World Trade
Organization WT/REG296/2
14 June 2012 (12-3126) Committee on Regional Trade Agreements Original: English/ Spanish

free Trade Agreement between the European Union and the Republic of Korea, goods and services (goods & services)

Questions and Replies

The following communication, dated 13 June 2012, is being circulated at the request of the delegations of the European Union and the Republic of Korea.

Can Korea and the EU explain this provision and its intended outcome, given postal and courier service suppliers are already operating in both markets and therefore a regulatory framework already exists?
For those products subject to the entry price scheme, can the Parties clarify how traders may be able to determine the base rate (in terms of both the ad valorem and specific portions of the entry price scheme) when the base rate is not specifically denoted in the EU Tariff Schedule nor in Appendix 2-A-2.
In other words, would products that qualify under the special rules of origin under Annex II(a) be subject to all the commitments that are applicable to "regular" originating goods as per the above noted protocol, such as bilateral safeguards (Article 3.
To illustrate these facts, Article 5 on "Sufficiently worked or processed products" establishes that "products which are not wholly obtained are considered to be sufficiently worked or processed when the conditions set out in the list in Annex II or Annex II(a) are fulfilled.
While the Commission has taken into account its international obligations when drafting the legislative proposal, however, in the EU system the outcome of a legislative procedure is not always easy to predict, as the EP and Council might introduce modifications into the proposal during the on-going legislative procedure in view of the final adoption of this proposal.

[Paragraph 141, page 36]
Question to the Republic of Korea: In light of Chapter 9 (Government Procurement), Article 2 (Rules Applicable to BOT Contracts and Public Works Concessions), subparagraph 5 (Review) of the Free Trade Agreement between the European Union and the Republic of Korea and in light of Article XVIII (Information and Review as Regards Obligations of Entities) of the WTO Agreement on Government Procurement, how is the Republic of Korea‘s review system organized?
As pointed out in footnote 6 in Chapter 7 of the Agreement the EU understands the concept of "effective and continuous link" with the economy of a Member State of the European Union enshrined in Article 54 of the Treaty on the Functioning of the European Union as equivalent to the concept of "substantive business operations" provided for in paragraph 6 of Article V of the GATS.
The parties did not consider it a priority to provide in an immediate manner for the entry and temporary stay of categories of personnel that do not have a direct link with the establishment commitments.
The existing EU instrument addressing conditions for the admission of third country nationals for employment is the 1994 Council Resolution on limitations on admission of third-country nationals to the territory of the Member States for employment (OJ C 274, 19.
paragraph
s 99 and 102
)

As indicated,
Annex 7-A of the Agreement, Lists of Commitments of the Parties, provides that the rights and
obligation
s arising from the lists of the EU
'
s and
Korea'
s
commitment
s have no self-executing
effect
s and thus confer no rights directly to
natural
or
juridical
persons.
4 of this Agreement excludes measures affecting the cross-border supply of all service sectors with the exception of some sectors that were committed in the GATS schedules of both or either Parties, such as audio-visual services, national maritime cabotage; and domestic and international air transport services.
It can also mean an institution that has abided by international regulations such as the capital regulation of the Bank for International Settlements, and has received for more than three years a credit level above investment grade by an international credit rating agency, and is able to cooperate with the finance authorities of its country and Korea by information exchange, and is internationally recognized of its soundness in financial affairs and business by receiving relevant supervision of its country's supervision authorities.
Questions from the Delegation of Mexico
Intellectual Property
Paragraph 145

In the matter of prevention or control of licensing practices, will it be considered an abuse of intellectual property rights by the owner of the mark that granted the licence thereto where the latter fails to take the relevant legal actions for protection of his/her mark, leaving it to the licensee to take protective action at his/her own expense, so that the owner of the mark can avoid the expenses arising from abusive practices or other conditions in the framework of this provision?
It is recommended that the first instance for civil suits should be completed within five months since the day the lawsuit was filed and that the process of the appellate trial should be finalized within five months since the day the record of proceedings was received.
With regard to the right to distribute computer programs, Article 4 of Directive 2009/24/EC (the Computer Programs Directive) establishes the right to do or authorise any form of distribution to the public, including the rental, of the original computer program or of copies thereof.

In Korea, according to Article 40 (Period of Protection for Anonymous and Pseudonymous Works) of the Copyright Act, an author's property rights in an anonymous or pseudonymous work, unless the pseudonym is widely known, shall continue to subsist for a period of 70 years after it has been made public; provided that if reasonable grounds are found to show that seventy years have lapsed after the death of the author within such a period, such property rights shall be deemed to have expired when seventy years have passed after the death of the author.
without any profit making purposes, a work already made public for the purpose of the personal, family, or other similar uses within a limited circle; provided that this shall not apply to reproduction by a photocopier set up for public use.
Regarding the provisions of the Agreement, and the reference to the fact that the parties, in relation to "the owners of copyright and/or related rights", shall establish legal protection against any persons that remove or alter electronic rights management information, and against the circumvention of effective technological measures, the following questions arise:
Is it not the State that is responsible for ensuring protection, leaving the establishment of such protection to the initiative of right holders?
and it is therefore considered appropriate to ask the parties whether the term of protection of the rights of performers and producers of phonograms is governed by the provisions of Article 17 of the WIPO Performances and Phonograms Treaty.
The requirements are:
Authorization or registration under other laws or regulations is required to work a patented invention;
An extended period has been taken to complete activity, safety or other tests necessary to obtain the authorization or registration;
The period of which delay patent applicant is responsible for is excluded; and
Extension period may be given up to five years

In the EU, the extension of the duration of the rights conferred by the patent protection is regulated by Regulation 1610/96 and Regulation 469/2009, concerning the creation of a supplementary protection certificate for, respectively, plant protection products and medicinal products.

Paragraph 155

Has any type of code or procedure been developed to date by the parties to regulate the actions of customs, administrative, civil and criminal authorities at the borders, for the detection or detention of suspect goods that are sought to be introduced into the European Union from Korea or vice versa?
:

The term of protection granted to performers shall last at least until the end of a period of 50 years computed from the end of the year in which the performance was fixed in a phonogram; and
the term of protection granted to producers of phonograms shall last at least until the end of a period of 50 years computed from the end of the year in which the phonogram was published, or failing such publication, within 50 years from fixation of the phonogram, 50 years from the end of the year in which the fixation was made.
As to the second part of the question, the EU and Korea consider that no other bodies could, at this point in time, be considered as 'relevant international standard-setting bodies' for the purpose of implementing Annex 2B.
Directive 2006/95/EC (the "Low Voltage Directive") deals with electrical safety and applies to any electrical equipment with a voltage between 50V and 1000V for alternating current, and 75V and 1500V for direct current; Directive 2004/108/EC (the "EMC Directive") deals with electromagnetic compatibility and it applies to any apparatus liable of producing electromagnetic disturbance or suffering from it.
However, after a transitional period, which is three years after the date of entry into force of the Agreement, it can be accepted by a supplier’s declaration of conformity based on a test report.
The provisions set out in sub-section D of Chapter 7 cover a wide range of regulatory elements concerning inter alia the regulatory authority, authorizations to provide telecommunications services, competitive safeguards on major suppliers, interconnection, number portability, allocation and use of scarce resources and universal service.
Movement of natural persons
Para 90, Page 26

If there is any national or internal policy which stipulates criteria regarding movement of natural persons in the framework of FTAs, Japan would be interested to be provided it.
According to Article 10(1) (Status of Sojourn) of the Immigration Control Act and Article 12 (Classification of Sojourn Status) of its enforcement decree, a D-4 visa can be issued to those who would receive education or training or engage in research activities at educational institutions, companies or organizations that do not classify for visa category D-2(Study Abroad).
Investors are covered by the agreement provisions only insofar as they are themselves employed by the juridical person in question.
The provision in question requires the parties to give due consideration ("take into account") to the qualification referring to a type of work or trade requiring technical knowledge, for the purposes of assessing knowledge of specialists.
Liberalization commitments
Paragraph 96, Page 27

According to the Factual Presentation, "neither Party may adopt new, or more, discriminatory measures with regard to services or service suppliers of the other Party".
In our understanding, in Italy, foreign investment from non-EU countries is permitted only under a situation where reciprocity is established.
EU has highlighted its concerns in sectoral proposal S/CSS/W/61 as well as concluded a regulatory chapter on postal and courier services in EUCariforum EPA that can serve as example of EU aspirations.
The commitments of the Parties relating to electronic commerce are indeed subject to the terms and conditions set out in the Chapter of Trade in services, establishment and e-commerce.
Japan understands that there exist several systems other than "the Agricultural Products Quality Control Act of Korea" referred to in paragraph 149 of the Factual Presentation such as "the Fishery Products Quality Control Act of Korea", "Unfair Competition Prevention Act", "the Collective Trademark for the Geographical Indications", and "the Certification Trademark for the Geographical Indications" which is currently under discussion in the Korean Diet.
A fundamental part of Trade and Sustainable Development Chapters within EU FTAs includes a commitment from each Party to effectively implement all multilateral environmental agreements to which they are party.
The FTA also establishes other points of contact, for issues arising under the Dispute Settlement Chapter, Parties will revert to the most appropriate contact point established under the various FTA Specialised Committees, Working Groups and other bodies, which will monitor implementation.
For purposes of these obligations, "intra-corporate transferees" are defined as natural persons employed by a juridical person of a Party, or partners in a juridical person of a Party, "other than as majority shareholders.
- Specifically, what additional "activities" are excluded from the EU's commitments on services and investment by virtue of the exception for "activities connected, even occasionally, with the exercise of official authority" that would not otherwise be excluded by virtue of the exceptions in Articles 7.