(c) any decision to apply or not a definitive measure.
3. At any stage of the investigation, a State Party may request consultations with the State Party intending to apply or applying measures pursuant to this Chapter. The importing State Party shall offer to hold consultations between competent authorities within ten days from the request.
4. Upon request of a State Party, consultations may take place in the Joint Committee. Such consultations may take place partially or entirely by videoconference if a State Party so requests.
Article 3.6. Dispute Settlement
The Parties shall not have recourse to Chapter 15 (Dispute Settlement) for any matter arising under this Chapter.
Chapter 4. BILATERAL SAFEGUARD MEASURES
Article 4.1. Definitions
For the purposes of this Chapter, the terms "serious injury", "threat of serious injury", "domestic industry" and "like or directly competitive product" mean the same as under the ASFG.
Article 4.2. Conditions for the Application of Bilateral Safeguard Measures
1. A State Party may, in exceptional circumstances, apply bilateral safeguard measures to imports from another State Party under the conditions established in this Chapter, if imports of a product under preferential terms have increased in such quantities, absolute or relative to domestic production or consumption of the importing State Party, and under such conditions as to cause or threaten to cause serious injury to the domestic industry of the importing State Party. Bilateral safeguard measures shall be applied only to the extent necessary to prevent or remedy serious injury or threat thereof.
2. Bilateral safeguard measures shall only be applied following an investigation by the competent investigating authorities (3) of the importing State Party under the procedures established in the Annex VIII (Investigation and Transparency Procedures). The purpose of the investigation shall be the assessment of the conditions provided for in paragraph 1.
3. Bilateral safeguard measures shall only be applied between an EFTA State on the one side and a MERCOSUR State on the other.
Article 4.3. Application of Bilateral Safeguard Measures
Bilateral safeguard measures adopted under this Chapter shall consist of:
(a) a temporary suspension of the further reduction of any customs duty provided for under this Agreement for the product concerned; or
(b) an increase of the rate of customs duty or a reduction of the tariff preference of the product concerned so that the rate of customs duties does not exceed the lesser of:
(i) the most-favoured-nation applied rate of customs duty on the product in effect at the time the measure is taken;
(ii) the base rate of customs duty referred to in the respective Partyâs Schedule of Tariff Commitments on Goods; or
(iii) the most-favoured-nation applied rate of customs duty on the product on the date of the entry into force of this Agreement.
Article 4.4. Preservation of Market Access
1. When applying subparagraph (b) of Article 4.3 (Application of Bilateral Safeguard Measures), a State Party should ensure that historical trade flows that do not cause or threaten to cause serious injury to the domestic industry of the importing State Party are preserved. The State Party that applies a bilateral safeguard measure shall, if possible, establish an import quota for the product concerned within which such product continues to benefit from the agreed preference established under this Agreement. The import quota shall not be less than the average imports of the product concerned during the 36 month-period prior to the last 12 months of the period defined in paragraph 3 of Article 3 of Annex VIII (Investigation and Transparency Procedures), unless a clear justification is given that a lower level is necessary to prevent or remedy serious injury.
2. If no quota is established, the bilateral safeguard measure shall only consist of a reduction of the tariff preference applicable to such product, which shall not be higher than 50 % of the tariff preference established under this Agreement.
3. A State Party that may be affected by a bilateral safeguard measure may request any adequate means of compensation in the form of substantially equivalent trade liberalisation.
Article 4.5. Duration
1. Bilateral safeguard measures shall be applied only for a period necessary to prevent or remedy the serious injury and to facilitate adjustment of the domestic industry. That period shall not exceed two years. In exceptional circumstances, after review by the importing State Party's investigating authority and notification to the Joint Committee, the measures may be applied up to a total maximum period of three years, including the period of application of any provisional measure.
2. Upon termination of the bilateral safeguard measure, the margin of preference shall be the one that would be applied to the product in the absence of the measure, according to the Schedule of Tariff Commitments on Goods.
3. No bilateral safeguard measure shall be applied to a product which has already been subject to a bilateral safeguard measure unless a period of half the total duration of the previous measure has elapsed.
4. The State Parties shall not apply, extend or keep in force a bilateral safeguard measure beyond the expiration of a transition period of 12 years from the date of entry into force of this Agreement. Regarding any goods for which the Schedule of Tariff Commitments on Goods of the State Party applying the measure provides for tariff elimination in ten or more years, the transition period shall be 18 years from the date of the entry into force of this Agreement.
Article 4.6. Provisional Bilateral Safeguard Measures
In critical circumstances, where delay may cause damage which would be difficult to repair, a State Party may, after due notification, apply a provisional bilateral safeguard measure pursuant to a preliminary determination that there is clear evidence that increased preferential imports have caused or are threatening to cause serious injury to the domestic industry. The duration of the provisional bilateral safeguard measure shall not exceed 200 days, during which period the requirements of this Chapter shall be met. If the final determination concludes that there was no serious injury or threat thereof to the domestic industry caused by imports under preferential terms, the increased tariff or provisional guarantee, if collected or imposed under provisional bilateral safeguard measures, shall be promptly refunded
Article 4.7. Notification and Consultations between the State Parties
1. Ifa State Party has determined that the conditions to impose a definitive bilateral safeguard measure are met, it shall notify and at the same time invite the exporting State Party for consultations. The notification and the invitation shall be made at least 30 days before a definitive bilateral safeguard measure is expected to come into force. No definitive bilateral safeguard measure shall be applied in the absence of such notification and such invitation.
2, The notification shall include:
(a) evidence of serious injury or threat of serious injury to the domestic industry caused by the increased preferential imports;
(b) a precise description of the imported product subject to the measure, and its classification under the HS;
(c) a description of the measure proposed; (d) the date of entry into force of the measure and its duration; and (e) the period for consultations.
3. The objective of the consultations referred to in paragraph 1 shall be a mutual understanding of the facts and an exchange of views, aimed at reaching a mutually satisfactory solution. If no satisfactory solution is reached within 30 days from the notification, the State Party may apply the bilateral safeguard measure at the end of the 30 day period.
4. For provisional bilateral safeguard measures, consultations shall take place within 30 days from the receipt of the notification, but they shall not be a prerequisite for the imposition of provisional bilateral safeguard measures.
5. At any stage of the investigation, the notified State Party may request consultations with the notifying State Party, or any additional information that it considers necessary.
Chapter 5. TECHNICAL BARRIERS TO TRADE
Article 5.1. Scope
1. This Chapter applies to the preparation, adoption and application of standards, technical regulations and conformity assessment procedures that may affect trade in goods between the Parties.
2. This Chapter shall not apply to:
(a) purchasing specifications prepared by governmental bodies for their production or consumption requirements; or
(b) sanitary and phytosanitary measures as defined in Annex A of the WTO Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement).
Article 5.2. Objectives
The objectives of this Chapter are:
(a) to further the implementation of the WTO Agreement on Technical Barriers to Trade (TBT Agreement) and facilitate trade in goods between the Parties by identifying, preventing and eliminating unnecessary technical barriers to trade;
(b) to facilitate exchange of information and cooperation in the field of technical regulations, standards and conformity assessment, including metrology and accreditation, between the Parties;
(c) to enhance mutual understanding of the regulatory systems of the Parties;
(d) to promote the implementation of good regulatory practices; and
(e) to contribute to solve trade concerns arising between the Parties.
Article 5.3. Incorporation of the TBT Agreement
The TBT Agreement applies to this Chapter and is hereby incorporated into and made part of this Agreement, mutatis mutandis.
Article 5.4. Trade Facilitating Initiatives
1. The Parties recognise the importance of intensifying their collaboration with a view to achieving a better understanding of their respective systems and preventing, eliminating or reducing the creation of technical barriers to trade. To this end, the Parties shall work towards the identification, promotion, development, and implementation, as appropriate, of trade facilitating initiatives on a case-by-case basis.
2. A Party may propose trade facilitating initiatives for specific products or sectors in areas covered by this Chapter to the other Parties. These proposals shall be transmitted to the contact points and may include, inter alia:
(a) exchange of information on regulatory approaches and practices;
(b) initiatives to further align technical regulations and conformity assessment procedures with relevant international standards;
(c) initiatives on regulatory convergence;
(d) initiatives to facilitate the acceptance of the results of conformity assessment procedures conducted in another Party, in accordance with paragraph 1 of Article 5.7 (Conformity Assessment Procedures); and
(e) considering mutual or unilateral recognition of conformity assessment results.
3. If a Party proposes a trade facilitating initiative, the other Parties concerned shall duly consider the proposal and reply within a reasonable period of time. Any Party rejecting the proposal shall explain the reasons for its decision to the Party proposing a trade facilitating initiative.
4, If a Party proposes sectoral initiatives already agreed between each Party concered and the European Union (EU), the Parties concerned shall, without undue delay, negotiate the proposal to extend to each other equivalent treatment related to technical regulations, standards or conformity assessments. Such proposals extending to each other equivalent treatment related to technical regulations, standards or conformity assessments mutually agreed between each Party concerned and the EU shall only cover sectors falling under harmonised EU legislation.
5. When agreed by the Parties concerned and necessary for the implementation of trade facilitating initiatives under this Article, the State Parties shall facilitate the access of technical teams to demonstrate their conformity assessment schemes and systems in order to increase mutual understanding.
6. The Parties engaged in a trade facilitating initiative shall, when needed, define the terms of work envisaged under this Article and involve their competent regulatory and governmental authorities. The Parties may establish ad hoc working groups and, if appropriate and previously agreed upon by the Parties, invite representatives of the private sector, academia and civil society, inter alia, to participate in specific activities of these working groups.
7. The results of an understanding reached under this Article should be incorporated into an appropriate instrument, depending on the subject matter and the agreed tool and shall be reported to the contact points.
8. Further to paragraph 7, whenever the Parties concerned consider that the result of a trade facilitating initiative under this Chapter shall be incorporated into this Agreement, this understanding shall be reported to the Joint Committee, which may decide on the adoption of a new Annex to this Agreement.
9. The Parties have concluded Annex IX (Electrical and Electronic Products) to prevent, eliminate, or reduce unnecessary non-tariff barriers to trade, including to avoid duplicative and unnecessarily burdensome conformity assessment procedures related to electrical and electronic products. The Parties may present amendment proposals to the Joint Committee regarding Annex IX (Electrical and Electronic Products) and Annexes created pursuant to paragraph 8.
Article 5.5. Technical Regulations
1. The Parties shall make best use of good regulatory practices with regard to the preparation, adoption and application of technical regulations, as provided for in the TBT Agreement, including, for example, preference for performance-based technical regulations, use of impact assessments or stakeholder consultation. In particular, the Parties shall:
(a) reinforce the role of relevant international standards as a basis for their technical regulations, including conformity assessment procedures;
(b) where international standards have not been used as a basis for a technical regulation, which may have a significant effect on trade, explain upon request of a Party the reasons why such standards have been judged inappropriate or ineffective for the aim pursued;
(c) promote the development of regional technical regulations and their adoption at national level in order to facilitate trade between the Parties;
(d) carry out an impact analysis of planned technical regulations in accordance with its respective rules and procedures; and
(e) when preparing technical regulations, take due account of the characteristics and special needs of micro, small and medium-sized enterprises (MSMEs).
2. Each State Party shall ensure that goods, once placed on the market and fully complying with the relevant technical regulations and the respective conformity assessment procedures of the importing State Party, may freely move within its territory without any further technical requirement related to this Chapter.
3. Ifa State Party detains at a port of entry goods exported from another State Party due to an alleged failure to comply with a technical regulation, the reasons for the detention shall be promptly notified to the importer.
4. If a State Party withdraws from its market goods exported from another State Party, the reasons for the withdrawal shall be promptly notified to the person responsible for placing the goods on the market.
Article 5.6. Standards
1. The State Parties recognise their responsibility under Article 4.1 of the TBT Agreement to take all reasonable measures to ensure that their standardisation bodies comply with the Code of Good Practice for the Preparation and Adoption of Standards in Annex 3 to the TBT Agreement.
2. For the purposes of this Chapter, "relevant international standards" referred to in Article 2.4 of the TBT Agreement means standards developed by international standardising organisations, such as the International Organization for Standardization (SO), International Electrotechnical (IEC), the International Telecommunication Union CTU), Codex Alimentarius Commission and the World Organization for Animal Health (WOAH), provided that in their development these organisations have complied with the principles and procedures set out in the Decision of the WTO Committee on Technical Barriers to Trade on Principles for the Development of International Standards, Guides and Recommendations.
3. Within the limits of their competence and resources, the Parties shall encourage their standardising bodies, as well as the regional standardising bodies which the State Parties or their standardising bodies are members of, to:
(a) cooperate with the relevant national and regional standardisation bodies of another Party in international standardisation activities; and
(b) use relevant international standards as a basis for the standards they develop, except where such international standards would be ineffective or inappropriate, for instance because of an insufficient level of protection, fundamental climatic or geographical factors, fundamental technological problems or development concems of developing countries.
Article 5.7. Conformity Assessment Procedures
1. The State Parties acknowledge that a broad range of mechanisms exist to facilitate acceptance of the results of conformity assessment procedures conducted in another State Party, such as:
(a) use of accreditation based on international standards to qualify conformity assessment bodies;
(b) government designation of conformity assessment bodies;
(c) voluntary arrangements between conformity assessment bodies in each State Party;
(d) unilateral recognition by a State Party of the results of conformity assessments performed in another State Party;
(e) agreements on mutual acceptance of the results of conformity assessment procedures with respect to specified technical regulations conducted by recognised conformity assessment bodies; and
® the importing State Party's acceptance of a supplier's declaration of conformity, based on international standards.
2. The State Parties recognise that the selection of the appropriate mechanisms depends on the institutional and the legal framework of each State Party.
3. The State Parties shall encourage mutual acceptance of conformity assessment results of bodies accredited in accordance with subparagraph 1 (a), which have been recognised under the relevant international agreements, such as the International Laboratory Accreditation Cooperation (ILAC) and the International Accreditation Forum (IAF).
4. If a State Party requires positive assurance of conformity with domestic technical regulations, it shall consider in its internal regulatory process the use of supplier's declaration of conformity among other options as an assurance of conformity.
5. If a supplier's declaration of conformity, without mandatory third party assessment, is considered a valid conformity assessment procedure in the EFTA States, test reports issued by conformity assessment bodies that are located in the territory of a MERCOSUR State shall be accepted as a valid document in the process of demonstrating that a product conforms with the requirements of the EFTA State's technical regulations. The manufacturer shall remain responsible for the conformity of the product in all cases.
Article 5.8. Transparency
1. The State Parties reaffirm their transparency obligations under the TBT Agreement with regard to the preparation, adoption and application of standards, technical regulations and conformity assessment procedures.
2. For the purposes of paragraph 1, the State Parties shall:
(a) take another State Party's views into account where a part of the process of developing a technical regulation is open to public consultations;
(b) ensure that economic operators and other interested persons of another State Party are allowed to participate in any formal public consultative process concerning the development of technical regulations; and
(c) when making notifications in accordance with Article 2.9 of the TBT Agreement, to endeavour to allow at least 60 days for another State Party to provide comments in writing to the proposal.
3. Where practicable, the State Parties shall give appropriate consideration to reasonable requests to extend the comment period.
4. Each State Party shall ensure that all technical regulations and mandatory conformity assessment procedures adopted and in force are publicly available on an official website. If the presumption of conformity with technical regulations relies on standards not referred to in these technical regulations, the State Party concerned shall, upon request, provide the list of standards designated under the corresponding regulations.
Article 5.9. Marking and Labelling
1. The Parties affirm that their technical regulations including or dealing exclusively with marking or labelling shall observe the principles of Article 2 of the TBT Agreement.
2. Where a Party requires mandatory marking or labelling of goods:
(a) the Party shall only require information which is relevant for consumers, users of the product or the competent authorities, or an indication of the productâs conformity with the mandatory technical requirements;
(b) where a State Party requires any prior approval, registration or certification of the labels of markings of the goods, as a precondition for placing goods on the market that otherwise comply with its mandatory technical requirements, it shall ensure that the requests submitted by the economic operators of another State Party are decided without undue delay and on a non-discriminatory basis;
(c) where the State Party requires the use of a unique identification number by economic operators, the State Party shall issue such number to the economic operators of another State Party without undue delay and on a non-discriminatory basis;
(d) provided it is neither misleading nor confusing in relation to the information required, nor contradicting the regulatory requirements in the importing State Party, the Party shall permit the following:
(i) information in other languages in addition to the language required by the importing State Party; and
(ii) nomenclatures, pictograms, symbols or graphics adopted in international standards;
(e) the State Party, whenever possible and not compromising legitimate objectives under the TBT Agreement, shall accept that supplementary labelling and corrections to labelling take place in customs warehouses or other designated areas at the point of import as an alternative to labelling in the country of origin; and
(f) the State Party shall endeavour to accept non-permanent or detachable labels, or inclusion of relevant information in the accompanying documentation, rather than labels that are physically attached to the product, unless such labelling is required for public health or safety reasons or any other legitimate objectives under the TBT Agreement.
3. Paragraph 2 shall not apply to marking or labelling of medicinal products.
Article 5.10. Technical Cooperation
1. With a view to increasing mutual understanding of their respective systems and facilitating access to their respective markets, the Parties shall strengthen their cooperation, Such cooperation may include, but shall not be limited to:
(a) activities of international standardisation bodies and the WTO Committee on Technical Barriers to Trade;
(b) communication between their competent authorities, exchange of information with respect to technical regulations, good regulatory practice, standards, conformity assessment procedures, border control and market surveillance;
(c) strengthening the technical and institutional capacity of the national regulatory, metrology, standardisation, conformity assessment and accreditation institutions, by means of cooperation and joint activities that support the development of a technical infrastructure and continuous training of human resources; and
(d) supporting activities by national, regional and international organisations in the areas covered by this Chapter.
2. Upon request, and taking into account the different levels of development of the involved Parties, a Party shall give appropriate consideration to proposals for cooperation according to this Article.
Article 5.11. Technical Consultations
1. Upon request of a Party, which considers that a technical regulation, standard or conformity assessment procedure of another Party has created, or is likely to create, an obstacle to trade, consultations shall be held with the objective of finding a mutually acceptable solution.
2. Consultations shall take place within 60 days from the receipt of the request by the contact point, unless the request identifies the matter as urgent, in which case the Parties shall endeavour to hold the technical discussions sooner. The consultations may be conducted by any method agreed by the consulting Parties. The Joint Committee shall be informed of the consultations.
3. For greater certainty, this Article shall be without prejudice to a Partyâs rights and obligations under Chapter 15 (Dispute Settlement).
Article 5.12. Contact Points
The Parties shall exchange names and addresses of contact points in order to facilitate the implementation of this Chapter.
Chapter 6. SANITARY AND PHYTOSANITARY MEASURES
Article 6.1. Scope
This Chapter applies to sanitary and phytosanitary measures as defined in Annex A to the SPS Agreement which may, directly or indirectly, affect trade between the Parties.
Article 6. Incorporation of the SPS Agreement
The SPS Agreement applies to this Chapter and is hereby incorporated into and made part of this Agreement, mutatis mutandis. The State Parties agree to take due account of decisions adopted by consensus within the framework of the WTO Committee on Sanitary and Phytosanitary Measures.
Article 6.3. International Standards
For the purposes of this Chapter, âinternational standardsâ means the standards, guidelines and recommendations of the Codex Alimentarius Commission, the WOAH and the International Plant Protection Convention (IPPC).
Article 6.4. Consultations
1. Upon request of a State Party, which considers that a sanitary or phytosanitary measure, or a draft measure, of another State Party has created, or is likely to create, an obstacle to trade, consultations shall be held with the objective of finding a mutually acceptable solution.
2. If an exporting State Party considers that a sanitary or phytosanitary measure, or a draft measure, that is planned to be adopted by a regional integration scheme in which another State Party participates or has agreed to harmonise its domestic laws and regulations with, is likely to create an obstacle to trade, that State Party may bring their concerns to the attention of the importing State Party. Upon request of a State Party, the State Parties shall hold consultations and seek possible ways to address the matter.
3. Upon request of a State Party, consultations shall be held on the procedures and criteria employed when conducting import checks by an importing State Party of products of an exporting State Party
4. Consultations shall take place within 30 days from the receipt of the request by the contact point. In case of perishable goods, consultations between the competent authorities shall be held without undue delay. Such consultations may be held by any method agreed by the consulting State Parties. The Joint Committee shall be informed of the consultations.
5. In case an emergency measure is applied, consultations shall be held without undue delay upon request of a State Party. The State Parties shall exchange comments and information on the measure and its justification.
6. Consultations under this Article shall be without prejudice to Chapter 15 (Dispute Settlement).
Article 6.5. Import Checks
1. The State Parties shall carry out import checks and border controls as expeditiously as possible in a manner that is no more trade-restrictive than necessary. Import checks shall be carried out taking international standards into account.
2. In case products or consignments are rejected as a result of non-compliance with sanitary and phytosanitary import requirements at the import check, the importing State Party shall notify the exporting State Party of the results of the import checks as soon as possible and normally within five working days from the date of rejection. Upon request, the importing State Party shall provide the exporting State Party with the factual basis and scientific justification as soon as possible.
3. If import checks reveal non-compliance with the relevant sanitary and phytosanitary import requirements, the action taken by the competent authorities of the importing State Party shall be, in accordance with its domestic laws and regulations, justified, based on the identified non-compliance and no more trade-restrictive than required to achieve the importing State Partyâs appropriate level of sanitary or phytosanitary protection.
4. Goods subject to random and routine import checks should not be detained pending test results.