(a) the increase in the volume of imports, in absolute terms or relative to domestic production and to imports from other sources; and
(b) the effect of the imports referred to in paragraph 1 on the situation of the industry or economic sector concerned, including on the levels of sales, production, financial situation and employment.
3. Without prejudice to paragraph 1, other provisions of this Section applicable to bilateral safeguard measures are also applicable to any safeguard measures adopted under this Article. Any reference to ‘serious injury’ in other provisions of this Section shall be understood as ‘serious deterioration’ when applied in relation to outermost regions of the European Union.
(14) On the date of entry into force of this Agreement, the outermost regions of the European Union are: Guadeloupe, French Guiana, Martinique, Réunion, Mayotte, St. Martin, the Azores, Madeira and the Canary Islands. This Article also applies to a country or an overseas territory that changes its status into that of an outermost region by way of a decision of the European Council in accordance with the procedure set out in Article 355(6) of the Treaty on the Functioning of the European Union, as from the date of adoption of that decision. In the event that an outermost region of the European Union, following that procedure, ceases to be an outermost region, this Article shall cease to be applicable to that country or overseas territory as from the date of the decision of the European Council in that regard. The EU Party shall notify Chile of any change in the territories considered as outermost regions of the European Union.
Sub-Section 2
Procedural Rules Applicable to Bilateral Safeguard Measures
Article 12.16
Applicable law
For the application of bilateral safeguard measures, the competent investigating authority of each Party shall comply with the provisions of this Sub-Section. In cases not covered by this Sub-Section, the competent investigating authority shall apply the rules established under the law of the Party of that authority.
Article 12.17
Initiation of a safeguard procedure
1. A competent investigating authority of a Party may initiate a procedure regarding bilateral safeguard measures (‘safeguard procedure’) upon a written application (15) by or on behalf of the domestic industry, or in exceptional circumstances on its own initiative.
2. The application shall be considered to have been made by or on behalf of the domestic industry if it is supported by domestic producers whose collective output constitutes more than 50 % of the total domestic production of the like or directly competitive goods produced by the portion of the domestic industry expressing either support for or opposition to the application. However, a competent investigating authority shall not initiate an investigation if the domestic producers expressing support for the application account for less than 25 % of the total domestic production of the like or directly competitive goods produced by the domestic industry.
3. Once a competent investigating authority has initiated the investigation, the written application referred to in paragraph 1 shall be made available to interested parties, except for any confidential information contained therein.
4. Upon initiation of a safeguard procedure, the competent investigating authority shall publish a notice of initiation of the safeguard procedure in the official journal of the Party. The notice shall identify:
(a) the entity which filed the written application, if applicable;
(b) the imported good subject to the safeguard procedure;
(c) the subheading and tariff item number under which the imported good is classified;
(d) the type of proposed measure to be applied;
(e) the public hearing pursuant to subparagraph (a) of Article 12.20 or the period within which interested parties may submit a request to be heard pursuant to subparagraph (b) of Article 12.20;
(f) the place where the written application and any other non-confidential documents filed in the course of the proceeding may be inspected; and
(g) the name, address and telephone number of the office to be contacted for more information.
5. With respect to a safeguard procedure initiated pursuant to paragraph 1 on the basis of a written application, the competent investigating authority concerned shall not publish the notice required under paragraph 4 without first assessing carefully whether the written application meets the requirements of its domestic legislation and the requirements of paragraphs 1 and 2, and includes reasonable evidence that imports of a good originating in the other Party have increased as the result of the reduction or elimination of a customs duty under this Part of this Agreement, and that those imports cause or threaten to cause the alleged serious injury.
(15) For the EU Party, that application may be filed by one or more Member States on behalf of the domestic industry.
Article 12.18
Investigation
1. A Party shall apply a bilateral safeguard measure only after an investigation has been carried out by its competent investigating authority in accordance with Article 3(1) and subparagraph (c) of Article 4(2) of the Safeguards Agreement; to that end, Article 3(1) and subparagraph (c) of Article 4(2) of the Safeguards Agreement are incorporated into and made part of this Agreement, mutatis mutandis.
2. In the investigation referred to in paragraph 1, the Party shall comply with the requirements of subparagraph (a) of Article 4(2) of the Safeguards Agreement. To that end, subparagraph (a) of Article 4(2) of the Safeguards Agreement is incorporated into and made part of this Agreement, mutatis mutandis.
3. If a Party makes a notification pursuant to paragraph 1 of this Article and Article 3(1) of the Safeguards Agreement that it is applying or extending a bilateral safeguard measure, that notification shall include:
(a) evidence of serious injury or threat thereof caused by increased imports of a good originating in the other Party as a result of the reduction or elimination of a customs duty under this Part of this Agreement; the investigation shall demonstrate, on the basis of objective evidence, the existence of a causal link between the increased imports of the good concerned and the serious injury or threat thereof; known factors other than the increased imports shall also be examined to ensure that the serious injury or threat thereof caused by those other factors is not attributed to the increased imports;
(b) a precise description of the originating good subject to the bilateral safeguard measure, including its heading or subheading under the HS Code on which the schedules of tariff commitments in Annex 9 are based;
(c) a precise description of the bilateral safeguard measure;
(d) the date of the introduction of the bilateral safeguard measure, its expected duration and, if applicable, a timetable for progressive liberalisation of the measure in accordance with Article 12.11(3); and
(e) in the event of an extension of the bilateral safeguard measure, evidence that the domestic industry concerned is adjusting.
4. On request of a Party whose good is subject to a safeguard procedure under this Section, the Party conducting that procedure shall enter into consultations with the requesting Party to review a notification under paragraph 1 or any public notice or report that the competent investigating authority has issued in relation to the safeguard procedure.
5. Each Party shall ensure that its competent investigating authority completes any investigation pursuant to this Article within 12 months of the date of its initiation.
Article 12.19
Confidential information
1. Any information which is by nature confidential or which is provided on a confidential basis shall, upon good cause being shown, be treated as confidential by the competent investigating authority. Such information shall not be disclosed without the permission of the interested party submitting it.
2. Interested parties providing confidential information are requested to furnish non-confidential summaries thereof or, if such parties indicate that the information cannot be summarised, the reasons therefor. The summaries shall be sufficiently detailed to permit a reasonable understanding of the substance of the information submitted in confidence. However, if the competent investigating authority finds that a request for confidentiality is not warranted and if the interested party concerned is either unwilling to make the information public or to authorise its disclosure in generalised or summary form, the competent investigating authority may disregard such information, unless it can be demonstrated to the satisfaction of that authority, in view of information from appropriate sources, that the information is correct.
Article 12.20
Hearings
In the course of each safeguard procedure, the competent investigating authority shall:
(a) hold a public hearing, after providing reasonable notice, to allow all interested parties and any representative consumer association to appear in person or to be represented by counsel in order to present evidence and to be heard regarding the alleged serious injury or threat thereof, and the appropriate remedy; or
(b) provide an opportunity to all interested parties to be heard if they have submitted, within the period laid down in the notice of initiation referred to in Article 12.17(4), a written request showing that they are likely to be affected by the outcome of the investigation and that there are special reasons for them to be heard orally.
Article 12.21
Notifications, examination in the Joint Committee and publications
1. If a Party considers that one of the circumstances set out in Article 12.10(1) or 12.15(1) exists, it shall immediately refer the matter to the Joint Committee for examination. The Joint Committee may make any recommendation needed to remedy the circumstance which has arisen. If no recommendation has been made by the Joint Committee aimed at remedying the circumstance, or no other satisfactory solution has been reached within 30 days of the date on which the Party refers the matter to the Joint Committee, the importing Party may adopt appropriate bilateral safeguard measures to remedy the circumstance in accordance with this Section.
2. For the purposes of paragraph 1, the importing Party shall provide the exporting Party with all relevant information, including evidence of serious injury or threat thereof to domestic producers of the like and directly competitive good, caused by increased imports, a precise description of the good involved, and the proposed bilateral safeguard measure, its proposed date of imposition and expected duration.
3. The Party that adopts the bilateral safeguard measure shall publish its findings and reasoned conclusions reached on all pertinent issues of fact and law in the official journal of that Party, including the description of the imported good and the situation which has given rise to the imposition of measures in accordance with Article 12.10(1) or 12.15(1), the causal link between such situation and the increased imports, and the form, level and duration of the measures.
Article 12.22
Acceptance of documents in English in safeguard procedures
In order to facilitate the submission of documents in safeguard procedures, the competent investigating authority of the Party in charge of the procedure shall accept documents submitted in English by interested parties, provided that those parties submit later, within a longer deadline set by the competent authority, a translation of the documents into the language of the safeguard procedure.
CHAPTER 13
SANITARY AND PHYTOSANITARY MEASURES
Article 13.1
Objectives
The objectives of this Chapter are:
(a) to safeguard human, animal and plant health in the territories of the Parties whilst facilitating trade in animals, animal products, plants, plant products and other products covered by sanitary and phytosanitary (‘SPS’) measures, between the Parties, by:
(i) improving transparency, communication and cooperation on SPS measures between the Parties;
(ii) establishing mechanisms and procedures for trade facilitation; and
(iii) further implementing the principles of the SPS Agreement;
(b) to cooperate in multilateral fora and on food safety, animal health and plant protection science;
(c) to cooperate on other sanitary or phytosanitary matters or in other fora.
Article 13.2
Multilateral obligations
The Parties reaffirm their rights and obligations under the WTO Agreement and, in particular, the SPS Agreement. Those rights and obligations shall underpin the activities of the Parties under this Chapter.
Article 13.3
Scope
This Chapter applies to:
(a) all SPS measures as defined in Annex A to the SPS Agreement in so far as they affect trade between the Parties;
(b) cooperation in multilateral fora recognised in the framework of the SPS Agreement;
(c) cooperation on food safety, animal health and plant protection science; and
(d) cooperation on any other sanitary or phytosanitary matter in any other fora, as the Parties may agree.
Article 13.4
Definitions
For the purposes of this Chapter and Annexes 13-A to 13-H:
(a) the definitions in Annex A to the SPS Agreement, as well as those in the Codex Alimentarius, within the framework of the World Organisation for Animal Health and in the International Plant Protection Convention, done at Rome on 17 November 1997, apply; and
(b) ‘protected zone’ means, for a specific regulated pest, an officially defined geographical part of the territory of a Party in which that pest is known not to be established in spite of favourable conditions and its presence in other parts of the territory of that Party.
Article 13.5
Competent authorities
1. The competent authorities of the Parties are the authorities responsible for the implementation of the measures referred to in this Chapter, as set out in Annex 13-A.
2. In accordance with Article 13.12, the Parties shall inform each other of any significant changes in the structure, organisation or division of competences of their competent authorities.
Article 13.6
Recognition of status in respect of animal diseases and infections in animals, and in respect of pests
1. The following applies to status in respect of animal diseases and infections in animals, including zoonoses:
(a) the importing Party shall recognise for trade purposes the animal health status of the exporting Party or its regions, as determined by the exporting Party in accordance with subparagraph (a)(i) of paragraph 1 of Annex 13-C, in respect of the animal diseases specified in Appendix 13-B-1;
(b) where a Party considers that its territory or any of its regions has a special status in respect of a specific animal disease other than the animal diseases set out in Appendix 13-B-1, it may request recognition of that status in accordance with the criteria set out in paragraph 3 of Annex 13-C; the importing Party may require guarantees in respect of imports of live animals and animal products which are appropriate with regard to the agreed status of that Party;
(c) the Parties recognise that the status of the territories or regions, or the status of a sector or sub-sector of the Parties, related to the prevalence or incidence of an animal disease other than the animal diseases set out in Appendix 13-B-1, or of infections in animals, or their associated risk, as appropriate, as defined by the international standard-setting organisations recognised in the framework of the SPS Agreement, constitutes the basis of trade between them; the importing Party may, as appropriate, request guarantees in respect of imports of live animals and animal products which are appropriate with regard to the defined status of that Party in accordance with the recommendations of the standard-setting organisations; and
(d) without prejudice to Articles 13.9 and 13.15, and unless the importing Party raises an explicit objection and requests supportive or additional information, consultations or verification in accordance with Articles 13.11 and 13.14, each Party shall adopt, without undue delay, the legislative and administrative measures necessary to allow trade on the basis of subparagraphs (a), (b) and (c) of this paragraph.
2. The following applies to status in respect of pests:
(a) the Parties recognise for trade purposes the pest status in respect of the pests specified in Appendix 13-B-2; and
(b) without prejudice to Articles 13.9 and 13.15, and unless the importing Party raises an explicit objection and requests supportive or additional information, consultations or verification in accordance with Articles 13.11 and 13.14, each Party shall, without undue delay, take the legislative and administrative measures necessary to allow trade on the basis of subparagraph (a) of this paragraph.
Article 13.7
Recognition of regionalisation decisions in respect of animal diseases and infections in animals and of pests
1. The Parties recognise the concept of regionalisation, and shall apply it to trade between them.
2. Regionalisation decisions in respect of terrestrial and aquatic animal diseases listed in Appendix 13-B-1 and pests listed in Appendix 13-B-2 shall be adopted in accordance with Annex 13-C.
3. As regards animal diseases, and in accordance with Article 13.14, the exporting Party seeking recognition by the importing Party of a regionalisation decision shall notify its measures establishing regionalisation with a full explanation and supporting data for its determinations and decisions.
4. Without prejudice to Article 13.15, and unless the importing Party raises an explicit objection and requests additional information, consultations or verification in accordance with Articles 13.11 and 13.14 within 15 working days of the receipt of the regionalisation decision, the Parties shall consider that decision as accepted.
5. The consultations referred to in paragraph 4 of this Article shall take place in accordance with Article 13.14(2). The importing Party shall assess the additional information within 15 working days of the receipt of the additional information. The verification referred to in paragraph 4 of this Article shall be carried out in accordance with Article 13.11 and within 25 working days of the receipt of the request for verification.
6. As regards pests, each Party shall ensure that trade in plants, plant products and other products takes account of the pest status recognised by the other Party. The exporting Party seeking recognition of a regionalisation decision by the other Party shall notify the other Party of its measures and decisions, as guided by the relevant International Standards for Phytosanitary Measures of the Food and Agriculture Organisation of the United Nations (‘FAO’), including 4 ‘Requirements for the establishment of pest free areas’, 8 ‘Determination of pest status in an area’, and other international standards for phytosanitary measures as the Parties deem appropriate. Without prejudice to Article 13.15, and unless a Party raises an explicit objection and requests additional information, consultations or verification in accordance with Articles 13.11 and 13.14 within three months of the receipt of the regionalisation decision, the Parties shall consider that decision as accepted.
7. The consultations referred to in paragraph 4 of this Article shall take place in accordance with Article 13.14(2). The importing Party shall assess any additional information within three months of the receipt of such additional information. Each Party shall carry out the verification referred to in paragraph 4 of this Article in accordance with Article 13.11 and within 12 months of the receipt of a request for verification, taking into account the biology of the pest and the crop concerned.
8. After finalisation of the procedures set out in paragraphs 2 to 7 of this Article, and without prejudice to Article 13.15, each Party shall, without undue delay, take the legislative and administrative measures necessary to allow trade on that basis.
Article 13.8
Recognition of equivalence
1. The Parties may recognise equivalence in relation to an individual measure, a group of measures or systems applicable to a sector or sub-sector.
2. For the purpose of the recognition of equivalence, the Parties shall follow the consultation process referred to in paragraph 3. That process shall include an objective demonstration of equivalence by the exporting Party and an objective assessment of that demonstration by the importing Party with a view to the possible recognition of equivalence by the importing Party.
3. The Parties shall, within three months of the receipt by the importing Party of a request by the exporting Party for recognition of equivalence of one or more measures affecting one or more sectors or sub-sectors, initiate a consultation process which shall include the steps set out in Annex 13-E. In the event of multiple requests by the exporting Party, the Parties shall, on request of the importing Party, agree within the Sub-Committee referred to in Article 13.16 on a time schedule in accordance with which they shall initiate the process referred to in this paragraph.
4. Unless otherwise agreed, the importing Party shall finalise the assessment of equivalence, as set out in Annex 13-E, no later than 180 days after having received from the exporting Party its demonstration of equivalence as set out in that Annex. As an exception in the case of seasonal crops, it is justifiable to finalise the assessment of equivalence at a later time, if necessary in order to allow for the verification of phytosanitary measures during a suitable period of growth of a crop.
5. The priority sectors or sub-sectors of each Party for which a consultation process as referred to in paragraph 3 of this Article may be initiated, are to be set out, where appropriate in order of priority, in Appendix 13-E-1. The Sub-Committee referred to in Article 13.16 may recommend that the Joint Council amend that list, including the order of priority.
6. The importing Party may withdraw or suspend a recognition of equivalence on the basis of an amendment by one of the Parties of measures affecting the equivalence concerned, provided that the following procedures are followed:
(a) in accordance with Article 13.13, the exporting Party shall inform the importing Party of any proposed amendment to a measure of the exporting Party for which equivalence is recognised and the likely effect of the proposed amendment on that equivalence; within 30 working days of the receipt of that information, the importing Party shall inform the exporting Party whether that equivalence would continue to be recognised on the basis of the proposed amendment; and
(b) in accordance with Article 13.13, the importing Party shall inform the exporting Party of any proposed amendment to a measure of the importing Party on which a recognition of equivalence has been based and the likely effect of the proposed amendment on that recognition of equivalence; if the importing Party does not continue to recognise that equivalence, the Parties may jointly establish the conditions for reinitiating the process referred to in paragraph 3 of this Article on the basis of the proposed amendment.
7. Without prejudice to Article 13.15, the importing Party shall not withdraw or suspend a recognition of equivalence before the proposed amendment of either Party enters into force.
8. The recognition of equivalence, or the withdrawal or suspension of a recognition of equivalence, rests solely with the importing Party acting in accordance with its administrative and legislative framework including, as regards plants, plant products and other goods, appropriate communications in accordance with the FAO International Standard for Phytosanitary Measures 13 ‘Guidelines for the notification of non-compliances and emergency action’ and other international standards for phytosanitary measures, as appropriate. The importing Party shall provide the exporting Party with a full explanation in writing and the supporting data in respect of the determinations and decisions covered by this Article. In case of non-recognition of equivalence, or withdrawal or suspension of a recognition of equivalence, the importing Party shall inform the exporting Party of the conditions for reinitiating the process referred to in paragraph 3.
Article 13.9
Transparency and trade conditions
1. The Parties shall apply general import conditions. Without prejudice to the decisions taken in accordance with Article 13.7, the import conditions of the importing Party shall be applicable to the territory of the exporting Party. In accordance with Article 13.13, the importing Party shall inform the exporting Party of its SPS import requirements. That information shall include, as appropriate, the models for any official certificates or attestations required by the importing Party.
2. Each Party shall, for the notification of amendments or proposed amendments to the conditions referred to in paragraph 1 of this Article, comply with Article 7 of and Annex B to the SPS Agreement and subsequent decisions adopted by the WTO Committee on Sanitary and Phytosanitary Measures. Without prejudice to Article 13.15, the importing Party shall take into account the transport time between the territories of the Parties when establishing the date of entry into force of any amendments to the conditions referred to in paragraph 1 of this Article.
3. If the importing Party fails to comply with the notification requirements referred to in paragraph 2, it shall continue to accept, for 30 days after the date of entry into force of the amendment concerned, any official certificate or attestation guaranteeing the import conditions applicable prior to that amendment.
4. When Chile grants market access to one or more sectors or sub-sectors of the EU Party in accordance with the conditions referred to in paragraph 1, Chile shall approve any subsequent export requests submitted by the Member States on the basis of a comprehensive dossier of information available to the European Commission, known as the Country profile, unless Chile, in limited specific circumstances and when deemed appropriate, requests additional information.
5. Within 90 days of a recognition of equivalence in accordance with Article 13.8, a Party shall take the legislative and administrative measures necessary to implement that recognition of equivalence in order to allow trade between the Parties in sectors and sub-sectors in which the importing Party recognises all SPS measures of the exporting Party as equivalent. For the animals, animal products, plants, plant products and other products covered by the SPS measures concerned, the model for the official certificate or official document required by the importing Party may be replaced by a certificate as provided for in Annex 13-H.
6. For the products referred to in paragraph 5 in sectors or sub-sectors for which one or some but not all measures are recognised as equivalent, the Parties shall continue trade between them on the basis of compliance with the conditions referred to in paragraph 1. On request of the exporting Party, paragraph 7 shall apply.
7. For the purposes of this Chapter, the importing Party shall not subject imports of products of the other Party to import licences.
8. As regards general import conditions affecting trade between the Parties, the Parties shall, on request of the exporting Party, enter into consultations in accordance with Article 13.14, in order to establish alternative or additional import conditions of the importing Party. The Parties shall, if appropriate, base those alternative or additional import conditions on measures of the exporting Party recognised as equivalent by the importing Party. If the Parties agree on alternative or additional import conditions, the importing Party shall, within 90 days of their establishment, take the legislative or administrative measures necessary to allow imports on that basis.
9. As regards imports of animals, animal products, products of animal origin and animal by-products, the importing Party shall, on request of the exporting Party accompanied by the appropriate guarantees, approve, without prior inspection, and in accordance with Annex 13-D, establishments which are situated on the territory of the exporting Party. Unless the exporting Party requests additional information, the importing Party shall, within 30 working days of the receipt of the request for approval accompanied by the appropriate guarantees, take the legislative or administrative measures necessary to allow imports on that basis.
10. The initial list of establishments shall be approved by a Party in accordance with Annex 13-D.
11. On request of a Party, the other Party shall provide a full explanation and supporting data for the determinations and decisions covered by this Article.
Article 13.10
Certification procedures
1. For the purposes of certification procedures, the Parties shall comply with the principles and criteria set out in Annex 13-H.
2. A Party shall issue the certificates or official documents referred to in paragraphs 1, 5 and 6 of Article 13.9 as set out in Annex 13-H.
3. The Sub-Committee referred to in Article 13.16 may recommend that the Joint Committee or Joint Council adopt a decision establishing rules to be followed in the case of electronic certification, or withdrawal or replacement of certificates.
Article 13.11
Verification
1. For the purposes of the effective implementation of this Chapter, each Party shall have the right:
(a) to carry out, in accordance with the guidelines set out in Annex 13-F, a verification of all or a part of the total control programme of the competent authorities of the other Party; the expenses of that verification shall be borne by the Party carrying out the verification;
(b) as from a date to be determined by the Parties, to request from the other Party all or a part of that Party's total control programme and a report concerning the results of the controls carried out under that programme; and
(c) for laboratory tests related to products of animal origin, to request the participation of the other Party in the periodical inter-comparative test programme for specific tests organised by the reference laboratory of the requesting Party; the costs related to that participation shall be borne by the participating Party.
2. Each Party may share the results and conclusions of its verifications with third countries and make them publicly available.
3. The Sub-Committee referred to in Article 13.16 may recommend that the Joint Council amends Annex 13-F, taking due account of relevant work carried out by international organisations.
4. The results of the verifications referred to in this Article may contribute to measures by a Party or the Parties referred to in Articles 13.6 to 13.9 and 13.12.
Article 13.12
Import checks and inspection fees
1. Import checks conducted by the importing Party on consignments from the exporting Party shall respect the principles set out in Annex 13-G. The results of those checks may contribute to the verification process referred to in Article 13.11.
2. The frequency rates of physical import checks applied by each Party are set out in Annex 13-G. The Sub-Committee referred to in Article 13.16 may recommend that the Joint Council amend Annex 13-G.
3. A Party may deviate from the frequency rates set out in Annex 13-G, within its competences and in accordance with its laws and regulations, as a result of progress made in accordance with Articles 13.8 and 13.9, or as a result of verifications, consultations or other measures provided for in this Chapter.
4. Inspection fees shall not exceed the costs incurred by the competent authority for performing import checks and shall be equitable in relation to fees charged for the inspection of similar domestic products.
5. The importing Party shall inform the exporting Party of any amendment, including the reasons for that amendment, to the measures affecting import checks and inspection fees and of any significant changes in the administrative procedure for those checks.
6. For the products referred to in Article 13.9(5), the Parties may agree to reciprocally reduce the frequency of physical import checks.