3. This Section does not apply to measures to the extent that they constitute limitations subject to scheduling.
4. For the purpose of this Section:
(a) "licensing requirements" means substantive requirements, other than qualification requirements, with which a natural or a juridical person is required to comply in order to obtain, amend or renew authorisation to carry out the activities referred to in paragraph 1;
(b) "licensing procedures" means administrative or procedural rules to which a natural or a juridical person seeking authorisation to carry out the activities referred to in paragraph 1, including the amendment or renewal of a licence, is required to adhere in order to demonstrate compliance with licensing requirements;
(c) "qualification requirements" means substantive requirements relating to the competence of a natural person to supply a service which are required to be demonstrated for the purpose of obtaining authorisation to supply a service;
(d) "qualification procedures" means administrative or procedural rules to which a natural person is required to adhere in order to demonstrate compliance with qualification requirements, for the purpose of obtaining authorisation to supply a service; and
(e) "competent authority" means any central, regional or local government and authority or non- governmental body in the exercise of powers delegated by central or regional or local governments or authorities which takes a decision concerning the authorisation to supply a service, including through establishment, or concerning the authorisation to establish in an economic activity other than services.
Article 159. Conditions for Licencing and Qualification
1. Each Party shall ensure that measures relating to licensing requirements and procedures, as well as qualification requirements and procedures are based on criteria which preclude the competent authorities from exercising their power of assessment in an arbitrary manner.
2. The criteria referred to in paragraph 1 shall be:
(a) proportionate to a public-policy objective;
(b) clear and unambiguous;
(c) objective;
(d) pre-established;
(e) made public in advance; and
(f) transparent and accessible.
3. An authorisation or a licence shall be granted as soon as it is established, in the light of an appropriate examination, that the conditions for obtaining an authorisation or licence have been met.
4. Each Party shall maintain or institute judicial, arbitral or administrative tribunals or procedures which provide, at the request of an affected entrepreneur or service supplier, for a prompt review of, and where justified, appropriate remedies for, administrative decisions affecting establishment, cross-border supply of services or temporary presence of natural persons for business purposes. Where such procedures are not independent of the agency entrusted with the administrative decision concerned, each Party shall ensure that the procedures actually provide for an objective and impartial review.
5. Where the number of licences available for a given activity is limited because of the scarcity of available natural resources or technical capacity, each Party shall apply a selection procedure to potential candidates which provides full guarantees of impartiality and transparency, including, in particular, adequate publicity about the launch, conduct and completion of the procedure.
6. Subject to the requirements specified in this Article, each Party may take into account legitimate public-policy objectives when establishing the rules for a selection procedure, including considerations of health, safety, the protection of the environment and the preservation of cultural heritage.
Article 160. Licencing and Qualification Procedures
1. Licensing and qualification procedures and formalities shall be clear, made public in advance and be such as to provide the applicants with a guarantee that their application will be dealt with objectively and impartially.
2. Licensing and qualification procedures and formalities shall be as simple as possible and shall not unduly complicate or delay the provision of the service. Any licensing fees (1) which the applicants may incur from their application shall be reasonable and proportionate to the cost of the authorisation procedures in question.
3. Each Party shall ensure that the procedures used by and the decisions of the competent authority in the licencing or authorisation process are impartial with respect to all applicants. The competent authority shall reach its decision in an independent manner and not be accountable to any supplier of the services for which the licence or authorisation is required.
4. Where specific time periods for applications exist, an applicant shall be allowed a reasonable period for the submission of an application. The competent authority shall initiate the processing of an application without undue delay. Where possible, applications shall be accepted in electronic format under the same conditions of authenticity as paper submissions.
5. Each Party shall ensure that the processing of an application, including reaching a final decision, is completed within a reasonable timeframe from the submission of a complete application. Each Party shall endeavour to establish the normal timeframe for processing of an application.
6. The competent authority shall inform the applicant within a reasonable period of time after receipt of an application which it considers incomplete, provide the opportunity to correct deficiencies and, to the extent feasible, identify the additional information required to complete the application.
7. Authenticated copies shall be accepted, where possible, in place of original documents.
8. The competent authority shall inform the applicant in writing and without undue delay if an application is rejected. In principle, the applicant shall, upon request, also be informed of the reasons for rejection of the application and of the timeframe for an appeal against the decision.
9. Each Party shall ensure that a licence or an authorisation, once granted, enters into effect without undue delay in accordance with the terms and conditions specified therein.
Subsection II. Provisions of General Application
Article 161. Mutual Recognition
1. Nothing in this Chapter shall prevent a Party from requiring that natural persons possess the necessary qualifications and professional experience specified in the territory where the service is supplied, for the sector of activity concerned.
2. Each Party shall encourage the relevant professional bodies in its territory to provide recommendations on mutual recognition of qualifications and professional experience to the Partnership Committee, meeting in its trade configuration, for the purpose of the fulfilment, in whole or in part, by entrepreneurs and service suppliers of the criteria applied by each Party for the authorisation, licensing, operation and certification of entrepreneurs and service suppliers and, in particular, professional services.
3. Upon receipt of a recommendation referred to in paragraph 2, the Partnership Committee, meeting in its trade configuration, shall, within a reasonable time, review that recommendation with a view to determining whether it is consistent with this Agreement and, on the basis of the information contained, assess in particular:
(a) the extent to which the standards and criteria applied by each Party for the authorisation, licences, operation and certification of services providers and entrepreneurs are converging; and
(b) the potential economic value of an agreement on mutual recognition of qualifications and professional experience.
4. Where the requirements specified in paragraph 3 are satisfied, the Partnership Committee, meeting in its trade configuration, shall establish the necessary steps to negotiate an agreement on mutual recognition and thereafter recommend that the competent authorities of the Parties launch negotiations.
5. Any such agreement shall be in conformity with the relevant provisions of the WTO Agreement and, in particular, Article VII of the General Agreement on Trade in Services contained in Annex 1B to the WTO Agreement (GATS).
Article 162. Transparency and Disclosure of Confidential Information
1. 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 Agreement. Each Party shall also establish one or more enquiry points to provide, upon request, specific information on those matters to entrepreneurs and services suppliers of the other Party. The Parties shall notify each other the enquiry points within three months after entry into force of this Agreement. Enquiry points are not required to be depositories for laws and regulations.
2. Nothing in this Agreement shall require any Party to provide confidential information the disclosure of which would impede law enforcement, or otherwise be contrary to the public interest, or which would prejudice legitimate commercial interests of particular enterprises, public or private.
Subsection III. Computer Services
Article 163. Understanding on Computer Services
1. In liberalising trade in computer services in accordance with Sections B, C and D, the Parties shall comply with the paragraphs 2 to 4.
2. The Central Product Classification (CPC)(1) 84, which is the United Nations code used for describing computer and related services, covers the basic functions used to provide all computer and related services: computer programmes defined as the sets of instructions required to make computers work and communicate (including their development and implementation), data processing and storage, and related services, such as consultancy and training services for staff of clients. Technological developments have led to the increased offering of such services as a bundle or package of related services that can include some or all of those basic functions. For example, services such as web or domain hosting, data mining services and grid computing each consist of a combination of basic computer services functions.
3. Computer and related services, regardless of whether they are delivered via a network, including the internet, include all services that provide:
(a) consulting, strategy, analysis, planning, specification, design, development, installation, implementation, integration, testing, debugging, updating, support, technical assistance or management of or for computers or computer systems;
(b) computer programmes defined as the sets of instructions required to make computers work and communicate (in and of themselves), plus consulting, strategy, analysis, planning, specification, design, development, installation, implementation, integration, testing, debugging, updating, adaptation, maintenance, support, technical assistance, management or use of or for computer programs;
(c) data processing, data storage, data hosting or database services;
(d) maintenance and repair services for office machinery and equipment, including computers; or,
(e) training services for staff of clients, related to computer programmes, computers or computer systems, and not elsewhere classified.
4. Computer and related services enable the provision of other services, such as banking, by both electronic and other means. In such cases it is important to distinguish between the enabling service, such as web-hosting or application hosting), and the content or core service, such as banking, that is being supplied electronically. In such cases, the content or core service is not covered by CPC 84.
Subsection IV. Postal Services (1)
Article 164. Scope and Definitions
1. This Subsection sets out the principles of the regulatory framework for all postal service.
2. For the purpose of this Subsection and Sections B, C and D:
(a) "licence" means an authorisation, granted to an individual supplier by a regulatory authority, which is required before carrying out activity of supplying a given service; and
(b) "universal service" means the permanent provision of a minimum set of postal services of specified quality at all points in the territory of a Party.
Article 165. Prevention of Market Distortive Practices
Each Party shall ensure that a supplier of postal services subject to a universal service obligation or a postal monopoly does not engage in market-distortive practices such as:
(a) using revenues derived from the supply of such service to cross-subsidise the supply of an express delivery service or any non-universal delivery service; and
(b) unjustifiably differentiating among customers such as businesses, large-volume mailers or consolidators with respect to tariffs or other terms and conditions for the supply of a service subject to a universal service obligation or a postal monopoly.
Article 166. Universal Service
1. Each Party has the right to define the kind of universal service obligation it wishes to maintain. Such obligations will not be regarded as anti-competitive per se, provided they are administered in a transparent, non-discriminatory and competitively neutral manner and are not more burdensome than necessary for the kind of universal service defined by the Party.
2. Tariffs for the universal service shall be affordable to meet the needs of users.
Article 167. Licences
1. Each Party should endeavour to replace any licences for services not covered by the scope of the universal service with a simple registration.
2. Where a licence is required:
(a) the terms and conditions of licences, which shall not be more burdensome than necessary to achieve their aim, shall be made publicly available;
(b) the reasons for the denial of a licence shall be made known to the applicant upon request; and
(c) each Party shall provide for an appeal procedure through an independent body that shall be transparent, non-discriminatory and based on objective criteria.
Article 168. Independence of the Regulatory Body
The regulatory body shall be legally separate from, and not accountable to, any supplier of postal and courier services. The decisions of and the procedures used by the regulatory body shall be impartial with respect to all market participants.
Article 169. Gradual Approximation
The Parties recognise the importance of gradual approximation of the legislation of the Republic of Armenia on postal services to that of the European Union.
Subsection V. Electronic Communication Network and Services
Article 170. Scope and Definitions
1. This Subsection sets out principles of the regulatory framework for the provision of electronic communications networks and services, liberalised pursuant to Sections B, C and D.
2. For the purpose of this Subsection:
(a) "electronic communications network" means transmission systems and, where applicable, switching or routing equipment and other resources, including network elements which are not active, which permit the conveyance of signals by wire, radio, optical, or other electromagnetic means;
(b) "electronic communications service" means a service which consists wholly or mainly in the conveyance of signals on electronic communications networks, including telecommunications services and transmission services in networks used for broadcasting; those services exclude services providing, or exercising editorial control over, content transmitted using electronic communications networks and services;
(c) "public electronic communications service" means any electronic communications service that a Party requires, explicitly or in effect, to be offered to the public generally;
(d) "public electronic communications network" means an electronic communications network which is used wholly or mainly for the provision of electronic communications services available to the public and which supports the transfer of information between network termination points;
(e) "public telecommunications service" means any telecommunications transport service required, explicitly or in effect, by a Party to be offered to the public generally such services may include, inter alia, telegraph, telephone, telex, and data transmission typically involving the real-time transmission of customer-supplied information between two or more points without any end-to-end change in the form or content of the customer's information;
(f) "regulatory authority in the electronic communications sector' means the body or bodies charged by a Party with the regulation of electronic communications mentioned in this Subsection;
(g) "essential facilities" mean facilities of a public electronic communications network and service that
(i) are exclusively or predominantly provided by a single or limited number of suppliers; and
(ii) cannot feasibly be economically or technically substituted in order to provide a service;
(h) "associated facilities" means those associated services, physical infrastructures and other facilities or elements associated with an electronic communication network or service which enable or support the provision of services via that network or service or have the potential to do so, and include, inter alia, buildings or entries to buildings, building wiring, antennae, towers and other supporting constructions, ducts, conduits, masts, manholes and cabinets;
(i) "major supplier" (1) in the electronic communications sector is a supplier which has the ability to materially affect the terms of participation, having regard to price and supply, in the relevant market for electronic communications services as a result of control over essential facilities or the use of its position in the market;
(J) "access" means the making available of facilities or services to another supplier under defined conditions, for the purpose of providing electronic communication services and covers inter alia access to:
(i) network elements and associated facilities, which may involve the comnection of equipment, by fixed or non-fixed means, in particular this includes access to the local loop and to facilities and services necessary to provide services over the local loop;
(ii) physical infrastructure including buildings, ducts and masts;
(iii) relevant software systems including operational support systems;
(iv) information systems or databases for pre-ordering, provisioning, ordering, maintaining and repair requests, and billing;
(v) number translation or systems offering equivalent functionality;
(vi) fixed and mobile networks, in particular for roaming; and
(vii) virtual network services;
(k) "interconnection" means the physical and logical linking of public electronic communications networks used by the same or different suppliers in order to allow the users of one supplier to communicate with users of the same or another supplier or to access services provided by another supplier, services that may be provided by the parties involved or other parties who have access to the network;
(l) "universal service" means the minimum set of services of specified quality to be made available to all users in the territory of a Party regardless of their geographical location and at an affordable price; its scope and implementation are decided by each Party;
(m) "number portability" means the ability of all subscribers of public electronic communications services who so request to retain, at the same location, the same telephone numbers without impairment of quality, reliability or convenience when switching between the same category of suppliers of public electronic communications services.
Article 171. Regulatory Authority
1. Each Party shall ensure that its regulatory authorities for electronic communications networks and services are legally distinct and functionally independent from any supplier of electronic communications networks, electronic communications services or electronic communications equipment.
2. A Party that retains ownership or control of providers of electronic communication networks or services shall ensure effective structural separation of the regulatory function from activities associated with ownership or control. The regulatory authority shall act independently and shall not seek or accept instructions from any other body in relation to the exercise of these tasks assigned to it under domestic law.
3. Each Party shall ensure that its regulatory authorities are sufficiently empowered to regulate the sector, and have adequate financial and human resources to carry out the task assigned to it. Only appeal bodies referred to in paragraph 7 shall have the power to suspend or overturn decisions by the regulatory authorities.
The tasks assigned to a regulatory authority shall be made public in an easily accessible and clear form, in particular where those tasks are assigned to more than one body. Each Party shall ensure that its regulatory authorities have a separate annual budgets. The budgets shall be made public.
4. The decisions of and the procedures used by regulators shall be impartial with regard to all market participants.
5. The powers of the regulatory authorities shall be exercised in a transparent and timely manner.
6. Regulatory authorities shall have the power to ensure that suppliers of electronic communications networks and services provide them, promptly upon request, with all the information, including financial information, which is necessary to enable the regulatory authorities to carry out their tasks in accordance with this Subsection. Information requested shall be proportionate to the performance of the tasks of the regulatory authorities and treated in accordance with the requirements of confidentiality.
7. Any user or supplier affected by the decision of a regulatory authority shall have a right to appeal against that decision to an appeal body which is independent of the parties involved. That body, which may be a court, shall have the appropriate expertise to carry out its functions effectively. The merits of the case shall be duly taken into account and the appeal mechanism shall be effective. With regard to bodies responsible for review procedures which are not judicial in character each Party shall ensure that written reasons for their decisions shall always be given and that those decisions shall also be subject to review by an impartial and independent judicial authority. Decisions taken by appeal bodies shall be effectively enforced. Pending the outcome of the appeal, the decision of the regulatory authority shall stand, unless interim measures are granted in accordance with domestic law.
8. Each Party shall ensure that the head of a regulatory authority, or where applicable, members of the collegiate body fulfilling that function within a regulatory body or their replacements may be dismissed only if they no longer fulfil the conditions required for the performance of their duties which are laid down in advance in domestic law. Any such decision to dismiss shall be made public at the time of dismissal. The dismissed head of the regulatory authority, or where applicable, members of the collegiate body fulfilling that function shall receive a statement of reasons and shall have the right to request its publication, where this would not otherwise take place, in which case it shall be published.
Article 172. Authorisation to Provide Electronic Communications Networks and Services
1. Each Party shall authorise the provision of electronic communications networks or services, wherever possible, upon simple notification. Following the notification, the service supplier concerned shall not be required to obtain an explicit decision or any other administrative act by the regulatory authority before exercising the rights stemming from the authorisation. The rights and obligations resulting from such authorisation shall be made publicly available in an easily accessible form. Obligations should be proportionate to the service in question.
2. Where necessary, a Party may require a licence for the right of use for radio frequencies and numbers in order to:
(a) avoid harmful interference;
(b) ensure technical quality of service;
(c) safeguard efficient use of spectrum; or
(d) fulfil other objectives of general interest.
3. Where a Party requires a licence it shall:
(a) make publicly available all the licensing criteria and a reasonable period of time normally required to reach a decision concerning an application for a licence;
(b) make known to the applicant, upon request, the reasons for the denial of a licence in writing;
(c) provide to the applicant the possibility to seek recourse before an appeal body in cases where a licence has been denied.
4. Any administrative costs shall be imposed on suppliers in an objective, transparent, proportionate and cost-minimising manner. Any administrative costs imposed by a Party on suppliers providing a service or a network under an authorisation referred to in paragraph 1 or a license under paragraph 2 shall be limited to the actual administrative costs normally incurred in the management, control and enforcement of the applicable authorisation and licences. Such administrative costs may include costs for international cooperation, harmonisation and standardisation, market analysis, monitoring compliance and other market control, as well as regulatory work involving preparation and enforcement of legislation and administrative decisions, such as decisions on access and interconnection.
Administrative costs referred to in the first subparagraph do not include payments for auction, tendering or other non-discriminatory means of awarding concessions, or mandated contributions to universal service provision.
Article 173. Scarce Resources
1. The allocation and granting of rights for the use of scarce resources, including radio spectrum, numbers and rights of way, shall be carried out in an open, objective, timely, transparent, non-discriminatory and proportionate manner. Each Party shall base its procedures on objective, transparent, non-discriminatory and proportionate criteria.
2. The current state of allocated frequency bands shall be made publicly available, but detailed identification of radio spectrum allocated for specific government uses is not required.
3. Each Party retains the right to establish and apply spectrum and frequency management measures that may have the effect of limiting the number of suppliers of electronic communications services, provided that it does so in a manner consistent with this Agreement. That right includes the ability to allocate frequency bands taking into account current and future needs and spectrum availability. Measures of a Party allocating and assigning spectrum and managing frequency are not considered as measures that are per se inconsistent with Articles 144, 149 and 150.
Article 174. Access and Interconnection
1. Access and interconnection shall, in principle, be agreed on the basis of commercial negotiation between the suppliers concerned.
2. Each Party shall ensure that any suppliers of electronic communications services shall have aright, and when requested by another supplier an obligation, to negotiate interconnection with each other for the purpose of providing publicly available electronic communications networks and services. No Party shall maintain any legal or administrative measures which oblige suppliers granting access or interconnection to offer different terms and conditions to different suppliers for equivalent services or impose obligations that are not related to the services provided.
3. Each Party shall ensure that suppliers acquiring information from another supplier in the process of negotiating access or interconnection arrangements may use that information solely for the purpose for which it was supplied and respect at all times the confidentiality of information transmitted or stored.
4. Each Party shall ensure that a major supplier in its territory grants access to its essential facilities including, inter alia, network elements, associated facilities and ancillary services, to suppliers of electronic communications services on reasonable and non-discriminatory (1) terms and conditions.
5. For public telecommunications services, interconnection with a major supplier shall be ensured at any technically feasible point in the network. Such interconnection shall be provided:
(a) under non-discriminatory terms, conditions (including as regards technical standards, specifications, quality and maintenance) and rates, and of a quality no less favourable than that provided for own like services of such major supplier, or for like services of non-affiliated suppliers, or for its subsidiaries or other affiliates;
(b) in a timely manner, on terms, conditions (including as regards technical standards, specifications, quality and maintenance) and cost-oriented rates that are transparent, reasonable, having regard to economic feasibility, and sufficiently unbundled so that the supplier need not pay for network components or facilities that it does not require for the service to be provided; and
(c) upon request, at points in addition to the network termination points offered to the majority of users, subject to charges that reflect the cost of construction of necessary additional facilities.
6. Each Party shall ensure that the procedures applicable for interconnection to a major supplier are made publicly available and that major suppliers make publicly available either their interconnection agreements or, where appropriate, their reference interconnection offers.
(a) under non-discriminatory terms, conditions (including as regards technical standards, specifications, quality and maintenance) and rates, and of a quality no less favourable than that provided for own like services of such major supplier, or for like services of non- affiliated suppliers, or for its subsidiaries or other affiliates;
(b) in a timely manner, on terms, conditions (including as regards technical standards, specifications, quality and maintenance) and cost-oriented rates that are transparent, reasonable, having regard to economic feasibility, and sufficiently unbundled so that the supplier need not pay for network components or facilities that it does not require for the service to be provided; and
(c) upon request, at points in addition to the network termination points offered to the majority of users, subject to charges that reflect the cost of construction of necessary additional facilities.
6. Each Party shall ensure that the procedures applicable for interconnection to a major supplier are made publicly available and that major suppliers make publicly available either their interconnection agreements or, where appropriate, their reference interconnection offers.
Article 175. Competitive Safeguards on Major Suppliers
Each Party shall adopt or maintain appropriate measures for the purpose of preventing suppliers who, alone or together, are a major supplier from engaging in or continuing anti-competitive practices. Those anti-competitive practices shall include in particular: (a) engaging in anti-competitive cross-subsidisation; (b) using information obtained from competitors with anti-competitive results; and (c) not making available to other service suppliers on a timely basis technical information about essential facilities and commercially relevant information which are necessary for them to provide services.