(b) initiatives to further align technical regulations and conformity assessment procedures with relevant international standards.
The other Party shall reply to the proposal in a reasonable time.
3. The contact points referred to in Article 16.13 shall inform the Joint Committee about the cooperation activities carried out pursuant to this Article.
4. The Parties shall endeavour to exchange and collaborate on mechanisms to facilitate the acceptance of conformity assessment results in order to eliminate unnecessary technical barriers to trade.
5. The Parties shall encourage cooperation between their respective organisations responsible for technical regulation, standardisation, conformity assessment, accreditation and metrology, whether governmental or non-governmental, with a view to addressing issues covered by this Chapter.
6. Nothing in this Article shall be construed as requiring a Party to:
(a) deviate from its procedures for preparing and adopting regulatory measures;
(b) take actions that would undermine or impede the timely adoption of regulatory measures to achieve its public policy objectives; or
(c) achieve a particular regulatory outcome.
7. For the purposes of this Article and the provisions on cooperation under Annexes 16-A to 16-E, the European Commission shall act on behalf of the EU Party.
Article 16.7
Cooperation on market surveillance, compliance and safety of non-food products
1. The Parties recognise the importance of cooperation on market surveillance, compliance and the safety of non-food products for the facilitation of trade and for the protection of consumers and other users, and the importance of building mutual trust based on shared information.
2. For the purposes of this Article:
(a) ‘consumer products’ means goods intended for or likely to be used by consumers, with the exception of food, medical devices and medicinal products; and
(b) ‘market surveillance’ means activities conducted and measures taken by public authorities, including activities conducted and measures taken in cooperation with economic operators, on the basis of procedures of a Party which enable that Party to monitor or address compliance of products with the requirements set out in its laws and regulations or their safety.
3. To guarantee independent and impartial functioning of market surveillance, each Party shall ensure:
(a) the separation of market surveillance functions from conformity assessment functions; and
(b) the absence of any interest that would affect the impartiality of market surveillance authorities in the performance of control or supervision of economic operators.
4. The Parties may cooperate and exchange information in the area of non-food product safety and compliance, in particular with respect to the following:
(a) market surveillance and enforcement activities and measures;
(b) risk assessment methods and product testing;
(c) coordinated product recalls or other similar actions;
(d) scientific, technical and regulatory matters, aiming to improve non-food product safety and compliance;
(e) emerging issues of significant health and safety relevance;
(f) standardisation-related activities; and
(g) exchange of officials.
5. The EU Party may provide Chile with selected information from its Rapid Alert System with respect to consumer products as referred to in Directive 2001/95/EC of the European Parliament and of the Council (23) or its successor, and Chile may provide the EU Party with selected information on the safety of consumer products and on preventive, restrictive and corrective measures taken with respect to consumer products. The information exchange may take the form of:
(a) non-systematic exchange, in duly justified specific cases, excluding personal data; and
(b) systematic exchange based on an arrangement established by decision of the Joint Council to be set out in Annex 16-D.
6. The Joint Council may adopt a decision to establish an arrangement on the regular exchange of information, including by electronic means, on measures taken with respect to non-compliant non-food products, other than those covered by paragraph 5 of this Article, to be set out in Annex 16-E.
7. Each Party shall use the information obtained pursuant to paragraphs 4, 5 and 6 for the sole purpose of the protection of consumers, health, safety or the environment.
8. Each Party shall treat the information obtained pursuant to paragraphs 4, 5 and 6 as confidential.
9. The arrangements referred to in subparagraph (b) of paragraph 5 and in paragraph 6 shall specify the product scope, the type of information to be exchanged, the modalities for the exchange and the application of confidentiality and personal data protection rules.
10. Pursuant to subparagraph (a) of Article 8.5(1), the Joint Council shall have the power to adopt decisions in order to determine or amend the arrangements set out in Annexes 16-D and 16-E.
Article 16.8
Standards
1. With a view to harmonising standards on as wide a basis as possible, each Party shall encourage the standardising bodies established within its territory, as well as the regional standardising bodies of which a Party or the standardising bodies established within its territory are members, to:
(a) participate, within the limits of their resources, in the preparation of international standards by relevant international standardising bodies;
(b) use relevant international standards as a basis for the standards they develop, except if such international standards would be ineffective or inappropriate, for example because of an insufficient level of protection, fundamental climatic or geographical factors, or fundamental technological problems;
(c) avoid duplication of, or overlap with, the work of international standardising bodies;
(d) review, at regular intervals, national and regional standards which are not based on relevant international standards, with a view to increasing their convergence with relevant international standards;
(e) cooperate with the relevant standardising bodies of the other Party in international standardisation activities, including in the international standardising bodies or at regional level; and
(f) foster bilateral cooperation between themselves and with the standardising bodies of the other Party.
2. The Parties should exchange information on:
(a) their use of standards in support of technical regulations; and
(b) their standardisation processes and the extent of the use of international, regional or subregional standards as a basis for their national standards.
3. If standards are made mandatory through incorporation or referencing in a draft technical regulation or conformity assessment procedure, the transparency obligations set out in Article 16.10 of this Agreement and in Articles 2 or 5 of the TBT Agreement shall apply.
Article 16.9
Conformity assessment
1. The provisions of Article 16.5 with respect to the preparation, adoption and application of technical regulations shall also apply, mutatis mutandis, to conformity assessment procedures.
2. If a Party requires conformity assessment as a positive assurance that a product conforms with a technical regulation, it shall:
(a) select conformity assessment procedures that are proportionate to the risks involved;
(b) consider, subject to its laws and regulations, the use of a supplier's declaration of conformity as being one of the possible ways of showing compliance with a technical regulation; and
(c) if requested by the other Party, provide information on the criteria used to select the conformity assessment procedures for specific products.
3. If a Party requires third-party conformity assessment as a positive assurance that a product conforms with a technical regulation, and has not reserved that task to a governmental authority as specified in paragraph 4, it shall:
(a) preferentially use accreditation to qualify conformity assessment bodies;
(b) preferentially use international standards for accreditation and conformity assessment, as well as international agreements involving the Parties' accreditation bodies, for example through the mechanisms of the International Laboratory Accreditation Cooperation (hereinafter referred to as ‘ILAC’) and the International Accreditation Forum (hereinafter referred to as ‘IAF’);
(c) join or, as applicable, encourage its conformity assessment bodies to join any functioning international agreements or arrangements for harmonisation or facilitation of acceptance of conformity assessment results;
(d) ensure that, if more than one conformity assessment body has been designated for a particular product or set of products, economic operators can choose which conformity assessment body will carry out the conformity assessment procedure;
(e) ensure that conformity assessment bodies are independent of manufacturers, importers and economic operators in general and that there are no conflicts of interest between accreditation bodies and conformity assessment bodies;
(f) allow conformity assessment bodies to use subcontractors to perform testing or inspections in relation to the conformity assessment, including subcontractors located in the territory of the other Party; nothing in this subparagraph shall be construed as prohibiting a Party from requiring subcontractors to meet the same requirements that the conformity assessment body to which it is contracted would be required to meet in order to perform the contracted tests or inspection itself; and
(g) publish on official websites a list of the bodies that it has designated to perform such conformity assessments and the relevant information on the scope of designation of every such body.
4. Nothing in this Article shall preclude a Party from requesting that conformity assessment in relation to specific products is performed by its designated governmental authorities. In such cases, the Party shall:
(a) limit the conformity assessment fees to the approximate cost of the services rendered and, upon request of an applicant for conformity assessment, explain how any fees it imposes for such conformity assessment are limited in amount to the approximate cost of the services rendered; and
(b) make the conformity assessment fees publicly available or provide them upon request.
5. Notwithstanding paragraphs 2, 3 and 4 of this Article, in the cases in which the EU Party accepts a supplier's declaration of conformity in the fields listed in Annex 16-B, Chile shall provide for, in accordance with its laws and regulations, an efficient and transparent procedure for the acceptance of certificates and test reports issued by conformity assessment bodies that are located in the territory of the EU Party and that have been accredited by an accreditation body that is a member of the international arrangements for mutual recognition of the ILAC and the IAF as an assurance that a product conforms with the requirements of Chile's technical regulations.
6. For the purposes of this Article, ‘supplier's declaration of conformity’ means a first-party attestation issued by the manufacturer under the sole responsibility of that manufacturer based on the results of an appropriate type of conformity assessment activity and excluding mandatory third-party assessment, as an assurance that a product conforms to a technical regulation that sets out such conformity assessment procedures.
7. On request of either Party, the Sub-Committee referred to in Article 16.14 shall review the list of fields in paragraph 1 of Annex 16-B. The Sub-Committee may recommend that the Joint Council amend Annex 16-B, pursuant to subparagraph (a) of Article 8.5(1).
Article 16.10
Transparency
1. In accordance with its respective rules and procedures and without prejudice to Chapter 36, when developing major technical regulations which may have a significant effect on trade in goods, each Party shall ensure the existence of transparency procedures that allow persons of the Parties to provide input through a public consultation process, except where urgent problems of safety, health, environmental protection or national security or a threat thereof arise.
2. Each Party shall allow persons of the other Party to participate in the consultation process referred to in paragraph 1 on terms no less favourable than those accorded to its own persons, and make the results of that consultation process public.
3. Each Party shall allow a period of at least 60 days following its notification to the WTO Central Registry of Notifications of proposed technical regulations and conformity assessment procedures for the other Party to provide written comments, except where urgent problems of safety, health, environmental protection or national security or a threat thereof arise. A Party shall consider any reasonable request from the other Party to extend that comment period.
4. In the event that the notified text is not in one of the official WTO languages, the notifying Party shall provide a detailed and comprehensive description of the content of the proposed technical regulations and conformity assessment procedures in the WTO notification format.
5. If a Party receives written comments as referred to in paragraph 3, it shall:
(a) if requested by the other Party, discuss the written comments with the participation of its competent regulatory authority at a time when they can be taken into account; and
(b) reply in writing to the comments no later than on the date of publication of the adopted technical regulation or conformity assessment procedure.
6. Each Party shall endeavour to publish on a website its responses to the written comments referred to in paragraph 3 that it receives from the other Party no later than on the date of publication of the adopted technical regulation or conformity assessment procedure.
7. A Party shall, if requested by the other Party, provide information regarding the objectives of, and the legal basis and rationale for, a technical regulation or conformity assessment procedure that the Party has adopted or is proposing to adopt.
8. Each Party shall ensure that the technical regulations and conformity assessment procedures it has adopted are accessible through official websites or online official journals, free of charge.
9. Each Party shall provide information on the adoption and the entry into force of the technical regulation or conformity assessment procedure and the adopted final text through an addendum to the original notification to the WTO Central Registry of Notifications.
10. Each Party shall allow a reasonable interval between the publication of the technical regulations and their entry into force, subject to the conditions specified in Article 2.12 of the TBT Agreement. For the purposes of this Article, ‘reasonable interval’ means a period of not less than six months, except when such period would be ineffective for the fulfilment of the legitimate objectives pursued.
11. A Party shall consider any reasonable request from the other Party, received prior to the end of the comment period referred to in paragraph 3, to extend the period between the publication of the technical regulation and its entry into force, except when the delay would be ineffective for the fulfilment of the legitimate objectives pursued.
Article 16.11
Marking and labelling
1. The Parties affirm that their technical regulations that include or address exclusively marking or labelling shall observe the principles of Article 2.2 of the TBT Agreement.
2. Unless it is necessary for the fulfilment of the legitimate objectives referred to in Article 2.2 of the TBT Agreement, a Party that requires mandatory marking or labelling of products shall:
(a) only require information which is relevant for consumers or users of the product or information that indicates the product's conformity with the mandatory technical requirements;
(b) not require any prior approval, registration or certification of the markings or labels of products, or any fee disbursement, as a precondition for placing on its market products that otherwise comply with its mandatory technical requirements;
(c) if it requires the use of a unique identification number by economic operators, issue such number to the economic operators of the other Party without undue delay and on a non-discriminatory basis;
(d) provided it is not misleading, contradictory or confusing in relation to the information required in the importing Party of the goods, permit the following:
(i) information in other languages in addition to the language required in the importing Party of the goods;
(ii) internationally accepted nomenclatures, pictograms, symbols or graphics; and
(iii) additional information to that required in the importing Party of the goods;
(e) accept that labelling, including supplementary labelling or corrections to labelling, takes place in customs warehouses or other designated areas in the country of import as an alternative to labelling in the country of origin, unless such labelling is required to be carried out by approved persons for reasons of public health or safety; and
(f) endeavour to accept non-permanent or detachable labels, or the inclusion of relevant information in the accompanying documentation, rather than labels physically attached to the product.
Article 16.12
Technical discussions and consultations
1. A Party may request the other Party to provide information on any matter covered by this Chapter. The other Party shall provide that information within a reasonable period of time.
2. If a Party considers that any draft or proposed technical regulation or conformity assessment procedure of the other Party might have a significant adverse effect on trade between the Parties, it may request technical discussions regarding its concerns with regard to the measure. The request shall be made in writing and identify:
(a) the measure;
(b) the provisions of this Chapter to which the requesting Party's concerns relate; and
(c) the reasons for the request, including a description of the requesting Party's concerns with regard to the measure.
3. The Party shall deliver a request pursuant to this Article to the contact point of the other Party designated pursuant to Article 16.13.
4. On request of a Party, the Parties shall meet to discuss the concerns raised in the request referred to in paragraph 2, in person or via video or teleconference, within 60 days of the date of the request. The Parties shall make every attempt to arrive at a mutually satisfactory resolution of the matter as expeditiously as possible.
5. If the requesting Party considers the matter to be urgent, it may request the other Party to meet within a shorter timeframe. The other Party shall consider that request.
6. For greater certainty, this Article is without prejudice to either Party's rights and obligations under Chapter 38.
Article 16.13
Contact points
1. Each Party shall designate a contact point to facilitate cooperation and coordination under this Chapter and notify the other Party of its contact details. A Party shall promptly notify the other Party of any changes to those contact details.
2. The contact points shall work jointly to facilitate the implementation of this Chapter and cooperation between the Parties on all matters concerning technical barriers to trade. The contact points shall:
(a) organise the technical discussions and consultations referred to in Article 16.12;
(b) promptly address any issue that a Party raises related to the development, adoption, application or enforcement of standards, technical regulations or conformity assessment procedures;
(c) on request of a Party, arrange discussions on any matter arising under this Chapter; and
(d) exchange information on developments in non-governmental, regional and multilateral fora related to standards, technical regulations and conformity assessment procedures.
3. The contact points shall communicate with one another by any agreed method that is appropriate to carry out their functions.
Article 16.14
Sub-Committee on Technical Barriers to Trade
The Sub-Committee on Technical Barriers to Trade (‘Sub-Committee’) established pursuant to Article 8.8(1) shall:
(a) monitor the implementation and administration of this Chapter;
(b) enhance cooperation as regards the development and improvement of standards, technical regulations and conformity assessment procedures;
(c) establish priority areas of mutual interest for future work under this Chapter and consider proposals for new initiatives;
(d) monitor and discuss developments under the TBT Agreement; and
(e) take any other steps that the Parties consider will assist them in implementing this Chapter and the TBT Agreement.
Chapter 17. INVESTMENT
Section A. General Provisions
Article 17.1. Scope
This Chapter does not apply to measures adopted or maintained by a Party relating to financial institutions of the other Party, to investors of the other Party or to the investments of such investors in financial institutions in the territory of that Party, as defined in Article 25.2.
Article 17.2. Definitions
For the purposes of this Chapter and Annexes 17-A, 17-B and 17-C:
(a) ‘activities performed in the exercise of governmental authority’ means activities performed, including services supplied, neither on a commercial basis nor in competition with one or more economic operators;
(b) ‘aircraft repair and maintenance services’ means such activities when undertaken on an aircraft or a part thereof while it is withdrawn from service and do not include so-called line maintenance;
(c) ‘computer reservation system (CRS) services’ means services provided by computerised systems that contain information about air carriers' schedules, availability, fares and fare rules, through which reservations can be made or tickets may be issued;
(d) ‘covered investment’ means an investment which is owned or controlled, directly or indirectly, by one or more investors of a Party in the territory of the other Party, made in accordance with the applicable law, and which is in existence as at the date of entry into force of this Agreement or is established thereafter;
(e) ‘cross-border supply of services’ means the supply of a service:
(i) from the territory of a Party into the territory of the other Party; or
(ii) in the territory of a Party to a service consumer of the other Party;
(f) ‘economic activities’ means activities of an industrial, commercial or professional character or activities of craftsmen, including the supply of services, except for activities performed in the exercise of governmental authority;
(g) ‘enterprise’ means a juridical person, branch or representative office set up through establishment;
(h) ‘establishment’ means the setting up, including the acquisition (24) of, an enterprise by an investor of a Party in the territory of the other Party;
(i) ‘freely convertible currency’ means a currency which can be freely exchanged against currencies which are widely traded in international foreign exchange markets and widely used in international transactions;
(j) ‘ground handling services’ means the supply at an airport, on a fee or contract basis, of the following services: airline representation, administration and supervision; passenger handling; baggage handling; ramp services; catering, except for the preparation of food; air cargo and mail handling; fuelling of an aircraft, aircraft servicing and cleaning; surface transport; and flight operation, crew administration and flight planning; ground handling services do not include: self-handling; security; line maintenance; aircraft repair and maintenance; or management or operation of essential centralised airport infrastructure, such as de-icing facilities, fuel distribution systems, baggage handling systems and fixed intra-airport transport systems;
(k) ‘investment’ means any asset that an investor owns or controls, directly or indirectly, which has the characteristics of an investment, including a certain duration, the commitment of capital or other resources, the expectation of gain or profit, or the assumption of risk; forms that an investment may take include:
(i) an enterprise;
(ii) shares, stocks and other forms of equity participation in an enterprise;
(iii) bonds, debentures and other debt instruments of an enterprise;
(iv) futures, options and other derivatives;
(v) concessions, licences, authorisations, permits, and similar rights conferred pursuant to domestic law (25);