LegalizeResolução da Assembleia da República n.º 75-B/94 — Aprova, para ratificação, o Acordo Que Cria a Organização Mundial do Comércio, seus anexos, decisões, declarações…
Este é o ato tal como foi publicado. As alterações posteriores não estão incorporadas no texto: cada uma é um ato autónomo neste repositório e uma entrada no historial desta lei.
3 atos modificativos · 2013-01-17, Resolução da Assembleia da República n.º 1/2013 — Aprova as alterações à lista de comprom…
Aprova, para ratificação, o Acordo Que Cria a Organização Mundial do Comércio, seus anexos, decisões, declarações ministeriais e o Acto Final, que consagra os resultados das negociações comerciais multilaterais do Uruguay Round
1 - Members recognize that, in certain circumstances, subsidies may have distortive effects on trade in services. Members shall enter into negotiations with a view to developing the necessary multilateral disciplines to avoid such trade-distortive effects (ver nota 7). The negotiations shall also address the appropriateness of countervailing procedures. Such negotiations shall recognize the role of subsidies in relation to the development programmes of developing countries and take into account the needs of Members, particularly developing country Members, for flexibility in this area. For the purpose of such negotiations, Members shall exchange information concerning all subsidies related to trade in services that they provide to their domestic service suppliers.
2 - Any Member which considers that it is adversely affected by a subsidy of another Member may request consultations with that Member on such matters. Such requests shall be accorded sympathetic consideration.
(nota 7) A future work programme shall determine how, and in what time-frame, negotiations on such multilateral disciplines will he conducted.
PART III
Specific commitments
Article XVI
Market access
1 - With respect to market access through the modes of supply identified in Article 1, each Member shall accord services and service suppliers of any other Member treatment no less favourable than that provided for under the terms, limitations and conditions agreed and specified in its Schedule (ver nota 8).
2 - In sectors where market-access commitments are undertaken, the measures which a Member shall not maintain or adopt either on the basis of a regional subdivision or on the basis of its entire territory, unless otherwise specified in its Schedule, are defined as:
Limitations on the number of service suppliers whether in the form of numerical quotas, monopolies, exclusive service suppliers or the requirements of an economic needs test;
Limitations on the total value of service transactions or assets in the form of numerical quotas or the requirement of an economic needs test;
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(ver nota 9);
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;
Measures which restrict or require specific types of legal entity or joint venture through which a service supplier may supply a service; and
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.
(nota 8) If a Member undertakes a market-access commitment in relation to the supply of a service through the mode of supply referred to in subparagraph 2, a), of Article I and if the cross-border movement of capital is an essential part of the service itself, that Member is thereby committed to allow such movement of capital. If a Member undertakes a market-access commitment in relation to the supply of a service through the mode of supply referred to in subparagraph 2, c), of Article 1, it is thereby committed to allow related transfers of capital into its territory.
(nota 9) Subparagraph 2, c), does not cover measures of a Member which limit inputs for the supply of services.
Article XVII
National treatment
1 - In the sectors inscribed in its Schedule, and subject to any conditions and qualifications set out therein, each Member shall accord to services and service suppliers of any other Member, 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 (ver nota 10).
2 - A Member may meet the requirement of paragraph 1 by according to services and service suppliers of any other Member, either formally identical treatment or formally different treatment to that it accords to its own like services and service suppliers.
3 - 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 Member compared to like services or service suppliers of any other Member.
(nota 10) Specific commitments assumed under this Article shall not be construed to require any Member to compensate for any inherent competitive disadvantages which result from the foreign character of the relevant services or service suppliers.
Article XVIII
Additional commitments
Members may negotiate commitments with respect to measures affecting trade in services not subject to scheduling under Articles XVI or XVII, including those regarding qualifications, standards or licensing matters. Such commitments shall be inscribed in a Member's Schedule.
PART IV
Progressive liberalization
Article XIX
Negotiation of specific commitments
1 - In pursuance of the objectives of this Agreement, Members shall enter into successive rounds of negotiations, beginning not later than five years from the date of entry into force of the WTO Agreement and periodically thereafter, with a view to achieving a progressively higher level of liberalization. Such negotiations shall be directed to the reduction or elimination of the adverse effects on trade in services of measures as a means of providing effective market access. This process shall take place with a view to promoting the interests of all participants on a mutually advantageous basis and to securing an overall balance of rights and obligations.
2 - The process of liberalization shall take place with due respect for national policy objectives and the level of development of individual Members, both overall and in individual sectors. There shall be appropriate flexibility for individual developing country Members for opening fewer sectors, liberalizing fewer types of transactions, progressively extending market access in line with their development situation and, when making access to their markets available to foreign service suppliers, attaching to such access conditions aimed at achieving the objectives referred to in Article IV.
3 - For each round, negotiating guidelines and procedures shall be established. For the purposes of establishing such guidelines, the Council for Trade in Services shall carry out an assessment of trade in services in overall terms and on a sectoral basis with reference to the objectives of this Agreement, includind those set out in paragraph I of Article IV. Negotiating guidelines shall establish modalities for the treatment of liberalization undertaken autonomously by Members since previous negotiations, as well as for the special treatment for least-developed country Members under the provisions of paragraph 3 of Article IV.
4 - The process of progressive liberalization shall be advanced in each such round through bilateral, plurilateral or multilateral negotiations directed towards increasing the general level of specific commitments undertaken by Members under this Agreement.
Article XX
Schedules of specific commitments
1 - Each Member shall set out in a schedule the specific commitments it undertakes under Part 111 of this Agreement. With respect to sectors where such commitments are undertaken, each Schedule shall specify:
Terms, limitations and conditions on market access;
Conditions and qualifications on national treatment;
Undertakings relating to additional commitments;
Where appropriate the time-frame for implementation of such commitments; and
The date of entry into force of such commitments.
2 - Measures inconsistent with both Articles XVI and XVII shall be inscribed in the column relating to Article XVI. In this case the inscription will be considered to provide a condition or qualification to Article XVII as well.
3 - Schedules of specific commitments shall be annexed to this Agreement and shall form an integral part thereof.
Article XXI
Modification of schedules
1 - a) A Member (referred to in this Article as the «modifying Member») may modify or withdraw any commitment in its Schedule, at any time after three years have elapsed from the date on which that commitment entered into force, in accordance with the provisions of this Article.
A modifying Member shall notify its intent to modify or withdraw a commitment pursuant to this Article to the Council for Trade in Services no later than three months before the intended date of implementation of the modification or withdrawal.
2 - a) At the request of any Member the benefits of which under this Agreement may be affected (referred to in this Article as an «affected Member») by a proposed modification or withdrawal notified under subparagraph 1, b), the modifying Member shall enter into negotiations with a view to reaching agreement on any necessary compensatory adjustment. In such negotiations and agreement, the Members concerned shall endeavour to maintain a general level of mutually advantageous commitments not less favourable to trade than that provided for in Schedules of specific commitments prior to such negotiations.
Compensatory adjustments shall be made on a most-favoured-nation basis.
3 - a) If agreement is not reached between the modifying Member and any affected Member before the end of the period provided for negotiations, such affected Member may refer the matter to arbitration. Any affected Member that wishes to enforce a right that it may have to compensation must participate in the arbitration.
If no affected Member has requested arbitration. the modifying Member shall be free to implement the proposed modification or withdrawal.
4 - a) The modifying Member may not modify or withdraw its commitment until it has made compensatory adjustments in conformity with the findings of the arbitration.
If the modifying Member implements its proposed modification or withdrawal and does not comply with the findings of the arbitration, any affected Member that participated in the arbitration may modify or withdraw substantially equivalent benefits in conformity with those findings. Notwithstanding Article II, such a modification or withdrawal may be implemented solely with respect to the modifying Member.
5 - The Council for Trade in Services shall establish procedures for rectification or modification of Schedules. Any Member which has modified or with-drawn scheduled commitments under this Article shall modify its Schedule according to such procedures.
PART V
Institutional provisions
Article XXII
Consultation
1 - Each Member shall accord sympathetic consideration to, and shall afford adequate opportunity for, consultation regarding such representations as may be made by any other Member with respect to any matter affecting the operation of this Agreement. The Dispute Settlement Understanding (DSU) shall apply to such consultations.
2 - The Council for Trade in Services or the Dispute Settlement Body (DSB) may, at the request of a Member, consult with any Member or Members in respect of any matter for which it has not been possible to find a satisfactory solution through consultation under paragraph 1.
3 - A Member may not invoke Article XVII, either under this Article or Article XXIII, with respect to a measure of another Member that falls within the scope of an international agreement between them relating to the avoidance of double taxation. In case of disagreement between Members as to whether a measure falls within the scope of such an agreement between them, it shall be open to either Member to bring this matter before the Council for Trade in Services (ver nota 11). The Council shall refer the matter to arbitration. The decision of the arbitrator shall be final and binding on the Members.
(nota 11) With respect to agreements on the avoidance of double taxation which exist on the date of entry into force of the WTO Agreement, such a matter may be brought before the Council for Trade in Services only with the consent of both parties to such an agreement.
Article XXIII
Dispute settlement and enforcement
1 - If any Member should consider that any other Member fails to carry out its obligations or specific commitments under this Agreement, it may with a view to reaching a mutually satisfactory resolution of the matter have recourse to the DSU.
2 - If the DSB considers that the circumstances are serious enough to justify such action, it may authorize a Member or Members to suspend the application to any other Member or Members of obligations and specific commitments in accordance with Article 22 of the DSU.
3 - If any Member considers that any benefit it could reasonably have expected to accrue to it under a specific commitment of another Member under Part III of this Agreement is being nullified or impaired as a result of the application of any measure which does not conflict with the provisions of this Agreement, it may have recourse to the DSU. If the measure is determined by the DSB to have nullified or impaired such a benefit, the Member affected shall be entitled to a mutually satisfactory adjustment on the basis of paragraph 2 of Article XXI, which may include the modification or withdrawal of the measure. In the event an agreement cannot be reached between the Members concerned, Article 22 of the DSU shall apply.
Article XXIV
Council for Trade in Services
1 - The Council for Trade in Services shall carry out such functions as may be assigned to it to facilitate the operation of this Agreement and further its objectives. The Council may establish such subsidiary bodies as it considers appropriate for the effective discharge of its functions.
2 - The Council and, unless the Council decides otherwise, its subsidiary bodies shall be open to participation by representatives of all Members.
3 - The Chairman of the Council shall be elected by the Members.
Article XXV
Technical cooperation
1 - Service suppliers of Members which are in need of such assistance shall have access to the services of contact points referred to in paragraph 2 of Article IV.
2 - Technical assistance to developing countries shall be provided at the multilateral level by the Secretariat and shall be decided upon by the Council for Trade in Services.
Article XXVI
Relationship with other international organizations
The General Council shall make appropriate arrangements for consultation and cooperation with the United Nations and its specialized agencies as well as with other intergovernmental organizations concerned with services.
PART VI
Final provisions
Article XXVII
Denial of benefits
A Member may deny the benefits of this Agreement:
To the supply of a service, if it establishes that the service is supplied from or in the territory of a non-Member or of a Member to which the denying Member does not apply the WTO Agreement;
In the case of the supply of a maritime transport service, if it establishes that the service is supplied:
By a vessel registered under the laws of a non-Member or of a Member to which the denying Member does not apply the WTO Agreement; and
ii) By a person which operates and/or uses the vessel in whole or in part but which is of a non-Member or of a Member to which the denying Member does not apply the WTO Agreement;
To a service supplier that is a juridical person, if it establishes that it is not a service supplier of another Member, or that it is a service supplier of a Member to which the denying Member does not apply the WTO Agreement.
Article XXVIII
Definitions
For the purpose of this Agreement:
«Measure» means any measure by a Member, whether in the form of a law, regulation, rule, procedure, decision, administrative action, or any other form;
«Supply of a service» includes the production, distribution, marketing, sale and delivery of a service;
«Measures by Members affecting trade in services» include measures in respect of:
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 those Members to be offered to the public generally;
iii) The presence, including commercial presence, of persons of a Member for the supply of a service in the territory of another Member;
«Commercial presence» means any type of business or professional establishment, including through:
The constitution, acquisition or maintenance of a juridical person; or
ii) The creation or maintenance of a branch or a representative office,
within the territory of a Member for the purpose of supplying a service;
«Sector» of a service means:
With reference to a specific commitment, one or more, or all, subsectors of that service, as specified in a Member's Schedule;
Otherwise, the whole of that service sector, including all of its subsectors;
«Service of another Member» means a service which is supplied:
From or in the territory of that other Member, or in the case of maritime transport, by a vessel registered under the laws of that other Member, or by a person of that other Member which supplies the service through the operation of a vessel and/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 Member;
«Service supplier» means any person that supplies a service (ver nota 12);
«Monopoly supplier of a service» means any person, public or private, which in the relevant market of the territory of a Member is authorized or established formally or in effect by that Member as the sole supplier of that service;
«Service consumer» means any person that receives or uses a service;
«Person» means either a natural person or a juridical person;
«Natural person of another Member» means a natural person who resides in the territory of that other Member or any other Member, and who under the law of that other Member:
Is a national of that other Member; or
ii) Has the right of permanent residence in that other Member, in the case of a Member which:
1) Does not have nationals; or
2) Accords substantially the same treatment to its permanent residents as it does to its nationals in respect of measures affecting trade in services, as notified in its acceptance of or accession to the WTO Agreement, provided that no Member is obligated to accord to such permanent residents treatment more favourable than would be accorded by that other Member to such permanent residents. Such notification shall include the assurance to assume, with respect to those permanent residents, in accordance with its laws and regulations, the same responsibilities that other Member hears with respect to its nationals;
«Juridical person» means any legal entity duly constituted or otherwise organized 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;
«Juridical person of another Member» means a juridical person which is either:
Constituted or otherwise organized under the law of that other Member, and is engaged in substantive business operations in the territory of that Member or any other Member; or
ii) In the case of the supply of a service through commercial presence, owned or controlled by:
1) Natural persons of that Member; or
2) Juridical persons of that other Member identified under subparagraph i);
A juridical person is:
«Owned» by persons of a Member if more than 50 per cent of the equity interest in it is beneficially owned by persons of that Member;
ii) «Controlled» by persons of a Member 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; and
«Direct taxes» comprise all taxes on total income, on total capital or on elements of income or of capital, including taxes on gains from the alienation of property, taxes on estates, inheritances and gifts, and taxes on the total amounts of wages or salaries paid by enterprises, as well as taxes on capital appreciation.
(nota 12) Where the service is not supplied directly by a juridical person but through other forms of commercial presence such as a branch or a representative office, the service supplier (i.e. the juridical person) shall, nonetheless, through such presence be accorded the treatment provided for service suppliers under the Agreement. Such treatment shall be extended to the presence through which the service is supplied and need not be extended to any other parts of the supplier located outside the territory where the service is supplied.
Article XXIX
Annexes
The Annexes to this Agreement are an integral part of this Agreement.
ANNEX ON ARTICLE II EXEMPTIONS
Scope
1 - This Annex specifies the conditions under which a Member, at the entry into force of this Agreement, is exempted from its obligations under paragraph 1 of Article II.
2 - Any new exemptions applied for after the date of entry into force of the WTO Agreement shall be dealt with under paragraph 3 of Article IX of that Agreement.
Review
3 - The Council for Trade in Services shall review all exemptions granted for a period of more than five years. The first such review shall take place no more than five years after the entry into force of the WTO Agreement.
4 - The Council for Trade in Services in a review shall:
Examine whether the conditions which created the need for the exemption still prevail; and
Determine the date of any further review.
Termination
5 - The exemption of a Member from its obligations under paragraph I of Article II of the Agreement with respect to a particular measure terminates on the date provided for in the exemption.
6 - In principle, such exemptions should not exceed a period of 10 years. In any event, they shall be subject to negotiation in subsequent trade-liberalizing rounds.
7 - A Member shall notify the Council for Trade in Services at the termination of the exemption period that the inconsistent measure has been brought into conformity with paragraph I of Article II of the Agreement.
Lists of Article II exemptions
[The agreed lists of exemptions under paragraph 2 of Article 11 appear as part of this Annex in the treaty copy of the WTO Agreement.]
ANNEX ON MOVEMENT OF NATURAL PERSONS SUPPLYING SERVICES UNDER THE AGREEMENT
1 - This Annex applies to measures affecting natural persons who are service suppliers of a Member, and natural persons of a Member who are employed by a service supplier of a Member, in respect of the supply of a service.
2 - The Agreement shall not apply to measures affecting natural persons seeking access to the employment market of a Member, nor shall it apply to measures regarding citizenship, residence or employment on a permanent basis.
3 - In accordance with Parts III and IV of the Agreement, Members may negotiate specific commitments applying to the movement of all categories of natural persons supplying services under the Agreement. Natural persons covered by a specific commitment shall be allowed to supply the service in accordance with the terms of that commitment.
4 - The Agreement shall not prevent a Member from applying measures to regulate the entry of natural persons 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 such measures are not applied in such a manner as to nullify or impair the benefits accruing to any Member under the terms of a specific commitment (ver nota 13).
(nota 13) The sole fact of requiring a visa for natural persons of certain Members and not for those of others shall not be regarded as nullifying or impairing benefits under a specific commitment.
ANNEX ON AIR TRANSPORT SERVICES
1 - This Annex applies to measures affecting trade in air transport services, whether scheduled or non-scheduled, and ancillary services. It is confirmed that any specific commitment or obligation assumed under this Agreement shall not reduce or affect a Member's obligations under bilateral or multilateral agreements that are in effect on the date of entry into force of the WTO Agreement.
2 - The Agreement, including its dispute settlement procedures, shall not apply to measures affecting:
Traffic rights, however granted; or
Services directly related to the exercise of traffic rights, except as provided in paragraph 3 of this Annex.
3 - The Agreement shall apply to measures affecting:
Aircraft repair and maintenance services;
The selling and marketing of air transport services;
Computer reservation system (CRS) services.
4 - The dispute settlement procedures of the Agreement may be invoked only where obligations or specific commitments have been assumed by the concerned Members and where dispute settlement procedures in bilateral and other multilateral agreements or arrangements have been exhausted.
5 - The Council for Trade in Services shall review periodically, and at least every five years, developments in the air transport sector and the operation of this Annex with a view to considering the possible further application of the Agreement in this sector.
6 - Definitions:
«Aircraft repair and maintenance services» mean such activities when undertaken on an aircraft or a part thereof while it is withdrawn from service and do not include so-called line maintenance;
«Selling and marketing of air transport services» mean 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;
«Computer reservation system (CRS) services» mean services provided by computerized systems that contain information about air carriers' schedules, availability, fares and fare rules, through which reservations can be made or tickets may be issued;
«Traffic rights» mean the right for scheduled and non-scheduled services to operate and/or to carry passengers, cargo and mail for remuneration or hire from, to, within, or over the territory of a Member, 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.
ANNEX ON FINANCIAL SERVICES
1 - Scope and definition
This Annex applies to measures affecting the supply of financial services. Reference to the supply of a financial service in this Annex shall mean the supply of a service as defined in paragraph 2 of Article I of the Agreement.
For the purposes of subparagraph 3, b), of Article I of the Agreement, «services supplied in the exercise of governmental authority» means the following:
Activities conducted by a central bank or monetary authority or by any other public entity in pursuit of monetary or exchange rate policies;
ii) Activities forming part of a statutory system of social security or public retirement plans; and
iii) Other activities conducted by a public entity for the account or with the guarantee or using the financial resources of the Government.
For the purposes of subparagraph 3, b), of Article I of the Agreement, if a Member allows any of the activities referred to in subparagraphs b), ii), or b), iii), of this paragraph to be conducted by its financial service suppliers in competition with a public entity or a financial service supplier, «services» shall include such activities.
Subparagraph 3, c), of Article I of the Agreement shall not apply to services covered by this Annex.
2 - Domestic regulation
Notwithstanding any other provisions of the Agreement, a Member shall not be prevented from taking measures for prudential reasons, including for the protection of investors, depositors, policy holders or persons to whom a fiduciary duty is owed by a financial service supplier, or to ensure the integrity and stability of the financial system. Where such measures do not conform with the provisions of the Agreement, they shall not be used as a means of avoiding the Member's commitments or obligations under the Agreement.
Nothing in the Agreement shall be construed to require a Member to disclose information relating to the affairs and accounts of individual customers or any confidential or proprietary information in the possession of public entities.
3 - Recognition
A Member may recognize prudential measures of any other country in determining how the Member's measures relating to financial services shall be applied. Such recognition, which may be achieved through harmonization or otherwise, may be based upon an agreement or arrangement with the country concerned or may be accorded autonomously.
A Member that is a party to such an agreement or arrangement referred to in subparagraph a), whether future or existing, shall afford adequate opportunity for other interested Members to negotiate their accession to such agreements or arrangements, or to negotiate comparable ones with it, under circumstances in which there would be equivalent regulation, oversight, implementation of such regulation, and, if appropriate, procedures concerning the sharing of information between the parties to the agreement or arrangement. Where a Member accords recognition autonomously, it shall afford adequate opportunity for any other Member to demonstrate that such circumstances exist.
Where a Member is contemplating according recognition to prudential measures of any other country, paragraph 4, b), of Article VII shall not apply.
4 - Dispute settlement
Panels for disputes on prudential issues and other financial matters shall have the necessary expertise relevant to the specific financial service under dispute.
5 - Definitions
For the purposes of this Annex:
A financial service is any service of a financial nature offered by a financial service supplier of a Member. Financial services include all insurance and insurance-related services, and all banking and other financial services (excluding insurance). Financial services include the following activities:
Insurance and insurance-related services:
Direct insurance (including co-insurance):
A) Life;
B) Non-life;
Reinsurance and retrocession;
ii) Insurance intermediation, such as brokerage and agency;
iii) Services auxiliary to insurance, such as consultancy, actuarial, risk assessment and claim settlement services;
iv) Services auxiliary to insurance, such as consultancy, actuarial, risk assessment and claim settlement services;
Banking and other financial services (excluding insurance):
Acceptance of deposits and other repayable funds from the public;
vi) Lending of all types, including consumer credit, mortgage credit, factoring and financing of commercial transaction;
vii) Financial leasing;
viii) All payment and money transmission services, including credit, charge and debit cards, travellers cheques and bankers drafts;
ix) Guarantees and commitments;
Trading for own account or for account of customers, whether on an exchange, in an over-the-counter market or otherwise, the following:
A) Money market instruments (including cheques, bills, certificates of deposits);
B) Foreign exchange;
C) Derivative products including, but not limited to, futures and options;
D) Exchange rate and interest rate instruments, including products such as swaps, forward rate agreements;
E) Transferable securities;
F) Other negotiable instruments and financial assets, including bullion;
xi) Participation in issues of all kinds of securities, including underwriting and placement as agent (whether publicly or privately) and provision of services related to such issues;
xii) Money broking;
xiii) Asset management, such as cash or portfolio management, all forms of collective investment management, pension fund management, custodial, depository and trust services;
xiv) Settlement and clearing services for financial assets, including securities, derivative products, and other negotiable instruments;
xv) Provision and transfer of financial information, and financial data processing and related software by suppliers of other financial services;
xvi) Advisory, intermediation and other auxiliary financial services on all the activities listed in subparagraphs v) through xv), including credit reference and analysis, investment and portfolio research and advice, advice on acquisitions and on corporate restructuring and strategy.
A financial service supplier means any natural or juridical person of a Member wishing to supply or supplying financial services but the term «financial service supplier» does not include a public entity.
«Public entity» means:
A government, a central bank or a monetary authority, of a Member, or an entity owned or controlled by a Member, that is principally engaged in carrying out governmental functions or activities for governmental purposes, not including an entity principally engaged in supplying financial services on commercial terms; or
ii) A private entity, performing functions normally performed by a central bank or monetary authority, when exercising those functions.
SECOND ANNEX ON FINANCIAL SERVICES
1 - Notwithstanding Article II of the Agreement and paragraphs 1 and 2 of the Annex on Article II Exemptions, a Member may, during a period of 60 days beginning four months after the date of entry into force of the WTO Agreement, list in that Annex measures relating to financial services which are inconsistent with paragraph 1 of Article II of the Agreement.
2 - Notwithstanding Article XXI of the Agreement, a Member may, during a period of 60 days beginning four months after the date of entry into force of the WTO Agreement, improve, modify or withdraw all or part of the specific commitments on financial services inscribed in its Schedule.
3 - The Council for Trade in Services shall establish any procedures necessary for the application of paragraphs 1 and 2.
ANNEX ON NEGOTIATIONS ON MARITIME TRANSPORT SERVICES
1 - Article II and the Annex on Article II Exemptions, including the requirement to list in the Annex any measure inconsistent with most-favoured-nation treatment that a Member will maintain, shall enter into force for international shipping, auxiliary services and access to and use of port facilities only on:
The implementation date to be determined under paragraph 4 of the Ministerial Decision on Negotiations on Maritime Transport Services; or,
Should the negotiations not succeed, the date of the final report of the Negotiating Group on Maritime Transport Services provided for in that Decision.
2 - Paragraph 1 shall not apply to any specific commitment on maritime transport services which is inscribed in a Member's Schedule.
3 - From the conclusion of the negotiations referred to in paragraph 1, and before the implementation date, a Member may improve, modify or withdraw all or part of its specific commitments in this sector without offering compensation, notwithstanding the provisions of Article XXI.
ANNEX ON TELECOMMUNICATIONS
1 - Objectives
Recognizing the specificities of the telecommunications services sector and, in particular, its dual role as a distinct sector of economic activity and as the underlying transport means for other economic activities, the Members have agreed to the following Annex with the objective of elaborating upon the provisions of the Agreement with respect to measures affecting access to and use of public telecommunications transport networks and services. Accordingly, this Annex provides notes and supplementary provisions to the Agreement.
2 - Scope
This Annex shall apply to all measures of a Member that affect access to and use of public telecommunications transport networks and services (ver nota 14).
This Annex shall not apply to measures affecting the cable or broadcast distribution of radio or television programming.
Nothing in this Annex shall be construed:
To require a Member to authorize a service supplier of any other Member to establish, construct, acquire, lease, operate, or supply telecommunications transport networks or services, other than as provided for in its Schedule; or
ii) To require a Member (or to require a Member to oblige service suppliers under its jurisdiction) to establish, construct, acquire, lease, operate or supply telecommunications transport networks or services not offered to the public generally.
(nota 14) This paragraph is understood to mean that each Member shall ensure that the obligations of this Annex are applied with respect to suppliers of public telecommunications transport networks and services by whatever measures are necessary.
3 - Definitions
For the purposes of this Annex:
«Telecommunications» means the transmission and reception of signals by any electromagnetic means.
«Public telecommunications transport service» means any telecommunications transport service required, explicitly or in effect, by a Member to be offered to the public generally. Such services may include, inter alia, telegraph, telephone, telex, and data transmission typically involving the real-time transmission of customer-supplied information between two or more points without any end-to-end change in the form or content of the customer's information.
«Public telecommunications transport network» means the public telecommunications infrastructure which permits telecommunications between and among defined network termination points.
«Intra-corporate communications» means telecommunications through which a company communicates within the company or with or among its subsidiaries, branches and, subject to a Member's domestic laws and regulations, affiliates. For these purposes, «subsidiaries», «branches» and, where applicable, «affiliates» shall be as defined by each Member. «Intra-corporate communications» in this Annex excludes commercial or non-commercial services that are supplied to companies that are not related subsidiaries, branches or affiliates, or that are offered to customers or potential customers.
Any reference to a paragraph or subparagraph of this Annex includes all subdivisions thereof.
4 - Transparency
In the application of Article 111 of the Agreement, each Member shall ensure that relevant information on conditions affecting access to and use of public telecommunications transport networks and services is publicly available, including: tariffs and other terms and conditions of service; specifications of technical interfaces with such networks and services; information on bodies responsible for the preparation and adoption of standards affecting such access and use; conditions applying to attachment of terminal or other equipment; and notifications, registration or licensing requirements, if any.
5 - Access to and use of public telecommunications transport networks and services
Each Member shall ensure that any service supplier of any other Member is accorded access to and use of public telecommunications transport networks and services on reasonable and non-discriminatory terms and conditions, for the supply of a service included in its Schedule. This obligation shall be applied, inter alia, through paragraphs b) through f) (ver nota 15).
Each Member shall ensure that service suppliers of any other Member have access to and use of any public telecommunications transport network or service offered within or across the border of that Member, including private leased circuits, and to this end shall ensure, subject to paragraphs e) and f), that such suppliers are permitted:
To purchase or lease and attach terminal or other equipment which interfaces with the network and which is necessary to supply a supplier's services;
ii) To interconnect private leased or owned circuits with public telecommunications transport networks and services or with circuits leased or owned by another service supplier; and
iii) To use operating protocols of the service supplier's choice in the supply of any service, other than as necessary to ensure the availability of telecommunications transport networks and services to the public generally.
Each Member shall ensure that service suppliers of any other Member may use public telecommunications transport networks and services for the movement of information within and across borders, including for intra-corporate communications of such service suppliers, and for access to information contained in data bases or otherwise stored in machine-readable form in the territory of any Member. Any new or amended measures of a Member significantly affecting such use shall be notified and shall be subject to consultation, in accordance with relevant provisions of the Agreement.
Notwithstanding the preceding paragraph, a Member may take such measures as are necessary to ensure the security and confidentiality of messages, subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination or a disguised restriction on trade in services.
Each Member shall ensure that no condition is imposed on access to and use of public telecommunications transport networks and services other than as necessary:
To safeguard the public service responsibilities of suppliers of public telecommunications transport networks and services, in particular their ability to make their networks or services available to the public generally;
ii) To protect the technical integrity of public telecommunications transport networks or services; or
iii) To ensure that service suppliers of any other Member do not supply services unless permitted pursuant to commitments in the Member's Schedule.
Provided that they satisfy the criteria set out in paragraph e), conditions for access to and use of public telecommunications transport networks and services may include:
Restrictions on resale or shared use of such services;
ii) A requirement to use specified technical interfaces, including interface protocols, for inter-connection with such networks and services;
iii) Requirements, where necessary, for the inter-operability of such services and to encourage the achievement of the goals set out in paragraph 7, a);
iv) Type approval of terminal or other equipment which interfaces with the network and technical requirements relating to the attachment of such equipment to such networks;
Restrictions on inter-connection of private leased or owned circuits with such networks or services or with circuits leased or owned by another service supplier; or
vi) Notification, registration and licensing.
Notwithstanding the preceding paragraphs of this section, a developing country Member may, consistent with its level of development, place reasonable conditions on access to and use of public telecommunications transport networks and services necessary to strengthen its domestic telecommunications infrastructure and service capacity and to increase its participation in international trade in telecommunications services. Such conditions shall be specified in the Member's Schedule.
(nota 15) The term «non-discriminatory» is understood to refer to most-favoured-nation and national treatment as defined in the Agreement, as well as to reflect sector-specific usage of the term to mean «terms and conditions no less favourable than those accorded to any other user of like public telecommunications transport networks or services under like circumstances».
6 - Technical cooperation
Members recognize that an efficient, advanced telecommunications infrastructure in countries, particularly developing countries, is essential to the expansion of their trade in services. To this end, Members endorse and encourage the participation, to the fullest extent practicable, of developed and developing countries and their suppliers of public telecommunications transport networks and services and other entities in the development programmes of international and regional organizations, including the International Telecommunication Union, the United Nations Development Programme, and the International Bank for Reconstruction and Development.
Members shall encourage and support telecommunications cooperation among developing countries at the international, regional and sub-regional levels.
In cooperation with relevant international organizations, Members shall make available, where practicable, to developing countries information with respect to telecommunications services and developments in telecommunications and information technology to assist in strengthening their domestic telecommunications services sector.
Members shall give special consideration to opportunities for the least-developed countries to encourage foreign suppliers of telecommunications services to assist in the transfer of technology, training and other activities that support the development of their telecommunications infrastructure and expansion of their telecommunications services trade.
7 - Relation to international organizations and agreements
Members recognize the importance of international standards for global compatibility and inter-operability of telecommunication networks and services and undertake to promote such standards through the work of relevant international bodies, including the International Telecommunication Union and the International Organization for Standardization.
Members recognize the role played by intergovernmental and non-governmental organizations and agreements in ensuring the efficient operation of domestic and global telecommunications services, in particular the International Telecommunication Union. Members shall make appropriate arrangements, where relevant, for consultation with such organizations on matters arising from the implementation of this Annex.
ANNEX ON NEGOTIATONS ON BASIC TELECOMMUNICATIONS
1 - Article II and the Annex on Article II Exemptions, including the requirement to list in the Annex any measure inconsistent with most-favoured-nation treatment that a Member will maintain, shall enter into force for basic telecommunications only on:
The implementation date to be determined under paragraph 5 of the Ministerial Decision on Negotiations on Basic Telecommunications; or,
Should the negotiations not succeed, the date of the final report of the Negotiating Group on Basic Telecommunications provided for in that Decision.
2 - Paragraph 1 shall not apply to any specific commitment on basic telecommunications which is inscribed in a Member's Schedule.
ANNEX
SCHEDULE OF SPECIFIC COMMITMENTS
European Communities and Their Member States
(this is authentic in English only)
Introductory note
1 - The specific commitments in this schedule apply only to the territories in which the Treaties establishing the European Communities are applied and under the conditions laid down in these Treaties. These commitments apply only to the relations between the Communities and their Member States on the one hand, and non-Community countries on the other. They do not affect the rights and obligations of Member States arising from Community law.
2 - The following abbreviations are used to indicate the Member States:
B - Belgium;
D - Germany;
DK - Denmark;
E - Spain;
F - France;
GR - Greece;
I - Italy;
IRL - Ireland;
L - Luxembourg;
NL - The Netherlands;
P - Portugal;
UK - United Kingdom.
3 - The rights and obligations arising from the GATS, including the schedule of commitments, shall have no self-executing effect and thus confer no rights directly to individual natural persons or juridical persons.
4 - A glossary of terms used by individual Member States is attached to this schedule.
European Communities and their Member States - Schedule of specific commitments
Modes of supply:
1) Cross-border supply;
2) Consumption abroad;
3) Commercial presence;
4) Presence of natural persons.
([ver documento original](https://files.diariodarepublica.pt/1s/1994/12/298a05/07561227.pdf))
ATTACHMENT A
Glossary
Terms used for individual Member States
France:
SC - Société Civile.
SCP - Société Civile Professionnelle.
SEL - Société d'Exercice Libéral.
SNC - Société en Nom Collectif.
SCS - Société en Commandite Simple.
SARL - Société à Responsabilité Limitée.
SCA - Société en Commandite par Actions.
SA - Société Anonyme.
N. B. - Toutes ces Sociétés sont dotées de la personnalité morale.
Germany:
GmbH & CoKG - Kommanditgesellschaft, bei der der persönlich haftende Gesellschafter iene GmbH (a stock company with limited responsibility) ist.
EWIV - Europäische Wirtschaftliche Interessenvereinigung (European Economic Interest Grouping).
Italy:
SPA - Società per Azioni (joint stock company).
SRL - Società a Responsabilità Limitada (company with limited responsibility).
For Italy the following professional services are covered in the EC offer:
Ragionieri-periti commerciali - Bookkeeping-accounting-auditing;
Commercialisti - Bookkeeping-accounting-auditing;
Geometri - Surveyors;
Ingegneri - Emgineers;
Architetti - Architects;
Geologi - Geologists;
Medici - Doctors;
Farmacisti - Pharmacist;
Psicilogi - Psychologists;
Veterinari - Veterinarians;
Biologi - Biologists;
Chimici - Chemists;
Periti agrari - Agricultural experts;
Agronomi - Agronomists;
Attuari - Actuarists.
FINAL LIST OF ARTICLE II (MFN) EXEMPTIONS
European Communities and their Member States
(this is authentic in English only)
European Communities and their Member States - Final list of article II (MFN) exemptions
([ver documento original](https://files.diariodarepublica.pt/1s/1994/12/298a05/07561227.pdf))
ANNEX 1C
AGREEMENT ON TRADE-RELATED ASPECTS OF INTELLECTUAL PROPERTY RIGHTS
Members:
Desiring to reduce distortions and impediments to international trade, and taking into account the need to promote effective and adequate protection of intellectual property rights, and to ensure that measures and procedures to enforce intellectual property rights do not themselves become barriers to legitimate trade;
Recognizing, to this end, the need for new rules and disciplines concerning:
The applicability of the basic principles of GATT 1994 and of relevant international intellectual property agreements or conventions;
The provision of adequate standards and principles concerning the availability, scope and use of trade-related intellectual property rights;
The provision of effective and appropriate means for the enforcement of trade-related intellectual property rights, taking into account differences in national legal systems;
The provision of effective and expeditious procedures for the multilateral prevention and settlement of disputes between governments; and
Transitional arrangements aiming at the fullest participation in the results of the negotiations;
Recognizing the need for a multilateral framework of principles, rules and disciplines dealing with international trade in counterfeit goods;
Recognizing that intellectual property rights are private rights;
Recognizing the underlying public policy objectives of national systems for the protection of intellectual property, including developmental and technological objectives;
Recognizing also the special needs of the least-developed country Members in respect of maximum flexibility in the domestic implementation of laws and regulations in order to enable them to create a sound and viable technological base;
Emphasizing the importance of reducing tensions by reaching strengthened commitments to resolve disputes on trade-related intellectual property issues through multilateral procedures;
Desiring to establish a mutually supportive relationship between the WTO and the World Intellectual Property Organization (referred to in this Agreement as «WIPO») as well as other relevant international organizations;
hereby agree as follows:
PART I
General provisions and basic principles
Article 1
Nature and scope of obligations
1 - Members shall give effect to the provisions of this Agreement. Members may, but shall not be obliged to, implement in their law more extensive protection than is required by this Agreement, provided that such protection does not contravene the provisions of this Agreement. Members shall be free to determine the appropriate method of implementing the provisions of this Agreement within their own legal system and practice.
2 - For the purposes of this Agreement, the term «intellectual property» refers to all categories of intellectual property that are the subject of Sections 1 through 7 of Part II.
3 - Members shall accord the treatment provided for in this Agreement to the nationals of other Members (ver nota 1). In respect of the relevant intellectual property right, the nationals of other Members shall be understood as those natural or legal persons that would meet the criteria for eligibility for protection provided for in the Paris Convention (1967), the Berne Convention (1971), the Rome Convention and the Treaty on Intellectual Property in Respect of Integrated Circuits, were all Members of the WTO members of those Conventions (ver nota 2). Any Member availing itself of the possibilities provided in paragraph 3 of Article 5 or paragraph 2 of Article 6 of the Rome Convention shall make a notification as foreseen in those provisions to the Council for Trade-Related Aspects of Intellectual Property Rights (the «Council for TRIPS»).
(nota 1) When «nationals» are referred to in this Agreement, they shall he deemed. in the case of a separate customs territory Member of the WTO, to mean persons, natural or legal, who are domiciled or who have a real and effective industrial or commercial establishment in that customs territory.
(nota 2) In this Agreement, «Paris Convention» refers to the Paris Convention for the Protection of Industrial Property: «Paris Convention (1967)» refers to the Stockholm Act of this Convention of 14 July 1967. «Berne Convention» refers to the Berne Convention for the Protection of Literary and Artistic Works: «Berne Convention (1971)» refers to the Paris Act of this Convention of 24 July 1971. «Rome Convention» refers to the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations, adopted at Rome on 26 October 1961. «Treaty on Intellectual Property in Respect of Integrated Circuits» (IPIC Treaty) refers to the Treaty on Intellectual Property in Respect of Integrated Circuits, adopted at Washington on 26 May 1989. «WTO Agreement» refers to the Agreement Establishing the WTO.
Article 2
Intellectual property conventions
1 - In respect of Parts II, III and IV of this Agreement, Members shall comply with Articles 1 through 12, and Article 19, of the Paris Convention (1967).
2 - Nothing in Parts I to IV of this Agreement shall derogate from existing obligations that Members may have to each other under the Paris Convention, the Berne Convention, the Rome Convention and the Treaty on Intellectual Property in Respect of Integrated Circuits.
Article 3
National treatment
1 - Each Member shall accord to the nationals of other Members treatment no less favourable than that it accords to its own nationals with regard to the protection (ver nota 3) of intellectual property, subject to the exceptions already provided in, respectively, the Paris Convention (1967), the Berne Convention (1971), the Rome Convention or the Treaty on Intellectual Property in Respect of Integrated Circuits. In respect of performers, producers of phonograms and broadcasting organizations, this obligation only applies in respect of the rights provided under this Agreement. Any Member availing itself of the possibilities provided in Article 6 of the Berne Convention (1971) or paragraph 1, b), of Article 16 of the Rome Convention shall make a notification as foreseen in those provisions to the Council for TRIPS.
2 - Members may avail themselves of the exceptions permitted under paragraph 1 in relation to judicial and administrative procedures, including the designation of an address for service or the appointment of an agent within the jurisdiction of a Member, only where such exceptions are necessary to secure compliance with laws and regulations which are not inconsistent with the provisions of this Agreement and where such practices are not applied in a manner which would constitute a disguised restriction on trade.
(nota 3) For the purposes of Articles 3 and 4, «protection» shall include matters affecting the availability, acquisition, scope, maintenance and enforcement of intellectual property rights as well as those matters affecting the use of intellectual property rights specifically addressed in this Agreement.
Article 4
Most-favoured-nation treatment
With regard to the protection of intellectual property, any advantage, favour, privilege or immunity granted by a Member to the nationals of any other country shall be accorded immediately and unconditionally to the nationals of all other Members. Exempted from this obligation are any advantage, favour, privilege or immunity accorded by a Member:
Deriving from international agreements on judicial assistance or law enforcement of a general nature and not particularly confined to the protection of intellectual property;
Granted in accordance with the provisions of the Berne Convention (1971) or the Rome Convention authorizing that the treatment accorded be a function not of national treatment but of the treatment accorded in another country;
In respect of the rights of performers, producers of phonograms and broadcasting organizations not provided under this Agreement;
Deriving from international agreements related to the protection of intellectual property which entered into force prior to the entry into force of the WTO Agreement, provided that such agreements are notified to the Council for TRIPS and do not constitute an arbitrary or unjustifiable discrimination against nationals of other Members.
Article 5
Multilateral agreements on acquisition or maintenance of protection
The obligations under Articles 3 and 4 do not apply to procedures provided in multilateral agreements concluded under the auspices of WIPO relating to the acquisition or maintenance of intellectual property rights.
Article 6
Exhaustion
For the purposes of dispute settlement under this Agreement, subject to the provisions of Articles 3 and 4 nothing in this Agreement shall be used to address the issue of the exhaustion of intellectual property rights.
Article 7
Objectives
The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.
Article 8
Principles
1 - Members may, in formulating or amending their laws and regulations, adopt measures necessary to protect public health and nutrition, and to promote the public interest in sectors of vital importance to their socio-economic and technological development, provided that such measures are consistent with the provisions of this Agreement.
2 - Appropriate measures, provided that they are consistent with the provisions of this Agreement, may be needed to prevent the abuse of intellectual property rights by right holders or the resort to practices which unreasonably restrain trade or adversely affect the international transfer of technology.
PART II
Standards concerning the availability, scope and use of intellectual property rights
SECTION 1
Copyright and related rights
Article 9
Relation to the Berne Convention
1 - Members shall comply with Articles I through 21 of the Berne Convention (1971) and the Appendix thereto. However, Members shall not have rights or obligations under this Agreement in respect of the rights conferred under Article 6bis of that Convention or of the rights derived therefrom.
2 - Copyright protection shall extend to expressions and not to ideas, procedures, methods of operation or mathematical concepts as such.
Article 10
Computer programs ans compilations of data
1 - Computer programs, whether in source or object code, shall be protected as literary works under the Berne Convention (1971).
2 - Compilations of data or other material, whether in machine readable or other form, which by reason of the selection or arrangement of their contents constitute intellectual creations shall be protected as such. Such protection, which shall not extend to the data or material itself, shall be without prejudice to any copyright subsisting in the data or material itself.
Article 11
Rental rights
In respect of at least computer programs and cinematographic works, a Member shall provide authors and their successors in title the right to authorize or to prohibit the commercial rental to the public of originals or copies of their copyright works. A Member shall be excepted from this obligation in respect of cinematographic works unless such rental has led to widespread copying of such works which is materially impairing the exclusive right of reproduction conferred in that Member on authors and their successors in title. In respect of computer programs, this obligation does not apply to rentals where the program itself is not the essential object of the rental.
Article 12
Term of protection
Whenever the term of protection of a work, other than a photographic work or a work of applied art, is calculated on a basis other than the life of a natural person, such term shall be no less than 50 years from the end of the calendar year of authorized publication, or, failing such authorized publication within 50 years from the making of the work, 50 years from the end of the calendar year of making.
Article 13
Limitations and exceptions
Members shall confine limitations or exceptions to exclusive rights to certain special cases which do not conflict with a normal exploitation of the work and do not unreasonably prejudice the legitimate interests of the right holder.
Article 14
Protection of performers, producers of phonograms (sound recordings) and broadcasting organizations
1 - In respect of a fixation of their performance on a phonogram, performers shall have the possibility of preventing the following acts when undertaken without their authorization: the fixation of their unfixed performance and the reproduction of such fixation. Performers shall also have the possibility of preventing the following acts when undertaken without their authorization: the broadcasting by wireless means and the communication to the public of their live performance.
2 - Producers of phonograms shall enjoy the right to authorize or prohibit the direct or indirect reproduction of their phonograms.
3 - Broadcasting organizations shall have the right to prohibit the following acts when undertaken without their authorization: the fixation, the reproduction of fixations, and the rebroadcasting by wireless means of broadcasts, as well as the communication to the public of television broadcasts of the same. Where Members do not grant such rights to broadcasting organizations, they shall provide owners of copyright in the subject matter of broadcasts with the possibility of preventing the above acts, subject to the provisions of the Berne Convention (1971).
4 - The provisions of Article 11 in respect of computer programs shall apply mutatis mutandis to producers of phonograms and any other right holders in phonograms as determined in a Member's law. If on 15 April 1994 a Member has in force a system of equitable remuneration of right holders in respect of the rental of phonograms, it may maintain such system provided that the commercial rental of phonograms is not giving rise to the material impairment of the exclusive rights of reproduction of right holders.
5 - The term of the protection available under this Agreement to performers and producers of phonograms shall last at least until the end of a period of 50 years computed from the end of the calendar year in which the fixation was made or the performance took place. The term of protection granted pursuant to paragraph 3 shall last for at least 20 years from the end of the calendar year in which the broadcast took place.
6 - Any Member may, in relation to the rights conferred under paragraphs 1, 2 and 3, provide for conditions, limitations, exceptions and reservations to the extent permitted by the Rome Convention. However, the provisions of Article 18 of the Berne Convention (1971) shall also apply, mutatis mutandis, to the rights of performers and producers of phonograms in phonograms.
SECTION 2
Trademarks
Article 15
Protectable subject matter
1 - Any sign, or any combination of signs, capable of distinguishing the goods or services of one undertaking from those of other undertakings, shall be capable of constituting a trademark. Such signs, in particular words including personal names, letters, numerals, figurative elements and combinations of colours as well as any combination of such signs, shall be eligible for registration as trademarks. Where signs are not inherently capable of distinguishing the relevant goods or services, Members may make registrability depend on distinctiveness acquired through use. Members may require, as a condition of registration, that signs be visually perceptible.
2 - Paragraph 1 shall not be understood to prevent a Member from denying registration of a trademark on other grounds, provided that they do not derogate from the provisions of the Paris Convention (1967).
3 - Members may make registrability depend on use. However, actual use of a trademark shall not be a condition for filing an application for registration. An application shall not be refused solely on the ground that intended use has not taken place before the expiry of a period of three years from the date of application.
4 - The nature of the goods or services to which a trademark is to be applied shall in no case form an obstacle to registration of the trademark.
5 - Members shall publish each trademark either before it is registered or promptly after it is registered and shall afford a reasonable opportunity for petitions to cancel the registration. In addition, Members may afford an opportunity for the registration of a trademark to be opposed.
Article 16
Rights conferred
1 - The owner of a registered trademark shall have the exclusive right to prevent all third parties not having the owner's consent from using in the course of trade identical or similar signs for goods or services which are identical or similar to those in respect of which the trademark is registered where such use would result in a likelihood of confusion. In case of the use of an identical sign for identical goods or services, a likelihood of confusion shall be presumed. The rights described above shall not prejudice any existing prior rights, nor shall they affect the possibility of Members making rights available on the basis of use.
2 - Article 6bis of the Paris Convention (1967) shall apply, mutatis mutandis, to services. In determining whether a trademark is well known, Members shall take account of the knowledge of the trademark in the relevant sector of the public, including knowledge in the Member concerned which has been obtained as a result of the promotion of the trademark.
3 - Article 6bis of the Paris Convention (1967) shall apply, mutatis mutandis, to goods or services which are not similar to those in respect of which a trademark is registered, provided that use of that trademark in relation to those goods or services would indicate a connection between those goods or services and the owner of the registered trademark and provided that the interests of the owner of the registered trademark are likely to be damaged by such use.
Article 17
Exceptions
Members may provide limited exceptions to the rights conferred by a trademark, such as fair use of descriptive terms, provided that such exceptions take account of the legitimate interests of the owner of the trademark and of third parties.
Article 18
Term of protection
Initial registration, and each renewal of registration, of a trademark shall be for a term of no less than seven years. The registration of a trademark shall be renewable indefinitely.
Article 19
Requirement of use
1 - If use is required to maintain a registration, the registration may be cancelled only after an uninterrupted period of at least three years of non-use, unless valid reasons based on the existence of obstacles to such use are shown by the trademark owner. Circumstances arising independently of the will of the owner of the trademark which constitute an obstacle to the use of the trademark, such as import restrictions on or other government requirements for goods or services protected by the trademark, shall be recognized as valid reasons for non-use.
2 - When subject to the control of its owner, use of a trademark by another person shall be recognized as use of the trademark for the purpose of maintaining the registration.
Article 20
Other requirements
The use of a trademark in the course of trade shall not be unjustifiably encumbered by special requirements, such as use with another trademark, use in a special form or use in a manner detrimental to its capability to distinguish the goods or services of one undertaking from those of other undertakings. This will not preclude a requirement prescribing the use of the trademark identifying the undertaking producing the goods or services along with, but without linking it to, the trademark distinguishing the specific goods or services in question of that undertaking.
Article 21
Licensing and assignment
Members may determine conditions on the licensing and assignment of trademarks, it being understood that the compulsory licensing of trademarks shall not be permitted and that the owner of a registered trademark shall have the right to assign the trademark with or without the transfer of the business to which the trademark belongs.
SECTION 3
Geographical indications
Article 22
Protection of geographical indications
1 - Geographical indications are, for the purposes of this Agreement, indications which identify a good as originating in the territory of a Member, or a region or locality in that territory, where a given quality, reputation or other characteristic of the good is essentially attributable to its geographical origin.
2 - In respect of geographical indications, Members shall provide the legal means for interested parties to prevent:
The use of any means in the designation or presentation of a good that indicates or suggests that the good in question originates in a geographical area other than the true place of origin in a manner which misleads the public as to the geographical origin of the good;
Any use which constitutes an act of unfair competition within the meaning of Article 10bis of the Paris Convention (1967).
3 - A Member shall, ex officio if its legislation so permits or at the request of an interested party, refuse or invalidate the registration of a trademark which contains or consists of a geographical indication with respect to goods not originating in the territory indicated, if use of the indication in the trademark for such goods in that Member is of such a nature as to mislead the public as to the true place of origin.
4 - The protection under paragraphs 1, 2 and 3 shall be applicable against a geographical indication which, although literally true as to the territory, region or locality in which the goods originate, falsely represents to the public that the goods originate in another territory.
Article 23
Additional protection for geographical indications for wines and spirits
1 - Each Member shall provide the legal means for interested parties to prevent use of a geographical indication identifying wines for wines not originating in the place indicated by the geographical indication in question or identifying spirits for spirits not originating in the place indicated by the geographical indication in question, even where the true origin of the goods is indicated or the geographical indication is used in translation or accompanied by expressions such as «kind», «type», «style», «imitation» or the like (ver nota 4).
2 - The registration of a trademark for wines which contains or consists of a geographical indication identifying wines or for spirits which contains or consists of a geographical indication identifying spirits shall be refused or invalidated, ex officio if a Member's legislation so permits or at the request of an interested party, with respect to such wines or spirits not having this origin.
3 - In the case of homonymous geographical indications for wines, protection shall be accorded to each indication, subject to the provisions of paragraph 4 of Article 22. Each Member shall determine the practical conditions under which the homonymous indications in question will be differentiated from each other, taking into account the need to ensure equitable treatment of the producers concerned and that consumers are not misled.
4 - In order to facilitate the protection of geographical indications for wines, negotiations shall be undertaken in the Council for TRIPS concerning the establishment of a multilateral system of notification and registration of geographical indications for wines eligible for protection in those Members participating in the system.
(nota 4) Notwithstanding the first sentence of Article 42, Members may, with respect to these obligations, instead provide for enforcement by administrative action.
Article 24
International negotiations: exceptions
1 - Members agree to enter into negotiations aimed at increasing the protection of individual geographical indications under Article 23. The provisions of paragraphs 4 through 8 below shall not be used by a Member to refuse to conduct negotiations or to conclude bilateral or multilateral agreements. In the context of such negotiations, Members shall be willing to consider the continued applicability of these provisions to individual geographical indications whose use was the subject of such negotiations.
2 - The Council for TRIPS shall keep under review the application of the provisions of this Section: the first such review shall take place within two years of the entry into force of the WTO Agreement. Any matter affecting the compliance with the obligations under these provisions may be drawn to the attention of the Council, which, at the request of a Member, shall consult with any Member or Members in respect of such matter in respect of which it has not been possible to find a satisfactory solution through bilateral or plurilateral consultations between the Members concerned. The Council shall take such action as may be agreed to facilitate the operation and further the objectives of this Section.
3 - In implementing this Section, a Member shall not diminish the protection of geographical indications that existed in that Member immediately prior to the date of entry into force of the WTO Agreement.
4 - Nothing in this Section shall require a Member to prevent continued and similar use of a particular geographical indication of another Member identifying wines or spirits in connection with goods or services by any of its nationals or domiciliaries who have used that geographical indication in a continuous manner with regard to the same or related goods or services in the territory of that Member either a) for at least 10 years preceding 15 April 1994 or b) in good faith preceding that date.
5 - Where a trademark has been applied for or registered in good faith, or where rights to a trademark have been acquired through use in good faith either:
Before the date of application of these provisions in that Member as defined in Part VI: or
Before the geographical indication is protected in its country of origin;
measures adopted to implement this Section shall not prejudice eligibility for or the validity of the registration of a trademark, or the right to use a trademark, on the basis that such a trademark is identical with, or similar to, a geographical indication.
6 - Nothing in this Section shall require a Member to apply its provisions in respect of a geographical indication of any other Member with respect to goods or services for which the relevant indication is identical with the term customary in common language as the common name for such goods or services in the territory of that Member. Nothing in this Section shall require a Member to apply its provisions in respect of a geographical indication of any other Member with respect to products of the vine for which the relevant indication is identical with the customary name of a grape variety existing in the territory of that Member as of the date of entry into force of the WTO Agreement.
7 - A Member may provide that any request made under this Section in connection with the use or registration of a trademark must be presented within five years after the adverse use of the protected indication has become generally known in that Member or after the date of registration of the trademark in that Member provided that the trademark has been published by that date, if such date is earlier than the date on which the adverse use became generally known in that Member, provided that the geographical indication is not used or registered in bad faith.
8 - The provisions of this Section shall in no way prejudice the right of any person to use, in the course of trade, that person's name or the name of that person's predecessor in business, except where such name is used in such a manner as to mislead the public.
9 - There shall be no obligation under this Agreement to protect geographical indications which are not or cease to be protected in their country of origin, or which have fallen into disuse in that country.
SECTION 4
Industrial designs
Article 25
Requirements for protection
1 - Members shall provide for the protection of independently created industrial designs that are new or original. Members may provide that designs are not new or original if they do not significantly differ from known designs or combinations of known design features. Members may provide that such protection shall not extend to designs dictated essentially by technical or functional considerations.
2 - Each Member shall ensure that requirements for securing protection for textile designs, in particular in regard to any cost, examination or publication, do not unreasonably impair the opportunity to seek and obtain such protection. Members shall be free to meet this obligation through industrial design law or through copyright law.
Article 26
Protection
1 - The owner of a protected industrial design shall have the right to prevent third parties not having the owner's consent from making, selling or importing articles bearing or embodying a design which is a copy, or substantially a copy, of the protected design, when such acts are undertaken for commercial purposes.
2 - Members may provide limited exceptions to the protection of industrial designs, provided that such exceptions do not unreasonably conflict with the normal exploitation of protected industrial designs and do not unreasonably prejudice the legitimate interests of the owner of the protected design, taking account of the legitimate interests of third parties.
3 - The duration of protection available shall amount to at least 10 years.
SECTION 5
Patents
Article 27
Patentable subject matter
1 - Subject to the provisions of paragraphs 2 and 3, patents shall be available for any inventions, whether products or processes, in all fields of technology, provided that they are new, involve an inventive step and are capable of industrial application (ver nota 5). Subject to paragraph 4 of Article 65, paragraph 8 of Article 70 and paragraph 3 of this Article, patents shall be available and patent rights enjoyable without discrimination as to the place of invention, the field of technology and whether products are imported or locally produced.
2 - Members may exclude from patentability inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect ordre public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by their law.
3 - Members may also exclude from patentability:
Diagnostic, therapeutic and surgical methods for the treatment of humans or animals;
Plants and animals other than micro-organisms, and essentially biological processes for the production of plants or animals other than non-biological and microbiological processes. However, Members shall provide for the protection of plant varieties either by patents or by an effective sui generis system or by any combination thereof. The provisions of this subparagraph shall be reviewed four years after the date of entry into force of the WTO Agreement.
(nota 5) For the purposes of this Article, the terms «inventive step» and «capable of industrial application» may be deemed by a Member to be synonymous with the terms «non-obvious» and «useful» respectively.
Article 28
Rights conferred
1 - A patent shall confer on its owner the following exclusive rights:
Where the subject matter of a patent is a product, to prevent third parties not having the owner's consent from the acts of: making, using, offering for sale, selling, or importing (ver nota 6) for these purposes that product;
Where the subject matter of a patent is a process, to prevent third parties not having the owner's consent from the act of using the process, and from the acts of: using, offering for sale, selling, or importing for these purposes at least the product obtained directly by that process.
2 - Patent owners shall also have the right to assign, or transfer by succession, the patent and to conclude licensing contracts.
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DRE
Acesso universal e gratuito ao Diário da República, nos termos do artigo 3.º do Decreto-Lei n.º 83/2016, de 16 de dezembro, que abrange a impressão, o arquivo, a pesquisa e o livre acesso ao conteúdo dos atos publicados, em formatos eletrónicos de acesso aberto; e do regime de dados abertos da Lei n.º 68/2021, de 26 de agosto. A edição eletrónica é a que faz fé (eli:legal_value = official).