(iv) enforcement of technical regulations and market surveillance activities;
(v) the necessary technical infrastructure, in terms of metrology, standardisation, testing, certification and accreditation, to support technical regulations; and
(vi) mechanisms and methods for reviewing technical regulations and conformity assessment procedures;
(b) reinforcing regulatory co-operation through, for example, exchange of information, experiences and data, and through scientific and technical cooperation with a view to improving the quality and level of their technical regulations and making efficient use of regulatory resources;
(c) compatibility and/or equivalence of their respective technical regulations, standards and conformity assessment procedures;
(d) promoting and encouraging bilateral cooperation between their respective organisation, public and/or private, responsible for metrology, standardisation, testing, certification and accreditation;
(e) promoting and encouraging full participation in international standard setting bodies, and reinforcing the role of international standards as a basis for technical regulations; and
(f) increasing their bilateral cooperation in the relevant international organisations and fora dealing with the issues covered by this section.
Article 88. Committee on Standards, Technical Regulations and Conformity Assessment
1. The Parties hereby establish a Special Committee on Technical Regulations, Standards and Conformity Assessment in order to achieve the objectives set out in this section. The Committee, made up of representatives of the Parties, shall be co-chaired by a representative of each Party. The Committee shall meet at least once a year, unless otherwise agreed by the Parties. The Committee shall report to the Association Committee.
2. The Committee may address any matter related to the effective functioning of this section. In particular, it shall have the following responsibilities and functions:
(a) monitoring and reviewing the implementation and administration of this section. In this connection, the Committee shall draw up a work program aimed at achieving the objectives of the section and in particular those set out in Article 87;
(b) providing a forum for discussion and exchanging information on any matter related to this section and in particular as it relates to the Parties' systems for technical regulations, standards and conformity assessment procedures, as well as developments in related international organisations;
(c) providing a forum for consultation and prompt resolution of issues that act or can act as unnecessary barriers to trade, within the scope and meaning of this section, between the Parties;
(d) encouraging, promoting and otherwise facilitating cooperation between the Parties' organisations, public and/or private, for metrology, standardisation, testing, certification, inspection and accreditation; and
(e) exploring any means aimed at improving access to the Parties' respective markets and enhancing the functioning of this section. Sanitary and Phytosanitary Measures
Article 89. Sanitary and Phytosanitary Measures
1. The objective of this section is to facilitate trade between the Parties in the field of sanitary and phytosanitary legislation, whilst safeguarding public, animal and plant health by further implementing the principles of the WTO on the Application of Sanitary and Phytosanitary Measures ("the WTO SPS Agreement"). An additional objective of this section is to consider animal welfare standards.
2. The objectives of this section are pursued through the "Agreement on Sanitary and Phytosanitary Measures Applicable to Trade in Animals and Animal Products, Plants, Plant Products and other Goods and Animal Welfare", which is attached as Annex IV.
3. By way of derogation from Article 193, the Association Committee, when dealing with sanitary or phytosanitary measures, shall be composed of representatives of the Community and Chile with responsibility for sanitary and phytosanitary matters.A This Committee shall then be called the "Joint Management Committee for Sanitary and Phytosanitary Matters". The functions of the Committee are set out in Article 16 of Annex IV.
4. For the purpose of Article 184, consultations held under Article 16 of Annex IV shall be deemed to constitute the consultations referred to in Article 183, unless the Parties decide otherwise. Wines and Spirits
Article 90. Wines and Spirits
The Agreement on Trade in Wine and the Agreement on Trade in Spirit Drinks and Aromatised Drinks are attached as Annex V and VI, respectively.
Chapter III. Exceptions
Article 91. General Exception Clause
Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between the Parties where the same conditions prevail, or a disguised restriction on trade between the Parties, nothing in this Title shall be construed to prevent the adoption or enforcement by either Party of measures which:
(a) are necessary to protect public morals;
(b) are necessary to protect human, animal or plant life or health;
(c) are necessary to secure compliance with laws or regulations which are not inconsistent with this Agreement, including those relating to customs enforcement, the protection of intellectual property rights, and the prevention of deceptive practices;
(d) relate to the importation or exportation of gold or silver;
(e) relate to the protection of national treasures of artistic, historic or archaeological value;
(f) relate to the conservation of exhaustible natural resources if such measures are made effective in conjunction with restrictions on domestic production or consumption; or
(g) relate to the products of prison labour.
Article 92. Safeguard Clause
1. Unless otherwise provided by this Article, the provisions of Article XIX of the GATT 1994 and of the WTO Agreement on Safeguards are applicable between the Parties. The provisions of paragraphs 2, 3, 4, 5, 7, 8 and 9 of this Article apply only when a Party has a substantial interest as exporter of the product concerned, as defined in paragraph 10.
2. Each Party shall provide, immediately and in any case no later than seven days from the event, ad hoc written notification to the Association Committee of all pertinent information on the initiation of a safeguard investigation and on the final findings of the investigation.
3. The information provided under paragraph 2 shall include in particular an explanation of the domestic procedure on the basis of which the investigation will be carried out and an indication of the time schedules for hearings and other appropriate opportunities for interested parties to present their views on the matter. Furthermore, each Party shall provide advance written notification to the Association Committee of all pertinent information on the decision to apply provisional safeguard measures. Such notice must be received at least seven days before the application of such measures.
4. Upon notification of the final findings of the investigation and before applying safeguard measures pursuant to the provisions of Article XIX of the GATT 1994 and of the WTO Agreement on Safeguards, the Party intending to apply such measures shall refer the matter to the Association Committee for a thorough examination of the situation with a view to seeking a mutually acceptable solution. In order to find such a solution and if the Party concerned so requests, the Parties shall hold prior consultations within the Association Committee.
5. Notwithstanding paragraph 4, nothing shall prevent a Party from applying measures pursuant to the provisions of Article XIX of the GATT 1994 and of the WTO Agreement on Safeguards.
6. In the selection of safeguard measures referred to in this Article, the Parties shall give priority to those which cause least disturbance to the achievement of the objectives of this Agreement. Such measures shall not exceed what is necessary to remedy the serious injury, and shall preserve the level/margin of preference granted under this Title.
7. The Parties confirm their rights and obligations under paragraphs 1 and 2 of Article 8 of the WTO Safeguard Agreement.
8. The right of suspension referred to in Article 8(2) of the WTO Safeguard Agreement shall not be exercised between the Parties for the first 18 months that a safeguard measure is in effect, provided that the safeguard measure has been taken as a result of an absolute increase in imports and that such a measure conforms to the provisions of the WTO Safeguard Agreement.
9. Safeguard measures shall upon application be notified immediately to the Association Committee and shall be the subject of consultations once a year within the Committee, particularly with a view to their liberalisation or abolition.
10. For the purposes of this Article, it is considered that a Party has a substantial interest when it is among the five largest suppliers of the imported product during the most recent three-year period of time, measured in terms of either absolute volume or value.
11. In the event of either Party subjecting to a surveillance procedure imports of products liable to give rise to the conditions for the application of a safeguard measure pursuant to this Article, it shall inform the other Party.
Article 93. Shortage Clause
1. Where compliance with the provisions of this Title leads to:
(a) a critical shortage, or threat thereof, of foodstuffs or other products essential to the exporting Party; or
(b) a shortage of essential quantities of domestic materials for a domestic processing industry during periods when the domestic price of such materials is held below the world price as part of a governmental stabilisation plan; and where the situations referred to above give rise or are likely to give rise to major difficulties for the exporting Party, that Party may take appropriate measures under the conditions and in accordance with the procedures laid down in this Article.
2. In the selection of measures, priority must be given to those which least disturb the functioning of the arrangements in this Agreement. Such measures shall not be applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination where the same conditions prevail, or a disguised restriction on trade, and shall be eliminated when the conditions no longer justify their maintenance. In addition, the measures which may be adopted pursuant to paragraph 1(b) shall not operate to increase the exports of or the protection afforded to the domestic processing industry concerned, and shall not depart from the provisions of this Agreement relating to non-discrimination.
3. Before taking the measures provided for in paragraph 1, or as soon as possible in cases to which paragraph 4 applies, the Party intending to take the measures shall supply the Association Committee with all relevant information, with a view to seeking a solution acceptable to the Parties. The Parties within the Association Committee may agree on any means needed to put an end to the difficulties. If no agreement is reached within 30 days of the matter being referred to the Association Committee, the exporting Party may apply measures under this Article on the exportation of the product concerned.
4. Where exceptional and critical circumstances requiring immediate action make prior information or examination impossible, the Party intending to take the measures may apply forthwith the precautionary measures necessary to deal with the situation and shall inform the other Party immediately thereof.
5. Any measures applied pursuant to this Article shall be immediately notified to the Association Committee and shall be the subject of periodic consultations within that body, particularly with a view to establishing a timetable for their elimination as soon as circumstances permit.
Title III. TRADE IN SERVICES AND ESTABLISHMENT
Article 94. Objectives
1. The Parties shall reciprocally liberalise trade in services, in accordance with the provisions of this Title and in conformity with Article V of the GATS.
2. The aim of Chapter 3 is the improvement of the investment environment, and in particular the conditions of establishment between the Parties, on the basis of the principle of nondiscrimination.
Chapter I. Services
Section 1. Common Provisions
Article 95. Scope
1. For the purposes of this Chapter, trade in services is defined as the supply of a service through the following modes:
(a) from the territory of a Party into the territory of the other Party (mode 1);
(b) in the territory of a Party to the service consumer of the other Party (mode 2);
(c) by a service supplier of a Party, through commercial presence in the territory of the other Party (mode 3);
(d) by a service supplier of a Party, through presence of natural persons in the territory of the other Party (mode 4).
2. This Chapter applies to trade in all service sectors with the exception of:
(a) financial services, which is subject to Chapter 2;
(b) audio-visual services;
(c) national maritime cabotage; and
(d) air transport services, including domestic and international air transportation services, whether scheduled or non-scheduled, and services directly related to the exercise of traffic rights, other than:
(i) aircraft repair and maintenance services during which an aircraft is withdrawn from service;
(ii) the selling and marketing of air transport services; and
(iii) computer reservation system (CRS) services.
3. Nothing in this Chapter shall be construed to impose any obligation with respect to government procurement, which is subject to Title IV of this Part of the Agreement.
4. The provisions of this Chapter shall not apply to subsidies granted by the Parties. The Parties shall review the issue of disciplines on subsidies related to trade in services in the context of the review of this Chapter, as provided in Article 100, with a view to incorporating any disciplines agreed under Article XV of the GATS. 5. Section 1 applies to international maritime transport and telecommunication services subject to the provisions laid down in sections 2 and 3.
Article 96. Definitions
For the purposes of this Chapter:
(a) "measure" means any measure by a Party, whether in the form of a law, regulation, rule, procedure, decision, administrative action, or any other form;
(b) "measure adopted or maintained by a Party" means measures taken by:
(i) central, regional or local governments and authorities; and
(ii) non-governmental bodies in the exercise of powers delegated by central, regional or local governments or authorities;
(c) "service supplier" means any legal or natural person that seeks to supply or supplies a service;
(d) "commercial presence" means any type of business or professional establishment, including through:
(i) the constitution, acquisition or maintenance of a legal person, or
(ii) the creation or maintenance of a branch or a representative office, within the territory of a Party for the purpose of supplying a service;
(e) "legal person" means any legal entity duly constituted or otherwise organised under applicable law, whether for profit or otherwise, and whether privately-owned or governmentally-owned, including any corporation, trust, partnership, joint venture, sole proprietorship or association;
(f) "legal person of a Party" means a legal person constituted or otherwise organised under the law of the Community or its Member States or of Chile. Should such a legal person have only its registered office or central administration in the territory of the Community or of Chile, it shall not be considered as a Community or a Chilean legal person respectively, unless it is engaged in substantive business operations in the territory of the Community or of Chile, respectively.
(g) A "natural person" means a national of one of the Member States or of Chile according to their respective legislation.
Article 97. Market Access
1. With respect to market access through the modes of supply identified in Article 95, each Party shall accord services and service suppliers of the other Party treatment no less favourable than that provided for under the terms, limitations and conditions agreed and specified in its Schedule referred to in Article 99.
2. In sectors where market-access commitments are undertaken, the measures which a Party shall not maintain or adopt either on the basis of a regional subdivision or on the basis of its entire territory, unless otherwise specified in its Schedule, are defined as:
(a) limitations on the number of services suppliers whether in the form of numerical quotas, monopolies, exclusive service suppliers or the requirements of an economic needs test;
(b) limitations on the total value of service transactions or assets in the form of numerical quotas or the requirement of an economic needs test;
(c) limitations on the total number of service operations or on the total quantity of service output expressed in terms of designated numerical units in the form of quotas or the requirement of an economic needs test; (5)
(d) limitations on the total number of natural persons that may be employed in a particular service sector or that a service supplier may employ and who are necessary for, and directly related to, the supply of a specific service in the form of numerical quotas or a requirement of an economic needs test;
(e) measures which restrict or require specific types of legal entities or joint ventures through which a service supplier of the other Party may supply a service; and
(f) limitations on the participation of foreign capital in terms of maximum percentage limit on foreign shareholding or the total value of individual or aggregate foreign investment.
Article 98. National Treatment
1. In the sectors inscribed in its Schedule, and subject to the conditions and qualifications set out therein, each Party shall grant to services and service suppliers of the other Party, in respect of all measures affecting the supply of services, treatment no less favourable than that it accords to its own like services and services suppliers. (6)
2. A Party may meet the requirement of paragraph 1 by according to services and service suppliers of the other Party, either formally identical treatment or formally different treatment to that it accords to its own like services and service suppliers.
3. Formally identical or formally different treatment shall be considered to be less favourable if it modifies the conditions of competition in favour of services or service suppliers of a Party compared to like services or service suppliers of the other Party.
Article 99. Schedule of Specific Commitments
1. The specific commitments undertaken by each Party under Articles 97 and 98 are set out in the schedule included in Annex VII. With respect to sectors where such commitments are undertaken, each Schedule specifies:
(a) terms, limitations and conditions on market access;
(b) conditions and qualifications on national treatment;
(c) undertakings relating to additional commitments referred to in paragraph 3;
(d) where appropriate the time-frame for implementation of such commitments and the date of entry into force of such commitments.
2. Measures inconsistent with both Articles 97 and 98 are inscribed in the column relating to Article 97. In this case the inscription is considered to provide a condition or qualification to Article 98 as well.
3. Where a Party undertakes specific commitments on measures affecting trade in services not subject to scheduling under Articles 97 and 98, such commitments are inscribed in its Schedule as additional commitments.
Article 100. Review
1. The Parties shall review this Chapter three years after the entry into force of this Agreement, with a view to further deepening liberalisation and reducing or eliminating remaining restrictions on a mutually advantageous basis and ensuring an overall balance of rights and obligations.
2. The Association Committee shall examine the operation of this Chapter every three years after the review undertaken under paragraph 1 and shall submit appropriate proposals to the Association Council.
Article 101. Movement of Natural Persons
Two years after the entry into force of this Agreement, the Parties shall review the rules and conditions applicable to movement of natural persons (mode 4) with a view to achieving further liberalisation. This review may also address the revision of the definition of natural person provided in Article 96(g).
Article 102. Domestic Regulation
1. In sectors where a Party has undertaken commitments in its Schedule, and with a view to ensuring that any measure relating to the requirements and procedures of licensing and certification of service suppliers of the other Party does not constitute an unnecessary barrier to trade, that Party shall endeavour to ensure that any such measure:
(a) is based on objective and transparent criteria, such as, interAalia,A competence and the ability to provide the service;
(b) is not more trade-restrictive than necessary to ensure the achievement of a legitimate policy objective;
(c) does not constitute a disguised restriction on the supply of a service.
2. The disciplines of paragraph 1 may be reviewed within the framework of the procedure of Article 100 in order to take into account the disciplines agreed under Article VI of the GATS with a view to their incorporation into this Agreement.
3. Where a Party recognises, unilaterally or by agreement, education, experience, licenses or certifications obtained in the territory of a third country, that Party shall afford the other Party an adequate opportunity to demonstrate that education, experience, licenses or certifications obtained in the other Party's territory should also be recognised or to conclude an agreement or arrangement of comparable effect.
4. The Parties shall consult periodically with a view to determining the feasibility of removing any remaining citizenship or permanent residency requirement for the licensing or certification of each other's service suppliers.
Article 103. Mutual Recognition
1. Each Party shall ensure that its competent authorities, within a reasonable period of time after the submission by a services supplier of the other Party of an application for a licence or certification:
(a) where the application is complete, make a determination on the application and inform the applicant of that determination; or
(b) where the application is not complete, inform the applicant without undue delay of the status of the application and the additional information that is required under the Party's domestic law.
2. The Parties shall encourage the relevant bodies in their respective territories to provide recommendations on mutual recognition, for the purpose of enabling service suppliers to fulfil, in whole or in part, the criteria applied by each Party for the authorisation, licensing, accreditation, operation and certification of service suppliers and in particular professional services.
3. The Association Committee, within a reasonable period of time and considering the level of correspondence of the respective regulations, shall decide whether a recommendation referred to in paragraph 2 is consistent with this Chapter. If that is the case, such a recommendation shall be implemented through an agreement on mutual recognition of requirements, qualifications, licences and other regulations to be negotiated by the competent authorities.
4. Any such agreement shall be in conformity with the relevant provisions of the WTO Agreement and, in particular, Article VII of the GATS.
5. Where the Parties agree, each Party shall encourage its relevant bodies to develop procedures for the temporary licensing of professional service suppliers of the other Party.
6. The Association Committee shall periodically, and at least once every three years, review the implementation of this Article.
Article 104. Electronic Commerce (7)
The Parties, recognising that the use of electronic means increases trade opportunities in many sectors, agree to promote the development of electronic commerce between them, in particular by co-operating on the market access and regulatory issues raised by electronic commerce.
Article 105. Transparency
Each Party shall respond promptly to all requests by the other Party for specific information on any of its measures of general application or international agreements which pertain to or affect this Chapter. The contact point referred to in Article 190 shall provide specific information on all such matters to service suppliers of the other Party upon request. Contact points need not be depositories of laws and regulations.
Section 2. International Maritime Transport
Article 106. Scope
1. Notwithstanding Article 95(5), the provisions of this section shall apply with respect to shipping companies established outside the Community or Chile and controlled by nationals of a Member State or of Chile, respectively, if their vessels are registered in accordance with their respective legislation, in that Member State or in Chile and carry the flag of a Member State or Chile.
2. This Article applies to international maritime transport, including door-to-door and intermodal transport operations involving a sea-leg.
Article 107. Definitions
For the purposes of this section:
(a) "intermodal transport operations" is defined as the right to arrange door-to-door transport services of international cargo and to this effect directly contract with providers of other modes of transport;
(b) "international maritime service suppliers" covers the suppliers of services relating to international cargo for maritime services, cargo handling, storage and warehousing services, customs clearance services, container station and depot services, agency services and freight forwarding services.
Article 108. Market Access and National Treatment
1. In view of the existing levels of liberalisation between the Parties in international maritime transport:
(a) the Parties shall continue to effectively apply the principle of unrestricted access to the international maritime market and traffic on a commercial and non-discriminatory basis;
(b) each Party shall continue to grant to ships flying the flag of or operated by service suppliers of the other Party treatment no less favourable than that accorded to its own ships with regard to, inter alia, access to ports, use of infrastructure and auxiliary maritime services of the ports, and related fees and charges, customs facilities and the assignment of berths and facilities for loading and unloading.