- Where COTED determines, pursuant to Article 182, that special rules shall apply to specific sectors of the Community, it may suspend or exclude the application of Article 177 to such sectors pending adoption of the relevant rules.
- COTED may, on its own initiative or pursuant to an application by a Member State in that behalf, exclude or suspend the application of Article 177 to any sector or any enterprise or group of enterprises in the public interest.
- Where the Commission has reason to believe that business conduct by an enterprise in the CSME prejudices trade and prevents, restricts, or distorts competition within the CSME and has cross-border effects, the Commission shall request the national competition authority to undertake a preliminary examination of the business conduct of the enterprise.
- Where a request is made under paragraph 1, the national competition authority shall examine the matter and report its findings to the Commission within such time as may be determined by the Commission.
- Where the Commission is not satisfied with the outcome of its request, the Commission may initiate its own preliminary examination into the business conduct of the enterprise referred to in paragraph 1.
- Where the findings of the preliminary examination under paragraphs 2 and 3 require investigation, the Commission and the Member State concerned shall hold consultations to determine and agree on who should have jurisdiction to investigate.
- If there is a difference of opinion between the Commission and the Member State regarding the nature and effects of the business conduct or the jurisdiction of the investigating authority, the Commission shall:
(a) cease any further examination of the matter; and
(b) refer the matter to COTED for its decision.
- Nothing in this Article shall prejudice the right of the Member State to initiate proceedings before the Court at any time.
- Where there is a finding that the Commission has jurisdiction to investigate the matter, the Commission shall follow the procedures set out in paragraphs 5, 6, 7 and 8 of Article 175.
- A Member State may request an investigation referred to in paragraph 1 of Article 174 where it has reason to believe that business conduct by an enterprise located in another Member State prejudices trade and prevents, restricts or distorts competition in the territory of the requesting Member State.
- Where COTED has reason to believe that business conduct by an enterprise in the CSME prejudices trade and prevents, restricts or distorts competition within the CSME and has or is likely to have cross-border effects, COTED may request an investigation referred to in paragraph 1 of Article 174.
- Requests under paragraphs 1 and 2 shall be in writing and shall disclose sufficient information for the Commission to make a preliminary assessment whether it should proceed with the investigation.
- Upon receipt of a request mentioned in paragraph 3, the Commission shall consult with the interested parties and shall determine on the basis of such consultations whether:
(a) the investigation is within the jurisdiction of the Commission; and
(b) the investigation is justified in all the circumstances of the case.
- The consultations shall be concluded within 30 days of the date of receipt of the request for the investigation, unless the parties agree to continue the consultations for a longer period.
- Where the Commission decides to conduct the investigation, the Commission shall: (a) notify the interested parties and COTED;
(b) complete the investigation within 120 days from the date of receipt of the request for the investigation; and
(c) where the circumstances so warrant, extend the time period for completion of the investigation and notify the interested parties.
- Where the Commission decides to conduct an enquiry following an investigation, the Commission shall afford any party complained of the opportunity to defend its interest.
- At the conclusion of an enquiry, the Commission shall notify the interested parties of its determination.
- Where the Commission determines that a party has engaged in anti-competitive business conduct, it shall also require the party to take the action necessary to remove the effects of the anti-competitive business conduct.
- Where a specific course of action is required under paragraph 9, the enterprise concerned shall take the appropriate course of action within 30 days of the date of notification. If the concerned enterprise cannot comply, it shall notify the Commission and request an extension.
- If the enterprise cannot comply within the time period specified and fails to inform the Commission, the Commission may apply to the Court for an order.
- A party which is aggrieved by a determination of the Commission under paragraph 4 of Article 174 in any matter may apply to the Court for a review of that determination.
- The Commission shall:
(a) apply the rules of competition in respect of anti-competitive cross-border business conduct;
(b) promote and protect competition in the Community and co-ordinate the implementation of the Community Competition Policy; and
(c) perform any other function conferred on it by any competent body of the Community.
- In discharging the functions set out in paragraph 1, the Commission shall:
(a) monitor anti-competitive practices of enterprises operating in the CSME, and investigate and arbitrate cross-border disputes;
(b) keep the Community Competition Policy under review and advise and make recommendations to COTED to enhance its effectiveness;
(c) promote the establishment of institutions and the development and implementation of harmonised competition laws and practices by the Member States to achieve uniformity in the administration of applicable rules;
(d) review the progress made by the Member States in the implementation of the legal and institutional framework for enforcement;
(e) co-operate with competent authorities in the Member States;
(f) provide support to the Member States in promoting and protecting consumer welfare;
(g) facilitate the exchange of relevant information and expertise; and
(h) develop and disseminate information about competition policy, and consumer protection policy.
- The Commission may, by directions in writing and subject to such conditions as it thinks fit, delegate any of its functions to one or more of its members.
The rules of competition shall not apply to –
(a) combinations or activities of employees for their own reasonable protection as employees;
(b) arrangements for collective bargaining on behalf of employers or employees for the purpose of fixing terms and conditions of employment;
(c) business conduct within the meaning of Article 177duly notified to COTED in accordance with Article 170;
(d) negative clearance rulings within the meaning of Article 180 or exemptions within the meaning of Articles 181 and 183;
(e) activities of professional associations designed to develop or enforce professional standards of competence reasonably necessary for the protection of the public and approved by the Commission.
- Upon application made in that behalf by the less developed countries, COTED may, if necessary, as a temporary measure in order to promote the development of an industry in any of these States, authorise such States to suspend Community origin treatment to any description of imports eligible therefor on grounds of production in one or more less developed countries.
- COTED may, in taking decisions pursuant to paragraph 1 of this Article, establish terms and conditions including a phasing-out period during which Member States and the Community shall provide support measures and the industry implement the necessary programmes for achieving competitiveness.
- The grant of authorisation pursuant to paragraph 1 of this Article shall be by means of a decision supported by the affirmative votes of all the less developed countries and at least two of the more developed countries
Where a less developed country has suffered or is likely to suffer loss of revenue as a result of the importation of goods eligible for Community treatment, COTED may, on application made in that behalf by the less developed country, authorise the imposition of import duties on such goods for such time and on such terms and conditions as COTED may decide.
- COTED shall promote the establishment of infrastructure in a disadvantaged country, region or sector to encourage or stimulate economic activity.
- COTED may also adopt measures for the establishment of new industries or for the retooling or expansion of existing industries in a disadvantaged country, region or sector.
- COTED may authorise a Member State having a sensitive industry which can be disadvantaged by the operation of the CSME to suspend Community treatment to products of other Member States.
- The suspension authorised in paragraph 1 of this Article shall be granted upon application to COTED in that behalf where the applicant establishes that the product is from a sensitive industry.
- For the purpose of this Article, an industry may be considered to be sensitive by reason of its vulnerable nature and:
(a) the significance of its contribution to, inter alia:
(i) Gross Domestic Product;
(iii) foreign exchange earnings; or
(b) its designation as vital within the national industrial policy.
- Notwithstanding any other provisions of this Treaty, a disadvantaged country may, for the period of suspension decided upon by COTED, suspend Community treatment in respect of imports of like description from the Member State granted the suspension.
- COTED, in authorising the suspension mentioned in paragraph 1 of this Article may impose terms and conditions for the grant of the suspension.
- COTED shall monitor the progress of the industry concerned and undertake a periodic review.
- Where, in accordance with paragraph 1 of Article 92, a disadvantaged country establishes an entitlement to limit imports of goods from other Member States, then, notwithstanding any other provisions to the contrary in this Treaty, the disadvantaged country may limit such imports for a period of up to three (3) years unless COTED authorises the limitation for a longer period and take such other measures as COTED may authorise.
- A disadvantaged country applying restrictions in accordance with paragraph 1 of this Article shall notify them to COTED, if possible, before they come into force. COTED may, at any time, consider those restrictions and shall, in light of such consideration, make recommendations designed to moderate any damaging effect of such restrictions or to assist the disadvantaged country to overcome its difficulties.
- Nothing in this Treaty shall be construed as entitling any Member State to apply safeguard measures against the products of Community origin of a disadvantaged country where such products do not exceed 20 per cent of the market of the importing Member State.
- COTED shall take appropriate measures to ensure that, in establishing the programme for the removal of restrictions by the Member States on the right of establishment in the Community mentioned in paragraph 3 of Article 33, the peculiar economic vulnerability of disadvantaged countries in the Community is taken into account, bearing in mind Article 49.
- Without prejudice to the generality of the provisions of paragraph 1 of this Article, COTED shall, in establishing the said programme, determine in respect of disadvantaged countries:
(a) a list of economic activities in respect of which national treatment may not be accorded to persons exercising the right of establishment for a specified period of time;
(b) the manner in which restrictions on the right of establishment in respect of economic activities not mentioned in sub-paragraph
(a) of this paragraph shall be removed:
Provided that such disadvantaged countries shall accord to the Member States rights of establishment no more restrictive than those accorded to third States.
- COTED, in establishing the programme for removal of restrictions by Member States on the provision of services in the Community mentioned in paragraph 2 of Article 37 shall give due consideration to the peculiar economic vulnerability of disadvantaged countries, bearing in mind Article 49.
- Without prejudice to the generality of the provisions set out in paragraph 1 of this Article, COTED shall, in establishing the said programme, determine in respect of disadvantaged countries:
(a) a list of services in respect of which national treatment may not be applied for a specified period of time;
(b) the manner in which restrictions on services not mentioned in sub-paragraph
(a) of this paragraph shall be removed:
Provided that such disadvantaged countries shall accord the Member States rights no more restrictive than those accorded to other parties of the WTO under the General Agreement on Trade in Services (GATS).
Subject to the authority of the Conference, COTED and COFAP, as appropriate, shall establish, administer and monitor the measures identified in Article 143.
- The Member States shall co-operate in the development of maritime transport services in the Community. In particular, the Member States shall co-operate in:
(a) enhancing flag and port State control activities in the Region;
(b) developing and providing expertise in the shipping industry, including the necessary services and infrastructure necessary for the growth of the shipping sector;
(c) protecting the marine environment from the effects of vessel source pollution and in combating the effects of such pollution; and
(d) taking any other action necessary for the sustainable development of the shipping sector.
- The Community shall co-operate with competent national, regional and international organisations in establishing conditions for the provision of efficient and affordable maritime transport services among the Member States.
- COTED shall promote co-operation among the Member States in the implementation of relevant international maritime instruments relating to maritime safety, marine environmental protection, maritime accident investigation and the facilitation of maritime traffic.
- COTED shall promote and co-ordinate the development of maritime transport services in the Community through, inter alia:
(a) the development of proposals for the establishment and upgrade of small vessel enterprises in the Community;
(b) the establishment of a regime of incentives to encourage the development of shipping enterprises in the Community;
(c) measures for the establishment, improvement and rationalisation of port facilities in the Community, to respond to the demands of containerisation, refrigeration and storage of agricultural commodities, nautical and cruise tourism and other special and dedicated services;
(d) co-operation and regular interchange among administrations to promote a harmonised system for the development of maritime transport in the Community;
(e) promotion of joint ventures among Community nationals and with extra- regional shipping enterprises to facilitate the transfer of appropriate technology and increase the participation of the Member States in international shipping;
(f) the organization and harmonisation of training programmes within the Community, the strengthening of the capabilities of training institutions and the ease of access of Community nationals to all aspects of training and development in the shipping industry; and
(g) measures for the development of ancillary services in the shipping industry, including non-vessel operating common carriers, marine insurance, freight forwarding, transshipment and other services.
- The Member States shall promote the development of maritime transport services in the Community through, inter alia:
(a) the establishment and improvement of port facilities;
(b) the establishment of effective maritime administrations for the regulation of shipping in the respective jurisdictions of maritime safety and marine environmental protection;
(c) the implementation of relevant international maritime instruments related to the safety of shipping and the prevention of vessel source pollution; and
(d) encouraging improved efficiency in ports and in related services to reduce maritime transportation costs.
- The Member States shall co-operate in:
(a) the development of air transport services in the Community and towards this end may conclude among themselves air transport agreements designed to facilitate the provision of such services;
(b) establishing measures to ensure that the provision of international air transport services in the Community is undertaken by financially viable and technically qualified carriers and operators, and that the Community interest in safety, security and economy of air travel is not prejudiced.
- COTED shall promote co-operation among the Member States in the registration of aircraft and the enforcement of applicable standards in the air transport industry.
- The Member States shall co-operate in ensuring uniformity in licensing and certification procedures and equivalencies within the Community for aviation personnel in conformity with international standards.
- COTED shall promote co-operation among operators of air transport services of the Member States particularly in purchasing of equipment and supplies, the management of inventories, interline and inter-modal operations, code sharing, reservations, insurance, leasing and similar operations.
- The Member States shall adopt uniform standards and recommended practices for the provision of transport services.
- The Member States shall notify COTED of legislative, regulatory or administrative measures affecting the provision of transport services within their domestic jurisdictions where such measures deviate from uniform standards and recommended practices.
- The Member States adversely affected by such regulatory or administrative measures may notify COTED of such adverse effects, and shall have recourse to the disputes settlement procedures provided in the Treaty.
- COTED shall promote co-operation in air and maritime search and rescue operations in the Community, bearing in mind such machinery as may exist for the overall co-ordination of search and rescue services.
- The Member States shall notify COTED of air and maritime equipment and facilities available for use in search and rescue operations.
- The Member States shall collaborate with third States and competent international organisations in search and rescue operations.
- COTED shall, after consideration of the available evidence and having been satisfied of the existence of dumped imports, injury caused by dumped imports or the threat of serious injury from dumped imports, authorise the Member State aggrieved to take anti-dumping action:
(a) if the parties alleged to be responsible for dumped imports refuse to co- operate within the time specified so as to frustrate or otherwise impede an investigation;
(b) if there is a serious threat of injury or if injury has resulted.
- In authorising the imposition of anti-dumping measures, COTED shall set the date, duration and conditions for the imposition of the measures as the case may require.
- Anti-dumping action taken pursuant to this Article, shall be based on the calculated margin of dumping and may be applied as follows:
(a) if the evidence arising from definitive investigations of dumping proves the existence of dumping and that injury was caused by dumping, a Member State may impose anti-dumping duties sufficient to eliminate the margin of dumping. COTED may authorise all affected Member States to impose similar anti-dumping duties for such time and under such conditions as COTED may prescribe;
(b) in the imposition of anti-dumping duties, the Member States imposing the measure shall not discriminate among the sources of all dumped imports based on country of origin or nationality of the exporters;
(c) an exporter whose exports are the subject of anti-dumping duties may request at any time the Member State imposing the duties to review the application of the duties against the relevant exports;
(d) if an applicant for review of anti-dumping duties applied to exports mentioned in sub-paragraph (c) is not satisfied that the competent authorities in the importing Member States have given adequate consideration to the request for review within 30 days of the receipt of the request, the applicant may refer the request to COTED which shall recommend to the Member State maintaining the anti-dumping duty to take the appropriate action if it is satisfied that the application for review is justified;
(e) in the event that investigations have been concluded and the evidence proves that injury has been caused, a Member State may impose anti- dumping duties retroactively to account for the entire period during which provisional anti-dumping duties have been in force preceding the date of imposition of definitive anti-dumping duties. If, however, the definitive anti- dumping duties are higher than the provisional duties paid or payable or the amount estimated for the purpose of security, the difference shall not be collected. If the definitive duties are lower than the provisional duties payable, or the amount estimated for the purpose of security, the difference shall be reimbursed or the duties recalculated as the case may require;
(f) if however the investigations reveal that injury was not caused by dumped imports as alleged, but the provisional measures have materially retarded exports of the Member State complained against, COTED shall, upon application by such State, assess the effects of the provisionally applied duties and determine the nature and extent of compensation which is warranted and require the Member State applying provisional measures to withdraw the measure and pay compensation in accordance with its assessment;
(g) a Member State may accept a voluntary price guarantee from an exporter who is believed to be exporting dumped products, to raise the price of the export sufficiently to forestall a serious threat of injury or to eliminate injury caused by dumped imports;
(h) if a Member State has initiated investigations based on evidence of dumped imports and the Member State had imposed provisional measures, the Member State may, upon the receipt of a voluntary guarantee from the exporter referred to in sub-paragraph (g), promptly suspend the investigation and withdraw any provisional measures it may have imposed as appropriate.
- COTED shall keep under review all anti-dumping measures imposed by the Member States and shall ensure that the Member States observe the conditions and the timetable for review and withdrawal of anti-dumping measures that it may have authorised.
- The Member States undertake to co-operate in the establishment of harmonised anti- dumping legislation and procedures in accordance with the provisions of this Protocol.
- Where an applicant for an investigation who receives information pursuant to dumping investigations requires verification of the information, the competent authority and the parties alleged to be responsible for dumped imports shall co-operate in allowing the applicant to carry out verifications in the offending Member State.
- The results of any investigations carried out by a competent authority of a Member State aggrieved or by COTED shall be disclosed promptly to the competent authority and the parties alleged to be responsible for dumped imports in the offending Member State. A public notice of the conclusions of the investigations shall be issued by the Member State or by COTED, as the case may be.
- The purpose of the disclosure referred to in paragraph 2 shall be to present the facts of the case and to allow the parties alleged to be responsible for the dumped imports to defend their interests.
- Whenever COTED receives a request for investigation, referred to it under paragraph 9 of Article 126, COTED shall determine whether the information accompanying the request justifies the continuation of investigations and if it is satisfied, cause an investigation to be completed within 12 months but not longer than 18 months after the date of receipt of the request. If COTED is not satisfied that there is sufficient justification to initiate an investigation, it shall inform the applicant in writing of its refusal to investigate.
- Investigations initiated either by a competent authority of a Member State or undertaken by COTED shall be terminated promptly whenever:
(a) the margin of dumping is determined to be less than two per cent; and
(b) the volume of dumped imports from a particular country is less than three per cent of imports of the like product in the importing Member State, unless countries which individually account for less than three per cent of the imports of the like product into the importing Member State collectively account for more than seven per cent of the imports of the like product in the importing Member State,
and a public notice of the termination of investigations under this paragraph shall be made by the Member State terminating investigations or by COTED, as the case may be.
- The Member States recognise that an investigation into the circumstances of alleged dumping based on a request by another Member State on behalf of a domestic industry will require the full co-operation of the competent authority and the parties alleged to be responsible for dumped imports, in the Member State from which such imports originated, all of whom shall provide relevant information in the time specified in this Article.
- In the conduct of an investigation to determine the existence and effect of dumped imports, competent authorities of the Member States and the parties concerned shall observe the rights of the parties providing information with regard to confidentiality of any information provided and shall not disclose any such information without the prior written approval of the parties providing the information.
- Where an industry within the CSME has suffered injury or faces the threat of serious injury based on evidence of dumped imports by third States, the competent authority for requesting investigation on behalf of the affected industry shall be COTED.
- Nothing in this Article shall be construed so as to prevent an injured party or a Member State from initiating and proceeding with an investigation into alleged dumping having regard to the rights of such parties under international agreements to which they are signatories
- If a domestic industry in a Member State has reason to believe that it is being injured or faces the threat of injury as a result of dumped imports, an application may be submitted in writing by the industry or on its behalf by an association representing the industry or by employees employed by the producers of the like product to the competent authority to initiate an investigation in order to verify the existence of dumped imports and injury caused or the existence of a serious threat of injury as the case may be.
- The application shall be considered to have been made by or on behalf of the domestic industry if it is supported by those domestic producers whose collective output constitutes more than 50 per cent of the total production of the like product produced by that portion of the domestic industry expressing either support for or opposition to the request. However, no investigation shall be initiated when domestic producers expressly supporting the request account for less than 25 per cent of total production of the like product produced by the domestic industry.
- The authority shall examine the application and determine if an investigation is justified and if it is satisfied, it shall issue a public notice to that effect and request the concerned Member State, other interested Member States and the interested parties, all of which may be requested to and shall be afforded an opportunity to provide required information and comments.
- A decision by the authority to initiate an investigation shall be considered a decision to initiate a preliminary investigation, the results of which shall be made available by a public notice.
- Where a preliminary investigation provides sufficient evidence that dumped imports have entered into the commerce of the Member State and such imports seriously threaten or have injured a domestic industry, it may submit to the competent authority of the exporting Member State a request for consultations which shall be notified to COTED.
- The purpose of the request for consultations shall be to establish whether imports have been dumped and injury has been caused or there is a serious threat of injury and if the injury or the serious threat thereof is directly the result of dumped imports.
- Interested parties who have been requested to provide information shall be allowed 30 days from the date of submission of the application by or on behalf of a domestic industry under paragraph 2 to reply unless the authorities concerned agree to a later date.
- For the purpose of this Part, “interested parties” shall include:
(a) an exporter or foreign producer or the importer of a product subject to investigation, or a trade or business association, a majority of the members of which are producers, exporters or importers of such product;
(b) the government of the exporting Member State; and
(c) a producer of the like product in the importing Member State or a trade and business association, a majority of the members of which produce the like product in the territory of the importing Member State.
- A request for investigations to be undertaken by the competent authority of a Member State or by COTED shall include but shall not necessarily be limited to the information indicated in the Illustrative List set out in Annex III(b). If, however, an aggrieved Member State is satisfied that the offending party had not made satisfactory efforts to afford consultations, to provide requested information or otherwise unreasonably impede an investigation which has been initiated , the competent authority of the Member State aggrieved may impose on a provisional basis anti-dumping measures and may refer the request for investigation to COTED. A public notice of the imposition of provisional anti-dumping measures shall be issued by the Member State which has imposed such measures.
COTED shall undertake a review of the implementation of the provisions on subsidies to agriculture on the basis of notifications of the subsidies programmes submitted by the Member States, as well as on the basis of any other documentation which the COTED may request to be prepared to facilitate its review.
- If the offending Member State fails to implement the recommendations of COTED within 6 months of the date of issue of the report referred to in paragraph 2 of Article 114, COTED shall authorise the aggrieved Member State to impose appropriate countervailing duties commensurate with the nature and degree of serious adverse effects determined to exist.
- Whenever the results of an investigation by COTED prove that serious adverse effects have not been caused by subsidised imports referred to in paragraph 1 of Article 111, the Member State alleging that its domestic industry has suffered serious adverse effects shall promptly refund any duties which might have been provisionally imposed and where such provisional duties had materially retarded the exports of the Member State complained against, COTED shall, upon application from such State, assess the effects of the provisionally applied duties and determine the nature and extent of compensation which is warranted and require compensation in accordance with its assessment.
- The referral of the matter to COTED for an investigation shall not prevent the aggrieved Member State from imposing on a provisional basis not sooner than 60 days from the date of initiation of the preliminary investigation referred to in Article 106, countermeasures to forestall or prevent further adverse effects.
- If COTED is satisfied that the investigation requested is justified, COTED shall carry out the investigation, make a determination and issue a report within 120 days from the date when the request was referred.
- Where the results of the investigation carried out by COTED demonstrate that the subsidised imports caused serious adverse effects to the domestic industry of the aggrieved Member State requesting the investigation, COTED shall recommend that the offending Member State modify the programme of subsidies in such a way as to remove the adverse effects complained of.
- The Member States shall not ordinarily impose or introduce countervailing duties or take countermeasures on products which benefit from:
(a) subsidies which are not specific within the meaning of Article 97; or
(b) subsidies which are specific within the meaning of Article 97 but which satisfy all of the conditions set out in this sub-paragraph here under:
(i) subsidies granted for research activities conducted by enterprises or by higher education or research establishments on a contract basis with firms if the assistance covers not more than 75 per cent of the costs of industrial research or 50 per cent of the costs of pre- competitive development activity and provided that such assistance is limited exclusively to:
(aa) costs of personnel (researchers, technicians and other supporting staff employed exclusively in the research activity);
(bb) costs of instruments, equipment, land and buildings used exclusively and permanently (except when disposed of on a commercial basis) for the research activity;
(cc) costs of consultancy and equivalent services used exclusively for the research activity, including bought-in research, technical knowledge, patents, etc.;
(dd) additional overhead costs incurred directly as a result of the research activity;
(ee) other running costs (such as those of materials, supplies and the like), incurred directly as a result of the research activity.
(c) subsidies granted to assist disadvantaged regions within the territory of a Member State given pursuant to a general framework of regional development and that are non-specific within eligible regions provided that:
(i) each disadvantaged region must be a clearly designated contiguous geographical area with a definable economic and administrative identify;
(ii) the Region is considered as disadvantaged on the basis of neutral and objective criteria, indicating that the region’s difficulties arise out of more than temporary circumstances; such criteria must be clearly spelled out in law, regulation, or other official document, so as to be capable of verification;
(iii) the criteria shall include a measurement of economic development which shall be based on at least one of the following factors:
(aa) one of either income per capita or household income per capita, or GDP per capita, which must not be above 85 per cent of the average for the territory concerned;
(bb) unemployment rate, which must be at least 110 per cent of the average for the territory concerned;
(d) subsidies granted to assist entities in the adaptation of existing facilities to new environmental requirements imposed by law and/or regulations which result in greater constraints and financial burden on enterprises provided that the subsidies –
(i) are a one-time non-recurring measure; and
(ii) are limited to 20 per cent of the cost of adaptation; and
(iii) do not cover the cost of replacing and operating the assisted investment, which must be fully borne by firms; and
(iv) are directly linked to and proportionate to a firm’s planned reduction of nuisances and pollution, and do not cover any manufacturing cost savings which may be achieved; and
(v) are available to all firms which can adopt the new equipment and/or production processes.
(e) subsidies granted to assist enterprises to undertake training or retraining of employees, whether or not the enterprise is new, and the upgrading of existing facilities to facilitate transition to competitive status within the Community, provided that such subsidies are not specific.
- The Member States shall notify COTED of any subsidy mentioned in paragraph 1. Any Member State may request further information regarding a notified subsidy programme and COTED shall review annually all notified subsidies referred to in paragraph 1.
- If no mutually acceptable solution is reached within 30 days of the date of issue of the report by COTED, and COTED is satisfied:
(a) of the existence of a subsidy within the meaning of Article 105; and
(b) that the subsidy has caused injury to the enterprise in the aggrieve Member State; or
(c) that the subsidy has impaired or nullified benefits expected of the aggrieved Member State with respect to its exports to the Community; or
(d) that the effect of the subsidy was to seriously prejudice the interests of the Member State, then in such a case, COTED shall request the Member State which has granted or maintained the subsidy to take appropriate steps to remedy the effects of the subsidy within six months of the date of the issue of the report by COTED.
- If, at the end of the period of six months allowed by COTED to the Member State granting or maintaining the subsidy to remedy the effects of the subsidy, the Member State fails to comply and in the absence of agreement on compensation COTED shall authorise the aggrieved Member State to impose countervailing duties at a rate equivalent to the amount of subsidisation for such time and under such conditions as COTED may prescribe.
- Notwithstanding the investigation confirming the existence of a prohibited subsidy in paragraph 3 of Article 103, COTED shall not impose a requirement for the Member States to withdraw such a subsidy sooner than specified in this paragraph as follows:
(a) with respect to subsidies contingent upon export performance:
(i) the Member States with per capita GNP of less than one thousand United States dollars shall be allowed to maintain such subsidies; and
(ii) other Member States shall be allowed to maintain such subsidies until 1 January 2003;
(b) with respect to subsidies contingent upon the use of domestic over imported inputs, the Member States with per capita GNP of less than one thousand United States dollars shall be allowed to maintain such subsidies until 2003.
- Whenever the results of an investigation by COTED prove that the alleged subsidy is not a prohibited subsidy, any provisional countervailing measures which might have been imposed shall be promptly withdrawn and any bond or deposit which might have been effected, released or refunded, as the case may be. If the provisional measures referred to in this paragraph have materially retarded the exports of the Member State which was wrongfully alleged to have introduced or maintained prohibited subsidies, COTED shall, upon application from such a Member State, assess the effects of the provisionally applied measures and determine the nature and extent of compensation which is warranted and recommend compensation in accordance with its assessment.
- From the date of entry into force of this Treaty until the expiration of the dates mentioned in paragraph 1, no provisional measures shall be imposed where it has been determined by preliminary investigations that prohibited subsidies are maintained.
- Whenever COTED decides to carry out an investigation pursuant to Article 102, such an investigation by COTED shall proceed as expeditiously as possible. COTED may appoint competent experts to advise whether the subsidy falls to be classified as a prohibited subsidy, in which case COTED shall set a time limit for the examination of the evidence by the competent experts. COTED shall make its determination and issue its report which shall, unless extenuating circumstances arise, not exceed 90 days from the date of receipt of request for the investigation.
- The results of an investigation carried out pursuant to Article 102 shall be made available to all Member States for information and to afford the concerned Member States an opportunity to arrive at a mutually agreed solution within 30 days from the date of issue of the report failing which COTED shall adopt the recommendations of the report.
- If COTED is satisfied, based on the results of the investigation, that the subsidy in question is a prohibited subsidy and that the concerned Member States cannot reach a mutually agreed solution, it shall, subject to Article 104, require the offending Member State to withdraw the subsidy within a specified time-frame. Where the offending Member State fails to comply, COTED shall authorise the aggrieved Member State to take counter-measures on the products which benefit from such a subsidy.
- Subject to the provisions of this Treaty, Member States shall abolish discriminatory restrictions on the provision of services within the Community in respect of Community nationals.
- Subject to the approval of the Conference, COTED, in consultation with other competent Organs, shall, within one year from the entry into force of this Treaty, establish a programme for the removal of restrictions on the provision of such services in the Community by Community nationals.
- In establishing the programme mentioned in paragraph 2 of this Article, COTED shall:
(a) accord priority to services which directly affect production costs or facilitate the trade in goods and services which generate foreign exchange earnings;
(b) require the Member States to remove administrative practices and procedures, the maintenance of which impede the exercise of the right to provide services;
(c) establish measures to ensure the abolition of restrictions on the right to provide services in respect of activities accorded priority treatment in accordance with sub-paragraph (a) of this paragraph, both in terms of conditions for the provision of services in the territories of Member States as well as the conditions governing the entry of personnel, including their spouses and immediate dependent family members, for the provision of services;
(d) take appropriate measures to ensure close collaboration among competent national authorities in order to improve their knowledge of the conditions regarding relevant activities within the Community, and
(e) require the Member States to ensure that nationals of one Member State have on a non-discriminatory basis, access to land, buildings and other property situated in the territory of another Member State for purposes directly related to the provision of services, bearing in mind the importance of agriculture for many national economies.
- The Member States shall not introduce any new restrictions on the provision of services in the Community by nationals of other Member States except as otherwise provided in this Treaty.
- Without prejudice to the provisions relating to the right of establishment, persons providing services may, in order to provide such services, temporarily engage in approved activities in the Member State where the services are to be provided under the same conditions enjoyed by nationals of that Member State.
- The Member States shall notify COTED of existing restrictions on the provision of services in respect of nationals of other Member States.
- For the purposes of this Chapter, “services” means services provided against remuneration other than wages in any approved sector and “the provision of services” means the supply of services:
(a) from the territory of one Member State into the territory of another Member State;
(b) in the territory of one Member State to the service consumer of another Member State;
(c) by a service supplier of one Member State through commercial presence in the territory of another Member State; and
(d) by a service supplier of one Member State through the presence of natural persons of a Member State in the territory of another Member State.
In performing its tasks set out in Article 33, COTED shall, inter alia:
(a) accord priority to the removal of restrictions on activities in respect of which the right of establishment encourages the development of:
(i) the production of trade in goods;
(ii) the provision of services,
which generate foreign exchange earnings;
(b) require the Member States to remove administrative practices and procedures, the maintenance of which impede the exercise of the right of establishment;
(c) require the Member States to remove all restrictions on the movement of managerial, technical and supervisory staff of economic enterprises and on establishing agencies, branches and subsidiaries of companies and other entities established in the Community;
(d) establish measures to ensure the removal of restrictions on the right of establishment in respect of activities accorded priority treatment pursuant to paragraph (a) of this Article as they relate to:
(i) the establishment, in the territories of the Member States, of agencies, branches or subsidiaries belonging to an economic enterprise; and
(ii) the conditions governing the entry of managerial, technical or supervisory personnel employed in such agencies, branches and subsidiaries, including the spouses and immediate dependent family members of such personnel;
(e) take appropriate measures to ensure close collaboration among competent national authorities in order to improve their knowledge of the particular situation regarding the relevant activities within the Community;
(f) require the Member States to ensure that nationals of one Member State may have access to land, buildings and other property situated in the territory of another Member State, other than for speculative purposes or for a purpose potentially destabilising to the economy, on a non-discriminatory basis, bearing in mind the importance of agriculture for many national economies;
(g) ensure concordance in the Member States regarding the protection afforded the interests of partners, members and other persons with financial interests in companies and other entities.
- Subject to the provisions of Article 221 and Article 222, the Member States shall remove restrictions on the right of establishment of nationals of a Member State in the territory of another Member State.
- The removal of restrictions on the right of establishment mentioned in paragraph
1 of this Article shall also apply to restrictions on the setting up of agencies, branches or subsidiaries by nationals of a Member State in the territory of another Member State.
- Subject to the approval of the Conference, COTED, in consultation with COHSOD and COFAP, shall, within one year from the entry into force of this Treaty, establish a programme providing for the removal of restrictions on the right of establishment of nationals of a Member State in the territory of another Member State. The programme shall, inter alia:
(a) identify the activities in respect of which the right of establishment shall not apply;
(b) establish the conditions under which the right of establishment is to be achieved; and
(c) set out the conditions, stages and time-frames for the removal of restrictions on the right of establishment.
- The Community Council may authorise a Member State whose nationals have been aggrieved by the violation of obligations set out in this Article, Article 32, Article 36 and Article 37 to take such measures as may be provided for in this Treaty.
- The Member States shall not introduce in their territories any new restrictions relating to the right of establishment of nationals of other Member States save as otherwise provided in this Treaty.
- The Member States shall notify COTED of existing restrictions on the right of establishment in respect of nationals of other Member States.
- (1) The right of establishment within the meaning of this Chapter shall include the right to:
(a) engage in any non-wage-earning activities of a commercial, industrial, agricultural, professional or artisanal nature;
(b) create and manage economic enterprises referred to in paragraph
5(b) of this Article.
(2) For the purposes of this Chapter “non-wage earning activities” means activities undertaken by self-employed persons.
- The Community Council may, with the approval of the Conference and upon the recommendation of COTED or COFAP, as the case may be, enlarge the body of rights provided in paragraph 3 of this Article. The competent Organ shall establish basic criteria for Member States in order to safeguard against manipulation or abuse of such rights so as to gain an unfair advantage against other Member States, for example, in the areas of nationality criteria and in the operation of companies.
- For the purposes of this Chapter:
(a) a person shall be regarded as a national of a Member State if such person – (i) is a citizen of that State;
(ii) has a connection with that State of a kind which entitles him to be regarded as belonging to or, if it be so expressed, as being a native or resident of the State for the purposes of the laws thereof relating to immigration; or
(iii) is a company or other legal entity constituted in the Member State in conformity with the laws thereof and which that State regards as belonging to it, provided that such company or other legal entity has been formed for gainful purposes and has its registered office and central administration, and carries on substantial activity, within the Community and which is substantially owned and effectively controlled by persons mentioned in sub-paragraphs (i) and (ii) of this paragraph;
(b) “economic enterprises” includes any type of organisation for the production of or trade in goods or the provision of services (other than a non-profit organisation) owned or controlled by any person or entity mentioned in sub- paragraph (a) of this paragraph;
(c) a company or other legal entity is:
(i) substantially owned if more than 50 per cent of the equity interest therein is beneficially owned by nationals mentioned in sub- paragraph (a) (i) or (ii) of this paragraph;
(ii) effectively controlled if nationals mentioned in sub-paragraph (a) of this paragraph have the power to name a majority of its directors or otherwise legally to direct its actions.