously disadvantaged communities);
(c) to support policies which ensure that mining activities take place with due consideration for the environment and sustainable development, taking into account the specific circumstances in the country and nature of mining;
(d) to cooperate on mining and minerals technology research and development.
2. Cooperation will include South African activities undertaken within the framework of the Southern African Development Community (SADC) Mining Coordination Unit.
Article 59. Transport
1. The aim of the cooperation in this area shall be:
(a) to improve the access of South Africans to affordable, safe and reliable modes of transport and to facilitate the flow of goods in the country through the support to the development of intermodal infrastructure networks and transport systems, that are economically and environmentally sustainable;
(b) to support cooperation between the countries of the southern African region in order to create a sustainable transport network for regional needs.
2. Cooperation shall specifically focus on:
(a) contributing to the restructuring and modernisation of road, rail, port and airport infrastructure;