3. The provisions on border measures in this Article are of procedural nature. They set out the conditions and procedures for action by the customs authorities where goods suspected of infringing an intellectual property right are, or should have been, under customs control. They shall not affect in any way the substantive law of the Parties on intellectual property.
4. To facilitate the effective enforcement of intellectual property rights, the customs authorities shall adopt a range of approaches to identify shipments containing goods suspected of infringing intellectual property rights. These approaches include risk analysis techniques based, inter alia, on information provided by rights holders, intelligence gathered and cargo inspections.
5. The Parties agree to effectively implement Article 69 of the TRIPS Agreement in respect of international trade in goods suspected of infringing intellectual property rights. For that purpose, the Parties shall establish and notify contact points in their customs administrations and shall be ready to exchange data and information on trade in such goods affecting both Parties. They shall, in particular, promote the exchange of information and cooperation between customs authorities with regard to trade in counterfeit trademark goods and pirated copyright goods. Without prejudice to the provisions of Protocol II on Mutual Administrative Assistance in Customs Matters to this Agreement customs authorities shall, where appropriate, exchange such information swiftly and with due respect to data protection laws of the Parties.
6. The customs authorities of each Party shall cooperate, upon request or upon their own initiative, to provide relevant available information to the customs authorities of the other Party, in particular for goods in transit through the territory of a Party destined for (or originating in) the other Party.
7. The Sub-Committee referred to in Article 74 of this Agreement shall establish the necessary practical arrangements concerning the exchange of data and information referred to in this Article.
8. Protocol II on Mutual Administrative Assistance in Customs Matters to this Agreement shall be applicable in respect to breaches of intellectual property rights, without prejudice to forms of cooperation resulting from the application of paragraphs 5 to 7 of this Article.
9. The Sub-Committee referred to in Article 74 of this Agreement shall act as the responsible Sub-Committee to ensure the proper functioning and implementation of this Article.
Article 201. Codes of Conduct
The Parties shall encourage:
(a) the development by trade or professional associations or organisations of codes of conduct aimed at contributing towards the enforcement of intellectual property rights.
(b) the submission to their respective competent authorities of draft codes of conduct and of any evaluations of the application of those codes of conduct.
Article 202. Cooperation
1. The Parties agree to cooperate with a view to supporting the implementation of the commitments and obligations undertaken under this Chapter.
2. Areas of cooperation include, but are not limited to, the following activities:
(a) exchange of information on the legal framework concerning intellectual property rights and relevant rules of protection and enforcement; exchange of experiences on legislative progress in those areas;
(b) exchange of experiences and information on the enforcement of intellectual property rights;
(c) exchange of experiences on central and sub-central enforcement by customs, police, administrative and judiciary bodies; coordination to prevent exports of counterfeit goods, including with other countries;
(d) capacity-building; exchange and training of personnel;
(e) promotion and dissemination of information on intellectual property rights in, inter alia, business circles and civil society; public awareness of consumers and right holders;
(f) enhancement of institutional cooperation, for example between intellectual property offices;
(g) actively promoting awareness and education of the general public on policies concerning intellectual property rights: formulate effective strategies to identify key audiences and create communication programmes to increase consumer and media awareness on the impact of intellectual property violations, including the risk to health and safety and the connection to organised crime.
Chapter 10. Competition
Article 203. Principles
The Parties recognise the importance of free and undistorted competition in their trade relations. The Parties acknowledge that anti-competitive business practices and state interventions (including subsidies) have the potential to distort the proper functioning of markets and undermine the benefits of trade liberalisation.
Article 204. Antitrust and Mergers Legislation and Its Implementation
1. Each Party shall maintain in its respective territory comprehensive competition laws, which effectively address anti-competitive agreements, concerted practices and anti-competitive unilateral conduct of enterprises with dominant market power and which provide effective control of concentrations to avoid significant impediment to effective competition and abuse of dominant position.
2. Each Party shall maintain an authority responsible and appropriately equipped for the effective enforcement of the competition laws referred to in paragraph 1.
3. The Parties recognise the importance of applying their respective competition laws in a transparent and non-discriminatory manner, respecting the principles of procedural fairness and rights of defence of the enterprises concerned.
Article 205. State Monopolies, State Enterprises and Enterprises Entrusted with Special or Exclusive Rights
1. Nothing in this Chapter prevents a Party from designating or maintaining state monopolies, state enterprises or to entrust enterprises with special or exclusive rights in accordance with its respective laws.
2. With regard to state monopolies of a commercial character, state enterprises and enterprises entrusted with special or exclusive rights, each Party shall ensure that such enterprises are subject to the competition laws referred to in Article 204(1), in so far as the application of those laws does not obstruct the performance, in law or in fact, of the particular tasks of public interest assigned to the enterprises in question.
Article 206. Subsidies
1. For the purpose of this Article, a ‘subsidy' is a measure which fulfils the conditions of Article 1 of the SCM Agreement irrespective whether it is granted in relation to the production of goods or the supply of services and which is specific within the meaning of Article 2 of that Agreement.
2. Each Party shall ensure transparency in the area of subsidies. To that end, each Party shall report every two years to the other Party on the legal basis, the form, the amount or the budget and, where possible, the recipient of the subsidy granted by its government or a public body in relation to the production of goods. Such report is deemed to have been provided if the relevant information is made available by each Party on a publicly accessible website.
3. On request of a Party, the other Party shall promptly provide information and respond to questions pertaining to particular subsidies relating to the supply of services.
Article 207. Dispute Settlement
The provisions on the dispute settlement mechanism in Chapter 14 (Dispute Settlement) of Title IV (Trade and Trade- related Matters) of this Agreement shall not apply to Articles 203, 204 and 205 of this Agreement.
Article 208. Relationship with the WTO
The provisions of this Chapter are without prejudice to the rights and obligations of a Party under the WTO Agreement, in particular the SCM Agreement and the Dispute Settlement Understanding (DSU).
Article 209. Confidentiality
When exchanging information under this Chapter the Parties shall take into account the limitations imposed by the requirements of professional and business secrecy in their respective jurisdictions.
Chapter 11. Trade-related Energy Provisions
Article 210. Definitions
For the purposes of this Chapter:
(a) ‘energy goods' means crude oil (HS code 27.09), natural gas (HS code 27.11) and electrical energy (HS code 27.16);
(b) ‘energy transport facilities' means high-pressure natural gas transmission pipelines; high-voltage electricity transmission grids and lines, including interconnectors used to connect different gas or electricity transmission networks; crude oil transmission pipelines, railways and other fixed facilities handling the transit of energy goods.
(c) ‘transit' means the passage of energy goods across the territory of a Party, with or without trans-shipment, warehousing, breaking bulk, or change in the mode of transport, where such passage is only a portion of a complete journey beginning and terminating beyond the frontier of the Party across whose territory the traffic passes.
(d) ‘unauthorised taking' means any activity consisting of the unlawful taking of energy goods from energy transport facilities.
Article 211. Transit
The Parties shall ensure transit, consistent with their international commitments in accordance with the provisions of GATT 1994 and the Energy Charter Treaty.
Article 212. Unauthorised Taking of Goods In Transit
Each Party shall take all necessary measures to prohibit and address any unauthorised taking of energy goods in transit through its territory by any entity subject to that Party's control or jurisdiction.
Article 213. Uninterrupted Transit
1. A Party shall not take from or interfere otherwise with the transit of energy goods through their territory, except where such taking or other interference is specifically provided for in a contract or other agreement governing such transit or where a continued operation of the energy transport facilities without prompt corrective action creates an unreasonable threat to public security, cultural heritage, health, safety or the environment, subject to the requirement that such action is not carried out in a manner which would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction of international trade.
2. 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, a Party through the territory of which the transit of energy goods takes place shall not, prior to the conclusion of a dispute resolution procedure under the relevant contract or of an emergency procedure under Annex XVIII to this Agreement or under Chapter 14 (Dispute Settlement) of Title IV (Trade and Trade-related Matters) of this Agreement, interrupt or reduce such transit, or permit any entity subject to its control or jurisdiction, including a state trading enterprise, to interrupt or reduce such transit, except under the circumstances provided in paragraph 1.
3. A Party shall not be held liable for an interruption or reduction of transit pursuant to this Article where that Party is unable to supply or to transit 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 214. Transit Obligation for Operators
Each Party shall ensure that operators of energy transport facilities take the necessary measures to: (a) minimise the risk of accidental interruption or reduction of transit; (b) expeditiously restore the normal operation of such transit, which has been accidentally interrupted or reduced.
Article 215. Regulatory Authorities
1. Each Party shall designate independent regulatory authorities empowered to regulate the gas and electricity markets. These regulatory authorities shall be legally distinct and functionally independent from any other public or private enterprise, market participant or operator.
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 216. Organisation of Markets
1. The Parties shall ensure that energy markets are operated with a view to achieving competitive, secure and environmentally sustainable conditions and shall not discriminate between enterprises as regards rights or obligations.
2. Notwithstanding paragraph 1, a Party may impose on enterprises, in the general economic interest, obligations which may relate to security, including security of supply; regularity, quality and price of supplies; and environmental protection, including energy efficiency, energy from renewable sources and climate protection. Such obligations shall be clearly defined, transparent, proportionate and verifiable.
3. Where a Party regulates the price at which gas and electricity are sold on the domestic market, that Party 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 217. Access to Energy Transport Facilities
1. Each Party shall ensure on its territory the implementation of a system of third party access to energy transport facilities and Liquefied Natural Gas and storage facilities applicable to all users and applied in a transparent, objective and non-discriminatory manner.
2. Each Party shall ensure that the access tariff to energy transport facilities and all other conditions related to access to an energy transport facility are objective, reasonable, transparent and shall not discriminate on the basis of origin, ownership or destination of the energy good.
3. Each Party shall ensure that all technical and contracted capacity, both physical and virtual, is allocated through transparent and non-discriminatory criteria and procedures.
4. In case of refusal to grant third party access, the Parties shall ensure that, upon request, the energy transport facility operators provide a duly substantiated explanation to the requesting party, subject to legal redress.
5. A Party may exceptionally derogate from the provisions in paragraphs 1 to 4 according to objective criteria laid down in its legislation. In particular, a Party may implement in its legislation a possibility to grant, on a case-by-case basis, for a limited period of time, an exemption to the third party access rules for major new energy transport facilities.
Article 218. Relationship with the Energy Community Treaty (1)
1. In the event of a conflict between the provisions of this Chapter and the provisions of the Energy Community Treaty or the provisions of the Union legislation made applicable under the Energy Community Treaty, the provisions of the Energy Community Treaty or the provisions of the Union legislation made applicable under the Energy Community Treaty shall prevail to the extent of such conflict.
2. In implementing this Chapter, preference shall be given to the adoption of legislation or other acts which are consistent with the Energy Community Treaty or are based on the legislation applicable in the Union. In the event of a dispute as regards this Chapter, legislation or other acts which meet these criteria shall be presumed to conform to this Chapter. In assessing whether the legislation or other acts meet these criteria, any relevant decision taken under Article 91 of the Energy Community Treaty shall be taken into account.
Chapter 12. Transparency
Article 219. Definitions
For the purposes of this Chapter:
(a) ‘measure of general application' includes laws, regulations, judicial decisions, procedures and administrative rulings that may have an impact on any matter covered by Title IV (Trade and Trade-related Matters) of this Agreement. It does not include measures that are addressed to a particular person or a group of persons;
(b) ‘interested person' means any natural or legal person established in the territory of a Party that may be directly affected by a measure of general application.
Article 220. Objective
Recognising the impact which regulatory environment may have on trade and investment between the Parties, the Parties shall provide a predictable regulatory environment for economic operators and efficient procedures, including for small and medium-sized enterprises, taking due account of the requirements of legal certainty and proportionality.
Article 221. Publication
1. Each Party shall ensure that measures of general application:
(a) are promptly and readily available via an officially designated medium and where feasible, electronic means, in such a manner as to enable any person to become acquainted with them;
(b) provide an explanation of the objective of, and the rationale for, such measures; and
(c) allow for sufficient time between the publication and entry into force of such measures, except in duly justified cases including security or emergency issues.
2. Each Party shall:
(a) endeavour to make publicly available at an appropriate early stage any proposal to adopt or to amend any measure of general application, including an explanation of the objective of, and rationale for such proposal;
(b) provide reasonable opportunities for interested persons to comment on such proposal, allowing, in particular, for sufficient time for such opportunities; and
(c) endeavour to take into consideration the comments received from interested persons with respect to such proposal.
Article 222. Enquiries and Contact Points
1. In order to facilitate the communication between the Parties on any matter covered by Title IV (Trade and Trade-related Matters) of this Agreement, each Party shall designate a contact point acting as coordinator.
2. Each Party shall establish or maintain appropriate mechanisms for responding to enquiries from any person regarding any measure of general application which is proposed or in force, and its application. Enquiries may be addressed through the contact point established under paragraph 1 or through any other mechanism, as appropriate.
3. The Parties recognise that any response provided for in paragraph 2 may not be definitive or legally binding but for information purposes only, unless otherwise provided for in their respective laws and regulations.
4. Upon request of a Party, the other Party shall promptly provide information and respond to questions pertaining to any measure of general application or any proposal to adopt or to amend any measure of general application that the requesting Party considers might affect the operation of Title IV (Trade and Trade-related Matters) of this Agreement, regardless of whether the requesting Party has been previously notified of that measure.
Article 223. Administration of Measures of General Application
1. Each Party shall administer in an objective, impartial and reasonable manner all measures of general application.
2. To that end, each Party, in applying such measures to particular persons, goods or services of the other Party in specific cases, shall:
(a) endeavour to provide interested persons, that are directly affected by an administrative proceeding, with a reasonable notice, in accordance with its procedures, when a proceeding is initiated, including a description of the nature of the proceeding, a statement of the legal authority under which the proceeding is initiated and a general description of any issues in controversy;
(b) afford such interested persons a reasonable opportunity to present facts and arguments in support of their positions prior to any final administrative action, in so far as the time, the nature of the proceeding and the public interest permit; and
(c) ensure that its procedures are based on and carried out in accordance with its law.
Article 224. Review and Appeal
1. Each Party shall establish or maintain judicial, arbitral or administrative tribunals or procedures for the purpose of the prompt review and, where warranted, correction of administrative action relating to matters covered by Title IV (Trade and Trade-related Matters) of this Agreement. Such tribunals or procedures shall be impartial and independent of the office or authority entrusted with administrative enforcement and those responsible for them shall not have any substantial interest in the outcome of the matter.
2. Each Party shall ensure that, in any such tribunals or procedures, the parties to the proceeding are provided with the right to:
(a) a reasonable opportunity to support or defend their respective positions; and
(b) a decision based on the evidence and the submissions of record or, where required by its law, the record compiled by the administrative authority.
3. Each Party shall ensure that, subject to appeal or further review as provided for in its law, such decision shall be implemented by, and shall govern the practice of, the office or the authority with respect to the administrative action at issue.
Article 225. 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 policies and regulatory impact assessments.
2. The Parties recognise the importance of the principles of good administrative behaviour (1) and agree to cooperate in promoting such principles, including through exchange of information and best practices.
Article 226. Specific Rules
The provisions of this Chapter shall apply without prejudice to any specific rules on transparency established in other Chapters of Title IV (Trade and Trade-related Matters) of this Agreement.
Chapter 13. Trade and Sustainable Development
Article 227. Context and Objectives
1. The Parties recall the Agenda 21 of the United Nations Conference on Environment and Development of 1992, the International Labour Organisation's (ILO) Declaration on Fundamental Principles and Rights at Work of 1998, the Johannesburg Plan of Implementation on Sustainable Development of 2002, the Ministerial Declaration of the United Nations Economic and Social Council on Generating Full and Productive Employment and Decent Work for All of 2006, and the ILO Declaration on Social Justice for a Fair Globalisation of 2008. The Parties reaffirm their commitment to promote the development of international trade in such a way as to contribute to the objective of sustainable development, for the welfare of present and future generations, and to ensure that this objective is integrated and reflected at every level of their trade relationship.
2. The Parties reaffirm their commitment to pursue sustainable development and recognise that economic development, social development and environmental protection are its interdependent and mutually reinforcing pillars. They underline the benefit of considering trade-related labour (2) and environmental issues as part of a global approach to trade and sustainable development.
Article 228. Right to Regulate and Levels of Protection
1. The Parties recognise the right of each Party to determine its sustainable development policies and priorities, to establish its own levels of domestic environmental and labour protection, and to adopt or modify accordingly its relevant law and policies, consistently with their commitment to the internationally recognised standards and agreements referred to in Articles 229 and 230 of this Agreement.
2. In that context, each Party shall strive to ensure that its law and policies provide for and encourage high levels of environmental and labour protection and shall strive to continue to improve its law and policies and the underlying levels of protection.
Article 229. Multilateral Labour Standards and Agreements
1. The Parties recognise full and productive employment and decent work for all as key elements for managing globalisation, and reaffirm their commitment to promote the development of international trade in a way that is conducive to full and productive employment and decent work for all. In this context, the Parties commit to consulting and cooperating as appropriate on trade-related labour issues of mutual interest.
2. In accordance with their obligations as members of the ILO and the ILO Declaration on Fundamental Principles and Rights at Work and its Follow-up, adopted by the International Labour Conference at its 86th Session in 1998, the Parties commit to respecting, promoting and realising in their law and practice and in their whole territory the internationally recognised core labour standards, as embodied in the fundamental ILO conventions, and in particular:
(a) the freedom of association and the effective recognition of the right to collective bargaining;
(b) the elimination of all forms of forced or compulsory labour;
(c) the effective abolition of child labour; and
(d) the elimination of discrimination in respect of employment and occupation.
3. The Parties reaffirm their commitment to effectively implement in their law and practice the fundamental, the priority and other ILO conventions ratified by Georgia and the Member States respectively.
4. The Parties will also consider the ratification of the remaining priority and other conventions that are classified as up-to-date by the ILO. The Parties shall regularly exchange information on their respective situation and developments in this regard.
5. The Parties recognise that the violation of fundamental principles and rights at work cannot be invoked or otherwise used as a legitimate comparative advantage and that labour standards should not be used for protectionist trade purposes.
Article 230. Multilateral Environmental Governance and Agreements
1. The Parties recognise the value of multilateral environmental governance and agreements as a response of the international community to global or regional environmental problems, and stress the need to enhance the mutual supportiveness between trade and environmental policies. In this context, the Parties commit to consult and cooperate as appropriate with respect to negotiations on trade-related environmental issues and with respect to other trade-related environmental matters of mutual interest.
2. The Parties reaffirm their commitment to effectively implement in their law and practice the multilateral environmental agreements (MEAs) to which they are party.
3. The Parties shall regularly exchange information on their respective situation and advancements as regards ratifications of MEAs or amendments to such agreements.
4. The Parties reaffirm their commitment to reaching the ultimate objective of the United Nations Framework Convention on Climate Change (UNFCCC) and the Protocol thereto (Kyoto Protocol). They commit to cooperate on the development of the future international climate change framework under the UNFCCC and its related agreements and decisions.
5. Nothing in this Agreement shall prevent the Parties from adopting or maintaining measures to implement the MEAs to which they are party, provided that such measures are not applied in a manner that would constitute a means of arbitrary or unjustifiable discrimination between the Parties or a disguised restriction on trade.
Article 231. Trade and Investment Promoting Sustainable Development
The Parties reconfirm their commitment to enhance the contribution of trade to the goal of sustainable development in its economic, social and environmental dimensions. Accordingly:
(a) the Parties recognise the beneficial role that core labour standards and decent work can have on economic efficiency, innovation and productivity, and they shall seek greater policy coherence between trade policies, on the one hand, and labour policies on the other;
(b) the Parties shall strive to facilitate and promote trade and investment in environmental goods and services, including through addressing related non-tariff barriers;
(c) the Parties shall strive to facilitate the removal of obstacles to trade or investment concerning goods and services of particular relevance to climate change mitigation, such as sustainable renewable energy and energy efficient products and services. This may include the adoption of appropriate technologies and the promotion of standards that respond to environmental and economic needs and minimise technical obstacles to trade;
(d) the Parties agree to promote trade in goods that contribute to enhanced social conditions and environmentally sound practices, including goods that are the subject of voluntary sustainability assurance schemes such as fair and ethical trade schemes and eco-labels;
(e) the Parties agree to promote corporate social responsibility, including through exchange of information and best practices. In this regard, the Parties refer to the relevant internationally recognised principles and guidelines, especially the OECD Guidelines for Multinational Enterprises.
Article 232. Biological Diversity
1. The Parties recognise the importance of ensuring the conservation and the sustainable use of biological diversity as a key element for the achievement of sustainable development, and reaffirm their commitment to conserve and sustainably use biological diversity, in accordance with the Convention on Biological Diversity and other relevant international instruments to which they are party.
2. To that end, the Parties commit to:
(a) promoting trade in natural resource-based products obtained through a sustainable use of biological resources and contributing to the conservation of biodiversity;