EUROPEAN COMMISSION

Brussels, 11.9.2026

COM(2026) 482 final

ANNEX

to the

Proposal for a Council Decision

on the conclusion of the Free Trade Agreement between the European Union and the Republic of India

FREE TRADE AGREEMENT
BETWEEN THE EUROPEAN UNION
AND THE REPUBLIC OF INDIA

PREAMBLE

THE EUROPEAN UNION, hereinafter also referred to as the "EU",

and

THE REPUBLIC OF INDIA, hereinafter referred to as "India",

hereinafter referred to individually as a "Party" and jointly as the "Parties",

SEEKING to establish a stable and predictable environment with clear and mutually advantageous rules governing trade between the Parties and to reduce or eliminate related barriers;

DESIRING to raise living standards, promote economic growth and stability, create new employment opportunities and improve the general welfare of their peoples and, to this end, affirming their commitment to promote trade;

CONVINCED that this Agreement will create an expanded and secure market for goods and services, thus enhancing the competitiveness of their economies;

RECOGNISING the importance of promoting transparency in international trade to the benefit of all stakeholders;

RECALLING their respective continued commitment to the Paris Agreement adopted by the Conference of the Parties to the United Nations Framework Convention on Climate Change, done at Paris on 12 December 2015 (hereinafter referred to as "Paris Agreement") and its significant relevance to this Agreement;

DETERMINED to address the particular challenges faced by small and medium-sized enterprises in contributing to the development of trade, and to support their growth by enhancing their ability to participate in, and benefit from, the opportunities created by this Agreement; and

AFFIRMING each Party’s right to regulate within its territory in pursuit of its legitimate policy objectives,

HAVE AGREED AS FOLLOWS:

CHAPTER 1

INITIAL PROVISIONS AND GENERAL DEFINITIONS

ARTICLE 1.1

Objectives

The objectives of this Agreement are to liberalise trade and investment, facilitate trade and foster a closer economic relationship between the Parties.

ARTICLE 1.2

Establishment of a free trade area

The Parties establish, by virtue of this Agreement, a free trade area in conformity with Article XXIV of GATT 1994 and Article V of GATS.

ARTICLE 1.3

General definitions

For the purposes of this Agreement, and unless otherwise provided:

(a)    "Agreement" means the Free Trade Agreement between the European Union and the Republic of India;

(b)    "Agreement on Agriculture" means the Agreement on Agriculture in Annex 1A to the WTO Agreement;

(c)    "Anti-dumping Agreement" means the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade 1994 in Annex 1A to the WTO Agreement;

(d)    "CCMAA Agreement" means the Agreement between the European Community and the Republic of India on customs cooperation and mutual administrative assistance in customs matters, done at Brussels on 28 April 2004;

(e)    "customs authority" means:

(i)    for the European Union, the services of the European Commission responsible for customs matters, or, as appropriate, the customs administrations and any other authorities empowered in the Member States or at the level of the European Union to apply and enforce customs laws and regulations; and

(ii)    for India, the Central Board of Indirect Taxes and Customs or its successors;

(f)    "customs duty" means any duty, or charge of equivalent effect imposed on importation of a good, including any form of cess, surtax or surcharge and any other levies on importation, but does not include:

(i)    a charge equivalent to an internal tax imposed consistently with Article III of GATT 1994 including its Notes and Supplementary Provisions;

(ii)    an anti-dumping, special safeguard, countervailing or safeguard duty applied in conformity with the GATT 1994, the Anti-dumping Agreement, the Agreement on Agriculture, the SCM Agreement or the Safeguards Agreement, as appropriate; or

(iii)    a fee or other charge in connection with importation commensurate with the cost of services rendered in conformity with Article 2.9 (Fees and charges);

(g)    "Customs Valuation Agreement" means the Agreement on Implementation of Article VII of the General Agreement on Tariffs and Trade 1994, in Annex 1A to the WTO Agreement;

(h)    "days" means calendar days, including weekends and holidays;

(i)    "DSU" means the Understanding on Rules and Procedures Governing the Settlement of Disputes, in Annex 2 to the WTO Agreement;

(j)    "existing" means in effect on the date of entry into force of this Agreement;

(k)    "GATS" means the General Agreement on Trade in Services, in Annex 1B to the WTO Agreement;

(l)    "GATT 1994" means the General Agreement on Tariffs and Trade 1994, in Annex 1A to the WTO Agreement;

(m)    "good of a Party" means a domestic product as that is understood in GATT 1994, and includes originating goods of that Party;

(n)    "Harmonized System" or "HS" means the Harmonized Commodity Description and Coding System defined in the International Convention on the Harmonized Commodity Description and Coding System, including its General Rules of Interpretation, Section Notes, Chapter Notes and Subheading Notes, developed by the World Customs Organization (hereinafter referred to as "WCO");

(o)    "Import Licensing Agreement" means the Agreement on Import Licensing Procedures, in Annex 1A to the WTO Agreement;

(p)    "juridical person" means any legal entity duly constituted or otherwise organised under applicable law, whether for profit or otherwise, and whether privately-owned or governmentally-owned, including any corporation, trust, partnership, joint venture, sole proprietorship or association;

(q)    "measure" means any measure by a Party 1 , whether in the form of a law, regulation, rule, procedure, decision, administrative action, practice, or any other form;

(r)    "Member State" means a Member State of the European Union;

(s)    "originating" means qualifying as originating under the rules of origin set out in Chapter 3 (Rules of origin and origin procedures);

(t)    "person" means a natural person or a juridical person;

(u)    "preferential tariff treatment" means the application of the duty rate under this Agreement to an originating good pursuant to Article 2.5 (Reduction or elimination of customs duties);

(v)    "Safeguards Agreement" means the Agreement on Safeguards in Annex 1A to the WTO Agreement;

(w)    "sanitary or phytosanitary measure" means any measure referred to in paragraph 1 of Annex A to the SPS Agreement;

(x)    "SCM Agreement" means the Agreement on Subsidies and Countervailing Measures in Annex 1A to the WTO Agreement;

(y)    "SME" means a small or medium-sized enterprise, including a micro-sized enterprise;

(z)    "SPS Agreement" means the Agreement on the Application of Sanitary and Phytosanitary Measures in Annex 1A to the WTO Agreement;

(aa)    "TBT Agreement" means the Agreement on Technical Barriers to Trade in Annex 1A to the WTO Agreement;

(bb)    "territory" means:

(i)    for the European Union, the territories in which the Treaty on European Union and the Treaty on the Functioning of the European Union are applicable, and under the conditions laid down in those Treaties; and

(ii)    for India, the territory of the Republic of India, which includes its land territory, territorial waters, and the airspace above them, as well as other maritime zones including the Exclusive Economic Zone and the continental shelf over which the Republic of India exercises sovereignty, sovereign rights, or exclusive jurisdiction in accordance with its National law(s), rules and regulations and international law including the 1982 United Nations Convention on the Law of the Sea;

(cc)    "Trade Facilitation Agreement" means the Agreement on Trade Facilitation in Annex 1A to the WTO Agreement;

(dd)    "TRIPS Agreement" means the Agreement on Trade-Related Aspects of Intellectual Property Rights in Annex 1C to the WTO Agreement;

(ee)    "UNCLOS" means the United Nations Convention on the Law of the Sea, adopted at Montego Bay on 10 December 1982;

(ff)    "WTO" means the World Trade Organization; and

(gg)    "WTO Agreement" means the Marrakesh Agreement Establishing the World Trade Organization, done on 15 April 1994.

ARTICLE 1.4

Relation to other agreements

1.    The existing agreements between the Member States, the European Community or the European Union, of the one part, and India, of the other part, are not superseded or terminated by this Agreement.

2.    The Parties affirm their rights and obligations with respect to each other under the WTO Agreement. Nothing in this Agreement shall be construed as requiring a Party to act in a manner inconsistent with its obligations under the WTO Agreement.

3.    In the event an inconsistency arises between this Agreement and another agreement to which the Parties are a party, the Parties shall, on request of either Party, promptly consult with each other with a view to finding a mutually satisfactory solution.

ARTICLE 1.5

References to laws, regulations, other agreements and their amendments

1.    Unless otherwise provided for in this Agreement, any reference in this Agreement to laws or regulations of a Party shall be understood to include amendments thereto.

2.    Unless otherwise provided for in this Agreement, where international agreements are referred to or are incorporated into this Agreement, in whole or in part, they shall be understood to include amendments thereto, or their successor agreements, that enter into force for both Parties on or after the date of signature of this Agreement, unless a Party objects. In the event of such objection, the Parties shall, on request of either Party, promptly consult with each other with a view to finding a mutually satisfactory solution to this matter.

ARTICLE 1.6

Territorial application

1.    This Agreement applies to the territory set out in point (bb) of Article 1.3 (General definitions).

2.    As regards the provisions of this Agreement concerning the tariff treatment of goods, including rules of origin and the temporary suspension of this treatment, this Agreement also applies to those areas of the customs territory of the European Union, as defined by Article 4 of Regulation (EU) No 952/2013 of the European Parliament and of the Council of 9 October 2013 laying down the Union Customs Code, not covered by paragraph 1.

CHAPTER 2

TRADE IN GOODS

ARTICLE 2.1

Objective

The Parties shall progressively and mutually liberalise trade in goods in accordance with this Agreement.

ARTICLE 2.2

Scope

Unless otherwise provided for in this Agreement, this Chapter applies to trade in goods of a Party.

ARTICLE 2.3

Definitions

For the purposes of this Chapter:

(a)    "consular transactions" means the procedure of obtaining from a consul of the importing Party in the territory of the exporting Party, or in the territory of a third country, a consular invoice or consular visa for a commercial invoice, certificate of origin, manifest, shipper's export declaration or any other customs documentation in connection with the importation of a good;

(b)    "export licensing procedures" means an administrative procedure requiring the submission of an application or other documentation, other than that generally required for customs purposes, to the relevant administrative body or bodies as a prior condition for exportation from the territory of the exporting Party;

(c)    "import licensing procedure" means an administrative procedure requiring the submission of an application or other documentation, other than that generally required for customs purposes, to the relevant administrative body or bodies as a prior condition for importation into the territory of the importing Party; and

(d)    "repair or alteration" means any processing operation undertaken on a good to remedy operating defects or material damage and entailing the re-establishment of the good to its original function or to ensure compliance with technical requirements for its use, without which the good could no longer be used in the normal way for the purposes for which it was intended. Repair or alteration of goods includes restoration and maintenance but does not include an operation or process that:

(i)    destroys the essential characteristics of a good, or creates a new or commercially different good;

(ii)    transforms an unfinished good into a finished good; or

(iii)    is used to improve or upgrade the technical performance or change the function of a good.

ARTICLE 2.4

National treatment on internal taxation and regulation

1.    Each Party shall accord national treatment to the goods of the other Party in accordance with Article III of GATT 1994, including its Notes and Supplementary Provisions. To this end, Article III of GATT 1994 and its Notes and Supplementary Provisions are incorporated into and made part of this Agreement, mutatis mutandis.

2.    The treatment to be accorded by a Party under paragraph 1 means, with respect to a sub‑central level of government, treatment no less favourable than the most favourable treatment that sub-central level of government accords to any like goods of that Party.

ARTICLE 2.5

Reduction or elimination of customs duties

1.    Unless otherwise provided for in this Agreement, each Party shall reduce or eliminate customs duties on goods originating in the other Party in accordance with its schedule in Annex 2-A (Schedules of tariff commitments).

2.    For the purposes of paragraph 1, the base rate of customs duties shall be the "Base Rate" which is specified for each good in the schedules in Annex 2-A (Schedules of tariff commitments).

3.    If a Party reduces its applied most-favoured-nation customs duty rate below the rate of customs duty applied in accordance with its schedule in Annex 2-A (Schedules of tariff commitments), the good originating in the other Party shall be eligible for that lower duty rate.

4.    On request of a Party, the Parties shall consult to consider accelerating the reduction or elimination of customs duties set out in the schedules in Annex 2-A (Schedules of tariff commitments) or broadening the scope of tariff reduction or elimination under this Agreement. The Joint Committee may take a decision to amend Annex 2-A (Schedules of tariff commitments) to accelerate or broaden the scope of the tariff reduction or elimination.

ARTICLE 2.6

Classification of goods and transposition of schedules

1.    For the purposes of this Agreement, the classification of goods in trade between the Parties shall be governed by each Party's respective tariff nomenclature in conformity with the Harmonized System and its legal notes and amendments.

2.    Each Party shall ensure that the transposition of its schedule of tariff commitments, undertaken in order to implement Annex 2-A (Schedules of tariff commitments) and Annex 2-B (Steel tariff rate quotas) in the nomenclature of the revised HS Code following periodic amendments to the HS Code, is carried out without impairing or diminishing the tariff commitments set out in Annex 2-A (Schedules of tariff commitments) and Annex 2-B (Steel tariff rate quotas).

ARTICLE 2.7

Modification of concessions

1.    In exceptional circumstances, where a Party faces unforeseen difficulties in implementing its tariff commitments, that Party may request the other Party to enter into discussions for the purpose of modifying or withdrawing a concession contained in Annex 2-A (Schedules of tariff commitments) and Annex 2-B (Steel tariff rate quotas). The Party proposing to modify or withdraw a concession shall maintain a level of reciprocal and mutually advantageous concession to the other Party.

2.    If the Parties agree on such modification or withdrawal of a concession, the Joint Committee shall adopt a decision to amend Annex 2-A (Schedules of tariff commitments) or Annex 2-B (Steel tariff rate quotas) in accordance with point (d)(i) of Article 18.2(2) (Functions of the Joint Committee).

ARTICLE 2.8

Export duties, taxes or other charges

1.    If a Party intends to introduce a new duty, tax or other charge, or to increase the level of an existing duty, tax or other charge on, or in connection with, the exportation of a good, it shall notify the other Party as soon as practicable and, in any event, immediately after the adoption of any new measure.

2.    On request of the Party affected by such a measure, the other Party shall provide information necessary to facilitate an examination of the impact of that measure on the trade between the Parties, to the extent practicable.

3.    Thereafter, the affected Party may request consultations with the other Party in the Committee on Trade in Goods. The Parties shall enter into consultations as soon as practicable. The Parties shall conduct such consultations with the objective of addressing any adverse effects on trade.

4.    The Parties shall protect any information designated as confidential.

5.    This Article does not apply to goods classified under HS chapters 1 to 24.

6.    Nothing in this Article shall affect the rights and obligations of the Parties under GATT 1994 in respect of duties, taxes or other charges on, or in connection with, the exportation of goods.

ARTICLE 2.9

Fees and charges

1.    Each Party shall prohibit administrative fees having an equivalent effect to an import or export duty or charge.

2.    Each Party shall ensure that fees, charges, formalities and requirements, other than import and export customs duties and measures listed in point (f) of Article 1.3 (General definitions), are consistent with the Parties' obligations under Article VIII of GATT 1994, including its Notes and Supplementary Provisions.

3.    The Parties' customs authorities shall not impose charges for the performance of customs controls or any other application of the customs legislation during the official opening hours of their competent customs offices.

4.    Notwithstanding paragraph 3, the Parties' customs authorities may impose charges or recover costs where specific services are rendered, in particular the following:

(a)    attendance, where requested, by customs staff outside official office hours or at premises other than customs premises;

(b)    analyses or expert reports on goods and postal fees for the return of goods to an applicant;

(c)    the examination or sampling of goods for verification purposes, or the destruction of goods, where costs other than the cost of using customs staff are involved; or

(d)    exceptional control measures, where these are necessary due to the nature of the goods or to a potential risk.

5.    Charges shall not exceed the approximate cost of the service provided, and shall not represent direct or indirect protection for domestic goods or a taxation of imports for fiscal purposes. Charges shall not be calculated on an ad valorem basis except where the charges payable in a specific instance as a result of that calculation are demonstrably lower than the approximate cost of the service provided.

6.    Without prejudice to the Parties' right to impose fees or charges under the conditions set in this Article, the fees or charges shall not reduce or nullify the tariff concessions provided under this Agreement.

7.    The information on fees and charges shall be published via an officially designated medium and, if feasible and possible, on an official website. Such information shall include the reason or description for the fees or charges for the service provided, the responsible authority, the fees and charges that will be applied, and when and how payment is to be made. New or amended fees and charges shall not be imposed until information in accordance with this paragraph is published and made readily available.

8.    No Party shall require consular transactions, including related fees and charges, in connection with the importation of any good of the other Party.

ARTICLE 2.10

Repaired goods

1.    A Party shall not apply a customs duty to a good, regardless of its origin, that re-enters the Party's customs territory after that good has been temporarily exported from its customs territory to the customs territory of the other Party for repair or alteration, except that a customs duty of the good under repair or alteration may be applied to the value added resulting from the repair or alteration (including cost of material used in repairs, insurance and freight charges both ways) that was performed in the territory of the other Party, in accordance with the schedules in Annex 2-A (Schedules of tariff commitments).

2.    Paragraph 1 does not apply to a good that has not entered into free circulation in a Party prior to being exported for the repair or alteration.

3.    A Party shall not apply a customs duty to a good, regardless of its origin, imported temporarily 2 from the customs territory of the other Party for repair or alteration.

ARTICLE 2.11

Import and export restrictions

A Party shall not adopt or maintain any prohibition or restriction on the importation of any good of the other Party or on the exportation or sale for export of any good destined for the territory of the other Party, except in accordance with Article XI of GATT 1994, including its Notes and Supplementary Provisions, or subparagraphs (b) and (c) of Article 11(1) of the Safeguards Agreement. To this end, Article XI of GATT 1994 and its Notes and Supplementary Provisions and subparagraphs (b) and (c) of Article 11(1) of the Safeguards Agreement, respectively, are incorporated into and made part of this Agreement, mutatis mutandis.

ARTICLE 2.12

Pre-shipment inspections

1.    A Party shall not require the mandatory use of pre-shipment inspection activities within the meaning of Article 1(3) of the Agreement on Pre-shipment Inspection in Annex 1A to the WTO Agreement (hereinafter referred to as "Agreement on Pre-shipment Inspection") except for safety and security purposes. 3 To this end, Articles 1 and 2 of the Agreement on Pre-shipment Inspection and Article 10(5) of the Trade Facilitation Agreement are incorporated into and made part of this Agreement, mutatis mutandis.

2.    The Parties shall cooperate with a view to reaching a solution on issues related to pre‑shipment inspection activities.

ARTICLE 2.13

State trading enterprises

1.    With respect to state trading enterprises, including import and export monopolies, Article XVII of GATT 1994, including its Notes and Supplementary Provisions, and the Understanding on the Interpretation of Article XVII of GATT 1994 are incorporated into and made part of this Agreement, mutatis mutandis.

2.    For the purposes of this Article, import and export monopoly means the grant of an exclusive right or authority by a Party to an entity to import from or export to the other Party.

ARTICLE 2.14

Origin marking

1.    Where India requires a mark of origin on the importation of goods from the European Union, India shall accept the origin mark "Made in the EU" or the equivalent in a language in accordance with the Indian origin marking requirements under conditions that are no less favourable than those applied to marks of origin of Member States.

2.    For the purposes of the origin mark "Made in the EU", India shall treat the European Union as a single territory.

ARTICLE 2.15

Import licensing procedures

1.    Each Party shall ensure that all import licensing procedures are neutral in application, and administered in a fair, equitable, predictable and transparent manner.

2.    A Party shall adopt, maintain or administer import licensing procedures which are consistent with the Import Licensing Agreement, including its Interpretative Notes, and to that end, Articles 1 to 3 of the Import Licensing Agreement and its Interpretive Notes pertaining to those Articles are incorporated into and made part of this Agreement, mutatis mutandis.

3.    A Party that adopts new import licensing procedures or modifies existing import licensing procedures shall notify the other Party of such procedures within 60 days after the date of publication of the relevant procedure. The notification shall include the information specified in Article 5(2) of the Import Licensing Agreement. A Party shall be deemed to be in compliance with this provision if it has notified the relevant new import licensing procedure, or any modifications to existing import licensing procedures, to the Committee on Import Licensing established by Article 4 of the Import Licensing Agreement, including the information specified in Article 5(2) of that agreement.

4.    On request of a Party, the other Party shall promptly provide any relevant information, including the information specified in Article 5(2) of the Import Licensing Agreement, regarding any import licensing procedure that it has adopted or maintains, and wherever feasible, the procedures that it intends to adopt, or modifications to existing import licensing procedures.

5.    Where a Party denies, in part or in full, an import licence application in respect of a good of the other Party, it shall, on request of the applicant, promptly and no later than 30 days after receiving the request, provide the applicant with a written explanation of the reasons for the denial and, if applicable, the procedures for resubmission of an application. An applicant shall not be prevented from submitting another application solely on the basis of a previously rejected application.

6.    The applicant shall have the right of appeal or review to judicial, arbitral or administrative tribunals or procedures that shall be independent of the agencies entrusted with administrative enforcement in accordance with the laws and regulations or procedures of the importing Party.

ARTICLE 2.16

Export licensing procedures

1.    Each Party shall publish any new export licensing procedure, or any modification to an existing export licensing procedure, in such a manner as to enable governments, traders and other interested parties to become acquainted with them. Such publication shall take place, whenever possible, before the procedure or modification takes effect but no later than the date on which such procedure or modification takes effect.

2.    The publication of export licensing procedures shall include the following information:

(a)    the texts of its export licensing procedures, or of any modifications it makes to those procedures, including a description of the goods subject to each export licensing procedure, the process for applying for a licence and any criteria an applicant must meet to be eligible to apply for an export licence and the administrative body or bodies to which an application or other relevant documentation should be submitted; and

(b)    a contact point or points from which interested persons can obtain further information on the conditions for obtaining an export licence.

3.    Each Party shall notify the other Party of its existing export licensing procedures, unless available publicly. A Party that adopts new export licensing procedures, or modifies existing licensing procedures, shall notify the other Party, unless available publicly.

ARTICLE 2.17

Specific measures concerning the management of preferential tariff treatment

1.    The Parties shall cooperate in preventing, detecting and combating breaches or circumventions of customs legislation related to the preferential tariff treatment granted under this Agreement in accordance with their obligations under Chapter 3 (Rules of origin and origin procedures) and the CCMAA Agreement 4 .

2.    A Party may, in accordance with the procedure laid down in paragraph 3, temporarily suspend the relevant preferential tariff treatment of the products concerned when:

(a)    a Party has made a finding, based on objective information, that large-scale and systematic breaches or circumventions of customs legislation related to the preferential tariff treatment granted under this Agreement, have been committed; and

(b)    the other Party repeatedly refuses or otherwise fails to comply with its obligations referred to in paragraph 1.

3.    The Party which has made a finding referred to in paragraph 2 shall, without undue delay, notify the Joint Committee thereof and enter into consultations with the other Party through the Joint Committee with a view to reaching a solution that is acceptable to both Parties.

4.    If the Parties fail to agree on a mutually acceptable solution within two months of the date of notification, the Party which made the finding may decide to suspend temporarily the relevant preferential tariff treatment of the products concerned. In this case, the Party which made the finding shall notify to the Joint Committee the temporary suspension, including the period during which it intends the temporary suspension to apply.

5.    The temporary suspension shall apply only for a period necessary to counteract the breaches or circumventions referred to in paragraph 2 and to protect the financial interests of the Party concerned, and in any case it shall not apply for longer than six months.

6.    The Parties shall keep the situation under review. Where the conditions set out in point (a) or (b) of paragraph 2 that gave rise to the temporary suspension no longer persist, the Party concerned shall cease the temporary suspension without undue delay before the end of the period notified to the Joint Committee.

7.    Where the conditions that gave rise to the initial temporary suspension persist at the expiry of the six-month period, the Party concerned may decide to renew the temporary suspension. Any temporary suspension shall be subject to periodic consultations within the Joint Committee.

8.    Each Party shall publish, in accordance with its internal procedures, notices to importers about any decision concerning temporary suspensions referred to in paragraph 3.

ARTICLE 2.18

Committee on Trade in Goods

The Committee on Trade in Goods is established pursuant to Article 18.3(1) (Specialised committees). In addition to the functions specified in Article 18.4 (Functions of the specialised committees), the Committee on Trade in Goods shall have the following functions:

(a)    promote trade in goods between the Parties, including through consultation on accelerating customs duty elimination under this Agreement and discuss other tariff and non-tariff issues as appropriate;

(b)    address issues relating to the administration and operation of tariff rate quotas; and

(c)    review the future amendments to, and updates of, the Harmonized System to ensure that the obligations of the Parties are not altered.

ARTICLE 2.19

Working group on wine and spirits

1.    The Parties hereby establish a working group on wine and spirits under the auspices of the Committee on Trade in Goods. The Working group on wine and spirits shall have the following functions:

(a)    whenever necessary, serve as a platform for the exchange of information and cooperation between the Parties in relation to the sectors of wine and spirits, in particular on product definitions, maturation practices, certification, labelling, best practices, oenological practices and processes;

(b)    strengthen bilateral cooperation regarding regulatory requirements; and

(c)    act as a forum for the Parties to discuss any other matters of mutual interest in the sectors of wine and spirits.

2.    The working group shall:

(a)    meet at the request of either Party, at a date and time agreed by the co-chairs of the working group, but no later than 90 days after the date of the request;

(b)    be co-chaired, at an appropriate level, by representatives of the Parties;

(c)    hold its meetings alternately in the European Union or India, or by any other appropriate means of communication as agreed between the representatives of the Parties;

(d)    agree on its meeting schedule and the agenda by consensus;

(e)    inform the Committee on Trade in Goods of the date and agenda of its meetings sufficiently in advance; and

(f)    report to the Committee on Trade in Goods on the results and conclusions from each of their meetings.

3.    The working group may adopt its own rules of procedure.

ARTICLE 2.20

Preference utilisation

1.    For the purpose of monitoring the functioning of this Agreement and calculating preference utilisation rates, the Parties shall annually exchange import statistics for a period starting one year after the date of entry into force of this Agreement in accordance with the schedules in Annex 2-A (Schedules of tariff commitments) and Annex 2-B (Steel tariff rate quotas).

2.    The exchange of import statistics shall cover data pertaining to the most recent year available, including value and, where applicable, volume, at the tariff line level for imports of goods of the other Party benefitting from preferential tariff treatment under this Agreement and those that received non-preferential treatment.

CHAPTER 3

RULES OF ORIGIN AND ORIGIN PROCEDURES

SECTION A

RULES OF ORIGIN

ARTICLE 3.1

Definitions

1.    For the purposes of this Chapter:

(a)    "competent authority" means:

(i)    for European Union, the customs authorities; and

(ii)    for India, the Department of Commerce or any other designated authority;

(b)    "consignment" means products which are either sent simultaneously from one consignor to one consignee or covered by a single transport document or, in the absence of such a document, by a single invoice;

(c)    "exporter" means a person, located in a Party, who, in accordance with the requirements laid down in the laws and regulations of that Party, exports or produces the originating product;

(d)    "issuing authority" means:

(i)    for the European Union, the customs authorities; and

(ii)    for India, the authorities designated for issuance of certificates of origin, notified as appropriate;

(e)    "material" means any substance, including any ingredient, raw material, component or part, used in the production of a product and physically incorporated into it;

(f)    "non-originating material" means a material that does not qualify as originating under this Chapter, including a material whose originating status cannot be determined;

(g)    "producer" means a person who engages in the production of a product in the territory of a Party;

(h)    "product" means the product resulting from the production, even if it is intended for later use as a material in the production of another product; and

(i)    "production" means any kind of working or processing operation including growing, cultivating, raising, mining, harvesting, picking, breeding, extracting, gathering, collecting, fishing, farming, trapping, hunting, capturing, aquaculture, manufacturing, processing, disassembling or assembling a good.

2.    Any cost and value referred to in this Chapter shall be recorded and maintained in accordance with the accounting principles generally accepted in the Party in which the product is produced.

ARTICLE 3.2

Requirements for originating products

1.    The following products shall be considered as originating in a Party, provided that they satisfy all other applicable requirements of this Chapter:

(a)    products wholly obtained or wholly produced in that Party within the meaning of Article 3.3 (Wholly obtained products); or

(b)    products produced in that Party incorporating non-originating materials, provided they satisfy the requirements set out in Annexes 3-A (Introductory notes to product-specific rules of origin) and 3-B (Product-specific rules of origin).

2.    The originating products referred to in paragraph 1 shall be considered as originating goods for the purpose of applying the preferential tariff treatment in accordance with this Agreement.

3.    If a product has acquired originating status, the non-originating materials used in the production of that product shall not be considered as non-originating when that product is incorporated as a material in another product.

4.    The acquisition of originating status shall be fulfilled without interruption in the European Union or in India.

ARTICLE 3.3

Wholly obtained products

1.    The following shall be considered as wholly obtained or wholly produced in a Party:

(a)    mineral products and other naturally occurring substances extracted or taken in a Party, but not beyond the outer limits of the Party's territorial sea;

(b)    plants, plant and vegetable products 5 grown, harvested, picked, or gathered in a Party;

(c)    live animals born and raised in a Party;

(d)    products obtained from live animals raised in a Party;

(e)    products obtained from slaughtered animals born and raised in a Party;

(f)    products obtained by hunting, trapping, gathering, or capturing conducted in a Party;

(g)    products obtained from aquaculture in a Party if aquatic organisms, including fish, molluscs, crustaceans, other aquatic invertebrates and aquatic plants, are born or raised from seed stock, such as eggs, fry, fingerlings, larvae, or other immature fish at a post-larval stage, by intervention in the rearing or growth processes to enhance production such as regular stocking, feeding or protection from predators;

(h)    products obtained by fishing conducted in a Party, but not beyond the outer limits of the Party's territorial sea;

(i)    products of sea fishing conducted outside any territorial sea by a vessel of a Party;

(j)    products made aboard of a factory ship of a Party exclusively from products referred to in point (i);

(k)    products other than fish, shellfish and other marine life extracted or taken from the seabed or subsoil outside any territorial sea, provided that the Party or person of that Party has the right to exploit such seabed or subsoil in accordance with international law;

(l)    waste and scrap excluding precious metals derived from production in a Party;

(m)    waste and scrap derived from consumption or used products collected in a Party, provided that those products are fit only for the recovery of raw materials; and

(n)    products produced in a Party exclusively from the products specified in points (a) to (m) or from their derivatives at any stage of production.

2.    The terms "vessel of a Party" and "factory ship of a Party" in points (i) and (j) of paragraph 1 mean a vessel and a factory ship which:

(a)    is registered in a Member State or in India;

(b)    sails under the flag of a Member State or of India; and

(c)    meets one of the following conditions 6 :

(i)    one or more nationals of a Member State or of India own a substantial share of it, as defined by the law of a Party, and not below 50 %; or

(ii)    one or more juridical persons own it and those meet the following criteria:

(A)    have their head office and place of business in a Member State or in India; and

(B)    public entities or juridical persons of a Member State or of India own a substantial share of them, as defined by the law of a Party, and not below 50 %.

ARTICLE 3.4

Tolerances or de minimis

1.    If a product does not satisfy the requirements of Annex 3-B (Product-specific rules of origin), including a change in tariff classification, due to the use of a non-originating material in its production, that product shall nevertheless be considered as originating in a Party, provided that:

(a)    the total weight of non-originating materials used in the production of products classified under HS chapters 1 to 8 and HS chapters 10 and 13 does not exceed 5 % of the weight of the product;

(b)    the total weight of non-originating materials used in the production of products classified under HS chapters 9, 11 and 12 and HS chapters 14 to 24, other than processed fishery products of HS chapter 16, does not exceed 10 % of the weight of the product;

(c)    for a product classified under HS chapters 50 to 63, the tolerances or de minimis set out in Notes 6, 7 and 8 of Annex 3-A (Introductory notes to product-specific rules of origin) apply; or

(d)    the total value of non-originating materials for all other products does not exceed 10 % of the ex-works price or Free-On-Board value (hereinafter referred to as "FOB value") of the product.

2.    Paragraph 1 does not apply if the value or weight of non-originating materials used in the production of a product exceeds any of the percentages for the maximum value or weight of non‑originating materials as specified in the requirements set out in Annex 3-B (Product-specific rules of origin).

3.    Paragraph 1 does not apply to products wholly obtained in a Party within the meaning of Article 3.3 (Wholly obtained products).

4.    Where, in Annex 3-B (Product-specific rules of origin), the product-specific rule requires:

(a)    "production in which all the materials of [one or more HS chapters] used are wholly obtained", paragraph 1 applies; or

(b)    that the product is "WO", non-originating materials may be used in the production provided that the total value or weight of these non-originating materials does not exceed 1 % of the ex‑works price or FOB value or of the weight of the product.

ARTICLE 3.5

Insufficient production or minimal operations and processes

1.    Notwithstanding point (b) of Article 3.2(1) (Requirements for originating products), a product shall not be considered as originating in a Party if the production of the product in that Party consists only of one or more of the following operations conducted on non-originating materials:

(a)    preserving operations, such as drying, freezing or keeping in brine, where their sole purpose is to ensure that the products remain in good condition during transport and storage;

(b)    breaking-up, assembly or change of packaging or packing;

(c)    washing, cleaning, dry cleaning or removal of dust, oxide, oil, paint or other coverings;

(d)    ironing or pressing of textiles and textiles articles;

(e)    simple painting and polishing operations;

(f)    husking, partial or total polishing, bleaching and glazing of cereals and rice, milling of rice;

(g)    operations to colour or flavour sugar or form sugar lumps, partial or total milling or grinding of sugar in solid form;

(h)    peeling, stoning and shelling of fruits, nuts and vegetables;

(i)    sharpening, simple grinding or simple cutting;

(j)    simple sifting, screening, sorting, classifying, grading, matching including the making-up of sets of articles;

(k)    simple placing in bottles, cans, flasks, bags, cases, boxes, fixing on cards or boards and all other simple packaging operations;

(l)    affixing or printing marks, labels, logos and other like distinguishing signs on products or their packaging;

(m)    simple mixing of products, whether or not of different kinds; mixing of sugar with any material;

(n)    simple addition of water or dilution with water or another substance that does not materially alter the characteristics of the product, or dehydration of products or denaturation of products of HS chapter 22 7 ;

(o)    simple assembly of parts of articles to constitute a complete article or disassembly of products into parts; or

(p)    slaughter of animals.

2.    For the purpose of paragraph 1, operations shall be considered simple if neither special skills nor machines, apparatus or equipment especially produced or installed are needed for carrying out those operations.

ARTICLE 3.6

Cumulation of origin between the Parties

1.    A product originating in a Party shall be considered as originating in the other Party if that product is used as a material in the production of another product in that latter Party.

2.    Paragraph 1 does not apply if the production carried out in the other Party does not go beyond the operations referred to in Article 3.5(1) (Insufficient production or minimal operations and processes).

ARTICLE 3.7

Unit of qualification

1.    For the purposes of this Chapter, the unit of qualification shall be the particular product which is considered as the basic unit when classifying the product under the Harmonized System.

2.    For a consignment consisting of a number of identical products classified under the same heading of the Harmonized System, each individual product shall be taken into account when applying this Chapter.

ARTICLE 3.8

Accessories, spare parts, tools and informational or instructional material

1.    This Article applies to accessories, spare parts, tools and informational or instructional material that:

(a)    are classified and delivered with, but not invoiced separately from, the product; and

(b)    are of the types, quantities and values which are customary for that product.

2.    Accessories, spare parts, tools and informational or instructional material referred to in paragraph 1 shall be disregarded in determining the origin of the product, except for the purposes of calculating the value of non-originating materials, if a product is subject to a maximum value of non-originating materials as set out in Annex 3-B (Product-specific rules of origin).

ARTICLE 3.9

Packing materials and containers for shipment

Packing materials and containers for shipment that are used to protect a product during transportation shall be disregarded in determining whether that product is originating in a Party.

ARTICLE 3.10

Packaging materials and containers for retail sale

Packaging materials and containers in which the product is packaged for retail sale, if classified with the product, shall be disregarded in determining the origin of the product, except for the purposes of calculating the value of non-originating materials if a product is subject to a maximum value of non-originating materials in accordance with Annex 3-B (Product-specific rules of origin).

ARTICLE 3.11

Sets

Sets, as defined in General Rule 3 for the Interpretation of the Harmonized System, shall be considered as originating in a Party if all of their components are originating. If a set is composed of originating and non-originating components, the set as a whole shall be considered as originating in a Party if the value of the non-originating components does not exceed 10 % of the ex-works price or FOB value of the set.

ARTICLE 3.12

Neutral or indirect elements

In order to determine whether a product is originating in a Party, the following elements, which might be used in its production but not physically incorporated, shall be disregarded:

(a)    fuel, energy, catalysts and solvents;

(b)    plant, equipment, spare parts and materials used in the maintenance of equipment and buildings;

(c)    machines, tools, dies and moulds;

(d)    lubricants, greases, compounding materials and other materials used in production or used to operate equipment and buildings;

(e)    gloves, glasses, footwear, clothing, safety equipment and supplies;

(f)    equipment, devices and supplies used for testing or inspecting the product; and

(g)    any other element used in the production.

ARTICLE 3.13

Accounting segregation for fungible materials

1.    For the purposes of this Article, "fungible materials" means materials that are interchangeable for commercial purposes, whose properties are essentially identical, and, once incorporated into the finished product, cannot be distinguished from one another for origin purposes.

2.    Originating and non-originating fungible materials shall be physically segregated during storage in order to maintain their originating and non-originating status.

3.    Notwithstanding paragraph 2, originating and non-originating fungible materials may be used in the production of a product without being physically segregated during storage if an accounting segregation method or an inventory management method recognised under accounting principles generally accepted in the Party is used, provided that the inventory management method selected is used throughout the fiscal year of the person that selected the inventory management method.

4.    An accounting segregation method referred to in paragraph 3 shall be applied in conformity with an inventory management method under the accounting principles that are generally accepted in the Party.

5.    The accounting segregation method or inventory management method shall be any method that ensures that at any time no more materials receive originating status than would have been the case if the materials had been physically segregated.

ARTICLE 3.14

Returned products

If a product originating in a Party is exported from that Party to a third country and returns to that Party, it shall be considered as non-originating product unless the returning product:

(a)    is the same as that exported; and

(b)    has not undergone any operation other than that necessary to preserve it in good condition while in that third country or while being exported.

ARTICLE 3.15

Transport

1.    The preferential tariff treatment provided for under this Agreement applies only to originating products that have been transported:

(a)    directly from the exporting Party to the importing Party; or

(b)    through one or more third countries and that have not been subjected to operations, other than the ones listed in paragraph 2, after their exportation from the exporting Party and prior to entering the customs territory of the importing Party, and provided that the originating products remain under customs control in each third country where the operations take place.

2.    The operations referred to in point (b) of paragraph 1 shall be limited to the following:

(a)    operations to preserve the originating products in good condition;

(b)    relabelling, adding or affixing marks, labels, seals or any other documentation to ensure compliance with specific domestic requirements of the importing Party;

(c)    unloading and reloading;

(d)    repacking;

(e)    storage; and

(f)    splitting or consolidating consignments.

3.    In case of doubt as to whether the requirements provided for in paragraphs 1 and 2 are complied with, the customs authority of the importing Party may request the importer to provide evidence of compliance, which may be given by any means, including contractual transport documents such as bill of lading, non-manipulation certificate, factual or concrete evidence based on marking or numbering of packages or any evidence related to the product itself.

SECTION B

ORIGIN PROCEDURES

ARTICLE 3.16

Claim for preferential tariff treatment

1.    To benefit from the preferential tariff treatment for a product originating in the other Party, within the meaning of this Chapter, the importer shall make a claim for preferential tariff treatment indicating that the product qualifies as originating product. The importer shall be responsible for the correctness of the claim for preferential tariff treatment and for the compliance with the requirements provided for in this Chapter.

2.    A claim for preferential tariff treatment shall be based on a proof of origin in the form of a declaration (hereinafter referred to as "Statement on Origin") that the product is originating, made out in accordance with Article 3.18 (Statement on Origin). In the European Union, a claim for preferential tariff treatment may also be based on the importer's knowledge that the product is originating.

3.    The importer, for the purposes of claiming preferential tariff treatment based on a Statement on Origin as referred to in the first sentence of paragraph 2, shall:

(a)    have a valid Statement on Origin in its possession at the time the claim for preferential tariff treatment referred to in paragraph 1 is made;

(b)    provide a copy thereof to the customs authority of the importing Party, if required by that customs authority; and

(c)    for India, make a declaration in the bill of entry that the products qualify as originating products and enter the details of the Statement on Origin in the bill of entry.

4.    The importer claiming preferential tariff treatment on the basis of a Statement on Origin shall possess information other than the Statement on Origin to demonstrate that the product is originating, only to the extent that such information is made available by the exporter. For greater certainty, nothing in this paragraph shall be construed to require an exporter to share information that the exporter is not willing to share if requested by the importer.

5.    For the purpose of enabling the importing Party to establish the authenticity of a Statement on Origin as referred to in paragraph 2, the exporting Party shall have an authentication mechanism at the date of entry into force of this Agreement. Each Party shall ensure that the modalities of such authentication mechanism follow the procedure set out in Annex 3-D (Authentication procedure for the Statement on Origin).

6.    If an authentication mechanism pursuant to paragraph 5 is not operational in a Party at the date of entry into force of this Agreement, the issuing authority of the exporting Party shall issue certificates of origin as provided in Annex 3-E (Certification of Origin) which shall have the same effect as a Statement on Origin for determination of origin of the product. This arrangement shall remain in force until the authentication mechanism pursuant to paragraph 5 becomes operational in that Party. All other provisions of this Section apply mutatis mutandis to the Certificate of Origin.

ARTICLE 3.17

Time of the claim for preferential tariff treatment

1.    The importer shall make a claim for preferential tariff treatment at the time of importation. 

2.    By way of derogation from paragraph 1, if the importer did not make a claim for preferential tariff treatment at the time of importation, or if the claim for preferential tariff treatment was denied on the ground that the Statement on Origin could not be authenticated in accordance with Article 3.16(5) (Claim for preferential tariff treatment), the importing Party shall grant preferential tariff treatment and repay or remit any excess customs duty paid, provided that:

(a)    the claim for preferential tariff treatment is made no later than one year after the date of importation, or such longer time period as specified in the laws and regulations of the importing Party;

(b)    the importer provides the basis for the claim as referred to in Article 3.16(2) (Claim for preferential tariff treatment); and

(c)    the product would have been considered originating and would have satisfied all other applicable requirements within the meaning of Section A (Rules of origin) of this Chapter if it had been claimed by the importer at the time of importation.

3.    Without prejudice to the time limit specified in point (a) of paragraph 2, the requirements applicable to the importer as set out in Article 3.16 (Claim for preferential tariff treatment) apply mutatis mutandis for the purpose of this paragraph.

ARTICLE 3.18

Statement on Origin

1.    A Statement on Origin shall be made out by an exporter or a producer of a product on the basis of information demonstrating that the product is originating, including information on the originating status of materials used in the production of the product. The person making the Statement on Origin shall be responsible for the correctness of the Statement on Origin and the information provided. Where the exporter is not the producer and makes out a Statement on Origin, the exporter shall ensure that it is based on information demonstrating that the product is originating, including information supplied by the producer.

2.    The Statement on Origin must be accompanied by an invoice or any other commercial document that describes the products concerned in sufficient detail to enable them to be identified.

3.    A Statement on Origin shall be made out in accordance with the template set out in Annex 3‑C (Template of the Statement on Origin), in the English language. The declaration of the exporter in box 9 of Annex 3-C (Template of the Statement on Origin) shall be made out in one or more of the linguistic versions included in Appendix 3-C-1 (Language versions of the declaration by the exporter), at least one of which is English.

4.    A Statement on Origin shall be valid for 12 months from the date of its completion.

5.    A Statement on Origin may apply to a single consignment of one or more products imported into a Party.

6.    If, at the request of the importer, unassembled or disassembled products within the meaning of General Rule 2(a) of the Harmonized System that fall within sections XV to XXI of the Harmonized System are imported by instalments, a single Statement on Origin for such products may be used in accordance with the requirements laid down by the customs authorities of the importing Party.

ARTICLE 3.19

Errors and discrepancies

The customs authority of the importing Party shall not reject a claim for preferential tariff treatment due to minor errors or discrepancies, typing errors or formatting errors, in the Statement on Origin provided these do not create doubt as to the originating status of the product.

ARTICLE 3.20

Third party invoicing

The customs authority of the importing Party shall not deny a claim for preferential tariff treatment for the sole reason that an invoice was not issued by the exporter or producer of a product or was issued in a third country.

ARTICLE 3.21

Importer's knowledge

For the purposes of a claim for preferential tariff treatment that is made pursuant to the second sentence of Article 3.16(2) (Claim for preferential tariff treatment), the importer's knowledge that a product is originating in the exporting Party shall be based on information demonstrating that the product is originating and satisfies the requirements provided for in this Chapter.

ARTICLE 3.22

Record keeping requirements

1.    For a minimum of three years after the date on which the claim for preferential tariff treatment was made pursuant to Article 3.16(2) (Claim for preferential tariff treatment) or Article 3.17(2) and (3) (Time of the claim for preferential tariff treatment), or such longer period as required by the laws and regulations of the importing Party, an importer making a claim for preferential tariff treatment for a product imported into the importing Party shall keep:

(a)    if the claim was based on a Statement on Origin, the Statement on Origin completed by the exporter along with documents or information received from the exporter as well as evidence of compliance with the requirements set out in Article 3.15 (Transport). The importer shall keep relevant records of such importation in accordance with the laws and regulations of the importing Party; and

(b)    if the claim was based on the importer's knowledge, all records demonstrating that the product satisfies the requirements to obtain originating status.

2.    An exporter or producer who has completed a Statement on Origin shall, for a minimum of five years, or such longer period as required by the laws and regulations of the exporting Party, after the date of completion of the Statement on Origin, keep a copy of that Statement on Origin and all other records demonstrating that the product satisfies the requirements to obtain originating status, including, where applicable, information from the suppliers.

3.    If the Statement on Origin referred to in paragraph 2 is made on the basis of information provided by suppliers, those suppliers shall be required to maintain records in accordance with paragraph 2, if those records are not in possession of the exporters.

4.    The records to be kept in accordance with this Article may be held in electronic format.

ARTICLE 3.23

Waiver of procedural requirements

1.    A Party may, in accordance with its laws and regulations, waive the requirement to present a Statement on Origin as referred to in Article 3.16 (Claim for preferential tariff treatment), for low value consignments of originating products from the other Party and for originating products forming part of the personal luggage of a traveller coming from the other Party.

2.    A Party may exclude any importation from the provisions of paragraph 1 when the importation forms part of a series of importations which the customs authority of the importing Party reasonably considers to have been undertaken or carried-out for the purpose of evading the requirements of this Chapter related to the Statement on Origin.

3.    Each Party may set value limits for products referred to in paragraph and shall exchange information regarding those limits.

ARTICLE 3.24

Verification

1.    The customs authority of the importing Party may conduct a verification on whether a product is originating or the other requirements of this Chapter are satisfied, on the basis of risk assessment methods, which may include reasonable doubts or random selection, as to the originating status of the products concerned or the fulfilment of the other requirements of this Chapter. Such a verification may be conducted by means of a request for information to the importer who made the claim for preferential tariff treatment.

2.    If the claim for preferential tariff treatment was based on a Statement on Origin completed by an exporter or a producer, the information requested pursuant to paragraph 1 shall cover no more than the following elements:

(a)    that Statement on Origin; and

(b)    where necessary, the information elements detailed in paragraph 9.

3.    The importer shall, no later than 10 working days after the date of the request made pursuant to paragraph 1, provide to the customs authority of the importing Party the Statement on Origin and the information requested pursuant to point (b) of paragraph 2 in the importer’s possession, subject to Article 3.16(4) (Claim for preferential tariff treatment).

4.    Upon the expiry of the period of 10 working days referred to in paragraph 3, if the customs authority of the importing Party considers that additional information is required, the importer shall be provided with additional 30 days to submit that information. The importer shall provide the information within the 30-day period where such information has been made available by the exporter, and where such information has not been made available, the importer shall inform the customs authority that it is not in a position to provide that information.

5.    If the importer replies that it is not in position to provide that information referred to in paragraph 4 or if, upon the expiry of the 30-day period, the information provided by the exporter is insufficient to determine that the product is originating, the customs authority of the importing Party may submit a written request to the competent authority of the exporting Party pursuant to Article 3.25 (Administrative cooperation).

6.    If the claim for preferential tariff treatment was based on the importer's knowledge in accordance with the second sentence of Article 3.16(2) (Claim for preferential tariff treatment), the information requested pursuant to paragraph 1 shall cover the information elements detailed in paragraph 9. The importer shall provide the information to the customs authority of the importing Party no later than 90 days after the date of the request made under paragraph 1.

7.    After having received the requested information in accordance with paragraph 6, the customs authority of the importing Party conducting the verification may request the importer to provide additional information, within 90 days of that request, if that customs authority considers that such additional information is necessary in order to verify the originating status of the product or whether the other requirements of this Chapter are satisfied. The customs authority of the importing Party may request the importer to provide specific information or documentation, if appropriate.

8.    For greater certainty, Article 3.25 (Administrative cooperation) does not apply when the verification is conducted on a claim for preferential treatment based on the importer's knowledge.

9.    The information elements referred to in paragraphs 2 to 7 may be requested by the importing Party as appropriate and shall include no more than the following:

(a)    if the origin is determined pursuant to point (a) of Article 3.2(1) (Requirements for originating products), the applicable category (such as harvesting, mining or fishing) and the place of production;

(b)    if the origin is determined pursuant to point (b) of Article 3.2(1) (Requirements for originating products) read with Annex 3-A (Introductory notes to product-specific rules of origin) and Annex 3‑B (Product specific rules of origin), Article 3.2(3) (Requirements for originating products), Article 3.6 (Cumulation of origin between the Parties), information on the origin of the materials used relevant to demonstrate the origin of the product pursuant to points (c), (d), (e) and (f) of this paragraph;

(c)    if the origin criterion is based on a change in tariff classification, a list of all the non‑originating materials used in the production of the product in a Party, including their tariff classification (in 2-, 4- or 6-digit format, depending on the relevant product-specific rule of origin);

(d)    if the origin criterion is based on a value method, the value of the final product as well as the value of all the non-originating materials used in the production of that final product;

(e)    if the origin criterion is based on a specific production process, a description of that specific production process;

(f)    if the origin criterion is based on "production from non-originating material of any heading", information on insufficient production or minimal operations and processes pursuant to Article 3.5 (Insufficient production or minimal operations and processes);

(g)    if the origin criterion is based on weight, the weight of the final product as well as the weight of the relevant non-originating materials used in the production of that final product;

(h)    information on any tolerances relied on pursuant to Article 3.4 (Tolerances or de minimis);

(i)    information relating to compliance with the non-alteration rule established pursuant to Article 3.15 (Transport); and

(j)    supporting documentation, where appropriate.

10.    The importer may add any other information considered relevant for the purposes of verification.

11.    If the customs authority of the importing Party decides to suspend the granting of preferential tariff treatment to the product concerned while awaiting the results of the verification, the release of the products shall be offered to the importer subject to appropriate precautionary measures, including guarantees as provided for in the importing Party's laws and regulations. As soon as the customs authority of the importing Party has ascertained that the products concerned are originating and that the other requirements of this Chapter are satisfied, it shall terminate the suspension and grant preferential tariff treatment in accordance with its laws and regulations.

ARTICLE 3.25

Administrative cooperation

1.    If the claim for preferential tariff treatment was based on a Statement on Origin, the Parties shall cooperate, through the competent authority of each Party, in verifying whether a product is originating and is in compliance with the other requirements provided for in this Chapter.

2.    After having first requested information in accordance with Article 3.24(1) (Verification), the customs authority of the importing Party conducting the verification may also request information from the competent authority of the exporting Party, if the customs authority of the importing Party conducting the verification considers that additional information is necessary in order to verify the originating status of the product or to verify that the other requirements provided for in this Chapter have been met. The request for information shall include the following elements:

(a)    the Statement on Origin;

(b)    the identity of the customs authority issuing the request;

(c)    the name of the exporter;

(d)    the subject and scope of the verification; and

(e)    any relevant documentation.

3.    As part of the request for information referred to in paragraph 2, the customs authority of the importing Party may request the competent authority of the exporting Party to provide information listed under Article 3.24(9) (Verification), as applicable, with specific documentation and information related to the originating status of the product or the other requirements provided for in this Chapter.

4.    Where the customs authority of the importing Party has prima facie evidence that an importer has suppressed material facts, made a wilful misstatement or colluded with the exporter or producer or any other person with the intention of wrongfully obtaining preferential tariff treatment under this Chapter, the customs authority of the importing Party may request the competent authority of the exporting Party to prioritise the verification request. Upon receipt of such a request, the competent authority of the exporting Party shall use its best endeavours to accord priority to the verification.

5.    The competent authority of the exporting Party, upon receipt of the request for information referred to in paragraph 2 and depending on the scope of the request, may undertake to verify the originating status of the product by one or more of the following means:

(a)    request information and documentation from the exporter, producer or supplier; or

(b)    request an examination by:

(i)    calling for any evidence from the exporter, producer or supplier; or

(ii)    undertaking a verification visit of the premises of the exporter, producer or supplier.

6.    Without prejudice to paragraph 7, the competent authority of the exporting Party shall respond no later than seven months after the date of receipt of the request referred to in paragraph 2 to the customs authority of the importing Party with the following:

(a)    the description of the product that is subject to verification and the tariff classification relevant to the application of this Chapter;

(b)    a description and explanation of the production process to substantiate the originating status of the product;

(c)    information on the manner in which verification pursuant to paragraph 5 was conducted;

(d)    inputs in accordance with paragraph 7; and

(e)    relevant documentation, information and supporting evidence obtained during the verification, where available.

Based on the information referred to in points (a) to (e), the competent authority of the exporting Party shall also provide a reasoned opinion on the originating status of the product.

7.    The competent authority of the exporting Party may decline to provide information to the customs authority of the importing Party if that information is considered as confidential by the exporter, producer or supplier. However, in such cases, the exporter, producer or supplier shall provide reasons for treating the information as confidential. These reasons shall be duly recorded in the verification findings by the competent authority of the exporting Party. In such cases, the competent authority of the exporting Party shall confirm that it has reviewed the information requested by the importing Party and shall also list the sources of information reviewed, stating clearly whether the information supports the claim for preferential tariff treatment.

8.    The customs authority of the importing Party shall not deny preferential treatment for the sole reason that such confidential information is not provided to it but shall take into account the information provided by the competent authority of the exporting Party as well as its independent findings or investigation before making a final decision whether to grant preferential treatment, where appropriate.

9.    In exceptional circumstances, if, after receiving the response provided under paragraph 6 pursuant to a request made under paragraph 2, the customs authority of the importing Party remains unable to determine the originating status of the products, it may request that the competent authority of the exporting Party conduct a verification visit to the premises of the exporter, producer or supplier, with the participation of up to two duly authorised officials from the customs authority of the importing Party as observers.

10.    The importing Party shall provide detailed reasons for the requested visit referred to in paragraph 10 and may specify the specific parameters to be verified during the visit. The competent authority of the exporting Party shall determine the reasonable conditions for conducting the visit, including those relating to observer participation. If the importing Party disagrees with the conditions proposed, the exporting Party shall conduct the verification visit, taking into account the detailed reasons and specific parameters communicated by the importing Party. In the event that the request for the verification visit is not accepted, the competent authority of the exporting Party shall provide the customs authority of the importing Party with the reasons.

11.    The request for verification visit under paragraph 9 shall be made within 30 days from the date of receipt of the response provided under paragraph 6. The competent authority of the exporting Party shall respond to such request within 30 days. The competent authority of the exporting Party shall, within 90 days from the date of the verification visit, provide an updated response pursuant to paragraph 6 incorporating the outcome of the visit. If the competent authority of the exporting Party requires additional time to provide such updated response, the period shall be extended by no more than 30 days with prior communication to the importing Party.

12.    Notwithstanding the response indicating the originating status in accordance with paragraph 6 or 11, as applicable, where the customs authority of the importing Party considers that sufficient justification exists to deny preferential tariff treatment, it shall notify the competent authority of the exporting Party no later than 30 days from the date of receipt of the response provided pursuant to paragraph 6 or 11, as applicable. If the importing Party is unable to notify the exporting Party within 30 days, it may issue the notification at the earliest opportunity.

13.    If a notification pursuant to paragraph 12 is made, the exporting Party may request consultations with the other Party within 30 days after the date of the notification. If the Parties agree to enter into consultations, such consultations shall be completed within two months from the date of the request. The period for consultations may be extended by mutual agreement between the Parties. Each Party shall inform the other Party of the authorities that will participate in the consultations.

14.    After the notification pursuant to paragraph 12 is made, the customs authority of the importing Party shall retain the right to deny the preferential tariff treatment if it has a sufficient justification for doing so taking into account the information provided by the competent authority of the exporting Party together with its own independent findings or investigations in any of the following circumstances:

(a)    the exporting Party does not request consultations within one month of receipt of the notification issued pursuant to paragraph 12 and the information provided by the competent authority of the exporting Party is inadequate to confirm that the product is originating;

(b)    where the exporting Party has requested consultations and, upon the expiry of the period for consultations referred to in paragraph 13, the information provided by the competent authority of the exporting Party is inadequate to confirm that the product is originating; or

(c)    in exceptional circumstances, where the customs authority of the importing Party determines, prior to the expiry of the period for consultations referred to in paragraph 13, that immediate action is necessary. The importing Party shall notify the reasons to the competent authority of the exporting Party.

15.    If the customs authority of the importing Party decides to deny the preferential tariff treatment, it shall inform the importer of the reasons. The customs authority of the importing Party shall also notify its decision to the competent authority of the exporting Party without undue delay.

16.    Each Party shall notify the other Party of the contact details of the competent authorities and issuing authorities and shall notify the other Party of any change to those contact details no later than 30 days after the date of the change.

17.    The competent authorities responsible for initiating verifications are the customs authorities. The competent authorities responsible for conducting verifications are:

(a)    for the European Union, the customs authority; and

(b)    for India, the Department of Commerce, or any other designated authority.

ARTICLE 3.26

Denial of preferential tariff treatment

1.    Following the verification conducted pursuant to Article 3.24(1) (Verification), the customs authority of the importing Party may deny the preferential tariff treatment, without recourse to administrative cooperation pursuant to Article 3.25 (Administrative cooperation), in the following cases:

(a)    the products for which preferential tariff treatment has been claimed are not the same as those mentioned in the Statement on Origin;

(b)    the Statement on Origin in possession of the importer has not been made out by an exporter holding a valid unique identification number in accordance with the laws and regulations of the exporting Party;

(c)    the Statement on Origin has not been made out in accordance with the template set out in Annex 3-C (Template of the Statement on Origin), without prejudice to Article 3.19 (Errors and discrepancies);

(d)    the Statement on Origin has not been authenticated as stipulated in Annex 3-D (Authentication procedure for the Statement on Origin);

(e)    the importer relinquishes the claim; or

(f)    the requirements set out in Article 3.17(2) and (3) (Time of the claim for preferential tariff treatment) are not met.

2.    Following the verification pursuant to Article 3.24(2) (Verification), the customs authority of the importing Party may deny preferential tariff treatment if no Statement on Origin has been provided as per the timelines set out in Article 3.24(3) to (5) (Verification).

3.    Following the verification under Article 3.24(6) to (9) (Verification), the customs authority of the importing Party may deny preferential tariff treatment:

(a)    if no reply has been provided by the importer as per the timelines set out in Article 3.24(6) and (7) (Verification); or

(b)    if the information provided by the importer in accordance with Article 3.24 (6) and (7) (Verification) is inadequate to confirm that the product is originating.

4.    Following a request for information pursuant to Article 3.25(2) (Administrative cooperation), the customs authority of the importing Party may deny preferential tariff treatment:

(a)    if no reply has been provided by the customs authority of the exporting Party as per the timelines set out in Article 3.25(6) (Administrative cooperation);

(b)    if the competent authority of the exporting Party has confirmed that the product is not originating;

(c)    if the exporting Party does not provide a response within the timelines set out in Article 3.25(11) (Administrative cooperation); or

(d)    in accordance with Article 3.25(14) (Administrative cooperation)).

5.    The customs authority of the importing Party may deny preferential tariff treatment to a product for which an importer claims preferential tariff treatment where the importer fails to comply with or fails to demonstrate compliance with the requirements of Article 3.15 (Transport).

ARTICLE 3.27

Temporary suspension of preferential treatment

1.    If, following administrative cooperation and the procedures laid down in the Article 3.25 (Administrative cooperation), a Party establishes that the exporter or producer has persistently and deliberately made out incorrect Statements on Origin, the Parties shall consult, at the request of the importing Party, with a view for the exporting Party to take appropriate measures.

2.    Upon the expiry of three months from the date of request for consultations, where the exporting Party has not initiated any appropriate measure to prevent the exporter or producer from making out incorrect Statements on Origin, the customs authority of the importing Party may decide to temporarily suspend preferential tariff treatment to that exporter or producer for the concerned product or products.

3.    If the importing Party intends to temporarily suspend preferential tariff treatment in accordance with paragraph 2, it shall notify the exporting Party at least 15 days prior to the commencement of any suspension. This notification shall include the following:

(a)    the name of the exporter or producer and their reference number;

(b)    reasons for the intention to suspend preferential tariff treatment;

(c)    description of the product or products subject to suspension; and

(d)    any other relevant information.

4.    The importing Party and exporting Party shall coordinate on the measures necessary for the restoration of preferential tariff treatment and on the time period for which the temporary suspension is to be in effect. The temporary suspension shall apply only for a period necessary to address the situation referred to in paragraph 1 and in any case no longer than six months or any other period that the Parties agree.

5.    If, following administrative cooperation and the procedures laid down in Article 3.25 (Administrative cooperation), a Party establishes that two or more exporters or producers of the other Party have persistently and deliberately made out Statements on Origin wrongly for the same product at the Harmonized System classification level and this same product of these exporters or producers accounts for more than half of the preferential imports of the same product in value terms from the exporting Party over a period of one year prior to the first verification request, then the importing Party may submit the matter to the Joint Committee with a view to temporarily suspend preferential treatment for all imports of that product from the exporting Party.

6.    The Joint Committee shall discuss the matter and recommend within six months whether to temporarily suspend the preferential tariff treatment for this product. The importing Party may only suspend preferential treatment for this product if recommended by the Joint Committee.

7.    The temporary suspensions shall apply only for a period necessary to address the situation referred to in paragraph 5 and to protect the financial interests of the Party concerned, and in any case no longer than six months or any other period that the Parties agree.

8.    In the cases established in paragraph 5, where the importing Party has made a finding, based on objective information, that large-scale and systematic breaches or circumventions of the provisions of this Chapter have been committed, and where the exporting Party repeatedly refuses or otherwise fails to cooperate, Article 2.17 (Specific measures concerning the management of preferential tariff treatment) applies.

9.    Each Party shall inform, in accordance with its internal procedures, its importers and exporters about any decision concerning temporary suspensions referred to in paragraph 2 or 6.

ARTICLE 3.28

Confidentiality

1.    Each Party shall, in accordance with its laws and regulations, maintain the confidentiality of any information provided to it by the other Party pursuant to this Chapter and protect that information from disclosure.

2.    Confidential business information obtained from the exporter by the competent authority of the exporting Party or by the importing Party through the application of Article 3.24 (Verification) and Article 3.25 (Administrative cooperation) shall not be disclosed unless otherwise provided for in this Chapter.

3.    Information obtained by the authorities of the importing Party may only be used by such authorities for the purposes of this Chapter. The use of information collected pursuant to this Chapter in any administrative, judicial or quasi-judicial proceedings instituted for failure to comply with customs-related laws or regulations implementing this Chapter is allowed. In such case, the person or Party who provided the information shall be notified, where possible, in advance.

4.    Where one of the Parties wishes to use such information for other purposes than for the purposes of this Chapter, it shall obtain the prior written consent of the person or Party which provided the information. Such use shall then be subject to any restrictions laid down by that person or Party.

ARTICLE 3.29

Penalties

Each Party shall adopt or maintain measures to impose, where appropriate, civil penalties, administrative penalties and criminal sanctions for violations of its laws or regulations relating to the provisions of this Chapter.

SECTION C

FINAL PROVISIONS

ARTICLE 3.30

Ceuta and Melilla

1.    Products originating in India, when imported into Ceuta and Melilla, shall in all respect be subject to the same customs treatment under this Agreement, as that which is applied to products originating in the customs territory of the European Union under Protocol 2 of the Act of Accession of the Kingdom of Spain and the Portuguese Republic to the European Communities. India shall grant to imports of products covered by this Agreement and originating in Ceuta and Melilla the same customs treatment as that which is granted to products imported from and originating in the European Union.

2.    The rules of origin and origin procedures referred to in this Chapter apply mutatis mutandis to products exported from India to Ceuta and Melilla and to products exported from Ceuta and Melilla to India.

3.    Ceuta and Melilla shall be considered as a single territory.

4.    The exporters shall enter "India" or "Ceuta and Melilla" in box 9 of the template of the Statement on Origin in Annex 3-C (Template of the Statement on Origin), depending on the origin of the product.

5.    The customs authority of the Kingdom of Spain shall be responsible for the application and implementation of this Chapter in Ceuta and Melilla.

6.    The European Union shall notify India promptly on any changes that may affect the customs treatment provided by this Article. The Committee on Customs and Rules of Origin shall, on the request of either Party, meet to discuss these changes and seek to find a mutually satisfactory solution.

ARTICLE 3.31

Committee on Customs and Rules of Origin

1.    The Committee on Customs and Rules of Origin is established pursuant to Article 18.3(1) (Specialised committees). In addition to the functions specified in Article 18.4 (Functions of the specialised committees) and Article 4.20 (Committee on Customs and Rules of Origin), the Committee on Customs and Rules of Origin may adopt explanatory notes providing guidance to facilitate effective implementation of this Chapter.

2.    The Committee on Customs and Rules of Origin shall consider periodic Harmonized System transposition of the product-specific rules as part of the preparatory technical work for the adoption of decisions by the Joint Committee.

ARTICLE 3.32

Transitional provisions for products in transit or storage

1.    The customs authority of the importing Party shall grant preferential tariff treatment for an originating product of the exporting Party, if such product complies with the provisions of this Chapter and, on the date of entry into force of this Agreement, it:

(a)    is in transit from the exporting Party to the importing Party; or

(b)    has not yet been cleared for home consumption in the importing Party.

2.    A product referred to in paragraph 1 is subject to an importer making a claim for preferential tariff treatment in accordance with Article 3.16 (Claim for preferential tariff treatment), within 12 months of the entry into force of this Agreement.

CHAPTER 4

CUSTOMS AND TRADE FACILITATION

ARTICLE 4.1

Objectives

1.    The Parties recognise the importance of customs and trade facilitation matters in the evolving global trading environment. The Parties shall reinforce cooperation in this area with a view to ensuring that the relevant laws and regulations and customs procedures, as well as the administrative capacity of the relevant administrations, fulfil the objectives of promoting trade facilitation while ensuring effective customs control.

2.    To this end, the Parties agree that the relevant laws and regulations shall be non‑discriminatory and that customs procedures shall be based on the use of effective and efficient methods and controls to combat fraud and to promote legitimate trade.

3.    The Parties recognise that legitimate public policy objectives, including in relation to security, safety and fight against fraud shall not be compromised in any way.

ARTICLE 4.2

Customs co-operation and mutual administrative assistance

1.    For the purposes of this Chapter, "customs laws and regulations" means any legal or regulatory provision applicable in the territory of either Party, that governs the entry or import of goods, the exit or export of goods, the transit of goods and the placing of goods under any other customs regime or procedure, and that may include prohibitions, restrictions or controls which are enforced by the customs authority of each Party.

2.    The Parties shall cooperate on customs matters through their respective customs authorities in order to ensure that the objectives set out in Article 4.1 (Objectives) are attained.

3.    The Parties shall develop cooperation, including, by:

(a)    exchanging information concerning customs laws and regulations, their implementation and customs procedures, particularly in the following areas:

(i)    simplification and modernisation of customs procedures;

(ii)    enforcement of intellectual property rights by the customs authorities;

(iii)    facilitation of transit movements and transhipment;

(iv)    relations with the business community; and

(v)    supply chain security and risk management.

(b)    working together on the customs-related aspects of securing and facilitating the international trade supply chain in accordance with the Framework of Standards to Secure and Facilitate Global Trade (hereinafter referred to as "SAFE Framework"), adopted by the WCO in June 2005;

(c)    considering developing joint initiatives relating to import, export and other customs procedures including technical assistance, as well as to ensure an effective service to the business community;

(d)    strengthening their cooperation in the field of customs in international organisations such as the WTO and the WCO;

(e)    endeavouring to harmonise their data requirements for import, export and other customs procedures by implementing common standards and data elements in accordance with the WCO Data Model;

(f)    exchanging, where relevant and appropriate, through a structured and recurrent communication between the customs authorities of the Parties, certain categories of customs‑related information for specific purposes, namely improving risk management and the effectiveness of customs controls, targeting goods at risk in terms of revenue collection or safety and security, and facilitating legitimate trade; such exchange shall be without prejudice to exchanges of information that may take place between the Parties pursuant to the CCMAA Agreement and Article 4.3 (Additional measures of mutual administrative assistance in customs matters) of this Agreement;

(g)    strengthening cooperation between the customs authorities of the Parties on risk management techniques, including sharing best practices, and where appropriate, risk information and control results. Where relevant and appropriate, the Parties shall also consider mutual recognition of risk management techniques, risk standards and security controls;

(h)    establishing, where relevant and appropriate, mutual recognition of authorised economic operator programmes and customs controls, including equivalent trade facilitation measures; and

(i)    fostering cooperation and coordination between customs and other government authorities or agencies especially in relation to authorised economic operator programmes. This collaboration may be achieved, among others, by aligning requirements, facilitating access to benefits and minimising unnecessary duplication.

ARTICLE 4.3

Additional measures of mutual administrative assistance in customs matters

1.    The Parties reaffirm their respective commitments in relation to mutual administrative assistance in customs matters in accordance with the relevant provisions of the CCMAA Agreement.

2.    The Parties may exchange information covered by Article 5 of the CCMAA Agreement:

(a)    on an automatic basis; or

(b)    in advance of the arrival of consignments in the territory of the other Party.

3.    The Parties may establish arrangements on the type of specific information they wish to exchange and on the format and the frequency of transmission, to implement the exchanges under paragraph 2 of this Article.

ARTICLE 4.4

Protection of personal data

Where personal data is exchanged pursuant to this Chapter, the transfer of such personal data shall take place in accordance with the data protection laws and regulations of the Party providing the data. Each Party shall inform the other Party about its relevant data protection laws and regulations.

ARTICLE 4.5

Inter-agency cooperation relating to trade in goods

1.    Each Party shall ensure that its authorities and agencies responsible for control and procedures dealing with importation, exportation, and transit of goods cooperate with one another and coordinate their activities in order to protect their financial interests, fight against illegal trade, ensure safety and security at external borders, while enhancing legitimate trade.

2.    In establishing or maintaining its single window under paragraph 4.1 of Article 10 of the Trade Facilitation Agreement, each Party shall endeavour to enable through a single entry point the electronic submission of the documentation or data that such Party requires for importation, exportation, or transit of goods through its territory for all its participating authorities or agencies.

3.    With respect to paragraphs 1 and 2, the Parties shall endeavour to share their respective experiences.

4.    With respect to paragraph 2, the Parties shall endeavour to work towards a harmonisation, to the extent practicable, of data elements and customs processes.

ARTICLE 4.6

Customs laws, regulations and procedures

1.    Each Party shall ensure that its customs laws, regulations and procedures shall be based on:

(a)    the international instruments and standards applicable in the area of customs and trade, including the substantive elements of the International Convention on the Simplification and Harmonisation of Customs Procedures, done at Kyoto on 18 May 1973, including the Protocol of Amendment to the International Convention on the Simplification and Harmonisation of Customs Procedures done at Brussels on 26 June 1999 ("Revised Kyoto Convention"), the International Convention on the Harmonized Commodity Description and Coding System done at Brussels on 14 June 1983, as well as the SAFE Framework and to the extent possible the WCO Data Model;

(b)    the protection and facilitation of legitimate trade through effective enforcement and compliance of legislative requirements;

(c)    customs laws and regulations that are proportionate and non-discriminatory, avoid unnecessary burdens on economic operators, provide for further facilitation for operators with high levels of compliance, including favourable treatment with respect to customs controls prior to the release of goods, and ensure safeguards against fraud and illicit activities; and

(d)    rules that ensure that any penalty imposed for breaches of customs laws, regulations and procedures are proportionate and non-discriminatory and that their application shall not unduly delay the release of the goods.

2.    Each Party should periodically review its customs laws, regulations and procedures. Customs procedures should also be applied in a manner that is predictable, consistent and transparent.

3.    In order to improve working methods, as well as to ensure non-discrimination, transparency, efficiency, integrity and accountability of operations, each Party shall:

(a)    simplify and review requirements and formalities wherever possible with a view to the rapid release and clearance of goods; and

(b)    work towards the further simplification and standardisation of data and documentation required by its customs authorities and other agencies.

ARTICLE 4.7

Release of goods

Each Party shall adopt or maintain customs procedures that:

(a)    provide for the prompt release of goods within a period that is no longer than necessary to ensure compliance with its laws and regulations;

(b)    provide for advance electronic submission and processing of documentation and any other required information prior to the arrival of the goods, to enable the release of goods on arrival; and

(c)    allow for the release of goods prior to the final determination of customs duties, taxes, fees and charges, if such a determination is not made prior to, or upon arrival, or as rapidly as possible after arrival and provided that all other regulatory requirements have been met. As a condition for such release, each Party may require a guarantee for any amount not yet determined in the form of a surety, a deposit or another appropriate instrument provided for in its laws and regulations. Such guarantee shall not be greater than the amount the Party requires to ensure payment of customs duties, taxes, fees and charges ultimately due for the goods covered by the guarantee. The guarantee shall be discharged when it is no longer required.

ARTICLE 4.8

Simplified customs procedures

Each Party shall adopt or maintain measures allowing traders or operators fulfilling criteria specified in its laws and regulations to benefit from further simplification of customs procedures.

Such measures may include:

(a)    customs declaration containing a reduced set of data or supporting documents; or

(b)    periodical customs declaration or procedures for the determination and payment of customs duties and taxes covering multiple imports within a specific period, after the release of those imported goods.

ARTICLE 4.9

Transit and transhipment

1.    Each Party shall ensure the facilitation and effective control of transhipment operations and transit movements through its territory.

2.    Each Party shall, where relevant and appropriate, promote and implement regional transit arrangements with a view to facilitating trade.

3.    Each Party shall ensure cooperation and coordination between all authorities and agencies concerned in its territory to facilitate traffic in transit.

4.    Each Party shall, subject to its laws and regulations, allow goods intended for import to be moved within its territory under customs control from a customs office of entry to another customs office in its territory from where the goods would be released or cleared.

ARTICLE 4.10

Risk management

1.    Each Party shall adopt or maintain a risk management system for customs control.

2.    Each Party shall design and apply risk management in a manner so as to avoid arbitrary or unjustifiable discrimination, or disguised restrictions to international trade.

3.    Each Party shall concentrate customs control and other relevant border controls on high-risk consignments and expedite the release of low-risk consignments. Each Party may also select, on a random basis, consignments for such controls as part of its risk management.

4.    Each Party shall base risk management on assessment of risk through appropriate selectivity criteria.

ARTICLE 4.11

Post-clearance audit

1.    With a view to expediting the release of goods, each Party shall adopt or maintain post‑clearance audit to ensure compliance with customs and other related laws and regulations.

2.    Each Party shall select a person or a consignment for post-clearance audit in a risk-based manner, which may include appropriate selectivity criteria. Each Party shall conduct post-clearance audits in a transparent manner. Where the person is involved in the audit process and conclusive results have been achieved, the Party shall, without delay, notify the person whose record is audited of the results, the person's rights and obligations and the reasons for the results.

3.    The Parties acknowledge that the information obtained in a post-clearance audit may be used in further administrative or judicial proceedings.

4.    The Parties shall use the result of a post-clearance audit in applying risk management.

ARTICLE 4.12

Authorised economic operators

1.    Each Party shall establish or maintain a partnership programme for operators who meet specified criteria, hereinafter referred to as Authorised Economic Operators ("AEOs").

2.    The specified criteria to qualify as an AEO shall be related to compliance with requirements specified in customs laws, regulations and procedures of a Party. The specified criteria, which shall be published, may include:

(a)    the absence of any serious or repeated infringements of customs laws and regulations and taxation rules, including no record of serious criminal offences relating to the economic activity of the applicant;

(b)    the demonstration by the applicant of a high level of control of its operations and of the flow of goods, by means of a system of managing commercial records and, where appropriate, transport records, which allows for appropriate customs controls;

(c)    financial solvency, which shall be deemed to be proven where the applicant has good financial standing, which enables the applicant to fulfil its commitments, with due regard to the characteristics of the type of business activity concerned;

(d)    proven competences or professional qualifications directly related to the activity carried out; and

(e)    appropriate security and safety standards, which shall be considered as fulfilled where the applicant demonstrates that it maintains appropriate measures to ensure the security and safety of the international supply chain including in the areas of physical integrity and access controls, logistical processes and handling of specific types of goods, personnel and identification of its business partners.

3.    The specified criteria to qualify as an AEO shall not be designed or applied so as to afford or create arbitrary or unjustifiable discrimination between operators where the same conditions prevail and shall allow the participation of small and medium-sized enterprises.

4.    The partnership programme shall include the following benefits:

(a)    a low rate of physical inspections and examinations, as appropriate;

(b)    prior notification in case of selection for physical or other customs control;

(c)    priority treatment if selected for customs control;

(d)    rapid release time as appropriate;

(e)    deferred payment of duties, taxes, fees and charges;

(f)    the use of comprehensive guarantees or reduced guarantees;

(g)    a single supplementary customs declaration for all imports or exports in a given period; and

(h)    clearance of goods at the premises of the AEO or another place authorised by customs authorities. 8

ARTICLE 4.13

Publication and availability of information

1.    Each Party shall promptly publish, in a non-discriminatory and easily accessible manner, and as far as possible through electronic means, new laws, regulations and general procedures relating to customs and trade facilitation matters, prior to the application of any such laws, regulations and procedures, and shall promptly publish amendments to and interpretations of such laws, regulations and procedures. This shall include:

(a)    relevant notices of an administrative nature;

(b)    importation, exportation and transit procedures (including port, airport and other entry-point procedures) and required forms and documents;

(c)    applied rates of duties and taxes of any kind imposed on or in connection with importation or exportation;

(d)    fees and charges imposed by or for governmental agencies on or in connection with importation, exportation or transit;

(e)    rules for the classification or valuation of products for customs purposes;

(f)    laws, regulations and administrative rulings of general application relating to rules of origin;

(g)    import, export or transit restrictions or prohibitions;

(h)    penalty provisions against breaches of import, export or transit formalities;

(i)    appeal procedures;

(j)    agreements or parts thereof with any country or countries relating to importation, exportation or transit;

(k)    procedures relating to the administration of tariff quotas;

(l)    hours of operation and operating procedures for customs offices at ports and border crossing points; and

(m)    points of contact for information enquiries.

2.    Each Party shall ensure that there is a reasonable period of time between the publication of new or amended customs laws, regulations and procedures, and fees or charges and their entry into force.

3.    Each Party shall make available, and update as appropriate, the following through the internet:

(a)    a description of its importation, exportation and transit procedures, including appeal procedures, informing of the practical steps needed to import and export, and for transit;

(b)    the forms and documents required for importation into, exportation from, or transit through the territory of that Party; and

(c)    contact information on enquiry points.

4.    Each Party shall establish or maintain one or more enquiry points to answer, within a reasonable time, enquiries of governments, traders and other interested parties on customs and other trade-related matters. The Parties shall not require the payment of a fee for answering enquiries.

5.    Changes to duty rates or tariff rates, measures that have a relieving effect, measures the effectiveness of which would be undermined as a result of compliance with paragraph 2, measures applied in urgent circumstances, or minor changes to the law of a Party are each excluded from paragraph 2.

ARTICLE 4.14

Advance rulings

1.    Each Party, through its customs authorities, shall issue advance rulings, on application by economic operators, setting out the treatment to be accorded to the goods concerned. Such rulings shall be issued in writing or in electronic format in a time bound manner and shall contain all necessary information pursuant to the laws and regulations of the issuing Party.

2.    Advance rulings shall be valid for a period of at least three years from the start date of its validity unless the decision in the ruling no longer conforms to the law or the facts or circumstances supporting the original ruling have changed.

3.    A Party may refuse to issue an advance ruling if the question raised in the application is the subject of an administrative or judicial review, or if the application does not relate to any intended use of the advance ruling or any intended use of a customs procedure. If a Party declines to issue an advance ruling, it shall promptly notify the applicant in writing, setting out the relevant facts and the basis for its decision.

4.    Each Party shall publish, at least:

(a)    the requirements for the application for an advance ruling, including the information to be provided and the format;

(b)    the time period by which it will issue an advance ruling; and

(c)    the length of time for which the advance ruling is valid.

5.    If a Party revokes, modifies, invalidates or annuls an advance ruling, it shall provide written notice to the applicant setting out the relevant facts and the basis for its decision. If the Party revokes, modifies, invalidates or annuls an advance ruling with retroactive effect, it may only do so if the ruling was based on incomplete, incorrect, false or misleading information.

6.    An advance ruling issued by a Party shall be binding on that Party in respect of the applicant that sought it. The Party may provide that the advance ruling be binding on the applicant.

7.    Each Party shall provide, upon written request from the holder, a review of the advance ruling or of the decision to amend, revoke or invalidate it.

8.    Each Party shall make publicly available information on advance rulings, taking into account the need to protect personal and commercially confidential information.

9.    Advance rulings shall be issued with regard to:

(a)    the tariff classification of goods;

(b)    the origin of goods; and

(c)    any other matter the Parties may agree upon.

ARTICLE 4.15

Customs valuation

1.    Each Party shall determine the customs value of goods of the other Party imported into its territory in accordance with the Article VII of GATT 1994 including its Notes and Supplementary Provisions, and Articles 1 to 17 of the Customs Valuation Agreement, including its Interpretative Notes. These provisions are hereby incorporated into and made part of this Agreement, mutatis mutandis. Minimum customs values shall not be used.

2.    The Parties shall cooperate with a view to reaching a common approach to issues relating to customs valuation.

ARTICLE 4.16

Customs brokers

The Parties agree that their respective customs laws and regulations and procedures shall not require the mandatory use of customs brokers. Each Party shall notify and publish its measures on the use of customs brokers. Each Party shall apply transparent, non-discriminatory and proportionate rules if and when licensing customs brokers.

ARTICLE 4.17

Review and appeal

1.    Each Party shall provide effective, prompt, non-discriminatory and easily accessible procedures to guarantee the right of appeal or review against the administrative actions, rulings and decisions of customs or other competent authorities affecting import or export of goods or goods in transit.

2.    Appeal or review shall include:

(a)    an administrative appeal to or review by an administrative authority higher than or independent of the official or office that issued, as applicable, the administrative action, ruling or decision; or

(b)    a judicial appeal or review of, as applicable, the administrative action, ruling or the decision.

3.    Each Party shall ensure that, in a case where the administrative actions, rulings and decisions on appeal or review provided for in point (a) of paragraph 2 are not given within the period of time provided for in its laws and regulations or without undue delay, the petitioner has the right to further administrative or judicial appeal or review or any other recourse to the judicial authority pursuant to the laws and regulations of that Party.

4.    Each Party shall ensure that the petitioner is provided with the reasons for the administrative actions, rulings and decisions, so as to enable such a person to have recourse to appeal or review procedures where necessary.

ARTICLE 4.18

Relations with the business community

The Parties agree:

(a)    on the need for timely and regular consultations with trade representatives on legislative proposals and general procedures related to customs and trade facilitation matters. To that end, each Party shall establish appropriate consultation between administrations and the business community; and

(b)    to ensure that their respective customs and related requirements and procedures continue to meet the needs of the trading community, follow best practices, and remain as little trade‑restrictive as possible.

ARTICLE 4.19

Temporary admission

1.    For the purposes of this Article, the term "temporary admission" means the customs procedure under which certain goods, including means of transport, can be brought into a customs territory conditionally relieved from payment of import duties and taxes, and, in case of the use of the ATA carnet, also without application of import prohibitions or restrictions of economic character. Such goods must be imported for a specific purpose and must be intended for re‑exportation within a specified period and without having undergone any change, except normal depreciation due to the use made of them.

2.    Each Party shall grant temporary admission, with total conditional relief from import duties and taxes, and, in case of the use of the ATA carnet, also without application of import restrictions or prohibitions of economic character, as provided for in its laws and regulations, to the following goods:

(a)    goods for display or use at exhibitions, fairs, meetings or similar events (goods intended for display or demonstration at an event; goods intended for use in connection with the display of foreign products at an event; equipment including interpretation equipment, sound and image recording apparatus and films of an educational, scientific or cultural character intended for use at international meetings, conferences or congresses);

(b)    professional equipment (equipment for the press, for sound or television broadcasting);

(c)    samples, advertising films, recordings, goods used to carry out tests and goods subject to tests; containers, packing or packaging and pallets whether or not filled with goods all of which are durable, reusable and that are in use or to be used in the shipment of goods in international traffic and accessories and equipment for temporarily admitted containers, which are either imported with a container to be re-exported separately or with another container;

(d)    goods imported exclusively for educational, or scientific purposes or cultural activities and events;

(e)    personal effects (all articles, new or used, which a traveller may reasonably require for his or her personal use during the journey, taking into account all the circumstances of the journey, but excluding any goods imported for commercial purposes); goods imported for sports purposes;

(f)    goods imported for humanitarian purposes by the competent authorities in the territory of temporary admission; and

(g)    animals imported for participation in shows, exhibitions, contests, competitions or demonstrations, entertainment, exercise of function (such as police dogs or horses, detector or sniffer dogs, dogs for the blind or guide dogs).

3.    Each Party shall grant temporary admission, with total or partial conditional relief from import duties and taxes and, in case of the use of the ATA carnet, also without application of import restrictions or prohibitions of economic character, as provided for in its laws and regulations, to the following goods:

(a)    goods imported in connection with a manufacturing operation;

(b)    any other professional equipment necessary to carry out a trade or profession; and

(c)    tourist publicity material (goods imported for the purpose of encouraging the public to visit another foreign country, in particular in order to attend cultural, religious, touristic, sporting or professional meetings or demonstrations held there).

4.    Each Party shall, for the temporary admission of the goods referred to in paragraph 2 and regardless of their origin, provide for conditional relief as per the laws and regulations of that Party, or accept ATA carnets issued in the other Party, endorsed there and guaranteed by an association forming part of the international guarantee chain, certified by the competent authorities and valid in the customs territory of the importing Party.

ARTICLE 4.20

Committee on Customs and Rules of Origin

1.    The Committee on Customs and Rules of Origin is established pursuant to Article 18.3(1) (Specialised committees) and shall be responsible for the matters covered in this Chapter, Chapter 3 (Rules of origin and origin procedures) and the provisions on customs border enforcement of intellectual property rights, customs valuation, fees and charges, and the customs-related aspects of repaired goods and pre-shipment inspection covered by this Agreement, including Article 2.9 (Fees and charges), Article 2.10 (Repaired goods), Article 2.12 (Pre-shipment inspections), Article 10.55 (Border measures), Article 10.56 (Ex officio action) and Article 10.57 (Consistency with GATT 1994 and TRIPS Agreement).

2.    In addition to the functions specified in Article 18.4 (Functions of the specialised committees) and Article 3.31 (Committee on Customs and Rules of Origin), the Committee on Customs and Rules of Origin shall be competent to identify areas for improvement in their implementation and operation, and to seek appropriate ways and methods to reach mutually agreed solutions on any customs matter that may arise.

3.    The Committee on Customs and Rules of Origin may adopt decisions necessary to implement the cooperation activities listed in Article 4.2(3) (Customs co-operation and mutual administrative assistance), in particular those envisaged in points (f) and (i) relating to exchange of customs related information to improve risk management and AEO programmes, those listed in Article 4.3(3) (Additional measures of mutual administrative assistance in customs matters), as well as those on customs risk standards and controls, customs security measures, on advanced rulings, on common approaches to customs valuation and on other issues related to the implementation of this Chapter, as deemed appropriate.

4.    The Committee on Customs and Rules of Origin shall ensure coherence and consistency in the implementation of customs matters between the Parties. Where appropriate, such customs matters may be taken up, as applicable, within the scope of the Joint Customs Cooperation Committee established under the CCMAA Agreement.

CHAPTER 5

Sanitary and Phytosanitary measures

ARTICLE 5.1

Objectives

The objectives of this Chapter are:

(a)    to reinforce the implementation of the SPS Agreement and international standards, guidelines and recommendations developed by relevant international organisations applicable to trade between the Parties;

(b)    to protect human, animal or plant life or health in the territory of each Party while facilitating trade between the Parties and to ensure that sanitary and phytosanitary (hereinafter referred to as "SPS") measures imposed by each Party do not create unjustified barriers to trade;

(c)    to provide a means to strengthen communication, consultation, cooperation and resolution of SPS issues that may affect trade between the Parties and of other agreed matters of interest to the Parties under this Chapter; and

(d)    to promote greater transparency and understanding on the application of each Party's SPS measures.

ARTICLE 5.2

Scope

This Chapter applies to all SPS measures of a Party that may, directly or indirectly, affect trade between the Parties.

ARTICLE 5.3

General provisions

1.    The Parties reaffirm their rights and obligations under the SPS Agreement.

2.    Each Party shall apply the principles of the SPS Agreement in the development or application of any SPS measure with the intent to facilitate trade between the Parties while protecting human, animal or plant life or health in their respective territories.

3.    The Parties shall ensure that SPS measures are not used so as to create unjustified barriers to trade.

4.    The Parties shall ensure that procedures established under this Chapter are undertaken and completed without undue delay and that they are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination against the other Party.

ARTICLE 5.4

Definitions

1.    For the purposes of this Chapter, the following definitions apply:

(a)    the definitions in Annex A to the SPS Agreement;

(b)    the relevant definitions adopted under the auspices of the Codex Alimentarius Commission;

(c)    the relevant definitions adopted under the auspices of the World Organisation for Animal Health (hereinafter referred to as "WOAH");

(d)    the relevant definitions adopted under the auspices of the International Plant Protection Convention (hereinafter referred to as "IPPC");

(e)    "competent authority" means an authority whose roles and functions are set out in Annex 5-A (Competent authorities) to this Agreement; and

(f)    "emergency measure" means an SPS measure that is applied by a Party to products of the other Party to address an urgent problem of human, animal or plant life or health protection that arises or threatens to arise in the Party applying the measure.

2.    In the event of any inconsistency between the definitions agreed under this Chapter and the definitions set out in the SPS Agreement, the definitions set out in the SPS Agreement shall prevail.

ARTICLE 5.5

Competent authorities and contact points

1.    Upon entry into force of this Agreement, the Parties shall provide each other a list of their respective competent authorities and contact points for communication on all matters arising under this Chapter. The notification shall include the respective role, responsibilities and contact information of those authorities and contact points.

2.    The Parties shall inform each other, through their respective contact points, of any significant changes in the structure, organisation and division of competence of their competent authorities and ensure that the information on the contact points is kept up to date.

ARTICLE 5.6

Import conditions and process facilitation

1.    Without prejudice to the rights and obligations of each Party under this Chapter, the import conditions 9  of the importing Party shall apply to the entire territory of the exporting Party.

2.    Each Party shall:

(a)    ensure that control, inspection and approval procedures are undertaken and completed without undue delay;

(b)    promptly communicate to the other Party any changes to import conditions and procedures; and

(c)    except in duly justified circumstances related to its level of protection, provide a transition period between the publication of the changes to its control, inspection and approval procedures and their application.

3.    If the importing Party requires a product to be approved for import, it shall, on request of the exporting Party and without undue delay:

(a)    inform the exporting Party of the anticipated processing period of the procedure;

(b)    undertake and complete the examination of the documentation received from the exporting Party as part of its request and inform the exporting Party in a precise and complete manner of any deficiencies; and

(c)    inform the exporting Party of the status of the assessment of the request in a precise and complete manner, with any delay being explained, so that corrective action may be taken by the exporting Party, if necessary.

4.    The importing Party shall provide the exporting Party with the risk assessment it conducted as part of the approval procedure within a reasonable period of time.

5.    Upon request, the importing Party shall, without undue delay, provide the exporting Party with an explanation of the relationship between the SPS measure and international standards, guidelines and recommendations and, if the SPS measure is not based on an international standard, provide the exporting Party with the information, including scientific evidence, on which the SPS measure is based and an explanation of the reasons for such measure.

6.    Information requirements are limited to what is necessary for appropriate control, inspection and approval procedures.

7.    In case of an export request from a Member State for a product which has previously been approved for import from another Member State, India shall expedite the assessment of such request.

8.    With respect to plants and plant products, each Party shall limit its import requirements to measures ensuring the absence of regulated pests 10 in accordance with the applicable standards agreed under the IPPC.

ARTICLE 5.7

Certification

1.    Where a Party requires an official certificate for the importation of a product, such certificate shall be based on the principles laid down in the international standards of the Codex Alimentarius, the IPPC and WOAH.

2.    The importing Party shall not put in place any additional administrative measure that duplicates the requirements of the official certificate.

3.    Each Party shall ensure that its certification, including any attestations, are prepared in a manner that avoids imposing an unnecessary burden on trade.

4.    Importing Party shall promptly provide to the other Party, on request, information on the certificates required for a specific product.

5.    The Parties shall encourage the implementation of electronic certification and other technologies to facilitate trade.

6.    Each Party shall accept either paper certificates or electronic certificates to the extent that they offer equivalent certification and relevant security and guarantees.

ARTICLE 5.8

Audits

1.    For the purposes of attaining and maintaining the confidence in the exporting Party's compliance with the SPS requirements of the importing Party, the relevant competent authority of the importing Party may conduct an audit of all or part of the control system of the competent authority of the other Party, taking into account the relevant guidance of the WTO SPS Committee and international standards, guidelines and recommendations of the Codex Alimentarius, the IPPC and WOAH.

2.    The audit referred to in paragraph 1 shall:

(a)    focus on the control system of the competent authority of the exporting Party rather than on specific establishments of the exporting Party;

(b)    evaluate the effectiveness of the control system of the competent authority of the exporting Party; and

(c)    follow a systems-based approach which relies on the examination of a sample of system procedures, relevant documents or records and, if required, on-site inspections of establishments of the exporting Party.

3.    The importing Party shall determine the nature and frequency of audits and decide to carry out an audit taking into account the inherent risks of the product concerned, the track record of past import checks and other available information such as audits and inspections undertaken by the competent authority of the exporting Party.

4.    The importing Party shall send a pre-audit questionnaire to the exporting Party prior to notifying the decision to conduct an audit. The exporting Party shall be granted at least six months to respond to that pre-audit questionnaire.

5.    Once the importing Party decides to carry out an audit of the exporting Party, it shall notify its decision, including the scope of audit and its schedule, to the exporting Party at least 60 days before the planned starting date of the audit, unless the Parties agree otherwise or in case of emergency. Any modification of the starting date or the schedule of the audit shall be agreed by the Parties.

6.    The importing Party shall bear its own costs associated with audits.

7.    The exporting Party shall give reasonable access to the importing Party for conducting an audit.

8.    The importing Party shall set forth its findings, preliminary conclusions and, if applicable, its recommendations from the audit in writing in a draft audit report.

9.    The importing Party shall provide the draft audit report to the exporting Party within 30 working days after the date of conclusion of the audit, unless otherwise agreed between the Parties. However, where a significant public, animal or plant health risk has been identified during the audit, the importing Party shall inform the exporting Party as quickly as possible and in any case within 10 working days after the date of conclusion of the audit.

10.    The exporting Party shall inform the importing Party of any comments on the draft audit report and, if required, of any corrective action planned or taken based on the findings, conclusions and, if applicable, the recommendations in the draft audit report, within 35 working days after the date of receipt of the draft audit report, unless otherwise agreed between the Parties. However, where a significant public, animal or plant health risk has been identified during the audit, the exporting Party shall inform the importing Party as quickly as possible and in any case within 10 working days after the date of receipt of the draft audit report.

11.    The importing Party shall provide the final audit report to the exporting Party within 30 working days after the date of receipt of the exporting Party's comments on the draft audit report and, if required, information on corrective actions planned or taken.

12.    Any measures taken by the importing Party on the basis of audits shall be proportionate to the risks identified while taking into account any additional information that may be provided by the exporting Party and shall not be more trade restrictive than necessary to achieve the importing Party's appropriate level of protection. Nothing in this paragraph prevents a Party from taking an emergency measure consistent with Article 5.13 (Emergency measures).

13.    Each Party shall ensure, in accordance with their respective laws and regulations, that procedures are in place to prevent the disclosure of confidential information that is acquired during the audit process.

ARTICLE 5.9

Procedure for registration or publication of lists of establishments

1.    For the purposes of this Article, the exporting Party shall ensure that the establishments and products it approved for export meet the applicable SPS requirements of the importing Party.

2.    If the importing Party maintains a list of establishments of the exporting Party for import of a specific product, the procedure for registration or publication of lists shall be based on an evaluation of the official control system of the relevant competent authority of the exporting Party, and the following shall apply:

(a)    the competent authority of the exporting Party shall approve the establishment of the exporting Party which intends to export the specific product to the importing Party;

(b)    the exporting Party shall share with the importing Party the list of establishments approved pursuant to point (a);

(c)    on receipt of the list of approved establishments from the exporting Party, the importing Party shall register or publish on its official website, the list of these establishments; and

(d)    once an establishment of the exporting Party has been registered or published pursuant to point (c), the importing Party shall allow imports of the specific product without prior inspection of that establishment, within 40 days after the date of receipt of the list of the approved establishments pursuant to point (c).

3.    The importing Party shall make publicly available such list of establishments.

4.    In the event of serious or repeated non-compliance of consignments from an approved establishment, the importing Party may conduct intensified official controls on the consignments of such establishment and shall promptly notify the exporting Party of the specific instances of non‑compliance or identified health risks, and request the exporting Party to conduct the necessary investigations.

5.    The exporting Party shall send to the importing Party a report on the outcome of the investigation and share, without delay, the action plan including the proposed corrective measures to effectively remedy the identified issues. The corrective measures may include the temporary withdrawal of the relevant establishment from the list of approved establishments by the competent authority of the exporting Party.

6.    The exporting Party shall communicate to the importing Party the corrective measures mentioned in paragraph 5 it has taken and the results of such action plan. Upon receipt of such communication, the importing Party shall promptly evaluate the corrective measures taken. If it concludes that the corrective measures taken effectively remedy the identified issues and that the results of its intensified official controls are satisfactory, it shall promptly terminate these controls for such establishment.

ARTICLE 5.10

Transparency and exchange of information

1.    The Parties shall, through their respective contact points referred to in Article 5.5 (Competent authorities and contact points), ensure transparency as regards SPS measures, including any amendment or modification, applicable to trade, as set out in Article 7 and Annex B of the SPS Agreement, which apply mutatis mutandis.

2.    A Party shall promptly inform the other Party of:

(a)    any significant finding of epidemiological importance or change to a plant pest or animal disease status, such as the presence and evolution of a pest or disease relevant for trade between the Parties; or

(b)    any significant food safety issue relevant for trade between the Parties;

3.    On request of a Party, the other Party shall communicate:

(a)    the import conditions that apply to the import of specific products without undue delay after the receipt of the request;

(b)    the progress of the import approval procedure for specific products without undue delay after the receipt of the request; and

(c)    any other information related to SPS measures under this Chapter that may affect trade between the Parties.

4.    Each Party shall make publicly available up-to-date information on:

(a)    all its sanitary and phytosanitary laws and regulations that are adopted; and

(b)    the animal disease status or plant quarantine pest list in its territory.

5.    With respect to plants and plant products, each Party shall make publicly available an updated list of regulated pests for which a phytosanitary concern exists, in accordance with the applicable standards agreed under the IPPC.

6.    When the information referred to in this Article has been made available by notification to the WTO in accordance with the relevant rules or when it has been made available on the official and publicly accessible websites of the Parties, the information exchange shall be considered to have taken place.

ARTICLE 5.11

Adaptation to regional conditions

1.    The Parties recognise the concepts of regional conditions, including pest- or disease-free areas and areas of low pest or disease prevalence, zoning and compartmentalisation as set out in Article 6 of the SPS Agreement and WOAH respectively, and that the adaptation of SPS measures to regional conditions is an important means of facilitating trade, while protecting human, animal or plant life or health. In developing SPS measures that are adapted to regional conditions, the Parties shall take into account the relevant decisions of the WTO SPS Committee, the official animal health status recognized by the WOAH, and international standards, guidelines and recommendations developed by the relevant international organisations.

2.    On receiving a request from the exporting Party for determination of its regional conditions, the importing Party shall inform the exporting Party whether it has sufficient information it needs to start the assessment, while providing an opportunity to the exporting Party to provide required information, if necessary. The information shared by the exporting Party shall be in accordance with Article 6(3) of the SPS Agreement. Once the importing Party determines that the information provided is sufficient, it shall initiate an assessment without undue delay. 

3.    The importing Party shall assess the information received from the exporting Party within a reasonable period of time after the date of receipt of the information. Any audit the importing Party may request shall be carried out in accordance with Article 5.8 (Audits) and shall be initiated within 90 days after the date of receipt of the information, unless otherwise agreed between the Parties.

4.    The importing Party shall base its own determination of the plant pest or animal disease status of the exporting Party on the evidence provided by the exporting Party in accordance with applicable international standards, guidelines and recommendations. The importing Party shall take into account any relevant information and previous experience with the authorities of the exporting Party.

5.    If the importing Party decides not to recognise the regional conditions of the exporting Party, it shall provide the exporting Party with the rationale for its determination and, to the extent practicable, indicate the required conditions for which the process under this Article may be reinitiated within a reasonable period of time from the receipt of such information. Upon request, the importing Party shall hold consultations with the exporting Party within a reasonable period of time from the date of receipt of the request.

6.    If there are circumstances that result in the importing Party modifying or revoking a decision recognising the regional conditions of the exporting Party, the Parties shall cooperate to assess whether the determination can be reinstated.

ARTICLE 5.12

Technical consultations

1.    If a Party has significant concerns regarding human, animal or plant life or health, with respect to an SPS measure proposed or implemented by the other Party, it may request technical consultations with the other Party, through the contact points referred to in Article 5.5 (Competent authorities and contact points).

2.    The requested Party shall respond within 30 days after the date of delivery of the request referred to in paragraph 1.

3.    During technical consultations, each Party shall make every effort to provide the necessary information to address these concerns, and to reach a mutually acceptable solution that effectively manages any SPS risk and avoids a disruption in trade.

4.    Where the Parties have already established other mechanisms than those referred to in this Article to address the concerns, they shall make use of them to the extent possible in order to avoid unnecessary duplication.

5.    A Party shall seek to resolve any concerns with respect to SPS measures of the other Party referred to in paragraph 1 through technical consultations pursuant to this Article prior to initiating dispute settlement proceedings under this Agreement.

6.    A Party may terminate technical consultations by notifying the other Party in writing at any time no less than 180 days after the date of receipt of the response by the requested Party referred to in paragraph 2, or any other time period as agreed by the Parties.

ARTICLE 5.13

Emergency measures

1.    If a Party adopts an emergency measure that is necessary for the protection of human, animal or plant life or health, it shall:

(a)    promptly notify the other Party of such measure; and

(b)    allow the other Party to make comments in writing.

2.    If a Party has a concern regarding an emergency measure adopted by the other Party, it may request technical consultations pursuant to Article 5.12 (Technical consultations) with the other Party. The Party that adopts the emergency measure shall take into consideration any information provided by the other Party during technical consultations.

3.    If a consignment is being transported between the Parties at the time of the adoption of the emergency measure, the importing Party adopting the emergency measure shall consider any information that has been provided by the exporting Party, when it makes its decision with respect to that consignment. The importing Party shall consider the most suitable and proportionate solution to avoid unnecessary disruptions to trade.

4.    If a Party adopts an emergency measure, it shall commence a science-based review of the measure within a reasonable period of time. The Party shall then review the need for the emergency measure as required, and if it remains in place provide, on request, the justification for maintaining such measure. If the exporting Party considers, on the basis of scientific evidence, that an emergency measure is being maintained by the importing Party without justification it may provide that evidence to the other Party and request the other Party to review the emergency measure or engage in technical consultations under Article 5.12 (Technical consultations).

5.    Without prejudice to emergency measures, the importing Party shall not stop the importation of a good of the other Party solely for the reason that the importing Party is undertaking a review of an existing SPS measure, if the importing Party permitted importation of the good of the other Party at the time of the initiation of the review.

ARTICLE 5.14

Equivalence

1.    The Parties shall strengthen cooperation on equivalence in accordance with Article 4 of the SPS Agreement while taking into account relevant decisions of the WTO SPS Committee and international standards, guidelines and recommendations, in accordance with Annex A to the SPS Agreement, mutatis mutandis.

2.    A Party shall, upon request of the other party, enter into bilateral consultations with the aim of achieving the recognition of an individual measure, group of measures, or measures on a systems‑wide basis as equivalent.

3.    A Party shall, within a reasonable period of time after receipt of the request from the other Party, initiate the consultation process of determination of equivalence and shall finalise such determination taking into account any knowledge and past experience it has in trading with the other Party.

4.    The importing Party shall conclude its assessment within a reasonable period of time from the date of request and shall notify the determination of equivalence, including non-recognition of the SPS measure as equivalent, to the exporting Party, within a reasonable period of time of conclusion of the assessment. To this effect, the importing Party shall implement the determination of equivalence within 60 days from the conclusion of the assessment.

5.    The consideration by the importing Party of a request from the exporting Party for recognition of the equivalence of its SPS measures with regard to a specific product or group of products shall not be in itself a reason to disrupt or suspend ongoing trade from the exporting Party of the specific product or group of products in question. When an equivalence determination is made, it shall be formally recorded and applied to the trade between the Parties. 

6.    If a Party proposes to modify, amend, repeal or remove an SPS measure which is the subject of an equivalence arrangement between the Parties, it shall notify the other Party and indicate its likely effect on the recognition of equivalence within 30 days from such modification, amendment, repeal or removal. Following such notification, the importing Party shall continue to apply its determination of equivalence unless its appropriate level of protection is not met.

7.    Compliance of a product or a group of products with SPS measures of one Party that have been accepted as equivalent to SPS measures of the other Party shall not remove the need for that product or a group of products to comply with any other relevant mandatory requirements.

8.    The final determination of equivalence, and any subsequent withdrawal or suspension of equivalence, remains with the importing Party, acting in accordance with its administrative and legislative framework, taking into account international standards, guidelines and recommendations.

ARTICLE 5.15

Committee on Sanitary and Phytosanitary Measures

1.    The Committee on Sanitary and Phytosanitary Measures (hereinafter referred to as the "SPS Committee") is established pursuant to Article 18.3 (Specialised committees).

2.    In addition to the functions specified in Article 18.4 (Functions of the specialised committees), the SPS Committee may address any matter related to this Chapter, including facilitating communication and strengthening cooperation between the Parties, and shall have the following functions:

(a)    providing a forum to exchange expertise and experiences on each Party's SPS measures;

(b)    providing a forum for the identification, prioritisation, discussion, and resolution of SPS issues; and

(c)    agreeing on a written record of the discussions between the Parties on their work and decisions made by it, within a reasonable period of time.

3.    The SPS Committee shall report, as needed, on its activities to the Joint Committee.

4.    The SPS Committee may recommend the Joint Committee to establish ad hoc working groups consisting of expert-level representatives of the competent authorities of the Parties which shall identify and address SPS issues arising from this Chapter.

ARTICLE 5.16

Import checks

1.    The importing Party shall have the right to carry out import checks based on the SPS risks associated with imports. These checks shall be carried out without undue delay, with minimising trade disrupting effects and in a non-discriminatory manner. The Parties shall ensure that their control, inspection and approval procedures are conducted in accordance with Annex C to the SPS Agreement.

2.    A Party shall make available to the other Party, to the extent possible, on request, information on the frequency of its import checks and the factors that it considers relevant for determining the SPS risks associated with imports.

3.    In carrying out SPS import checks, where sampling takes place, the importing Party shall ensure that plants and plant products, animal products and other goods and their packaging are sampled in a representative manner.

4.    If import checks reveal non-compliance with the relevant import conditions, the following shall apply:

(a)    the action taken by the importing Party shall be based on an assessment of the risk involved and not be more trade-restrictive than required to achieve the importing Party's appropriate level of protection;

(b)    the importing Party shall notify the importer or its authorised representative or the exporter's authorised representative located in the territory of the importing Party, of the non‑compliance, including the reason for the non-compliance, and shall, subject to its laws and regulations, provide them with an opportunity for a review of the decision;

(c)    during the review, the importing Party shall give the importer or its authorised representative or the exporter's authorised representative located in the territory of the importing Party, an opportunity to provide relevant information to assist it in taking a final decision, consider that information, and take the final decision within a reasonable period of time;

(d)    the importing Party shall provide the importer or its authorised representative or the exporter's authorised representative, located in the territory of the importing Party, with the opportunity to seek a second expert opinion which may include secondary testing of consignments. The outcome of such second expert opinion including secondary testing shall be considered by the importing Party in taking a final decision on the acceptance or rejection of consignments, provided that this consideration shall not affect the obligation of competent authorities of the importing Party to take prompt action to eliminate or contain the risks to human, animal and plant life or health;

(e)    unless there is an identified risk, the importing Party shall, in accordance with its administrative framework and law, provide the opportunity for the operator or its authorized representative to take back the consignment, where reasonably practicable; and

(f)    nothing in this Article prevents an importing Party from disposing of a consignment which is found to present risks to human, animal or plant life or health, that can, if urgent action is not taken, cause damage to human, animal or plant life or health in the importing Party's territory.

CHAPTER 6

TECHNICAL BARRIERS TO TRADE

ARTICLE 6.1

Objective

The objective of this Chapter is to facilitate trade in goods between the Parties by preventing, identifying and eliminating unnecessary technical barriers to trade.

ARTICLE 6.2

Scope

1.    This Chapter applies to the preparation, adoption and application of all standards, technical regulations and conformity assessment procedures as defined in Annex 1 to the TBT Agreement, at the central level of government, which may affect trade in goods between the Parties.

2.    Each Party shall take such reasonable measures as may be available to it to ensure compliance with this Chapter by governmental bodies, at the level directly below that of central government within its territory, which are responsible for the preparation, adoption and application of standards, technical regulations and conformity assessment procedures.

3.    This Chapter does not apply to:

(a)    purchasing specifications prepared by governmental bodies for production or consumption requirements of such bodies; or

(b)    sanitary and phytosanitary measures as defined in Annex A to the SPS Agreement that fall within the scope of Chapter 5 (Sanitary and phytosanitary measures).

ARTICLE 6.3

Relationship with the TBT Agreement

1.    Each Party affirms its rights and obligations under the TBT Agreement which is incorporated into and made part of this Agreement, mutatis mutandis.

2.    Terms referred to in this Chapter have the same meaning as they have in the TBT Agreement

ARTICLE 6.4

Technical regulations

1.    Each Party shall endeavour to consider the feasible and appropriate alternatives to the proposed technical regulations that may fulfil the Party's legitimate objectives, in accordance with Article 2.2 of the TBT Agreement, and may conduct an assessment, in accordance with its respective laws and regulations, of the impact of the proposed technical regulations.

2.    Each Party shall use relevant international standards, or their relevant parts, as a basis for its technical regulations except when such international standards would be an ineffective or inappropriate means for the fulfilment of the legitimate objectives pursued. If a Party does not use international standards, or their relevant parts, as a basis for its technical regulations, that Party shall, on request of the other Party, share the reasons why it considers such standards to be an inappropriate or ineffective means for the fulfilment of the legitimate objectives pursued.

3.    International standards developed by the International Organization for Standardization ("ISO"), the International Electrotechnical Commission ("IEC"), the International Telecommunication Union ("ITU") and the Codex Alimentarius Commission shall be the relevant international standards within the meaning of Articles 2 and 5 of, and Annex 3 to, the TBT Agreement.

4.    A standard developed by other international organisations may also be considered a relevant international standard within the meaning of Articles 2 and 5 of, and Annex 3 to, the TBT Agreement, provided that:

(a)    it has been developed by a standardising body which seeks to establish consensus either:

(i)    among national delegations of the participating WTO Members representing all the national standardising bodies in their territory that have adopted, or expect to adopt, standards on the subject matter to which the international standardisation activity relates; or

(ii)    among relevant governmental bodies of participating WTO Members; and

(b)    it has been developed in accordance with the Decision of the WTO Committee on Technical Barriers to Trade on Principles for the Development of International Standards, Guides and Recommendations in relation to Articles 2 and 5 of, and Annex 3 to, the TBT Agreement.

5.    Each Party shall endeavour to review its technical regulations to take into account any new development in the relevant international standards or any change in the circumstances that has given rise to divergences from any relevant international standard.

6.    In accordance with its respective laws and regulations and without prejudice to Chapter 14 (Good regulatory practices and regulatory cooperation), for the development of a major technical regulation which may have a significant effect on trade, each Party shall endeavour to provide a reasonable opportunity to persons of the Parties to submit input through a public consultation process. Each Party shall allow persons of the other Party to participate in such consultations which are available to the general public, on terms that are no less favourable than those accorded to its own persons.

ARTICLE 6.5

Standards

1.    Each Party shall encourage the standardising bodies established within its territory and, as applicable, the regional standardising bodies of which a Party or the standardising bodies established in 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 where 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 national standards and, as applicable, standards developed by regional standardising bodies that are not based on relevant international standards, with a view to minimising the divergence of those standards from relevant international standards;

(e)    cooperate with the standardising bodies of the other Party in international standardisation activities of mutual interest, including through cooperation in the relevant international standardising bodies or at regional level; and

(f)    foster bilateral cooperation with the standardising bodies of the other Party.

2.    The Parties shall exchange available information on their respective use of standards in support of technical regulations and their respective standard-setting procedures.

ARTICLE 6.6

Conformity assessment

1.    The provisions set out in Article 6.4 (Technical regulations) with respect to the preparation, adoption and application of technical regulations also apply to conformity assessment procedures, mutatis mutandis.

2.    Where a Party requires conformity assessment as a positive assurance that a product conforms with a technical regulation, it shall consider:

(a)    selecting appropriate conformity assessment procedures that take into account the risks of non-conformity;

(b)    as appropriate, the use of a supplier's declaration of conformity as proof of compliance with technical regulations; and

(c)    on request of the other Party, providing available information on the criteria used to select the conformity assessment procedures for specific products.

3.    Where a Party requires third party conformity assessment as a positive assurance that a product conforms with a technical regulation, and it has not reserved this task to a governmental body as referred to in paragraph 4, it shall:

(a)    use accreditation, as appropriate, as a means to qualify conformity assessment bodies;

(b)    use relevant international standards, guides or recommendations issued by international standardising bodies, as applicable to 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 ("ILAC") and the International Accreditation Forum ("IAF");

(c)    encourage accreditation bodies and conformity assessment bodies located within its territory to join any relevant functioning international agreements or arrangements for the harmonisation of, or facilitation of acceptance of, conformity assessment results; 

(d)    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; and

(e)    make publicly available online, preferably on a single website, a list of the bodies that it has designated to perform such conformity assessment and the information on the scope of designation of each of those bodies.

4.    If a Party requires that conformity assessment in relation to specific products be performed by its specified government authorities, that Party shall:

(a)    ensure that conformity assessment fees are equitable in relation to the fees charged for conformity assessment of like products of national origin or originating in third countries, taking into account communication, transportation and other costs arising from differences between the location of the facilities of the applicant and the conformity assessment body; and

(b)    make the conformity assessment fees publicly available online.

ARTICLE 6.7

Transparency

1.    Except where urgent problems of safety, health, environment or national security arise or threaten to arise, each Party shall allow the other Party to provide written comments on notified proposed technical regulations and conformity assessment procedures within 60 days after the date of the transmission of the notification of such regulations or procedures to the WTO Central Registry of Notifications. A Party shall give positive consideration to a reasonable request to extend the comment period.

2.    Each Party shall provide the electronic version of the full notified text together with the notification. If the notified text is not in one of the official WTO languages, the notifying Party shall provide a translation or a detailed and comprehensive description of the content of the measure in the WTO notification format.

3.    If a Party receives written comments on its notified proposed technical regulation or conformity assessment procedure from the other Party, it shall take them into account, and shall endeavour to reply in writing to the comments no later than the date of publication of the adopted technical regulation or conformity assessment procedure.

4.    On request of the other Party, a Party shall provide information regarding the objectives of, and rationale and legal basis for, any technical regulation or conformity assessment procedure that the Party has adopted or is proposing to adopt.

5.    Each Party shall ensure that the technical regulations and conformity assessment procedures that it has adopted are published on a freely accessible website.

6.    Each Party shall endeavour to provide information on the adoption and the entry into force of technical regulations or conformity assessment procedures and the adopted final texts through an addendum to the original notification to the WTO.

7.    Each Party shall normally allow a period of not less than six months between the publication of technical regulations and their entry into force, in order to allow time for the economic operators of the other Party to adapt, except when allowing such a period would make it ineffective to fulfil the legitimate objectives pursued.

8.    A Party shall give positive consideration to a reasonable request from the other Party, received prior to the end of the comment period set out in paragraph 1, to extend the period of time between the adoption of the technical regulation and its entry into force, except where the delay would make it ineffective to fulfil the legitimate objectives pursued.

9.    If standards are rendered mandatory in a draft technical regulation or conformity assessment procedure, through incorporation or reference, the transparency obligations set out in this Article and in Articles 2 or 5 of the TBT Agreement shall apply.

10.    If a Party detains at the point of entry an imported consignment, due to non-compliance with a technical regulation or a conformity assessment procedure, it shall, in accordance with its laws and regulations, notify the importer or its representative, as soon as possible, of the reasons for the detention. If a Party does not fulfil such obligation to notify, it shall provide reasons to the other Party.

ARTICLE 6.8

Marking and labelling

1.    The technical regulations of a Party may include or exclusively address mandatory marking or labelling requirements. In such cases, the principles of Article 2.2 of the TBT Agreement apply to these technical regulations.

2.    Unless it is necessary in view of the legitimate objectives referred to in Article 2.2 of the TBT Agreement, if a Party requires mandatory marking or labelling of products, it shall:

(a)    only require information which the Party determines to be relevant for consumers or users of the product pursuant to its laws and regulations, or information which indicates that the product conforms to the mandatory technical requirements;

(b)    ensure that no prior approval, registration or certification of the labels or markings of products is required as a precondition for placing on its market products that otherwise comply with its mandatory technical requirements;

(c)    if the Party 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)    unless the information listed in points (i), (ii) or (iii) would be misleading, contradictory or confusing in relation to the information required by the importing Party, permit:

(i)    information in other languages in addition to the language required in the importing Party;

(ii)    internationally accepted nomenclatures, pictograms, symbols or graphics; and

(iii)    additional information to that required in the importing Party;

(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 the labelling at the manufacturer's premises is required under the Party's laws or regulations to fulfil the legitimate objectives set out in Article 2.2 of the TBT Agreement; and

(f)    endeavour to accept the use of non-permanent or detachable labels, or marking or labelling in the accompanying documentation, rather than requiring labels or marking to be physically attached to the product.

ARTICLE 6.9

Market surveillance 11

1.    Each Party shall ensure:

(a)    the impartial and independent conduct of market surveillance functions from conformity assessment functions with a view to avoiding conflicts of interest. This shall not prevent a Party from entrusting in a single entity both market surveillance functions and conformity assessment functions;

(b)    the absence of any conflict of interest that would affect the impartiality of market surveillance authorities in the performance of control or supervision of economic operators; and

(c)    the access by the market surveillance authorities to the relevant documents, technical specifications, data or information on compliance of the economic operators in its territory.

2.    The Parties recognise the importance of cooperation on market surveillance of products for the facilitation of trade and for the protection of end users, including consumers, and the importance of building mutual trust based on timely shared information.

3.    The Parties may cooperate and exchange information, including with respect to the following:

(a)    market surveillance activities and measures;

(b)    market surveillance-related enforcement activities and measures;

(c)    risk assessment methods and product testing;

(d)    coordinated product recalls or other similar actions;

(e)    scientific, technical and regulatory aspects, aiming to improve market surveillance;

(f)    emerging issues of significant health and safety relevance; and

(g)    standardisation-related activities.

4.    Each Party may provide the other Party with relevant information on the safety of specific products 12 and on the preventive, restrictive and corrective measures taken with respect to such products. The information exchange may take the form of:

(a)    non-systematic exchange, in duly justified and specific cases, excluding personal data; or

(b)    systematic exchange, based on an arrangement established in Annex 6-A (Arrangement referred to in Article 6.9(4) (Market surveillance) for the systematic exchange of information in relation to the safety of products and related preventive, restrictive and corrective measures).

5.    The Parties may establish an arrangement in Annex 6-B (Arrangement referred to in Article 6.9(5) (Market surveillance) for the regular exchange of information regarding measures taken on non-compliant products, other than those covered by Article 6.9(4) (Market surveillance)) on the regular exchange of information, including by electronic means, on measures taken on non‑compliant products, other than those covered by paragraph 4 of this Article.

6.    Each Party shall use the information obtained pursuant to paragraphs 3, 4 and 5 of this Article for the sole purpose of the protection of consumers, health, safety or the environment.

7.    Each Party shall treat the information obtained pursuant to paragraphs 3, 4 and 5 of this Article as confidential.

8.    The arrangements referred to in paragraphs 4 and 5 of this Article shall specify the type of information to be exchanged, the modalities for the exchange and the application of confidentiality and personal data protection rules.

9.    The Joint Committee shall have the power to adopt decisions to determine or amend arrangements set out in Annex 6-A (Arrangement referred to in Article 6.9(4) (Market surveillance) for the systematic exchange of information in relation to the safety of products and related preventive, restrictive and corrective measures) and Annex 6-B (Arrangement referred to in Article 6.9(5) (Market surveillance) for the regular exchange of information regarding measures taken on non-compliant products, other than those covered by Article 6.9(4) (Market surveillance)).

ARTICLE 6.10

Technical discussions

1.    A Party may request technical discussions with the other Party regarding any matter arising under this Chapter by delivering a written request to the relevant contact point of the other Party designated pursuant to Article 6.14 (Contact points). The Parties shall make every attempt to arrive at a mutual understanding of the matter.

2.    When such request refers to a draft or notified technical regulation or conformity assessment procedure of the other Party that might have a significant effect on trade between the Parties, the request shall identify:

(a)    the measure at issue;

(b)    the provisions of this Chapter to which the concerns relate; and

(c)    the reasons for the request, including a description of the requesting Party's concerns regarding the measure.

3.    On request of either Party, the Parties shall discuss the concerns raised in the request referred to in paragraph 2, in person or by any other means, within 60 days after the date of the request and shall endeavour to resolve the matter as expeditiously as possible. If a requesting Party believes that the matter is urgent, it may request that any discussion take place within a shorter timeframe. In such cases, the responding Party shall give positive consideration to such a request.

4.    If the Parties have already had recourse to a bilateral forum, other than technical discussions under this Article, to address significant concerns with respect to any matter under this Chapter that is proposed or implemented by the other Party, they shall continue to make use of that forum to avoid unnecessary duplication of technical discussions. A Party may request technical discussions to address those concerns, in accordance with paragraph 1 of this Article, if it decides that those concerns cannot be addressed in that other forum. Once a request for technical discussions has been made for such concerns under this Article, the requesting Party shall not raise them in another forum as long as technical discussions are being held under this Article. If the requesting Party decides that such technical discussions are no longer fruitful, it may have recourse to another forum.

5.    For greater certainty, this Article is without prejudice to a Party's rights and obligations under Chapter 17 (Dispute settlement).

ARTICLE 6.11

Committee on Technical Barriers to Trade

The Committee on Technical Barriers to Trade is established pursuant to Article 18.3(1) (Specialised committees). In addition to the functions specified in Article 18.4 (Functions of the specialised committees), the Committee on Technical Barriers to Trade shall have the following functions:

(a)    monitoring and reviewing any issue related to the development, adoption, application or enforcement of standards, technical regulations and conformity assessment procedures, and promptly addressing any issue that the other Party raises related to these matters;

(b)    facilitating cooperation between the Parties, as appropriate, with respect to any matter that falls within the scope of this Chapter;

(c)    facilitating technical discussions under Article 6.10 (Technical discussions);

(d)    establishing a cooperative framework grounded in transparency to foster mutual trust in the quality and integrity of each other's regulatory systems; and

(e)    reducing the compliance burden on economic operators of the other Party while ensuring compliance with regulatory requirements and maintaining oversight of product safety and quality.

ARTICLE 6.12

Working Group on Conformity Assessment

1.    The Parties hereby establish a Working Group on Conformity Assessment under the auspices of the Committee on Technical Barriers to Trade to consider and address matters arising from the application of each Party's conformity assessment procedures to comply with the technical regulations, including quality control orders and relevant European Union regulations, that may affect trade between the Parties.

2.    The Working Group on Conformity Assessment shall, when appropriate, conduct the preparatory technical work for the adoption by the Committee on Technical Barriers to Trade of recommendations aimed at enhancing transparency, promoting mutual understanding, and reducing unnecessary compliance burdens on the economic operators of the Parties.

ARTICLE 6.13

Cooperation

1.    The Parties shall encourage cooperation between their respective organisations responsible for standardisation and accreditation, with a view to facilitating trade.

2.    Each Party, on request of the other Party, shall consider proposals for cooperation on matters of mutual interest on standards, technical regulations and conformity assessment procedures, including any sector specific initiatives.

3.    Such cooperation, which shall be conducted on mutually determined terms and conditions, may include:

(a)    advice or, whenever possible, technical assistance and capacity building relating to the development and application of standards, technical regulations and conformity assessment procedures;

(b)    cooperation between conformity assessment bodies, both governmental and non‑governmental, on matters of mutual interest;

(c)    cooperation in areas of mutual interest in the work of relevant regional and international bodies relating to the development and application of standards and conformity assessment procedures, such as enhancing participation in the frameworks for mutual recognition developed by relevant regional and international bodies;

(d)    enhancing cooperation in the development and improvement of standards, technical regulations and conformity assessment procedures; and

(e)    strengthening communication and coordination in the WTO Committee on Technical Barriers to Trade and other relevant international or regional fora.

ARTICLE 6.14

Contact points

1.    Upon the entry into force of this Agreement, each Party shall designate contact points responsible for coordinating the implementation of this Chapter and shall notify the other Party of the same. The notification shall include the respective roles, responsibilities, and contact information of the contact points, including telephone numbers, email addresses and any other relevant details. The Parties shall promptly notify each other of any change to those contact details.

2.    The contact point of a Party shall provide any information or explanation requested by the contact point of the other Party in relation to the implementation of this Chapter within a reasonable period of time.

CHAPTER 7

TRADE REMEDIES

SECTION A

ANTI-DUMPING AND COUNTERVAILING MEASURES

ARTICLE 7.1

General provisions

1.    Each Party retains its rights and obligations arising from the Anti-dumping Agreement and from the SCM Agreement.

2.    For the purposes of this Section, origin shall be determined in accordance with the applicable non-preferential rules of origin of each Party.

ARTICLE 7.2

Transparency

1.    After receipt by a Party's investigating authority of a properly documented application for an anti-dumping or a countervailing investigation with respect to imports from the other Party and before proceeding to initiate such investigation, the Party shall provide written notification to the other Party.

2.    Before initiating a countervailing investigation, a Party shall afford the other Party an opportunity to consult with its investigating authority with the aim of seeking a mutually agreed solution. The consultations shall be held after providing sufficient time, but no less than seven days after the date of sending of the invitation.

3.    Pursuant to Article 6.2 of the Anti-dumping Agreement and Article 12.2 of the SCM Agreement, on request of an interested party, a Party shall grant such interested party the possibility to be heard in order to express their views during an anti-dumping or a countervailing investigation, provided that the granting of such request does not prevent the investigation from proceeding expeditiously.

4.    Before a final finding is issued, the investigating authority shall inform the parties participating in the investigation of the essential facts that form the basis for the decision. Such disclosure shall be made in writing and should take place in sufficient time for the parties to defend their interests. The preliminary finding, if issued, shall contain sufficient detailed information specifying the reasons leading to the decision.

ARTICLE 7.3

Consideration of public interest

Anti-dumping or countervailing measures may not be applied by a Party if, on the basis of the information made available during the investigation, it can clearly be concluded that it is not in the public interest to apply such measures. Such consideration of public interest shall be in accordance with the laws and regulations of a Party. The public interest assessment may take into account the situation of various interested parties, including the domestic industry, importers and their representative associations, representative users and representative consumer organizations, to the extent they have provided relevant information to the investigating authorities.

ARTICLE 7.4

Lesser duty rule

If a Party takes a decision to impose an anti-dumping duty or a countervailing duty, that Party shall, in accordance with its law, apply a duty less than the margin of dumping or a duty less than the subsidy margin, as the case maybe, if such lesser duty would be adequate to remove the injury to the domestic industry.

SECTION B

GLOBAL SAFEGUARD MEASURES

ARTICLE 7.5

General provisions

Each Party retains its rights and obligations under Article XIX of GATT 1994, the Safeguards Agreement and Article 5 of the Agreement on Agriculture.

ARTICLE 7.6

Transparency

1.    Notwithstanding Article 7.5 (General provisions), on request of the other Party and provided that such Party has a substantial interest, the Party initiating a safeguard investigation or intending to apply global safeguard measures shall provide as soon as possible a written notification of all pertinent information regarding the initiation of a safeguard investigation or the application of global safeguard measures including on the provisional findings, if relevant. This is without prejudice to Article 3.2 of the Safeguards Agreement.

2.    To the extent permitted by the Safeguards Agreement, when applying global safeguard measures, the Parties shall endeavour to apply them in a way that least affects trade between the Parties.

3.    For the purposes of paragraph 2 of this Article, if a Party intending to apply such global safeguard measures considers that the legal requirements are met for the application of definitive global safeguard measures, that Party shall notify the other Party having a substantial interest and, upon request, give the possibility to hold bilateral consultations. If no satisfactory solution has been reached within 12 days of the notification, the importing Party may apply the appropriate global safeguard measures to remedy the problem.

4.    For the purposes of this Article, a Party is considered to have a substantial interest when it is among the five largest suppliers of the imported good during the most recent three-year period, measured in terms of either absolute volume or value.

SECTION C

BILATERAL SAFEGUARD MEASURES

ARTICLE 7.7

Definitions

For the purposes of this Section:

(a)    "domestic industry" means, with respect to an imported good, the producers as a whole of the like or directly competitive good operating within the territory of a Party, or those producers whose collective production of the like or directly competitive good constitutes a major proportion of the total domestic production of that good;

(b)    "serious injury" means a significant overall impairment in the position of a domestic industry,

(c)    "threat of serious injury" means serious injury that, on the basis of facts and not merely on allegation, conjecture or remote possibility, is clearly imminent; and

(d)    "transition period" means 22 years from the date of entry into force of this Agreement.

ARTICLE 7.8

Application of a bilateral safeguard measure

1.    If, as a result of the reduction or elimination of a customs duty under this Agreement, a good originating in a Party is being imported into the territory of the other Party in such increased quantities, in absolute terms or relative to domestic production, and under such conditions that the imports of that good from that Party cause or threaten to cause a serious injury to domestic producers of like or directly competitive goods, the other Party may apply appropriate bilateral safeguard measures under the conditions and in accordance with the procedures laid down in this Section.

2.    If the conditions set out in paragraph 1 are met, the bilateral safeguard measures of the importing Party may only consist of one of the following:

(a)    the suspension of the further reduction of the rate of customs duty on the good concerned provided for under this Agreement; or

(b)    the increase in the rate of customs duty on the good concerned to a level which does not exceed the lesser of:

(i)    the most-favoured nation applied rate of customs duty on the good in effect at the time the bilateral safeguard measure is applied; or

(ii)    the most-favoured nation applied rate of customs duty on the good in effect on the day immediately preceding the date of entry into force of this Agreement.

ARTICLE 7.9

Conditions and limitations

1.    A bilateral safeguard measure shall not be applied or maintained:

(a)    except to the extent, and for such time, as may be necessary to prevent or remedy the situation described in Article 7.8(1) (Application of a bilateral safeguard measure) and to facilitate adjustment;

(b)    for a period exceeding two years, which may be extended by another two years if the competent authorities of the importing Party determine, in conformity with the procedures specified in this Section, that the measure continues to be necessary to prevent or remedy the situations described in Article 7.8(1) (Application of a bilateral safeguard measure) and Article 7.13 (Outermost regions of the European Union), and to facilitate adjustment, provided that the total period of application of a safeguard measure, including the period of initial application and any extension thereof, does not exceed four years; or

(c)    beyond the expiry of the transition period, except with the consent of the other Party.

2.    Neither Party shall apply, with respect to the same product and during the same period:

(a)    a bilateral safeguard measure provided for in this Agreement;

(b)    a safeguard measure under Article XIX of GATT 1994 and the Safeguards Agreement; and

(c)    a special safeguard under Article 5 of the Agreement on Agriculture.

3.    When a Party ceases to apply a bilateral safeguard measure, the rate of customs duty shall be the rate that would have been in effect for the good, in accordance with the Party's schedule in Annex 2-A (Schedules of tariff commitments).

ARTICLE 7.10

Provisional bilateral safeguard measures

1.    In critical circumstances where delay would cause damage that would be difficult to repair, a Party may apply a bilateral safeguard measure on a provisional basis, without complying with the requirements of Article 7.20(1) (Notifications and publications of definitive measures), following a preliminary determination that there is clear evidence that imports of a good originating in the other Party have increased as the result of the reduction or elimination of a customs duty under this Agreement, and that such imports cause or threaten to cause the situations described in Article 7.8(1) (Application of a bilateral safeguard measure).

2.    The duration of any provisional measure shall not exceed 200 days, during which time the Party shall comply with the relevant procedural rules laid down in Article 7.9 (Conditions and limitations). The Party shall promptly refund any tariff increases if the investigation described in Article 7.15 (Initiation of a bilateral safeguard investigation) does not result in a finding that the requirements of Article 7.8 (Application of a bilateral safeguard measure) are met. The duration of any provisional measure shall be counted as part of the period described in point (b) of Article 7.9(1) (Conditions and limitations). The importing Party shall inform the other Party upon applying such provisional measures.

ARTICLE 7.11

Compensation and suspension of concessions

1.    A Party applying a bilateral safeguard measure shall consult with the other Party whose goods are subject to the measure in order to mutually agree on appropriate trade liberalising compensation in the form of concessions having substantially equivalent trade effects. The Party applying the bilateral safeguard measure shall provide an opportunity for those consultations no later than 30 days after the date of application of definitive bilateral safeguard measure.

2.    If the consultations referred to in paragraph 1 do not result in an agreement on trade liberalising compensation within 30 days, the Party whose goods are subject to the bilateral safeguard measure may suspend the application of substantially equivalent concessions to the trade of the Party applying the bilateral safeguard measure. This suspension shall apply only for the minimum period necessary to achieve the substantially equivalent effects.

3.    The right of suspension pursuant to paragraph 2 shall not be exercised for:

(a)    the first two years during which the bilateral safeguard measure is in effect; and

(b)    the first three years during which the measure is in effect, if it has been extended beyond two years.

ARTICLE 7.12

Time lapse between two bilateral safeguard measures

A Party shall not apply a bilateral safeguard measure to a good originating in the other Party that has already been subject to such a measure for a period of time equal to half of the duration of the previous bilateral safeguard measure.

ARTICLE 7.13

Outermost regions of the European Union

1.    If any good originating in India is being imported directly into the territory of one or several outermost regions 13 of the European Union in such increased quantities and under such conditions as to cause or threaten to cause serious deterioration in the economic situation of the outermost regions concerned, the European Union, after having examined alternative solutions, may exceptionally apply bilateral safeguard measures limited to the territory of the outermost regions concerned.

2.    Without prejudice to paragraph 1, other provisions of this Section are also applicable to any bilateral safeguard measure applied under this Article. Any reference to "serious injury" in those other provisions shall be understood as "serious deterioration" when applied in relation to outermost regions of the European Union.

3.    For the purposes of paragraphs 1 and 2, "serious deterioration" means major difficulties in a sector of the economy producing like or directly competitive goods. The determination of deterioration shall be based on objective factors, including the following elements:

(a)    the increase in the volume of imports in absolute or relative terms to domestic production and to imports from other sources; and

(b)    the effect of such imports on the situation of the relevant industry or the economic sector concerned, including inter alia on the levels of sales, production, financial situation and employment.

ARTICLE 7.14

Administration of bilateral safeguard investigations

1.    For the application of bilateral safeguard measures, the competent investigating authority of each Party shall comply with this Section and, in cases not covered by this Section, the competent investigating authority of a Party shall apply the rules established under the law of that Party.

2.    Each Party shall ensure the consistent, impartial and reasonable administration of its laws, regulations, decisions and rulings governing all bilateral safeguard investigations under this Section.

ARTICLE 7.15

Initiation of a bilateral safeguard investigation

1.    A bilateral safeguard investigation may be initiated by the competent investigating authority of a Party pursuant to the law of that Party.

2.    Once the investigation has been initiated, the written application shall be made available for public inspections, except for the confidential information contained therein.

3.    Upon initiation of a bilateral safeguard investigation, the competent investigating authority shall publish a notice of initiation of the investigation in the official journal of the Party. The notice shall identify:

(a)    the applicant that filed the written application, if applicable;

(b)    the imported good that is the subject of the investigation and its indicative subheading and the tariff item number under which it is classified;

(c)    the period within which interested parties may apply to participate in the investigation; and

(d)    the name and address of the office to be contacted for more information.

ARTICLE 7.16

Investigation

1.    A Party may apply a bilateral safeguard measure only following an investigation by the competent investigating authority of that Party in accordance with this Section. This investigation shall include reasonable public notice to all interested parties, the opportunity to be heard and any other appropriate means by which importers, exporters and other interested parties can present evidence and their views, including the opportunity to respond to the presentations of other parties.

2.    Each Party shall ensure that its competent investigating authority completes any such investigation within 12 months of the date of its initiation.

ARTICLE 7.17

Evidence of injury and causal link

1.    In conducting its bilateral safeguard investigation, the competent investigating authority shall evaluate all relevant factors of an objective and quantifiable nature having a bearing on the situation of the domestic industry, in particular the rate and amount of the increase in imports of the good concerned in absolute terms or relative to domestic production, the share of the domestic market taken by increased imports and changes in the level of sales, production, productivity, capacity utilisation, profits and losses, and employment.

2.    The determination of whether increased imports have caused or are threatening to cause the situations described in Article 7.8(1) (Application of a bilateral safeguard measure) shall not be made unless the investigation demonstrates, on the basis of objective evidence, the existence of a causal link between increased imports of the good concerned and the situations described in Article 7.8(1) (Application of a bilateral safeguard measure). Where factors other than increased imports are, at the same time, causing the situations described in Article 7.8(1) (Application of a bilateral safeguard measure), such serious injury or threat thereof shall not be attributed to increased imports.

ARTICLE 7.18

Hearings

In the course of each bilateral safeguard investigation, the competent investigating authority shall:

(a)    hold a public hearing, after providing reasonable notice, to allow all interested parties to present evidence and to be heard; or

(b)    provide an opportunity to all interested parties to be heard if they have made a written application within the period laid down in the notice of initiation.

ARTICLE 7.19

Confidential information

1.    Any information which is by nature confidential or which is provided on a confidential basis shall, upon cause being shown, be treated as confidential by the competent investigating authority of a Party. Such information shall not be disclosed without permission of the party submitting it.

2.    Interested parties providing confidential information are requested to furnish non-confidential summaries thereof or, if those parties indicate that such information cannot be summarised, the reasons why a summary cannot be provided. However, if the competent investigating authority finds that a request for confidentiality is not warranted and if the party concerned is either unwilling to make the information public or to authorise its disclosure in generalised or summary form, the authority may disregard such information, unless it can be demonstrated to its satisfaction from appropriate sources that the information is correct.

ARTICLE 7.20

Notifications and publications of definitive measures

1.    If the competent investigating authority of a Party takes the view that one of the situations described in Article 7.8(1) (Application of a bilateral safeguard measure) exists, that Party shall, as soon as possible, inform the other Party and provide all pertinent information, which shall include evidence of serious injury or threat thereof caused by increased imports, a precise description of the good involved and the proposed measures, and where applicable, the proposed date of application and expected duration.

2.    Upon request, a Party proposing to apply a bilateral safeguard measure shall provide adequate opportunity for consultations with the other Party prior to the conclusion of the investigation.

3.    The competent investigating authority shall also publish its determinations and reasoned conclusions reached on all pertinent issues of fact and law in the official journal of the Party, including the description of the imported good and the situation, which has given rise to the application of measures pursuant to Article 7.8 (Application of a bilateral safeguard measure), the causal link between such situation and the increased imports, and the form, level and duration of the measures.

4.    The competent investigating authority shall not disclose any information provided pursuant to any undertaking concerning confidential information that may have been made in the course of the investigation.

SECTION D

DISPUTE SETTLEMENT

ARTICLE 7.21

Non-application of dispute settlement

Neither Party shall have recourse to dispute settlement under Chapter 17 (Dispute settlement) for any matter arising under Section A (Anti-dumping and countervailing measures) and Section B (Global safeguard measures) of this Chapter.

CHAPTER 8

TRADE IN SERVICES

ARTICLE 8.1

Scope

1.    This Chapter applies to measures by a Party affecting trade in services.

2.    Consistent with the provisions of this Chapter, each Party retains its right to regulate within its respective territory to achieve its legitimate policy objectives.

3.    This Chapter does not apply to measures affecting natural persons of a Party seeking access to the employment market of the other Party, or to measures regarding nationality or citizenship, residence, or employment on a permanent basis.

4.    Nothing in this Chapter shall prevent a Party from applying measures to regulate the entry of natural persons of the other Party into, or their temporary stay in, its territory, including those measures necessary to protect the integrity of, and to ensure the orderly movement of natural persons across, its borders, provided that those measures are not applied in such a manner as to nullify or impair the benefits accruing to the other Party under this Chapter. The sole fact that a Party requires natural persons of the other Party to obtain a visa shall not be considered as nullifying or impairing the benefits accruing to the other Party under this Chapter.

5.    For the purposes of this Chapter, "measures by a Party" means measures taken by:

(a)    central, regional or local governments and authorities of that Party; and

(b)    non-governmental bodies in the exercise of powers delegated by central, regional or local governments or authorities of that Party.

In fulfilling its obligations and commitments under this Chapter, each Party shall take such reasonable measures as may be available to it to ensure their observance by regional and local governments and authorities and non-governmental bodies within its territory.

6.    This Chapter does not apply to measures affecting:

(a)    government procurement of services purchased for governmental purposes and not with a view to commercial resale or with a view to use in the supply of services for commercial sale;

(b)    subsidies or grants, including government-supported loans, guarantees and insurance, provided by a Party or any conditions attached to the receipt or continued receipt of such subsidies or grants, whether or not such subsidies or grants are offered exclusively to domestic services, service consumers, or service suppliers, except as provided in Article 8.20 (Subsidies);

(c)    audio-visual services;

(d)    cabotage in maritime transport services 14 ;

(e)    inland waterways transport; and

(f)    in respect of air transport services, measures affecting traffic rights however granted, or measures affecting services directly related to the exercise of traffic rights, other than measures affecting:

(i)    aircraft repair and maintenance services;

(ii)    the selling and marketing of air transport services;

(iii)    ground handling services; and

(iv)    computer reservation system services.

7.    Annex 8-A (Entry and temporary stay of natural persons), Annex 8-B (Professional services), Annex 8-C (Financial services), Annex 8-D (Telecommunication services) are integral parts of this Chapter and shall be read with the provisions of this Chapter.

ARTICLE 8.2

Definitions

For the purposes of this Chapter, the following definitions apply:

(a)    "aircraft repair and maintenance services" means such activities when undertaken on an aircraft or a part thereof while it is withdrawn from service and does not include so-called line maintenance;

(b)    "commercial presence" means any type of business or professional establishment within the territory of a Party for the purposes of supplying a service, including through:

(i)    the constitution, acquisition or maintenance of a juridical person; or

(ii)    the creation or maintenance of a branch or a representative office;

(c)    "computer reservation system 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)    "ground handling services" means the supply at an airport of the following services, on a fee or contract basis: ramp handling, aircraft servicing, aircraft cleaning, loading or unloading 15 , crew administration, air cargo and mail handling services, baggage handling, administrative support services such as supervision, ramp fuelling or defueling operations, liaison for fuelling and defueling, representational service, passenger handling, liaison and administration for catering services, flight operations and surface transport. Ground handling services do not include: security functions and self-handling, 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;

(e)    "juridical person of a Party" means a juridical person which is either:

(i)    constituted or otherwise organised under the law of that Party, and is engaged in substantive business operations in the territory of that Party or the other Party 16 ; or

(ii)    in the case of the supply of a service through commercial presence, owned or controlled by:

(A)    natural persons of that Party; or

(B)    juridical persons of that Party identified under point (e)(i);

(f)    a juridical person is:

(i)    "owned" by persons of a Party if more than 50 % of the equity interest in it is beneficially owned by persons of that Party;

(ii)    "controlled" by persons of a Party if such persons have the power to name a majority of its directors or otherwise to legally direct its actions;

(iii)    "affiliated" with another person when it controls, or is controlled by, that other person, or when it and the other person are both controlled by the same person;

(g)    "measure" means any measure by a Party, whether in the form of a law, regulation, rule, procedure, decision, administrative action, or any other form;

(h)    "measures by a Party affecting trade in services" include measures in respect of:

(i)    the purchase, payment or use of a service;

(ii)    the access to and use of, in connection with the supply of a service, services which are required by a Party to be offered to the public generally; and

(iii)    the presence, including commercial presence, of persons of a Party for the supply of a service in the territory of the other Party;

(i)    "monopoly supplier of a service" means any person, public or private, which in the relevant market of the territory of a Party is authorised or established formally or in effect by that Party as the sole supplier of that service;

(j)    "natural person of a Party" means:

(i)    for the European Union, a national of a Member State pursuant to its law 17 ; and

(ii)    for India, a natural person who resides in the territory of India or elsewhere and who under its law is a national;

(k)    "sector" of a service means:

(i)    with reference to a specific commitment, one or more, or all, subsectors of that service, as specified in a Party's schedules; or

(ii)    otherwise, the whole of that service sector, including all of its subsectors;

(l)    "selling and marketing of air transport services" means opportunities for the air carrier concerned to sell and market freely its air transport services including all aspects of marketing such as market research, advertising, and distribution. These activities do not include the pricing of air transport services nor the applicable conditions;

(m)    "services" includes any service in any sector except services supplied in the exercise of governmental authority;

(n)    "service consumer" means any person that receives or uses a service;

(o)    "service of the other Party" means a service which is supplied:

(i)    from or in the territory of that other Party, or in the case of maritime transport, by a vessel registered under the laws and regulations of that other Party, or by a person of that other Party which supplies the service through the operation of a vessel or its use in whole or in part; or

(ii)    in the case of the supply of a service through commercial presence or through the presence of natural persons, by a service supplier of that other Party;

(p)    "service supplied in the exercise of governmental authority" means any service which is supplied neither on a commercial basis nor in competition with one or more service suppliers;

(q)    "service supplier" means a person that supplies a service 18 ;

(r)    "supply of a service" includes the production, distribution, marketing, sale, and delivery of a service;

(s)    "trade in services" means the supply of a service:

(i)    from the territory of one Party into the territory of the other Party ("mode 1");

(ii)    in the territory of one Party to the service consumer of the other Party ("mode 2");

(iii)    by a service supplier of one Party, through commercial presence in the territory of the other Party ("mode 3"); or

(iv)    by a service supplier of one Party, through the presence of natural persons of a Party in the territory of the other Party ("mode 4"); and

(t)    "traffic rights" means the rights for scheduled and non-scheduled services to operate or carry passengers, cargo and mail for remuneration or hire from, to, within, or over the territory of a Party, including points to be served, routes to be operated, types of traffic to be carried, capacity to be provided, tariffs to be charged, and their conditions, and criteria for designation of airlines, including such criteria as number, ownership, and control.

ARTICLE 8.3

Scheduling of commitments

1.    Each Party shall undertake commitments under Article 8.4 (Market access), Article 8.5 (National treatment), Article 8.6 (Most-favoured-nation treatment), in accordance with Article 8.8 (Schedule of specific commitments) or Article 8.9 (Non-conforming measures).

2.    Each Party may also undertake commitments under Article 8.7 (Additional commitments).

ARTICLE 8.4

Market access

1.    With respect to market access through the modes of supply identified in point (s) of Article 8.2 (Definitions), each Party shall accord to services and service suppliers of the other Party treatment no less favourable than that provided for under the terms, limitations, and conditions agreed and specified in its schedules.

2.    The measures which a Party shall not adopt or maintain either on the basis of a regional subdivision or on the basis of its entire territory, either in sectors where market access commitments are undertaken and in accordance with its specific commitments, as provided in Article 8.8 (Schedule of specific commitments), or subject to its non-conforming measures, as provided in the Article 8.9 (Non-conforming measures), are defined as:

(a)    limitations on the number of service suppliers, whether in the form of numerical quotas, monopolies, exclusive service suppliers or the requirement of an economic needs test;

(b)    limitations on the total value of service transactions or assets in the form of numerical quotas or the requirement of an economic needs test;

(c)    limitations on the total number of service operations or on the total quantity of service output expressed in terms of designated numerical units in the form of quotas or the requirement of an economic needs test 19 ;

(d)    limitations on the total number of natural persons that may be employed in a particular service sector or that a service supplier may employ and who are necessary for, and directly related to, the supply of a specific service in the form of numerical quotas or the requirement of an economic needs test;

(e)    measures which restrict or require specific types of legal entity or joint venture through which a service supplier may supply a service; and

(f)    limitations on the participation of foreign capital in terms of maximum percentage limit on foreign shareholding or the total value of individual or aggregate foreign investment.

3.    If a Party undertakes a market access commitment to grant the treatment specified in paragraphs 1 and 2 in accordance with Article 8.8 (Schedule of specific commitments) or Article 8.9 (Non-conforming measures) in relation to the supply of a service through a mode of supply referred to in point (s) (i), (ii) or (iv) of Article 8.2 (Definitions), it shall not require a service supplier of the other Party to be resident in its territory or to establish or maintain a representative office, a branch or any form of juridical person in its territory as a condition for the supply of that service through the relevant mode of supply, unless otherwise specified in the Parties' respective schedules as referred to in Article 8.8 (Schedule of specific commitments) and Article 8.9 (Non‑conforming measures).

ARTICLE 8.5

National treatment

1.    A Party undertaking commitments in accordance with Article 8.8 (Schedule of specific commitments) shall accord, in the sectors inscribed in its schedule of specific commitments, and subject to any conditions and qualifications set out therein, to services and service suppliers of the other Party, in respect of all measures affecting the supply of services, treatment no less favourable than that it accords to its own like services and service suppliers.

2.    A Party undertaking commitments in accordance with Article 8.9 (Non-conforming measures) shall accord to services and service suppliers of the other Party, in respect of all measures affecting the supply of services, treatment no less favourable than that it accords to its own like services and service suppliers, subject to its non-conforming measures as provided in Article 8.9 (Non‑conforming measures).

3.    Nothing in this Article shall be construed to require any Party to compensate for any inherent competitive disadvantage which results from the foreign character of the relevant services or service suppliers.

4.    A Party may meet the requirement under paragraph 1 or 2 of this Article by according to services and service suppliers of the other Party either formally identical treatment or formally different treatment to that it accords to its own like services and service suppliers.

5.    Formally identical or formally different treatment shall be considered to be less favourable if it modifies the conditions of competition in favour of services or service suppliers of the Party compared to like services or service suppliers of the other Party.

6.    If a Party undertakes, in relation to the supply of a service through the mode of supply referred to in point (s)(iii) of Article 8.2 (Definitions), a national treatment commitment to grant the treatment specified in paragraph 1 of this Article in accordance with Article 8.8 (Schedule of specific commitments) or in paragraphs 1 and 2 of this Article in accordance with Article 8.9 (Non‑conforming measures), that Party shall not require the appointment of individuals of any particular nationality as executives, managers or members of boards of directors as a condition for the supply of that service through commercial presence, unless otherwise specified in the Parties' respective schedules as referred to in Article 8.8 (Schedule of specific commitments) and Article 8.9 (Non-conforming measures).

ARTICLE 8.6

Most-favoured-nation treatment

1.    A Party undertaking commitments in accordance with Article 8.8 (Schedule of specific commitments) shall accord, in respect of the sectors and subsectors set out in Appendix 8-H-1 (Most-favoured-nation treatment sectoral coverage of India) and subject to any terms, limitations, conditions and qualifications set out therein, to services and service suppliers of the other Party, in respect of all measures affecting the supply of services, treatment no less favourable than that it accords to like services and service suppliers of a third country in the context of an economic integration agreement signed after the entry into force of this Agreement.

2.    A Party undertaking commitments in accordance with Article 8.9 (Non-conforming measures) shall accord to services and service suppliers of the other Party, in respect of all measures affecting the supply of services, treatment no less favourable than that it accords to like services and service suppliers of a third country, subject to its non-conforming measures as provided in Article 8.9 (Non-conforming measures).

3.    Paragraphs 1 and 2 of this Article shall not be construed as obliging a Party to extend to services or service suppliers of the other Party the benefit of any treatment resulting from:

(a)    an international agreement for the avoidance of double taxation or other international agreement or arrangement relating wholly or mainly to taxation; or

(b)    measures providing for recognition, including the recognition of the standards or criteria for the authorisation, licencing, or certification of a natural person or commercial presence to carry out a service, or the recognition of prudential measures as referred to in paragraph 3 of the Annex on Financial Services to GATS. 20

4.    For greater certainty, the "treatment" referred to in paragraphs 1 and 2 of this Article does not include dispute settlement procedures provided for in other international agreements.

5.    For greater certainty, the existence of substantive provisions in economic integration agreements concluded by a Party with a third country does not in itself constitute the "treatment" referred to in paragraphs 1 and 2.

6.    This Article shall not be construed as to prevent a Party from conferring or according advantages to adjacent countries in order to facilitate exchanges limited to contiguous frontier zones of services that are both locally produced and consumed.

7.    Each Party shall accord the treatment referred to in paragraphs 1 and 2 for a period of five years from the date of entry into force of this Agreement. The treatment referred to in paragraphs 1 and 2 shall cease to apply five years after the date of entry into force of this Agreement, unless otherwise mutually agreed in the review to be carried out in accordance with paragraph 8.

8.    At the beginning of the fourth year following the entry into force of this Agreement, the Joint Committee shall:

(a)    review the developments pertaining to the granting or maintenance of treatment relating to the entry and stay of students that are natural persons of India in the European Union, including their work rights, in the context of relevant European Union law and existing bilateral agreements with India, and the maintenance, conclusion and adoption of social security agreements or similar arrangements or agreements, in the context of the temporary movement of service suppliers; and

(b)    subsequently, decide whether or not to continue according the treatment referred to in paragraphs 1 and 2 after five years from the date of entry into force of this Agreement.

9.    The review referred to in paragraph 8 shall be concluded prior to the end of the fifth year following the date of entry into force of this Agreement.

10.    If the Joint Committee decides, following the review referred to in paragraph 8, to continue according the treatment referred to in paragraphs 1 and 2, a Party may, at any stage after five years from the date of entry into force of such decision, request a further review by the Joint Committee, if that Party considers that subsequent developments pertaining to the elements that were subject to the review carried out under paragraph 8 adversely affect its interests. Pursuant to that request, the Joint Committee shall review whether or not to continue the treatment referred to in paragraphs 1 and 2.

11.    If the Joint Committee decides, following the review referred to in paragraphs 8 or 9, not to continue according the treatment referred to in paragraphs 1 and 2, neither Party shall have the obligation to accord treatment. A decision not to continue according that treatment shall discontinue the accordance of the treatment referred to in paragraphs 1 and 2 and shall not affect any benefits or privileges accorded by either Party while the treatment referred to in paragraphs 1 and 2 applied.

ARTICLE 8.7

Additional commitments

1.    The Parties may negotiate commitments with respect to measures affecting trade in services not subject to scheduling under Article 8.4 (Market access) or Article 8.5 (National treatment) or Article 8.6 (Most-favoured-nation treatment), including those regarding qualifications, standards or licensing matters.

2.    A Party undertaking additional commitments shall inscribe such commitments in its schedules as referred to in Article 8.8 (Schedule of specific commitments) or Article 8.9 (Non-Conforming measures).

ARTICLE 8.8

Schedule of specific commitments

1.    A Party undertaking commitments in accordance with this Article shall set out in its schedule the specific commitments it undertakes under Article 8.4 (Market access), Article 8.5 (National treatment) and Article 8.7 (Additional commitments). With respect to the sectors in which such commitments are undertaken, each schedule of specific commitments shall specify:

(a)    terms, limitations and conditions on market access;

(b)    conditions and qualifications on national treatment;

(c)    undertakings relating to additional commitments; and

(d)    where appropriate, the time frame for the implementation of such commitments.

2.    Measures inconsistent with both Article 8.4 (Market access) and Article 8.5 (National treatment) shall be inscribed in the column relating to Article 8.4 (Market access). In this case, the inscription will be considered to provide a condition or qualification to Article 8.5 (National treatment) as well.

3.    A Party undertaking commitments in accordance with this Article shall set out in its schedule of specific commitments, the sectors and subsectors on which it undertakes commitments under Article 8.6 (Most-favoured-nation treatment). With respect to such sectors and subsectors, the schedule shall specify the terms, limitations, conditions and qualifications on most-favoured-nation treatment.

4.    For greater certainty, the schedule of specific commitments is contained in Annex 8-H (Schedule of specific commitments of India) and shall form an integral part of this Chapter.

ARTICLE 8.9

Non-conforming measures

1.    For a Party undertaking commitments in accordance with this Article, Article 8.4 (Market access), Article 8.5 (National treatment) and Article 8.6 (Most-favoured-nation treatment) do not apply to:

(a)    any existing non-conforming measure that is maintained by a Party at the level of:

(i)    the central government, as set out in Annex 8-E (Schedule of existing measures of the European Union);

(ii)    a regional government, as set out in Annex 8-E (Schedule of existing measures of the European Union); or

(iii)    a local government.

(b)    the continuation or prompt renewal of any non-conforming measure referred to in point (a); or

(c)    a modification to any non-conforming measure referred to in points (a) and (b), to the extent that it does not decrease the conformity of the measure, as it existed immediately before the modification, with Article 8.4 (Market access), Article 8.5 (National treatment) and Article 8.6 (Most-favoured-nation treatment).

2.    Article 8.4 (Market access), Article 8.5 (National treatment) and Article 8.6 (Most‑favoured‑nation treatment) do not apply to a measure by a Party which is consistent with the reservations, conditions or qualifications specified with respect to a sector, subsector or activity listed in Annex 8-F (Schedule of future measures of the European Union).

3.    For greater certainty, schedules of non-conforming measures are contained in Annex 8-E (Schedule of existing measures of the European Union) and Annex 8-F (Schedule of future measures of the European Union), which shall form an integral part of this Chapter.

ARTICLE 8.10

Transparency of measures in the schedule of specific commitments

1.    No later than six years from the date of entry into force of this Agreement, a Party shall set out in its schedule of specific commitments any existing measure maintained at the central government level and shall also provide an indicative list of existing measures maintained by regional government, if applicable, that apply to the modes of supply referred to in point (s) of Article 8.2 (Definitions) of the sectors where it has undertaken specific commitments in accordance with Article 8.8 (Schedule of specific commitments) if those measures form the basis for specific limitations, terms, qualifications or conditions that do not conform to some or all of the obligations described in Article 8.4 (Market access) or Article 8.5 (National treatment), as specified in its Schedule of specific commitments.

2.    Pursuant to paragraph 1, a Party's measures shall be set out solely for the purposes of transparency, shall be accurate at the time of submission and shall not affect the rights and obligations of that Party under this Chapter. In the event of any discrepancies between the measures so specified by the Party and in Annex 8-H (Schedule of specific commitments of India), the latter shall prevail.

3.    Neither Party shall have recourse to dispute settlement under Chapter 17 (Dispute settlement) for any matter arising under this Article.

ARTICLE 8.11

Modification of schedules

1.    A Party (the "modifying Party") may notify the other Party (the "affected Party") a proposal to modify or withdraw any commitment in its schedule in Annex 8-E (Schedule of existing measures of the European Union), Annex 8-F (Schedule of future measures of the European Union) or Annex 8-H (Schedule of specific commitments of India) at any time after three years from the date on which that commitment entered into force.

2.    Upon notification of such proposal, the Parties shall enter into consultations on the modification and on any appropriate compensatory adjustments.

3.    If the Parties fail to enter into consultations within four months after the date of such notification or fail to reach a mutually satisfactory understanding within six months from the date of entering into consultations, the modifying Party may request the Committee on Services and Digital Trade, established pursuant to Article 18.3(1) (Specialised committees), to consider the proposed modification or withdrawal and compensatory adjustments, if any. If the Committee on Services and Digital Trade does not reach a mutually satisfactory understanding within six months, the matter shall be referred to the Joint Committee.

4.    In consultations on appropriate compensatory adjustments pursuant to paragraphs 2 and 3, the Parties shall endeavour to maintain a general level of mutually advantageous commitment that is no less favourable to trade than provided for at the time of the consultations in the schedules in Annex 8-E (Schedule of existing measures of the European Union), Annex 8-F (Schedule of future measures of the European Union) and Annex 8-H (Schedule of specific commitments of India).

5.    If the Parties reach a mutually satisfactory understanding pursuant to paragraphs 3 and 4 of this Article, the Joint Committee shall adopt a decision to amend the schedules in Annex 8-E (Schedule of existing measures of the European Union), Annex 8-F (Schedule of future measures of the European Union) or Annex 8-H (Schedule of specific commitments of India) in accordance with Article 18.2 (Functions of the Joint Committee).

ARTICLE 8.12

Domestic regulation

1.    For the purposes of this Article, the following definitions apply:

(a)    "authorisation" means permission to supply a service, resulting from a procedure to which a person of a Party must adhere in order to demonstrate compliance with licensing and qualification requirements; and

(b)    "competent authority" means a central, regional or local government or authority, or a non‑governmental body in the exercise of powers delegated by central, regional or local governments or authorities, which is entitled to take a decision concerning the authorisation referred to in point (a).

2.    Each Party shall ensure that all measures of general application affecting trade in services are administered in a reasonable, objective and impartial manner.

3.    This Article does not apply to:

(a)    a sector which remains non-committed by reason of a Party's schedule in Annex 8-E (Schedule of existing measures of the European Union), Annex 8-F (Schedule of future measures of the European Union) or Annex 8-H (Schedule of specific commitments of India); or

(b)    a measure, to the extent that it is not subject to Article 8.4 (Market access) or Article 8.5 (National treatment) by reason of a Party's commitments made in accordance with Article 8.8 (Schedule of specific commitments) or Article 8.9 (Non-conforming measures).

4.    With a view to ensuring that measures relating to qualification requirements and procedures, licensing requirements and procedures, and technical standards, do not constitute unnecessary barriers to trade in services, the Parties shall review the results of the WTO negotiations on disciplines on such measures, pursuant to paragraph 4 of Article VI of the GATS, and shall consider amending this Article, as appropriate, after consultations, to give effect to those results under this Chapter. Such disciplines shall aim to ensure that such requirements are, among others:

(a)    based on objective and transparent criteria, such as competence and ability to supply the service;

(b)    not more burdensome than necessary to ensure the quality of the service; and

(c)    in the case of licensing procedures, not in themselves a restriction on the supply of the service.

5.    In sectors in which a Party has undertaken commitments, pending the entry into force of disciplines pursuant to paragraph 4 of this Article, a Party shall not apply licencing and qualification requirements and procedures, and technical standards that nullify or impair such commitments in a manner which:

(a)    does not comply with the criteria outlined in points (a), (b), or (c) of paragraph 4 of this Article; and

(b)    could not reasonably have been expected of that Party at the time the commitments in those sectors were made.

6.    In determining whether a Party is in conformity with its obligations under paragraph 5, international standards of relevant international organisations 21 applied by that Party shall be taken into account.

7.    Each Party shall, to the extent practicable, avoid requiring an applicant to approach more than one competent authority for each application for authorisation. If a service for which authorisation is requested is within the jurisdiction of multiple competent authorities, multiple applications for authorisation may be required.

8.    If a Party requires authorisation for the supply of a service, it shall ensure that its competent authorities, to the extent practicable, permit the submission of an application at any time throughout the year. 22 If a specific time period for applying for authorisation exists, the Party shall ensure that the competent authorities allow a reasonable period of time for the submission of an application.

9.    If a Party requires authorisation for the supply of a service, it shall ensure that its competent authorities:

(a)    endeavour to accept applications in electronic format, including remotely, and, where applicable, under the equivalent conditions of authenticity as paper submissions, in accordance with its laws and regulations; and

(b)    where they deem appropriate, accept copies of documents that are authenticated in accordance with its laws and regulations, in place of original documents.

10.    If a Party requires authorisation for the supply of a service, it shall ensure that its competent authorities:

(a)    to the extent practicable, establish an indicative timeframe for the processing of an application;

(b)    on request of the applicant, provide information concerning the status of the application without undue delay;

(c)    within a reasonable period of time and if they consider the submission of an application is complete for the purposes of processing under its laws and regulations, inform the applicant of the decision concerning the application, to the extent possible, in writing; 23

(d)    if they consider an application incomplete for the purposes of processing under the Party's laws and regulations, within a reasonable period of time, and to the extent practicable:

(i)    inform the applicant that the application is incomplete;

(ii)    on request of the applicant, identify the additional information that is required to complete the application or otherwise provide guidance on why the application is considered incomplete; and

(iii)    provide the applicant with the opportunity 24 to provide the additional information, and to correct deficiencies in the application; and

(e)    if an application is rejected, to the extent practicable, either upon their own initiative or upon request of the applicant, inform the applicant, without undue delay and in writing, of the reasons for rejection. The applicant shall have the possibility of resubmitting, at its discretion, a new application.

11.    Where a Party requires authorisation for the supply of a service, it shall ensure that any authorisation fees 25 charged by its competent authorities are reasonable and transparent and do not in themselves restrict the supply of the relevant service. Each Party is encouraged to accept payment of authorisation fees by electronic means.

12.    Each Party shall provide adequate procedures to verify the competence of professionals of the other Party. In verifying and assessing qualifications, where the competent authority considers it relevant, it shall give due consideration to professional experience, as a complement to educational qualifications, and to membership in a professional association in the territory of the other Party.

13.    Provided an applicant has presented all necessary supporting evidence of qualifications, the competent authority, in verifying and assessing qualifications, shall endeavour to identify any deficiency and inform the applicant of requirements to remedy the deficiency.

14.    If licensing or qualification requirements include the completion of an examination, each Party shall, to the extent practicable:

(a)    ensure that the examination is scheduled at reasonably frequent intervals;

(b)    provide a reasonable period of time to enable applicants to submit applications to take the examination;

(c)    accept requests in electronic format to take the examination; and

(d)    consider conducting the examination and other aspects of the examination process through electronic means, including remotely.

15.    If a Party adopts or maintains a measure relating to the authorisation for the supply of a service, it shall ensure that the competent authority concerned reaches and administers its decisions in a manner independent from the undue influence of any supplier of the service for which the authorisation is required. 26

16.    If a Party requires authorisation, the Party shall promptly publish 27 the information necessary for obtaining such authorisation. If such information exists, it may include:

(a)    the licensing and qualification requirements and procedures;

(b)    contact information of relevant competent authorities;

(c)    authorisation fees;

(d)    procedures for appeal or review of decisions concerning applications; and

(e)    indicative timeframes for the processing of an application.

17.    Each Party shall encourage its competent authorities to respond to any request for information or assistance to the extent practicable.

ARTICLE 8.13

Recognition

1.    For the purposes of the fulfilment, in whole or in part, of its standards or criteria for the authorisation, licensing or certification of service suppliers, and subject to the requirements of paragraph 4, a Party may recognise the education or experience obtained, requirements met, or licences or certifications granted in a third country. That recognition, which may be achieved through harmonisation or otherwise, may be based upon an agreement or arrangement with the third country concerned, or may be accorded autonomously.

2.    Where a Party enters into an agreement or arrangement of the type referred to in paragraph 1 with a third country or accords recognition autonomously, that Party shall, on request of the other Party, initiate the negotiation of a mutual recognition agreement or similar arrangement with the other Party with a view to concluding such agreement or arrangement or autonomous recognition, to the extent practicable, within 30 months.

3.    Each Party shall:

(a)    within 18 months of the date of entry into force of this Agreement, inform the other Party of its existing recognition measures and state whether such measures are based on agreements or arrangements of the type referred in paragraphs 1 and 2;

(b)    promptly inform the other Party of the opening of negotiations on an agreement or arrangement with a third country in order to provide adequate opportunity to the other Party to indicate its interest in participating in such negotiations; and

(c)    promptly inform the other Party when it adopts new recognition measures or significantly modifies existing ones, and state whether the measures are based on an agreement or arrangement of the type referred in paragraphs 1 and 2.

4.    A Party shall not accord recognition in a manner which would constitute a means of discrimination between the other Party and third countries in the application of its standards or criteria for the authorisation, licensing or certification of service suppliers, or a disguised restriction on trade in services.

5.    As set out in Annex 8-B (Professional services), each Party shall endeavour to facilitate trade in professional services, including through negotiating mutual recognition agreements or similar arrangements for the recognition of professional qualifications in the professions where the relevant bodies in their respective territories have expressed mutual interest for such recognition.

ARTICLE 8.14

Indian traditional medicine services

1.    For the purposes of this Article, "Indian traditional medicine services" means services relating to Ayurveda, Yoga, Naturopathy, Unani, Siddha, Sowa-Rigpa and Homeopathy.

2.    The Parties recognise Indian traditional medicine services as health and wellness-related services and agree to facilitate trade in such services, as set out in this Article. The Parties also note the importance of public health, patient safety and consumer protection in the provision of Indian traditional medicine services.

3.    This Article applies to measures by a Party affecting the supply of Indian traditional medicine services. It does not apply to the non-conforming aspects of measures adopted or maintained in accordance with Article 8.9 (Non-conforming measures).

4.    The European Union shall allow suppliers of Indian traditional medicine services to supply their services in its territory under the supplier's professional title obtained in India, if the supply of traditional medicine services is not reserved to a regulated profession 28 .

5.    If licensing or registration is required in the European Union to supply Indian traditional medicine services, the requirements and processes for such licensing or registration shall:

(a)    not be less favourable than the treatment accorded to like traditional medicine services and like service suppliers of third countries in accordance with Article 8.6 (Most-favoured-nation treatment); and

(b)    not amount to or be equivalent to requalification in the European Union.

6.    The European Union shall allow suppliers of Indian traditional medicine services from India to establish a commercial presence in its territory through which such suppliers can supply Indian traditional medicine services.

7.    The Parties shall endeavour to exchange information on regulations, measures and initiatives related to Indian traditional medicine services to facilitate trade in Indian traditional medicine services between the Parties.

ARTICLE 8.15

Monopolies and exclusive service suppliers

1.    Each Party shall ensure that any monopoly supplier of a service in its territory does not, in the supply of the monopoly service in the relevant market, act in a manner inconsistent with that Party's obligations under Article 8.4 (Market access), Article 8.5 (National treatment) and Article 8.6 (Most-favoured-nation treatment). 

2.    If Party's monopoly supplier of a service competes, either directly or through an affiliated company, in the supply of a service outside the scope of its monopoly rights and which is subject to that Party's commitments, that Party shall ensure that such a supplier does not abuse its monopoly position to act in its territory in a manner inconsistent with such commitments.

3.    If a Party has a reason to believe that a monopoly supplier of a service of the other Party is acting in a manner inconsistent with paragraphs 1 or 2, it may request the other Party establishing, maintaining or authorising such a supplier to provide specific information concerning the relevant operations.

4.    If, after the date of entry into force of this Agreement, a Party grants monopoly rights regarding the supply of a service covered by its commitments, that Party shall notify the other Party no later than three months before the intended implementation of the grant of monopoly rights, and paragraphs 2 to 5 of Article 8.11 (Modification of schedules) shall apply.

5.    This Article applies to cases of exclusive service suppliers, where a Party, formally or in effect:

(a)    authorises or establishes a small number of service suppliers; and

(b)    substantially prevents competition among those suppliers in its territory.

ARTICLE 8.16

Disclosure of confidential information

Nothing in this Chapter shall be construed as requiring a Party to provide to the other Party confidential information the disclosure of which would impede law enforcement or otherwise be contrary to the public interest or which would prejudice the legitimate commercial interests of particular juridical persons, public or private.

ARTICLE 8.17

Business practices

1.    The Parties recognise that certain business practices of service suppliers, other than those falling under Article 8.15 (Monopolies and exclusive service suppliers), may restrain competition and thereby restrict trade in services.

2.    Each Party shall, on request of the other Party, enter into consultations with a view to eliminating practices referred to in paragraph 1. The requested Party shall accord full and sympathetic consideration to such a request and shall cooperate through the supply of publicly available non-confidential information of relevance to the matter in question. The requested Party may also provide other information available to the requesting Party, subject to its laws and regulations and to the conclusion of a satisfactory agreement concerning the safeguarding of its confidentiality by the requesting Party.

ARTICLE 8.18

Denial of benefits

1.    A Party may deny the benefits of this Chapter and of Article 13.4(1) (Enquiries), Article 19.1 (Current account) and Article 19.2 (Capital movements):

(a)    to the supply of any service, if that Party establishes that the service is supplied from or in the territory of a third country;

(b)    to a service supplier that is a juridical person, if that Party establishes that it is not a service supplier of the other Party; or

(c)    in the case of the supply of a maritime transport service, if that Party establishes that the service is supplied:

(i)    by a vessel registered under the laws and regulations of a third country; and

(ii)    by a person of a third country which operates or uses the vessel in whole or in part.

2.    A Party may deny the benefits of this Chapter and of Article 13.4(1) (Enquiries), Article 19.1 (Current account) and Article 19.2 (Capital movements) to a service supplier of the other Party that is a juridical person of that Party and to services of that service supplier if:

(a)    a service supplier of a third country owns or controls the juridical person; and

(b)    the denying Party adopts or maintains a measure with respect to the third country, or with respect to juridical persons or natural persons of the third country, that prohibits transactions with the juridical person or that would be violated or circumvented if the benefits of this Chapter were accorded to the juridical person.

ARTICLE 8.19

Safeguard measures

1.    The Parties note that Article X of GATS provides for multilateral negotiations on the question of emergency safeguard measures based on the principle of non-discrimination. The Parties shall review the issue of emergency safeguard measures related to trade in services in light of any provisions agreed under Article X of GATS with a view to their incorporation into this Chapter.

2.    If a Party encounters difficulties in the implementation of its commitments under this Chapter, that Party may request consultations with the other Party to address those difficulties.

ARTICLE 8.20

Subsidies

1.    Notwithstanding Article 8.1(6) (Scope), the Parties shall review the issue of disciplines on subsidies related to trade in services in light of any disciplines agreed under Article XV of GATS with a view to their incorporation into this Chapter.

2.    If a Party considers that it is adversely affected by a subsidy of the other Party related to trade in services, the Party may request information from the other Party on such matters.

3.    Upon receipt of a request for consultations, the requested Party may enter into consultations with the requesting Party, with a view to resolving the matter, provided that the request for consultations includes an explanation of how the subsidy has adversely affected trade in services between the Parties. During the consultations, the Party granting the subsidy may consider a request of the other Party for information relating to the subsidy.

4.    Neither Party shall have recourse to dispute settlement under Chapter 17 (Dispute settlement) for any matter arising under this Article.

CHAPTER 9

DIGITAL TRADE

SECTION A

GENERAL PROVISIONS

ARTICLE 9.1

Objective

The objective of this Chapter is to facilitate digital trade, address unjustified barriers to trade enabled by electronic means and ensure an open, secure and trustworthy online environment for businesses and consumers.

ARTICLE 9.2

Scope

1.    This Chapter applies to measures of a Party affecting trade enabled by electronic means.

2.    This Chapter does not apply to:

(a)    audio-visual services;

(b)    government procurement; or

(c)    information or data, except government data accessible to the public as referred to in Article 9.12 (Open government data), held or processed by or on behalf of a Party, or measures related to such information or data, including measures related to its collection.

3.    For greater certainty, a measure that affects the supply of a service delivered or performed electronically is subject to the obligations contained in the relevant provisions of Chapter 8 (Trade in services) and Annexes 8-C (Financial services) and 8-D (Telecommunications services), including the Party's schedules of specific commitments, non-conforming measures or exceptions set out in this Agreement that are applicable to those obligations.

ARTICLE 9.3

Definitions

1.    The definitions set out in Article 8.2 (Definitions) apply to this Chapter unless otherwise defined in this Chapter.

2.    For the purposes of this Chapter:

(a)    "electronic authentication" means an electronic process that enables the confirmation of:

(i)    the electronic identification of a person; or

(ii)    the origin and integrity of data in electronic form;

(b)    "electronic invoicing" means the automated creation, exchange and processing of an invoice between a supplier and a buyer using a structured digital format;

(c)    "electronic signature" 29 means data in electronic form that is in, affixed to, or logically associated with, other data in electronic form that may be used to identify the signatory in relation to the data in electronic form and indicate the signatory approval of the information contained therein; 30

(d)    "electronic time stamp" means data in electronic form which binds other data in electronic form to a particular date and time, establishing evidence that the latter data existed at that date and time;

(e)    "electronic trust service" means an electronic service consisting of:

(i)    the creation, verification and validation of electronic signatures, electronic seals, electronic time stamps, and certificates related to those services; or

(ii)    the preservation of electronic signatures, seals or certificates related to those services;

(f)    "government data" means non-proprietary data owned or held by the government and by non‑governmental bodies in the exercise of powers conferred on them by the government;

(g)    "measure of a Party" means a measure taken by:

(i)    central government and authorities of that Party; or

(ii)    non-governmental bodies in the exercise of powers delegated by central government or authorities of that Party;

(h)    "personal data" means any information or data about or relating to an identified or identifiable natural person;

(i)    "user" means any person using a public telecommunications service; and

(j)    "unsolicited commercial electronic message" means an electronic message 31 that is sent for commercial advertising or marketing purposes directly to a user via a public telecommunications service, without the consent of the recipient or despite the explicit rejection of the recipient.

ARTICLE 9.4

Right to regulate

Consistent with the provisions of this Chapter, each Party retains its right to regulate within its territory to achieve its legitimate policy objectives.

SECTION B

PERSONAL DATA PROTECTION

ARTICLE 9.5

Privacy and protection of personal data

1.    Each Party recognises that privacy is a fundamental right and that high standards of privacy and protection of personal data contribute to trust in the digital economy and to the development of trade.

2.    Nothing in this Agreement shall affect the right of each Party to decide on its own level of protection of personal data and privacy. Each Party may adopt or maintain the safeguards it deems appropriate to ensure the protection of personal data and privacy, including through the adoption and application of rules for the cross-border transfer of personal data.

3.    Each Party shall endeavour to inform the other Party about safeguards referred to in paragraph 2 that it adopts or maintains.

SECTION C

SPECIFIC PROVISIONS

ARTICLE 9.6

Paperless trading

1.    With a view to creating a paperless border environment for trade in goods, the Parties recognise the importance of eliminating paper forms and documents for the import, export or transit of goods. Each Party shall work towards implementing initiatives which provide for the use of paperless trading and transition toward using forms and documents in data-based formats, taking into account the principles and guidelines agreed by the WCO and other relevant international organisations to which both Parties are members.

2.    Each Party shall endeavour to make trade administration documents, that it issues or controls, or that are required in the normal course of trade, and as appropriate, supporting documents, available to the public in electronic format. For the purposes of this paragraph, the term "electronic format" includes formats, suitable for automated interpretation and electronic processing without human intervention, as well as digitised images and forms.

3.    Each Party shall endeavour to accept trade administration documents submitted electronically as the legal equivalent of the paper version of those documents.

4.    The Parties shall endeavour to cooperate bilaterally and in international fora, in order to enhance acceptance of electronic versions of trade administration documents.

ARTICLE 9.7

Conclusion of contracts by electronic means

Unless otherwise provided for under its laws and regulations, each Party shall ensure that:

(a)    contracts may be concluded by electronic means; and

(b)    no other obstacles to the use of electronic contracts are created or maintained and contracts are not deprived of legal effect and validity solely on the ground that the contract has been made by electronic means.

ARTICLE 9.8

Electronic authentication and electronic trust services

1.    Except in circumstances otherwise provided for in its laws and regulations, a Party shall not deny the legal effect and admissibility as evidence in legal proceedings of an authenticated electronic document, an electronic signature, an electronic seal or an electronic time stamp, solely on the ground that it is in electronic form.

2.    A Party shall not adopt or maintain measures that:

(a)    prohibit parties to an electronic transaction from mutually determining the appropriate electronic authentication methods for that transaction; or

(b)    prevent parties to an electronic transaction from being able to prove to judicial and administrative authorities that the use of electronic authentication or an electronic trust service in that transaction complies with the applicable legal requirements.

3.    Notwithstanding paragraph 2, a Party may require, for a particular category of transactions, that the method of electronic authentication or trust service is certified by an authority accredited in accordance with its laws and regulations or meets certain performance standards which shall be objective, transparent and non-discriminatory and only relate to the specific characteristics of the category of transactions concerned.

4.    The Parties shall endeavour to mutually recognise electronic signatures in accordance with their laws and regulatory frameworks.

ARTICLE 9.9

Transfer of or access to source code

1.    A Party shall not require the transfer of, or access to, the source code of software owned by a person of the other Party as a condition for the import, export, distribution, sale or use of such software, or of products containing such software, in or from its territory. 32

2.    For greater certainty:

(a)    Article 19.7 (General exceptions), Article 19.8 (Security exceptions) and Article 8-C.3 (Prudential carve-out) may apply to measures of a Party adopted or maintained in the context of the transfer of or access to source code, including certification procedures;

(b)    paragraph 1 of this Article does not apply to the voluntary transfer of, or granting of access to, source code of software by a person of the other Party on a commercial basis, such as in the context of a public procurement transaction or other freely negotiated contracts; and

(c)    paragraph 1 of this Article does not affect the right of a Party's regulatory authorities, law enforcement, judicial bodies, administrative tribunals or conformity assessment bodies to require the modification of source code of software to comply with its laws and regulations that are not inconsistent with the Agreement.

3.    Nothing in this Article shall affect:

(a)    the right of a Party's regulatory authorities, law enforcement, judicial bodies, administrative tribunals or conformity assessment bodies 33 to require the transfer of, or access to, source code of software, as a condition for import, export, distribution, sale or use of such software, for investigation, inspection or examination, enforcement action or judicial proceeding purposes, to secure compliance with its laws and regulations pursuing legitimate public policy objectives 34 , subject to safeguards against unauthorised disclosure;

(b)    the requirements of a court, administrative tribunal, competition authority, or other relevant body of a Party to remedy a violation of competition law, or requirements pursuant to a Party's laws and regulations that are not inconsistent with the Agreement to provide proportionate and targeted access to the source code of software that is necessary to address barriers to entry in digital markets and ensure that digital markets remain competitive, fair, open and transparent; and

(c)    the protection and enforcement of intellectual property rights.

ARTICLE 9.10

Online consumer trust and protection

1.    Recognising the importance of enhancing consumer trust and protection in digital trade, each Party shall adopt or maintain measures to ensure the effective protection of consumers engaging in electronic commerce transactions, including transparent and effective measures that:

(a)    proscribe misleading, fraudulent and deceptive commercial practices;