2. Paragraph 1 does not apply to generally applicable taxation measures or administrative fees.
ARTICLE 15.5
Prevention of Market Distortive Practices
Each Party shall ensure that a supplier of delivery services subject to a universal service obligation or a postal monopoly does not engage in distortive practices for the market 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 delivery service which is subject to a universal service obligation or a postal monopoly.
ARTICLE 15.6
Licenses
1. A Party requiring a license for the provision of delivery services shall make publicly available:
(a) all licensing requirements and the period of time required to reach a decision concerning an application for a license; and
(b) the terms and conditions of licenses.
2. The procedures, obligations and requirements of a license shall be transparent, non-discriminatory and based on objective criteria.
3. A Party shall ensure that the applicant is informed of the reasons for denial of a license in writing.
ARTICLE 15.7
Independence of the Regulatory Body
1. Each Party shall establish or maintain regulatory bodies which shall be legally distinct and functionally independent from any supplier of delivery services. A Party retaining ownership or control of enterprises providing delivery services shall ensure effective structural separation of the regulatory function from activities associated with ownership or control.
2. Each Party shall ensure that the regulatory bodies referred to in paragraph 1 perform their tasks in a transparent and timely manner, and that they have adequate financial and human resources to carry out the tasks assigned to them.
3. The decisions of and the procedures used by the regulatory body shall be impartial with respect to all market participants.
(1) When a provision contains a reference to another article, without specifying the Part of this Agreement where the referenced article is located, that article shall be intended to be in Part III of the Agreement(2) For greater certainty, the definition of customs duty does not affect the rights and obligations of the Parties under Chapter 5 (Trade Remedies).(3) Except the preparation of food.(4) For greater certainty, "measure" includes failures to act.(5) This definition applies for the purposes of Chapters 10 to 19.(6) The definition of natural persons of the European Union also includes natural persons permanently residing in the Republic of Latvia who are not citizens of the Republic of Latvia or any other state but who are entitled, under the laws and regulations of the Republic of Latvia, to receive a non-citizen's passport.(7) For greater certainty, following a unilateral reduction of a customs duty, a Party may raise that customs duty to the level determined for the respective year of the tariff elimination schedule in accordance with Annex 2-A (Tariff Elimination Schedule).(8) For greater certainty; that modification shall supersede any customs duty rate or staging category set out in Annex 2-A (Tariff Elimination Schedule).(9) For Mexico, the customs processing fee refers to the "Derecho de Trámite Aduanero".(10) For greater certainty, the importing Party may require, the consularisation of documents by its consul with jurisdiction in the territory of the exporting Party:(a) for investigation or audit purposes, or(b) for the importation of household effects.(11) In interpreting the term "measures with equivalent effect", for a specific case, the Parties may seek guidance in the relevant WTO rules as well as in the practice of the WTO membership.(12) For greater certainty, "wine products" means wine and other wine products classified under headings 2204 and 2205 of the Harmonized System.(13) For greater certainty, this is without prejudice to the laws and regulations of each Party for the marketing and commercialisation of those products.(14) When the rules of origin for a material differ between the Parties, the origin of that material shall be determined in accordance with the rules of origin applicable to the exporting Party.(15) Denaturation covers making alcohol unfit for human consumption by the addition of toxic or foul-tasting substances.(16) Simple mixing of products covers mixing of sugar.(17) These operations do not apply to mixing and blending in Chapters 27 to 30, 32 to 35 and 38.(18) According to the Agreement on Rules of Origin of the WTO or Chapter 3 (Rules of Origin and Origin Procedures) of this Agreement.(19) A Party may use the criteria provided for in Article 7.7.2 of the WTO Agreement on Trade Facilitation.(20) For greater certainty, this Article does not preclude preshipment inspections for sanitary and phytosanitary purposes.(21) In that regard, the authorities may analyse aspects such as the physical characteristics of those products, their technical specifications, final uses and channels of distribution. That list of aspects is not exhaustive, nor can one or several of these factors necessarily give decisive guidance.(22) For greater certainty, nothing in this Article prevents an importing Party from disposing of a consignment which is found to have an infectious pathogen or pest that can, if urgent action is not taken, spread and cause damage to human, animal or plant life or health in the territory of that Party.(23) "One Health" as defined by the World Health Organisation (WHO) is an approach combining policies in multiple sectors to achieve better public health outcomes.(24) For greater certainty, these rights and remedies include those arising from Mexico's obligations pursuant to the provisions in Chapter 10 (Investment) and the related annexes.(25) WTO Document G/TBT/1/Rev. 13, dated 8 March 2017, as may be revised.(26) Contained in WTO Document G/TBT/1/Rev. 13, dated 8 March 2017, as may be revised.(27) For greater certainty, a Party may comply with this obligation by ensuring that the proposed measures and their final versions are published on, or otherwise accessible through, the WTO's official website.(28) For Mexico, a representative office shall not be considered as an enterprise, unless it is established as a branch.(29) In line with its notification of the Treaty establishing the European Community to the WTO (WT/REG39/1), the European Union understands that the concept of an "effective and continuous link" with the economy of a Member State of the European Union enshrined in Article 54 of the TFEU is equivalent to the concept of "substantive business operations".(30) For greater certainty, a branch or a representative office of an enterprise of a third country shall not be considered to be an enterprise of the European Union or an enterprise of Mexico.(31) The term "acquisition" includes capital participation in an enterprise with a view to establishing or maintaining lasting economic links.(32) For greater certainty, returns that are reinvested shall be treated as investments as long as they comply with the definition of investment under this Article.(33) Some forms of debt such as bonds, loans, debentures and long term notes, are more likely to have characteristics of an investment, while other forms of debt are less likely to have such characteristics.(34) For greater certainty, market share, market access, expected gains, and opportunities for profit-making are not, by themselves, investments.(35) For greater certainty, this Chapter covers measures by entities listed under subparagraphs (a) and (b), which are adopted or maintained either directly or indirectly by instructing, directing or controlling other entities with regard to those measures.(36) For the European Union, without prejudice to the scope of activities which may be considered as cabotage under the relevant national legislation, national maritime cabotage under this Chapter covers transportation of passengers or goods between a port or point located in a Member State of the European Union and another port or point located in that same Member State of the European Union, including on its continental shelf, as provided in the United Nations Convention on the Law of the Sea, and traffic originating and terminating in the same port or point located in a Member State of the European Union.For Mexico, national maritime cabotage under this Chapter covers the navigation that any vessel performs by sea, between ports or places located within the Mexican marine zones and Mexican shores.(37) For greater certainty, "air services or related services in support of air services" also include the following services: rental of aircraft with crew, airport operation services and services provided by using an aircraft whose primary purpose is not the transportation of goods or passengers, such as aerial fire-fighting, flight training, sightseeing, spraying, surveying, mapping, photography, parachute jumping, glider towing, helicopter-lift for logging and construction, and other airborne agricultural, industrial and inspection services.(38) For greater certainty, subsidies are covered under Chapter 24 (Subsidies).(39) Subparagraphs 2(a), (b) and (c) do not cover measures adopted or maintained in order to limit the production of an agricultural or fishery product.(40) For greater certainty, a condition for the receipt or continued receipt of an advantage referred to in paragraph 2 does not constitute a "commitment or undertaking" for the purposes of paragraph 1.(41) For the European Union, "subsidy" includes any aid granted by a Member State of the European Union or through state resources of such Member State, which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods and affects trade between the Member States of the European Union.(42) For greater certainty, in determining whether a measure or series of measures amount to a breach of fair and equitable treatment, the Tribunal shall take into account, among others, the following:(a) with regard to subparagraphs 2(a) and (b), whether the measure or series of measures involve gross misconduct that offends judicial propriety; the mere fact that an investor's challenge of the impugned measure in domestic proceeding has been rejected or dismissed or has otherwise failed does not in itself constitute a denial of justice as referred to in subparagraph 2(a);(b) with regard to subparagraph 2(c), whether the measure or series of measures were patently not founded on reason or fact, or were patently founded on illegitimate grounds such as prejudice or bias; the mere illegality, or a merely inconsistent or questionable application of a policy or procedure, does not in itself constitute manifest arbitrariness as referred to in subparagraph 2(c), while a total and unjustified repudiation of a law or regulation, or a measure without reason, or a conduct that is specifically targeted to the investor or its covered investment with the purpose of causing damage are likely to constitute manifest arbitrariness as referred to in subparagraph 2(c); and(c) with regard to subparagraph 2(d), whether a Party acted ultra vires and whether the episodes of alleged harassment or coercion were repeated and sustained.(43) For greater certainty, the term "revocation" with respect to intellectual property rights includes the cancellation or nullification of those rights, and the term "limitation" with respect to intellectual property rights includes exceptions to those rights.(44) For greater certainty, a claim submitted pursuant to subparagraph (b) shall be deemed to relate to a dispute between a Contracting State and a national of another Contracting State for the purposes of paragraph 1 of Article 25 of the ICSID Convention.(45) For greater certainty, for the purposes of this Section, the Parties understand that Articles 10.7.2 and 10.8.2 do not cover the acquisition of an enterprise in the European Union or in Mexico with a view to establishing or maintaining lasting economic links, including where such an acquisition is made through a capital participation or an increase in such capital participation in an enterprise.(46) For greater certainty, the same loss or damage referred to in this subparagraph and subparagraph (b) means loss or damage flowing from the same measure or measures which the person seeks to recover in the same capacity as the claimant. For example, if the claimant sues as a shareholder, this provision would cover a related person also pursuing recovery as a shareholder.(47) The Parties shall endeavour to appoint Members representative of diverse socioeconomic conditions and legal traditions.(48) For greater certainty, the mere fact that a person is employed by a public university, or that a former government employee is receiving a pension from the government, or has a family relationship with a government official is not in itself a reason to be considered as affiliated with a government.(49) For greater certainty, confidential business information includes information that is not in the public domain and which describes, contains or otherwise reveals trade secrets or financial, commercial, scientific or technical information that has been consistently treated as confidential information by the disputing party to whom it is related, including but not limited to information on prices, costs, strategic and marketing plans, market share data, and accounting or financial records.(50) For greater certainty, the term protected information shall be understood as defined in and determined pursuant to Article 10.38.(51) For greater certainty, this does not prevent a disputing party from requesting the Tribunal to revise or interpret an award in accordance with the applicable dispute settlement rules where this possibility is available under those rules.(52) For greater certainty, the provisions for termination under Article 10.53 shall supersede the corresponding provisions on termination of the Agreements listed in Annex 10-C (Agreements between Member States of the European Union and Mexico) on the date of entry into force of this Agreement.(53) In line with its notification of the Treaty establishing the European Community to the WTO (WT/REG39/1), the European Union understands that the concept of an "effective and continuous link" with the economy of a Member State of the European Union enshrined in Article 54 of the TFEU is equivalent to the concept of "substantive business operations".(54) For greater certainty, a branch or a representative office of an enterprise of a third country shall not be considered to be an enterprise of the European Union or an enterprise of Mexico.(55) For the European Union, without prejudice to the scope of activities which may be considered as cabotage under the relevant national legislation, national maritime cabotage under this Chapter covers transportation of passengers or goods between a port or point located in a Member State of the European Union and another port or point located in that same Member State of the European Union, including on its continental shelf, as provided in the United Nations Convention on the Law of the Sea; and traffic originating and terminating in the same port or point located in a Member State of the European Union.For Mexico, national maritime cabotage under this Chapter covers the navigation that any vessel performs by sea, between ports or places located within the Mexican marine zones and Mexican shores.(56) For greater certainty, subsidies are covered under Chapter 24 (Subsidies).(57) For greater certainty, air services or related services in support of air services also include: rental of aircraft with crew, airport operation services and services provided by using an aircraft whose primary purpose is not the transportation of goods or passengers, such as aerial fire-fighting, flight training, sightseeing, spraying, surveying, mapping, photography, parachute jumping, glider towing, helicopter-lift for logging and construction, and other airborne agricultural, industrial and inspection services.(58) The service contract referred to in subparagraph (c) shall comply with the requirements of the laws and regulations of the Party where the contract is executed.(59) The service contract referred to in subparagraph (d) shall comply with the requirements of the laws and regulations of the Party where the contract is executed.(60) For greater certainty, managers or executives and specialists may be required to demonstrate that they possess the professional qualifications and experience needed in the enterprise to which they are transferred.(61) For greater certainty, while managers or executives do not directly perform tasks concerning the actual supply of the services, they may, in the course of executing their duties to primarily direct the management of the enterprise, perform tasks that may be necessary for the provision of the services.(62) The recipient enterprise may be required to submit a training programme covering the duration of the stay for prior approval, demonstrating that the purpose of the stay is for training. For Czechia, Germany, Spain, France, Hungary Lithuania and Austria, training must be linked to the university degree which has been obtained.(63) The length of stay for business visitors for investment purposes is without prejudice to the rights granted by a Party to nationals or citizens of the other Party under bilateral visa waivers.(64) For greater certainty, as far as measures relating to technical standards are concerned, this Chapter only applies to such measures affecting trade in services.(65) For greater certainty, competent authorities may assess the weight to be given to those criteria which may include competence, ability to supply a service or any other economic activity, and potential health or environmental impacts of an authorisation decision.(66) For greater certainty, a Party may require multiple applications for authorisation if a service or other economic activity is within the jurisdiction of multiple competent authorities.(67) Authorisation fees include licensing fees and fees relating to qualification procedures; they do not include fees for the use of natural resources, payments for auction, tendering or other non‑discriminatory means of awarding concessions, or mandated contributions to universal service provision.(68) The competent authorities can meet this requirement by informing an applicant in advance in writing, including through a published measure, that lack of response after a specified period of time from the date of submission of the application indicates either acceptance or rejection of the application. For greater certainty, informing in writing may include information provided in electronic form.(69) For greater certainty, such opportunity does not require a competent authority to provide extensions of deadlines.Top
Chapter 16. TELECOMMUNICATIONS SERVICES
ARTICLE 16.1
Definitions
For the purposes of this Chapter:
(a) "associated facilities" means services, physical infrastructures and other facilities associated with a telecommunications network or service which enable or support the provision of services via that network or service or have the potential to do so;
(b) "end user" means a final consumer of, or subscriber to, a public telecommunications service, including a service supplier other than a supplier of public telecommunications services;
(c) "essential facilities" means facilities of a public telecommunications network or 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;
(d) "interconnection" means linking the public telecommunications networks of suppliers providing public telecommunications services in order to allow the users of one supplier to communicate with users of another supplier and to access services provided by any supplier that is either involved or has access to the network;
(e) "intra-corporate communications" means telecommunications through which an enterprise communicates within the enterprise or with or among its subsidiaries, branches and, subject to the law of the Party concerned, affiliates, but does not include commercial or non-commercial services that are supplied to enterprises that are not related subsidiaries, branches or affiliates, or that are offered to customers or potential customers; 1
(f) "leased circuits" means telecommunications services or facilities, including those of a virtual or non-physical nature, between two or more designated points that are set aside for the dedicated use of, or availability to, a user;
(g) "licence" means any authorisation that a Party may require of a natural person or an enterprise, in accordance with its law, in order to offer a telecommunications service, including but not limited to concessions, permits, registrations or notifications;
(h) "major supplier" means a supplier of telecommunications networks or services which has the ability to materially affect the terms of participation, having regard to price and supply, in a relevant market for public telecommunications networks or services as a result of control over essential facilities or the use of its position in that market;
(i) "network element" means a facility or equipment used in supplying a telecommunications service, including features, functions and capabilities provided by means of that facility or equipment;
(j) "non-discriminatory" means complying with most-favoured-nation treatment as defined in Articles 10.8 (Most-Favoured-Nation Treatment) and 11.7 (Most-Favoured-Nation Treatment) and national treatment as defined in Articles10.7 (National Treatment) and 11.6 (National Treatment), as well as according treatment no less favourable than that accorded to any other user of like public telecommunications services in like situations, including with respect to timeliness;
(k) "number portability" means the ability of end users of public telecommunications services who so request to retain, at the same location in the case of a fixed line, the same telephone numbers when switching between the same category of suppliers of public telecommunications services.
(l) "public telecommunications network" means a telecommunications network used for the provision of public telecommunications services between network termination points;
(m) "public telecommunications service" means a telecommunications service that is offered to the public generally;
(n) "reference interconnection offer" means an interconnection offer by a major supplier that is made publicly available, so that any supplier of public telecommunications services willing to accept the offer may obtain interconnection with the major supplier on that basis;
(o) "telecommunications" means the transmission and reception of signals by wire, radio, optical or any other electromagnetic means;
(p) "telecommunications network" means transmission systems and, where applicable, switching or routing equipment and other resources, including inactive network elements, which permit telecommunications;
(q) "telecommunications regulatory authority" means the body or bodies responsible for the regulation of telecommunications networks and services covered by this Chapter;
(r) "telecommunications service" means a service which consists wholly or mainly in the transmission and reception of signals over telecommunications networks, including over networks used for broadcasting, but does not include services providing, or exercising editorial control over, content transmitted using telecommunications networks and services;
(s) "universal service" means the minimum set of services that must be made available to all users in the territory of a Party, the scope of which is defined by that Party; and
(t) "user" means a consumer or a service supplier using a public telecommunications network or service.
ARTICLE 16.2
Scope and Principles of the Regulatory Framework
1. This Chapter sets out principles of the regulatory framework for the provision of telecommunications networks and services, liberalised pursuant to Chapters 10 (Investment) and 11 (Cross-Border Trade in Services), and applies to measures adopted or maintained by a Party affecting trade in public telecommunications services.
2. For greater certainty, this Chapter does not apply to measures adopted or maintained by a Party affecting services providing, or exercising editorial control over, content transmitted using telecommunications networks or services.
ARTICLE 16.3
Telecommunications Regulatory Authority
1. Each Party shall ensure that its telecommunications regulatory authority is legally distinct and functionally independent from any supplier of public telecommunications networks or services, or telecommunications equipment. With a view to ensuring the independence and impartiality of telecommunications regulatory authorities, each Party shall ensure that its telecommunications regulatory authority does not hold a financial interest or maintain an operating or management role in any supplier of public telecommunications networks or services, or telecommunications equipment. A Party that retains ownership or control of suppliers of telecommunications networks or services shall ensure effective structural separation of the regulatory function from activities associated with ownership or control.
2. Each Party shall ensure that regulatory decisions and procedures of its telecommunications regulatory authority, related to this Chapter, are impartial with respect to all market participants.
3. Each Party shall ensure that its telecommunications regulatory authority acts independently and does not seek or take instructions from any other body in relation to the exercise of the tasks assigned to it under the law of a Party to enforce the obligations set out in Articles 16.5, 16.6, 16.7, 16.9 and 16.10.
4. Each Party shall ensure that its telecommunications regulatory authority has the regulatory power, as well as adequate financial and human resources, to carry out the tasks assigned to it in order to enforce the obligations set out in this Chapter. Such power shall be exercised in a transparent and timely manner. The tasks of the telecommunications 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.
5. Each Party shall provide its telecommunications regulatory authority with the power to ensure that suppliers of telecommunications networks or services provide it, promptly upon request, with all the information, including financial information, which is necessary to enable the telecommunications regulatory authority to carry out its tasks in accordance with this Chapter. Information received shall be treated in accordance with the applicable confidentiality requirements of the Parties.
6. Each Party shall ensure that a user or supplier of telecommunications networks or services affected by a decision of the telecommunications regulatory authority has the right to challenge that decision before a body that is independent of the telecommunications regulatory authority and of the parties affected by the decision 2 . Pending the outcome of this procedure, the decision of the telecommunications regulatory authority shall stand, unless interim measures are granted in accordance with the law of the Party concerned.
ARTICLE 16.4
Licensing Procedures
1. If a Party requires a supplier of public telecommunications networks or services to have a licence, it shall ensure that the following information is publicly available:
(a) the types of telecommunications services requiring licences;
(b) all the licensing criteria and procedures it applies;
(c) the period of time it normally requires to reach a decision concerning an application for a licence if a decision is required; and
(d) the terms and conditions generally applicable to a licence.
2. A Party requiring a supplier of public telecommunications networks or services to have a licence shall decide upon the granting of the licence within a reasonable period of time so as to allow the supplier to start providing its telecommunications networks or services without undue delay.
3. Any licensing criteria, applicable procedures and, if imposed, obligations or conditions, shall be related to the telecommunications services provided, objective, proportionate, transparent and non-discriminatory.
4. Each Party shall ensure that an applicant or a licensee receives, as a procedural requirement or upon request, the written reasons for:
(a) denial of a licence;
(b) imposition of supplier-specific conditions or obligations on a licence;
(c) revocation of the licence; or
(d) refusal to renew a licence.
5. Any administrative fees imposed on suppliers shall be objective, transparent, non-discriminatory and proportionate to the administrative costs reasonably incurred in the management, control and enforcement of the obligations set out in this Chapter. 3
ARTICLE 16.5
Interconnection
Each Party shall ensure that a supplier of public telecommunications networks or services has the right and, when requested by another supplier of public telecommunications networks or services, the obligation to negotiate interconnection for the purposes of providing public telecommunications networks or services.
ARTICLE 16.6
Access to and Use of Public Telecommunications Networks and Services
1. Each Party shall ensure that any service supplier of the other Party is accorded access to, and use of, public telecommunications networks or services, including leased circuits, offered in its territory or across its borders on reasonable and non-discriminatory terms and conditions, for the supply of a service liberalised pursuant to Chapters 10 (Investment) and 11 (Cross Border Trade in Services). This obligation shall be implemented, inter alia, by complying with paragraphs 2 to 6.
2. Each Party shall ensure that a service supplier of the other Party is permitted to:
(a) purchase or lease and attach terminal or other equipment which interfaces with a public telecommunications network;
(b) provide services to individual or multiple end users over leased or owned circuits;
(c) connect private leased or owned circuits with public telecommunications networks and services or with circuits leased or owned by another service supplier; and
(d) use operating protocols of the service supplier's choice in the supply of any service, other than as necessary to ensure the availability of telecommunications services to the public generally.
3. Each Party shall ensure that service suppliers of the other Party may use public telecommunications networks and services for the movement of information in its territory or across its borders, including for intra-corporate communications of such service suppliers, and for access to information contained in databases or otherwise stored in machine-readable form in the territory of either Party.
4. Notwithstanding paragraph 3, a Party may adopt or maintain measures that are necessary to ensure the security and confidentiality of communications, subject to the requirement that those measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade in services.
5. Each Party shall ensure that no condition is imposed on access to and use of public telecommunications networks and services other than necessary to:
(a) safeguard the public service responsibilities of suppliers of public telecommunications networks or services, in particular their ability to make their public telecommunication services available to the public generally; or
(b) protect the technical integrity of public telecommunications networks or services;
6. Provided that they satisfy the criteria set out in paragraph 5, the conditions for access to and use of public telecommunications networks and services may include:
(a) restrictions on resale or shared use of those services;
(b) a requirement to use specified technical interfaces, including interface protocols, for interconnection with those networks and services;
(c) requirements, if necessary, for the interoperability of those services and for encouraging the achievement of the goals set out in Article 16.18;
(d) type approval of terminal or other equipment which interfaces with the network and technical requirements relating to the attachment of that equipment to those networks;
(e) restrictions on interconnection of private leased or owned circuits with those networks or services or with circuits leased or owned by another service supplier; or
(f) notification, registration and licensing requirements.
ARTICLE 16.7
Resolution of Disputes on Telecommunications
1. Each Party shall ensure that in a dispute arising between suppliers of telecommunications networks or services in connection with rights and obligations set out in this Chapter, its telecommunications regulatory authority issues at the request of either party involved in the dispute, a binding decision to resolve the dispute within the timeframe stipulated in the law of that Party.
2. Each Party shall ensure that the decision issued by the telecommunications regulatory authority is made available to the public, having regard to the requirements of business confidentiality. Each Party shall ensure that the parties involved in the dispute receive a full statement of the reasons on which the decision is based and have the right to challenge that decision in accordance with Article 16.3.6.
3. Paragraphs 1 and 2 shall not preclude a party involved in the dispute from bringing an action before the judicial authorities. 4
ARTICLE 16.8
Competitive Safeguards on Major Suppliers
1. Each Party shall adopt or maintain appropriate measures for the purpose of preventing suppliers of public telecommunications networks or services that, alone or together, are a major supplier from engaging in or continuing anticompetitive practices.
2. The anticompetitive practices referred to in paragraph 1 include in particular:
(a) engaging anticompetitive cross-subsidisation;
(b) using information obtained from competitors with anticompetitive results; and
(c) not making available to other services suppliers on a timely basis technical information about essential facilities and commercially relevant information which is necessary for them to provide services.
ARTICLE 16.9
Interconnection with Major Suppliers
1. Each Party shall ensure that a major supplier of public telecommunications networks and services in its territory provides interconnection with suppliers of public telecommunications services of the other Party:
(a) at any technically feasible point in the network of that major supplier;
(b) on non-discriminatory terms and conditions including as regards rates, technical standards, specifications, quality and maintenance;
(c) of a quality no less favourable than that provided for its own like services, or for like services of its subsidiaries or other affiliates;
(d) in a timely fashion, and on terms and conditions, including rates 5 , technical standards and specifications, that are transparent, reasonable, having regard to economic feasibility, and sufficiently unbundled so that the suppliers of public telecommunications services do not need to pay for network components or facilities that they do not require for the service to be provided; and
(e) on 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 the necessary additional facilities.
2. Each Party shall ensure that major suppliers in its territory make publicly available, as appropriate, either:
(a) a reference interconnection offer or another standard interconnection offer containing the terms and conditions, and rates that the major supplier offers generally to suppliers of public telecommunications services; or
(b) the terms and conditions of an interconnection agreement in effect.
3. Each Party shall make publicly available the applicable procedures for interconnection negotiations with a major supplier in its territory.
ARTICLE 16.10
Access to Essential Facilities
1. Each Party shall ensure that a major supplier in its territory grants access to its essential facilities to suppliers of public telecommunications networks or services on reasonable, transparent and non-discriminatory terms and conditions based on a generally available offer for the purpose of providing public telecommunications services, except when this is not necessary to achieve effective competition on the basis of the facts collected and the assessment of market conditions conducted by the telecommunications regulatory authority. The essential facilities of a major supplier may include network elements, leased circuits services and associated facilities.
2. Each Party shall provide its telecommunications regulatory authority with the power to determine the essential facilities required to be made available in its territory by a major supplier, and to what extent those essential facilities are to be unbundled. Such determination shall be based, among others, on the objective of achieving effective competition and the benefit of the long-term interest of end users.
3. If a Party requires a major supplier to offer its public telecommunications services for resale, it shall ensure that the major supplier does not impose unreasonable or discriminatory conditions on the resale of its public telecommunications services.
ARTICLE 16.11
Scarce Resources
1. Each Party shall ensure that the allocation and granting of rights of use of scarce resources, including radio spectrum, numbers and rights of way, is carried out in an open, objective, timely, transparent, non-discriminatory and proportionate manner and in pursuit of general interest objectives, including the promotion of competition. Procedures, and conditions and obligations attached to rights of use, shall be based on objective, transparent, non-discriminatory and proportionate criteria.
2. Each Party shall ensure that the current use of allocated frequency bands is made publicly available, but detailed identification of radio spectrum allocated for specific government purposes is not required.
3. A Party may rely on market-based approaches, such as bidding procedures, to assign radio spectrum for commercial use.
4. Measures of a Party allocating and assigning radio spectrum and managing frequency are not per se inconsistent with Articles 10.6 (Market Access) and 11.4 (Market Access). Each Party retains the right to adopt and maintain spectrum and frequency management measures that may have the effect of limiting the number of suppliers of telecommunications services, provided those measures are consistent with other provisions of this Agreement. This right includes the ability to allocate frequency bands taking into account current and future needs and radio spectrum availability.
ARTICLE 16.12
Number Portability
Each Party shall ensure within its territory that suppliers of public telecommunications services provide number portability on a timely basis, without impairment of quality, reliability or convenience, and on reasonable and non-discriminatory terms and conditions.
ARTICLE 16.13
Universal Service
1. Each Party has the right to define the kind of universal service obligations it wishes to maintain.
2. Each Party shall administer any universal service obligation in a manner that is transparent, non-discriminatory and neutral with respect to competition. Each Party shall ensure that any universal service obligation it imposes is not more burdensome than necessary for the kind of universal service that it has defined. Universal service obligations defined according to these principles shall not be regarded per se as anticompetitive.
3. Each Party shall ensure that procedures for the designation of universal service suppliers are open to all suppliers of public telecommunications networks or services. The designation shall be made through an efficient, transparent and non-discriminatory mechanism.
4. If a Party decides to compensate the suppliers of universal services, it shall ensure that such compensation does not exceed the needs directly attributable to the universal services obligation, as determined through a competitive process or a determination of net costs.
ARTICLE 16.14
Confidentiality of Information
1. Each Party shall ensure that suppliers of public telecommunications networks or services that acquire information from another supplier of public telecommunications networks or services, in the process of negotiating arrangements pursuant to Articles 16.5, 16.9 or 16.10 use that information solely for the purpose for which it was supplied and respect at all times the confidentiality of that information.
2. Each Party shall ensure the confidentiality of telecommunications and related traffic data transmitted in the use of public telecommunications networks or services, subject to the requirement that measures applied to that end do not constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade in services.
ARTICLE 16.15
Technological Neutrality
The Parties recognise the benefits of technological neutrality, in particular with regard to allowing suppliers of public telecommunications services to choose the technologies they desire to use for supplying their services. A Party may restrict such choice by adopting or maintaining requirements necessary to satisfy legitimate public policy objectives, provided that those requirements do not create unnecessary obstacles to trade.
ARTICLE 16.16
Treatment by Major Suppliers
Each Party shall provide its telecommunications regulatory authority with the power to require, where appropriate, that a major supplier in its territory accords suppliers of public telecommunications networks or services of the other Party treatment no less favourable than that which the major supplier accords in like situations to its subsidiaries or its affiliates, regarding:
(a) the availability, provisioning, rates or quality of like telecommunications services; and