LegalizeResolução da Assembleia da República n.º 36/96 — Aprova, para ratificação, o Tratado da Carta da Energia, incluindo anexos, decisões e Acta Final, e o Protocolo da…
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.
Aprova, para ratificação, o Tratado da Carta da Energia, incluindo anexos, decisões e Acta Final, e o Protocolo da Carta da Energia Relativo à Eficiência Energética e aos Aspectos Ambientais Associados
Description - at present a state monopoly exists in Armenia in most energy sectors. There is no law on protection of competition, thus the rules of competition are not yet being implemented. There are no laws on energy. The draft laws on energy are planned to be submitted to the Parliament in 1994. The laws are envisaged to include provisions on anti-competitive behaviour, which would be harmonized with the EC legislation on competition.
Phase-out - 31 December 1997.
Azerbaijan
Sector - all energy sectors.
Level of government - national.
Description - the anti-monopoly legislation is at the stage of elaboration.
Phase-out - 1 January 2000.
Belarus
Sector - all energy sectors.
Level of government - national.
Description - anti-monopoly legislation is at the stage of elaboration.
Phase-out - 1 January 2000.
Georgia
Sector - all energy sectors.
Level of government - national.
Description - laws on demonopolization are at present at the stage of elaboration in Georgia and that is why the State has so far the monopoly for practically all energy sources and energy resources, which restricts the possibility of competition in the energy and fuel complex.
Phase-out - 1 January 1999.
Kazakhstan
Sector - all energy sectors.
Level of government - national.
Description - the law on development of competition and restriction of monopolistic activities (no. 656 of 11 June 1991) has been adopted, but is of a general nature. It is necessary to develop the legislation further, in particular by means of adopting relevant amendments or adopting a new law.
Phase-out - 1 January 1998.
Kyrgyzstan
Sector - all energy sectors.
Level of government - national.
Description - the law on anti-monopoly policies has already been adopted. The transitional period is needed to adapt provisions of this law to the energy sector which is now strictly regulated by the state.
Phase-out - 1 July 2001.
Moldova
Sector - all energy sectors.
Level of government - national.
Description - the law on restriction of monopolistic activities and development of competition of 29 January 1992 provides an organizational and legal basis for the development of competition, and of measures to prevent, limit and restrict monopolistic activities; it is oriented towards implementing market economy conditions. This law, however, does not provide for concrete measures of anticompetitive conduct in the energy sector, nor does it cover completely the requirements of article 6.
In 1995 drafts of a law on competition and a state programme of demonopolization of the economy will be submitted to the Parliament. The draft law on energy which will be also submitted to the Parliament in 1995 will cover issues on demonopolization and development of competition in the energy sector.
Phase-out - 1 January 1998.
Romania
Sector - all energy sectors.
Level of government -national.
Description - the rules of competition are not yet implemented in Romania. The draft law on protection of competition has been submitted to the Parliament and is scheduled to be adopted during 1994.
The draft contains provisions with respect to anticompetitive behaviour, harmonized with the EC's law on competition.
Phase-out - 31 December 1996.
The Russian Federation
Sector - all energy sectors.
Level of government - the Federation.
Description - a comprehensive framework of antimonopoly legislation has been created in the Russian Federation but other legal and organizational measures to prevent, limit or suppress monopolistic activities and unfair competition will have to be adopted and in particular in the energy sector.
Phase-out - 1 July 2001.
Slovenia
Sector - all energy sectors.
Level of government - national.
Description - law on protection of competition adopted in 1993 and published in Official Journal, no. 18/93 treats anti-competitive conduct generally. The existing law also provides for conditions for the establishment of competition authorities. At present the main competition authority is the Office of Protection of Competition in the Ministry of Economic Relations and Development. With regard to importance of energy sector a separate law in this respect is foreseen and thus more time for full compliance is needed.
Phase-out - 1 January 1998.
Tajikistan
Sector - all energy sectors.
Level of government - national.
Description - in 1993 Tajikistan passed the law on demonopolization and competition. However, due to the difficult economic situation in Tajikistan, the jurisdiction of the law has been temporarily suspended.
Phase-out - 31 December 1997.
Turkmenistan
Sector - all energy sectors.
Level of government - national.
Description - under the Ruling of the President of Turkmenistan no. 1532 of 21 October 1993 the Committee on Restricting Monopolistic Activities has been established and is acting now, the function of which is to protect enterprises and other entities from monopoly conduct and practices and to promote the formation of market principles on the basis of the development of competition and entrepreneurship.
Further development of legislation and regulations is needed which would regulate anti-monopoly conduct of enterprises in the economic activity in the energy sector.
Phase-out - 1 July 2001.
Uzbekistan
Sector - all energy sectors.
Level of government - national.
Description - the law on restricting monopoly activities has been adopted in Uzbekistan and has been in force since July 1992. However, the law (as is specified in article 1, paragraph 3), does not extend to the activities of enterprises in the energy sector.
Phase-out - 1 July 2001.
Article 6 , 5)
«If a Contracting Party considers that any specified anticompetitive conduct carried out within the area of another Contracting Party is adversely affecting an important interest relevant to the purposes identified in this article, the Contracting Party may notify the other Contracting Party and may request that its competition authorities initiate appropriate enforcement action. The notifying Contracting Party shall include in such notification sufficient information to permit the notified Contracting Party to identify the anticompetitive conduct that is the subject of the notification and shall include an offer of such further information and cooperation as that Contracting Party is able to provide. The notified Contracting Party or, as the case may be, the relevant competition authorities may consult with the competition authorities of the notifying Contracting Party and shall accord full consideration to the request of the notifying Contracting Party in deciding whether or not to initiate enforcement action with respect to the alleged anticompetitive conduct identified in the notification. The notified Contracting Party shall inform the notifying Contracting Party of its decision or the decision of the relevant competition authorities and may if it wishes inform the notifying Contracting Party of the grounds for the decision. If enforcement action is initiated, the notified Contracting Party shall advise the notifying Contracting Party of its outcome and, to the extent possible, of any significant interim development.»
Albania
Sector - all energy sectors.
Level of government - national.
Description - in Albania there are no established institutions to enforce the competition rules. Such institutions will be provided for in the law on the protection of competition which is planned to be finalized in 1996.
Phase-out - 1 January 1999.
Armenia
Sector-all energy sectors.
Level of government - national.
Description - institutions to enforce the provisions of this paragraph have not been established in Armenia.
The laws on energy and protection of competition are planned to include provisions to establish such institutions.
Phase-out - 31 Decembre 1997.
Azerbaijan
Sector - all energy sectors.
Level of government - national.
Description - anti-monopoly authorities shall be established after adoption of anti-monopoly legislation.
Phase-out - 1 January 2000.
Belarus
Sector - all energy sectors.
Level of government - national.
Description - anti-monopoly authorities shall be established after adoption of anti-monopoly legislation.
Phase-out - 1 January 2000.
Georgia
Sector - all energy sectors.
Level of government - national.
Description - laws on demonopolization are at present at the stage of elaboration in Georgia and that is why there are no competition authorities established yet.
Phase-out - 1 January 1999.
Kazakhstan
Sector - all energy sectors.
Level of government - national.
Description - an anti-monopoly Committee has been established in Kazakhstan, but its activity, needs improvement, both from legislative and organizational points of view, in order to elaborate an effective mechanism handling the complaints on anti- competitive conduct.
Phase-out - 1 January 1998.
Kyrgyzstan
Sector - all energy sectors.
Level of government - national.
Description - there is no mechanism in Kyrgyzstan to control the anti-competitive conduct and the relevant legislation. It is necessary to establish relevant anti-monopoly authorities.
Phase-out - 1 July 2001.
Moldova
Sector - all energy sectors.
Level of government - national.
Description - the Ministry of Economy is responsible for the control of competitive conduct in Moldova. Relevant amendments have been made to the law on breach of administrative rules, which envisage some penalties for violating rules of competition by monopoly enterprises.
The draft law on competition which is now at the stage of elaboration will have provisions on the enforcement of competition rules.
Phase-out - 1 January 1998.
Romania
Sector - all energy sectors.
Level of government - national.
Description - institutions to enforce the provisions of this paragraph have not been established in Romania.
The institutions charged with the enforcement of competition rules are provided for in the draft law on protection of competition which is scheduled to be adopted during 1994.
The draft also provides a period of nine months of enforcement, starting with the date of its publication.
According to the Europe Agreement establishing an association between Romania and the European Communities, Romania was granted a period of five years to implement competition rules.
Phase-out - 1 January 1998.
Tajikistan
Sector - all energy sectors.
Level of government - national.
Description - Tajikistan has adopted laws on demonopolization and competition, but institutions to enforce competition rules are in the stage of development. Phase-out - 31 December 1997.
Uzbekistan
Sector - all energy sectors.
Level of government - national.
Description - the law on restricting monopoly activities has been adotped in Uzbekistan and has been in force since July 1992. However, the law [as is specified in article 1, paragraph 31 does not extend to the activities of the enterprises in the energy sector.
Phase-out - 1 July 2001.
Article 7 , 4)
«In the event that transit of energy materials and products cannot be achieved on commercial terms by means of energy transport facilities the Contracting Parties shall not place obstacles in the way of new capacity being established, except as may be otherwise provided in applicable legislation which is consistent with paragraph 1).»
Azerbaijan
Sector - all energy sectors.
Level of government - national.
Description - it is necessary to adopt a set of laws on energy, including licensing procedures regulating transit. During a transition period it is envisaged to build and modernize power transmission lines, as well as generating capacities with the aim of bringing their technical level to the world requirements and adjusting to conditions of a market economy.
Phase-out - 31 December 1999.
Belarus
Sector - all energy sectors.
Level of government - national.
Description - laws on energy, land and other subjects are being worked out at present, and until their final adoption, uncertainty remains as to the conditions for establishing new transport capacities for energy carriers in the territory of Belarus.
Phase-out - 31 December 1998.
Bulgaria
Sector - all energy sectors.
Level of government - national.
Description - Bulgaria has no laws regulating transit of energy materials and products. An overall restructuring is ongoing in the energy sector, including development of institutional framework, legislation and regulation.
Phase-out - the transitional period of 7 years is necessary to bring the legislation concerning the transit of energy materials and products in full compliance with this provision.
1 July 2001.
Georgia
Sector - all energy sectors.
Level of government - national.
Description-it is necessary to prepare a set of laws on the matter. At present there are substantially different conditions for the transport and transit of various energy sources in Georgia (electric power, natural gas, oil products, coal).
Phase-out - 1 January 1999.
Hungary
Sector - electricity industry.
Level of government - national.
Description - according to the current legislation establishment and operation of high-voltage transmission lines is a state monopoly.
The creation of the new legal and regulatory framework for establishment, operation and ownership of high-voltage transmission lines is under preparation.
The Ministry of Industry and Trade has already taken the initiative to put forward a new act on electricity power, that will have its impact also on the Civil Code and the act on concession. Compliance can be achieved after entering in force of the new law on electricity and related regulatory decrees.
Phase-out - 31 December 1996.
Poland
Sector - all energy sectors.
Level of government - national.
Description - Polish law on energy, being in the final stage of coordination, stipulates for creating new legal regulations similar to those applied by free market countries (licenses to generate, transmit, distribute and trade in energy carriers). Until it is adopted by the Parliament a temporary suspension of obligation under this paragraph is required.
Phase-out - 31 December 1995.
Article 9 , 1)
«The Contracting Parties acknowledge the importance of open capital markets in encouraging the flow of capital to finance trade in energy materials and products and for the making of and assisting with regard to investments in economic activity in the energy sector in the areas of other Contracting Parties, particularly those with economies in transition. Each Contracting Party shall accordingly endeavour to promote conditions for access to its capital market by companies and nationals of other Contracting Parties, for the purpose of financing trade in energy materials and products and for the purpose of investment in economic activity in the energy sector in the areas of those other Contracting Parties, on a basis no less favourable that than which it accords in like circumstances to its own companies and nationals or companies and nationals of any other Contracting Party or any third state, whichever is the most favourable.»
Azerbaijan
Sector - all energy sectors.
Level of government - national.
Description - relevant legislation is at the stage of elaboration.
Phase-out - 1 January 2000.
Belarus
Sector - all energy sectors.
Level of government - national.
Description - relevant legislation is at the stage of elaboration.
Phase-out - 1 January 2000.
Georgia
Sector - all energy sectors.
Level of government - national.
Description - relevant legislation is at the stage of preparation.
Phase-out - 1 January 1997.
Kazakhstan
Sector - all energy sectors.
Level of government - national.
Description - the bill on foreign investments is at the stage of authorization approval with the aim to adopt it by Parliament in autumn 1994.
Phase-out - 1 July 2001.
Kyrgyzstan
Sector - all energy sectors.
Level of government -national.
Description - relevant legislation is currently under preparation.
Phase-out - 1 July 2001.
Article 10 , 7) - Specific measures
«Each Contracting Party shall accord to investments in its area of investors of another Contracting Party, and their related activities including management, maintenance, use, enjoyment or disposal, treatment no less favourable than that which it accords to investments of its own investors or of the investors of any other Contracting Party or any third state and their related activities including management, maintenance, use, enjoyment or disposal, whichever is the most favourable.»
Bulgaria
Sector - all energy sectors.
Level of government - national.
Description - foreign persons may not acquire property righs over land. A company with more than 50 per cent of foreign person's share may not acquire property right over agricultural land.
Foreigners and foreign legal persons may not aquire property righs over land except by way of inheritance according to the law. In this case they have to make it over.
A foreign persons may aquire property rights over the land.
Foreign persons or companies with foreign controlling participation must obtain a permit before performing the following activities:
Exploration, development and extraction of natural resources from the territorial sea, continental shelf or exclusive economic zone;
Acquisition of real estate in geographic regions designated by the Council of Ministers.
The permits are issued by the Council of Ministers or by a body authorized by the Council of Ministers.
Phase-out - 1 July 2001.
Article 14 , 1), d)
«Each Contracting Party shall with respect to investments in its area of investors of any other Contracting Party guarantee the freedom of transfer into and out of its area, including the transfer of:
Unspent earnings and other remuneration of personnel engaged from abroad in connection with that investment;»
Bulgaria
Sector - all energy sectors.
Level of government - national.
Description - foreign nationals employed by companies with more than 50 per cent of foreign participation, or by a foreign person registered as sole trader or a branch or a representative office of a foreign company in Bulgaria, receiving their salary in Bulgarian leva, may purchase foreign currency not exceeding 70 per cent of their salary, including social security payments.
Phase-out - 1 July 2001.
Hungary
Sector - all energy sectors.
Level of government - national.
Description - according to the act on investiments of foreigners in Hungary, article 33, foreign top managers, executive managers, members of the supervisory board and foreign employees may transfer their income up to 50 per cent of their aftertax earnings derived from the company of their employment the bank of their company.
Phase-out - The phase out of this particular restriction depends on the progress Hungary is able to make in the implementation of the foreign exchange liberalization programme whose final target is the full convertibility of the forint. This restriction does not create barriers to foreign investors. Phase-out is based on stipulations of article 32.
1 July 2001.
Article 20 , 3)
«Each Contracting Party shall designate one or more enquiry points to which requests for information about the above mentioned laws, regulations, judicial decisions and administrative rulings may be addressed and shall communicate promptly such designation to the Secretariat which shall make it available on request.»
Armenia
Sector - all energy sectors.
Level of government - national.
Description - in Armenia there are no official enquiry points yet to which requests for information about the relevant laws and other regulations could be addressed. There is no information centre either. There is plan to establish such a centre in 1994-1995. Technical assistance is required.
Phase-out - 31 December 1996.
Azerbaijan
Sector - all energy sectors.
Level of government - national.
Description - there are no official enquiry points so far in Azerbaijan to which requests for information about relevant laws and regulations could be addressed. At present such information is concentrated in various organizations.
Phase-out - 31 December 1997.
Belarus
Sector - all energy sectors.
Level of government - national.
Description - official enquiry offices which could give information on laws, regulations, judicial decisions and administrative rulings do not exist yet in Belarus. As far as the judicial decisions and administrative rulings are concerned there is no practice of their publishing.
Phase-out - 31 December 1998.
Kazakhstan
Sector - all energy sectors.
Level of government - national.
Description - the process of establishing enquiry points has begun. As far as the judicial decisions and administrative rulings are concerned they are not published in Kazakhstan (except for some decisions made by the Supreme Court), because they are not considered to be sources of law. To change the existing practice will require a long transitional period.
Phase-out - 1 July 2001.
Moldova
Sector - all energy sectors.
Level of government - national.
Description - it is necessary to establish enquiry points. Phase-out - 31 December 1995.
The Russian Federation
Sector - all energy sectors.
Level of government - the Federation and the republics constituting Federation.
Description - no official enquiry points exist in the Russian Federation as of now to which requests for information about relevant laws and other regulation acts could be addressed. As far as the judicial decisions and administrative rulings are concerned they are not considered to be sources of law.
Phase-out - 31 December 2000.
Slovenia
Sector - all energy sectors.
Level of government - national.
Description - in Slovenia there are no official enquiry points yet to which requests for information about relevant laws and other regulatory acts could be addressed. At present such information is available in various ministries. The law on foreign investments which is under preparation foresees establishment of such an enquiry point.
Phase-out - 1 January 1998.
Tajikistan
Sector - all energy sectors.
Level of government - national.
Description - there are no enquiry points yet in Tajikistan to which requests for information about relevant laws and other regulations could be addressed. It is only a question of having available funding.
Phase-out - 31 December 1997.
Ukraine
Sector - all energy sectors.
Level of government -national.
Description -improvement of the present transparency of laws up to the level of international practice is required. Ukraine will have to establish enquiry points providing information about laws, regulations, judicial decisions and administrative rulings and standards of general application.
Phase-out - 1 January 1998.
Article 22 , 3)
«Each Contracting Party shall ensure that if it establishes or maintains a state entity and entrusts the entity with regulatory, administrative or other governmental authority, such entity shall exercise that authority in a manner consistent with the Contracting Party's obligations under this Treaty.»
The Czech Republic
Sector - uranium and nuclear industries.
Level of government - national.
Description - in order to deplete uranium ore reserves that are stocked by Administration of State Material Reserves, no imports of uranium ore and concentrates, including uranium fuel bundles containing uranium of non-Czech origin, will be licensed.
Phase-out - 1 July 2001.
([ver documento original](https://files.diariodarepublica.pt/1s/1996/11/265a00/40584149.pdf))
ANNEX 2
DECISIONS WITH RESPECT TO THE ENERGY CHARTER TREATY
The European Energy Charter Conference has adopted the following decisions:
1 - With respect to the Treaty as a whole. - In the event of a conflict between the treaty concerning Spitsbergen of 9 February 1920 (the Svalbard Treaty) and the Energy Charter Treaty, the treaty concerning Spitsbergend shall prevail to the extent of the conflict, without prejudice to the positions of the Contracting Parties in respect of the Svalbard Treaty. In the event of such conflict or a dispute as to whether there is such conflict or as to its extent, article 16 and part v of the Energy Charter Treaty shall not apply.
2 - With respect to article 10, 7). - The Russian Federation may require that companies with foreign participation obtain legislative approval for the leasing of federally-owned property, provided that the Russian Federation shall ensure without exception that this process is not applied in a manner which discriminates among investments of investors of other Contracting Parties.
3 - With respect to article 14 (ver nota *):
1) The term «freedom of transfer» in article 14, 1), does not preclude a Contracting Party (hereinafter referred to as the «Limiting Partt») from applying restrictions on movement of capital by its own investors, provided that:
Such restrictions shall not impair the rights granted pursuant to article 14, 1), to investors of other Contracting Parties with respect to their investments;
Such restrictions do not affect current transactions; and
The Contracting Party ensures that investments in its area of the investors of all other Contracting Parties are accorded, with respect to transfers, treatment no less favourable than that which it accords to investments of investors of any other Contracting Party or of any third State, whichever is the most favourable;
2) This decision shall be subject to examination by the Charter Conference five years after entry intoforce of the Treaty, but not later than the date envisaged in article 32, 3);
3) No Contracting Party shall be eligible to apply such restrictions unless it is a Contracting Party which is a State that was a constituent part of the former Union of Soviet Socialist Republics, which has notified the provisional Secretariat in writing no later than 1 July 1995 that it elects to be eligible to apply restrictions in accordance with this decision;
4) For the avoidance of doubt, nothing in this decision shall derogate, as concerns Article 16, from the rights hereunder of a Contracting Party, its investors of their investments, or from the obligations of a Contracting Party;
5) For the purposes of this decision: «current transactions» are current payments connected with the movement of goods, services or persons that are made in accordance with normal international practice, and do not include arrangements which materially constitute a combination of a current payment and a capital transaction, such as deferrals of payments and advances which is meant to circumvent respective legislation of the Limiting Party in the fiel.
(nota *) This decision has been drafted in the understanding that Contracting Parties which intend to avail themselves of it and which also have entered into partnership and cooperation agreements with the European Communities and their Member States containing an article disapplying those agreements in favour of the Treaty, will exchange letters of understanding which have the legal effect of making article 16 of the Treaty applicable between them in relation to this decision. The exchange of letters shall be completed in good time prior to signature.
4 - With respect to article 14, 2). - Without prejudice to the requirements of article 14 and its other international obligations, Romania shall endeavour during the transition to full convertibility of its national currency to take appropriate steps to improve the efficiency of its procedures for the transfers of investment returns and shall in any case guarantee such transfers in a freely convertible currency without restriction or a delay exceeding six months. Romania shall ensure that investments in its area of the investors of all other Contracting Parties are accorded, with respect to transfers, treatment no less favourable than that which it accords to investments of investors of any other Contracting Party or of any third State, whichever it the most favourable.
5 - With respect to articles 24, 4), a), and 25. - An investment of an investor referred to in article 1, 7), a), iii), of a Contracting Party which is not party to ari EIA or a member of a free-trade area or a customs union, shall be entitled to treatment accorded under such EIA, free-trade area or customs union, provided that the investment:
Has its registered office, central administration or principal place of business in the area of a party to that EIA or member of that free-trade area or customs union; or
In case it only has its registered office in that area, has an effective and continuous link with the economy of one of the parties to that EIA or member of that free-trade area or customs union.
ANNEX 3
ENERGY CHARTER PROTOCOL ON ENERGY EFFICIENCY AND RELATED ENVIRONMENTAL ASPECTS
Preamble
The Contracting Parties to this Protocol:
Having regard to the European Energy Charter adopted in the Concluding Document of the Hague Conference on the European Energy Charter, signed at The Hague on 17 December 1991; and in particular to the declarations therein that cooperation is necessary in the field of energy efficiency and related environmental protection;
Having regard also to the Energy Charter Treaty, opened for signature from 17 December 1994 to 16 June 1995;
Mindful of the work undertaken by international organizations and fora in the field of energy efficiency and environmental aspects of the energy cycle;
Aware of the improvements in supply security, and of the significant economic and environmental gains, which result from the implementation of cost-effective energy efficiency measures; and aware of their importance for restructuring economies and improving living standards;
Recognizing that improvements in energy efficiency reduce negative environmental consequences of the energy cycle including global warming and acidification;
Convinced that energy prices should reflect as far as possible a competitive market, ensuring market-oriented price formation, including fuller reflection of environmental costs and benefits, and recognizing that such price formation is vital to progress in energy efficiency and associated environmental protection;
Appreciating the vital role of the private sector including small and medium-sized enterprises in promoting and implementing energy efficiency measures, and intent on ensuring a favourable institutional framework for economically viable investment in energy efficiency;
Recognizing that commercial forms of cooperation may need to be complemented by intergovernmental cooperation, particularly in the area of energy policy formulation and analysis as well as in other areas which are essential to the enhancement of energy efficiency but not suitable for private funding; and
Desiring to undertake cooperative and coordinated action in the field of energy efficiency and related environmental protection and to adopt a Protocol providing a framework for using energy as economically and efficiently as possible;
have agreed as follows:
PART I
Introduction
Article I
Scope and objectives of the Protocol
1) This Protocol defines policy principles for the promotion of energy efficiency as a considerable source of energy and for consequently reducing adverse environmental impacts of energy systems. It furthermore provides guidance on the development of energy efficiency programmes, indicates areas of cooperation and provides a framework for the development of cooperative and coordinated action. Such action may include the prospecting for, exploration, production, conversion, storage, transport, distribution, and consumption of energy, and may relate to any economic sector.
2) The objectives of this Protocol are:
The promotion of energy efficiency policies consistent with sustainable development;
The creation of framework conditions which induce producers and consumers to use energy as economically, efficiently and environmentally soundly as possible, particularly through the organization of efficient energy markets and a fuller reflection of environmental costs and benefits; and
The fostering of cooperation in the field of energy efficiency.
Article 2
Definitions
As used in this Protocol:
1) «Charter» means the European Energy Charter adopted in the Concluding Document of the Hague Conference on the European Energy Charter, signed at The Hague on 17 December 1991; signature of the Concluding Document is considered to be signature of the Charter;
2) «Contracting Party» means a state or regional economic integration organization which has consented to be bound by this Protocol and for which the Protocol is in force;
3) «Regional economic integration organization» means an organization constituted by states to which they have transferred competence over certain matters a number of which are governed by this Protocol, including the authority to take decisions binding on them in respect of those matters;
4) «Energy cycle» means the entire energy chain, including activities related to prospecting for, exploration, production, conversion, storage, transport, distribution and consumption of the various forms of energy, and the treatment and disposal of wastes, as well as the decomissioning, cessation or closure of these activities, minimizing harmful environmental impacts;
5) «Cost-effectiveness» means to achieve a defined objective at the lowest cost or to achieve the greatest benefit at a given cost;
6) «Improving energy efficiency» means acting to maintain the same unit of output (of a good or service) without reducing the quality or performance of the output, while reducing the amount of energy required to produce that output;
7) «Environmental impact» means any effect caused by a given activity on the environment, including human health and safety, flora, fauna, soil, air, water, climate, landscape and historical monuments or other physical structures or the interactions among these factors; it also includes effects on cultural heritage or socio-economic conditions resulting from alterations to those factors.
PART II
Policy principles
Article 3
Basic principles
Contracting Parties shall be guided by the following principles:
1) Contracting Parties shall cooperate and, as appropriate, assist each other in developing and implementing energy efficiency policies, laws and regulations;
2) Contracting Parties shall establish energy efficiency policies and appropriate legal and regulatory frameworks which promote, inter alia:
Efficient functioning of market mechanisms including market-oriented price formation and a fuller reflection of environmental costs and benefits;
Reduction of barriers to energy efficiency, thus stimulating investments;
Mechanisms for financing energy efficiency initiatives;
Education and awareness;
Dissemination and transfer of technologies;
Transparency of legal and regulatory frameworks;
3) Contracting Parties shall strive to achieve the full benefit of energy efficiency throughout the energy cycle. To this end they shall, to the best of their competence, formulate and implement energy efficiency policies and cooperative or coordinated actions based on cost-effectiveness and economic efficiency, taking due account of environmental aspects;
4) Energy efficiency policies shall include both short-term measures for the adjustment of previous pratices and long-term measures to improve energy efficiency throughout the energy cycle;
5) When cooperating to achieve the objectives of this Protocol, Contracting Parties shall take into account the differences in adverse effects and abatement costs between Contracting Parties;
6) Contracting Parties recognize the vital role of the private sector. They shall encourage action by energy utilities, responsible authorities and specialised agencies, and close cooperation between industry and administrations;
7) Cooperative or coordinated action shall take into account relevant principles adopted in international agreements, aimed at protection and improvement of the environment to which Contracting Parties are parties;
8) Contracting Parties shall take full advantage of the work and expertise of competent international or other bodies and shall take care to avoid duplication.
Article 4
Division of responsibility and coordination
Each Contracting Parties shall strive to ensure that energy efficiency policies are coordinated among all of its responsible authorities.
Article 5
Strategies and policy aims
Contructing Parties shall formulate strategies and policy aims for improving energy efficiency and thereby reducing environmental impacts of the energy cycle as appropriate in relation to their own specific energy conditions. These strategies and policy aims shall be transparent to all interested parties.
Article 6
Financing and financial incentives
1) Contracting Parties shall encourage the implementation of new approaches and methods for financing energy efficiency and energy-related environmental protection investments, such as joint venture arrangements between energy users and external investors (hereinafter referred to as «third party financing»).
2) Contracting Parties shall endeavour to take advantage of and promote access to private capital markets and existing international financing institutions in order to facilitate investments in improving energy efficiency and in environmental protection related to energy efficiency.
3) Contracting Parties may, subject to the provisions of the Energy Charter Treaty and to their other international legal obligations, provide fiscal or financial incentives to energy users in order to facilitate market penetration of energy efficiency technologies, products and services. They shall strive to do so in a manner that both ensures transparency and minimizes the distortion of international markets.
Article 7
Promotion of energy efficient technology
1) Consistent with the provisions of the Energy Charter Treaty, Contracting Parties shall encourage commercial trade and cooperation in energy efficient and environmentally sound technologies, energy-related services and management practices.
2) Contracting Parties shall promote the use of these technologies, services and management practices throughout the energy cycle.
Article 8
Domestic programmes
1) In order to achieve the policy aims formulated according to article 5, each Contracting Party shall develop, implement and regularly update energy efficiency programmes best suited to its circumstances.
2) These programmes may include activities such as the:
Development of long-term energy demand and supply scenarios to guide decision-making;
Assessment of the energy, environmental and economic impact of actions taken;
Definition of standards designed to improve the efficiency of energy using equipment, and efforts to harmonize these internationally to avoid trade distortions;
Development and encouragement of private initiative and industrial cooperation, including joint ventures;
Promotion of the use of the most energy efficient technologies that are economically viable and environmental sound;
Encouragement of innovative approaches for investments in energy efficiency improvements, such as third party financing and co-financing;
Development of appropriate energy balances and data bases, for example with data on energy demand at a sufficiently detailed level and on technologies for improving energy efficiency;
Promotion of the creation of advisory and consultancy services which may be operated by public or private industry or utilities and which provide information about energy efficiency programmes and technologies, and assist consumers and enterprises;
Support and promotion of cogeneration and of measures to increase the efficiency of district heat production and distribution systems to buildings and industry;
Establishment of specialized energy efficiency bodies at appropriate levels, that are sufficiently funded and staffed to develop and implement policies.
3) In implementing their energy efficiency programmes, Contracting Parties shall ensure that adequate institutional and legal infrastructures exist.
PART III
International cooperation
Article 9
Areas of cooperation
The cooperation between Contracting Parties may take any appropriate form. Areas of possible cooperation are listed in the annex.
PART IV
Administrative and legal arrangements
Article 10
Role of the Charter Conference
1) All decisions made by the Charter Conference in accordance with this Protocol shall be made by only those Contracting Parties to the Energy Charter Treaty who are Contracting Parties to this Protocol.
2) The Charter Conference shall endeavour to adopt, within 180 days after the entry into force of this Protocol, procedures for keeping under review and facilitating the implementation of its provisions, including reporting requirements, as well as for identifying areas of cooperation in accordance with article 9.
Article II
Secretariat and financing
1) The Secretariat established under article 35 of the Energy Charter Treaty shall provide the Charter Conference with all necessary assistance for the performance of its duties under this Protocol and provide such other services in support of the Protocol as may be required from time to time, subject to approval by the Charter Conference.
2) The costs of the Secretariat and Charter Conference arising from this Protocol shall be met by Contracting Parties to this Protocol according to their capacity to pay, determined according to the formula specified in annex B to the Energy Charter Treaty.
Article 12
Voting
1) Unanimity of Contracting Parties present and voting at the meeting of the Charter Conference where such matters fall be decided shall be required for decisions to:
Adopt amendments to this Protocol; and
Approve accessions to this Protocol under article 16.
Contracting Parties shall make every effort to reach agreement by consensus on any other matter requiring their decision under this Protocol. If agreement cannot be reached by consensus, decisions on non-budgetary matters shall be taken by a three-fourths majority of Contracting Parties present and voting at the meeting of the Charter Conference at which such matters fall to be decided.
Decisions on budgetary matters shall be taken by a qualified majority of Contracting Parties whose assessed contributions under article 11, 2), represent, in combination, at least three-fourths of the total assessed contributions.
2) For purposes of this article, «Contracting Parties present and voting» means Contracting Parties to this Protocol present and casting affirmative or negative votes, provided that the Charter Conference may decide upon rules of procedure to enable such decisions to be taken by Contracting Parties by correspondence.
3) Except as provided in paragraph 1) in relation to budgetary matters, no decision referred to in this article shall be valid unless it has the support of a simple majority of Contracting Parties.
4) A regional economic integration organization shall, when voting, have a number of votes equal to the number of its member states which are Contracting Parties to this Protocol; provided that such an organization shall not exercise its right to vote if its member states exercise theirs, and vice versa.
5) In the event of persistent an-ears in a Contracting Party's discharge of financial obligations under this Protocol, the Charter Conference may suspend that Contracting Party's voting rights in whole or in part.
Article 13
Relation to the Energy Charter Treaty
1) In the event of inconsistency between the provisions of this Protocol and the provisions of the Energy Charter Treaty, the provisions of the Energy Charter Treaty shall, to the extent of the inconsistency, prevail.
2) Article 10, 1), and article 12, 1) to 3), shall not apply to votes in the Charter Conference on amendments to this Protocol which assign duties or functions to the Charter Conference or the Secretariat, the establishment of which is provided for in the Energy Charter Treaty.
PART V
Final provisions
Article 14
Signature
This Protocol shall be open for signature at Lisbon from 17 December 1994 to 16 June 1995 by the states and regional economic integration organizations whose representatives have signed the Charter and the Energy Charter Treaty.
Article 15
Ratification, acceptance or approval
This Protocol shall be subject to ratification, acceptance or approval by signatories. Instruments of ratification, acceptance or approval shall be deposited with the depositary.
Article 16
Accession
The Protocol shall be open for accession, from the date on which the Protocol is closed for signature, by states and regional economic integration organizations which have signed the Charter and are Contracting Parties to the Energy Charter Treaty, on terms to be approved by the Charter Conference. The instruments of accession shall be deposited with the depositary.
Article 17
Amendments
1) Any Contracting Party may propose amendments to this Protocol.
2) The text of any proposed amendment to this Protocol shall be communicated to Contracting Parties by the Secretariat at least three months before the date on which it is proposed for adoption by the Charter Conference.
3) Amendments to this Protocol, texts of which have been adopted by the Charter Conference, shall be communicated by the Secretariat to the depositary which shall submit them to all Contracting Parties for ratification, acceptance or approval.
4) Instruments of ratification, acceptance or approval of amendments to this Protocol shall be deposited with the depositary. Amendments shall enter into force between Contracting Parties having ratified, accepted or approved them on the thirtieth day after deposit with the depositary of instruments of ratification, acceptance or approval by at least three-fourths of the Contracting Parties. Thereafter the amendments shall enter into force for any other Contracting Party on the thirtieth day after that Contracting Party deposits its instrument of ratification, acceptance or approval of the amendments.
Article 18
Entry into force
1) This Protocol shall enter into force on the thirtieth day after the date of deposit of the fifteenth instrument of ratification, acceptance or approval thereof, or of accession thereto, by a state or regional economic integration organization which is a signatory to the Charter and a Contracting Party to the Energy Charter Treaty or on the same date as the Energy Charter Treaty enters into force, whichever is later.
2) For each state or regional economic integration organization for which the Energy Charter Treaty has entered into force and which ratifies, accepts, or approves this Protocol or accedes thereto after the Protocol has entered into force in accordance with paragraph 1), the Protocol shall enter into force on the thirtieth day after the date of deposit by such state or regional economic integration organization of its instrument of ratification, acceptance, approval or accession.
3) For the purposes of paragraph 1), any instrument deposited by a regional economic integration organization shall not be counted as additional to those deposited by member states of such organization.
Article 19
Reservations
No reservations may be made to this Protocol.
Article 20
Withdrawal
1) At any time after this Protocol has entered into force for a Contracting Party, that Contracting Party may give written notification to the depositary of its withdrawal from the Protocol.
2) Any Contracting Party which withdrawl from the Energy Charter Treaty shall be considered as also having withdrawn from this Protocol.
3) The effective date of withdrawal under paragraph 1) shall be ninety days after receipt of notification by the depositary. The effective date of withdrawal under paragraph 2) shall be the same as the effective date of withdrawal from the Energy Charter Treaty.
Article 21
Depositary
The Government of the Portuguese Republic shall be the depositary of this Protocol.
Article 22
Authentic texts
In witness whereof the undersigned, being duly authorized to that effect, have signed this Protocol in English, French, German, Italian, Russian and Spanish, of which every text is equally authentic, in one original, which will be deposited with the Government of the Portuguese Republic.
Done at Lisbon on the seventeenth day of December in the year one thousand nine hundred and ninety-four.
ANNEX
Illustrative and non-exhaustive list of possible areas of cooperation pursuant to article 9
Development of energy efficiency programmes, including identifying energy efficiency barriers and potentials, and the development of energy labelling and efficiency standards.
Assessment of the environmental impacts of the energy cycle.
Development of economic, legislative and regulatory measures.
Technology transfer, technical assistance and industrial joint ventures subject to international property rights regimes and other applicable international agreements.
Research and development.
Education, training, information and statistics.
Identification and assessment of measures such as fiscal or other market-based instruments, including tradeable permits to take account of external, notably environmental, costs and benefits.
Energy analysis and policy formulation:
Assessment of energy efficiency potentials;
Energy demand analysis and statistics;
Development of legislative and regulatory measures;
Integrated resource planning and demand side management Environmental impact assessment, including major energy projects.
Evaluation of economic instruments for improving energy efficiency and environmental objectives.
Energy efficiency analysis in refining, conversion, transport and distribution of hydro-carbons.
Improving energy efficiency in power generation and transmission:
Cogeneration;
Plant component (boilers, turbines, generators, etc.);
Network integration.
Improving energy efficiency in the building sector:
Thermal insulation standards, passive solar and ventilation;
Space heating and air conditioning systems;
High efficiency low NO(índice x) burners;
Metering technologies and individual metering;
Domestic appliances and lighting.
Municipalities and local community services:
District heating systems;
Efficient gas distribution systems;
Energy planning technologies;
Twinning of towns or of other relevant territorial entities;
Energy management in cities and in public buildings; Waste management and energy recovery of waste.
Improving energy efficiency in the industrial sector:
Joint ventures;
Energy cascading, cogeneration and waste heat recovery;
Energy audits.
Improving energy efficiency in the transport sector:
Motor vehicle performance standards;
Development of efficient transport infrastructures.
Information:
Awareness creation;
Data bases: access, technical specifications, information systems;
Dissemination, collection and collation of technical information;
Behavioural studies.
Training and education:
Exchanges of energy managers, officials, engineers and students;
Organization of international training courses.
Financing:
Development of legal framework;
Third party financing;
Joint ventures;
Co-financing.
([ver documento original](https://files.diariodarepublica.pt/1s/1996/11/265a00/40584149.pdf))
FINAL ACT OF THE EUROPEAN ENERGY CHARTER CONFERENCE
I - The final plenary session of the European Energy Charter Conference was held at Lisbon on 16-17 December 1994. Representatives of the Republic of Albania, the Republic of Armenia, Australia, the Republic of Austria, the Azerbaijani Republic, the Kingdom of Belgium, the Republic of Belarus, the Republic of Bulgaria, Canada, the Republic of Croatia, the Republic of Cyprus, the Czech Republic, the Kingdom of Denmark, the Republic of Estonia, the European Communities, the Republic of Finland, the French Republic, the Republic of Georgia, the Federal Republic of Germany, the Hellenic Republic, the Republic of Hungary, the Republic of Iceland, Ireland, the Italian Republic, Japan, the Republic of Kazakhstan, the Republic of Kyrgyzstan, the Republic of Latvia, the Principality of Liechtenstein, the Republic of Lithuania, the Grand Duchy of Luxembourg, the Republic of Malta, the Republic of Moldova, the Kingdom of the Netherlands, the Kingdom of Norway, the Republic of Poland, the Portuguese Republic, Romania, the Russian Federation, the Slovak Republic, the Republic of Slovenia, the Kingdom of Spain, the Kingdom of Sweden, the Swiss Confederation, the Republic of Tajikistan, the Republic of Turkey, Turkmenistan, Ukraine, the United Kingdom of Great Britain and Northern Ireland, the United States of America and the Republic of Uzbekistan (hereinafter referred to as «the representatives») participated in the Conference, as did invited observers from certain countries and international organizations.
Background
II - During the meeting of the European Council in Dublin in June 1990, the Prime Minister of the Netherlands suggested that economic recovery in Eastern Europe and the then Union of Soviet Socialist Republics could be catalysed and accelerated by cooperation in the energy sector. This suggestion was welcomed by the Council, which invited the Commission of the European Communities to study how best to implement such cooperation. In February 1991 the Commission proposed the concept of a European Energy Charter.
Following discussion of the Commission's proposal in the Council of the European Communities, the European Communities invited the other countries of Western and Eastern Europe, of the Union of Soviet Socialist Republics and the non-European members of the Organization for Economic Cooperation and Development to attend a conference in Brussels in July 1991 to launch negotiations on the European Energy Charter. A number of other countries and international organizations were invited to attend the European Energy Charter Conference as observers.
Negotiations on the European Energy Charter were completed in 1991 and the Charter was adopted by signature of a Concluding Document at a conference held at The Hague on 16-17 December 1991. Signatories of the Charter, then or subsequently, include all those listed in section I above, other than observers.
The signatories of the European Energy Charter undertook to pursue the objectives and principales of the Charter and implement and broaden their cooperation as soon as possible by negotiating in good faith a basic agreement and protocols.
The European Energy Charter Conference accordingly began negotiations on a basic agreement - later called the Energy Charter Treaty - designed to promote East-West industrial cooperation by providing legal safeguards in areas such as investment, transit and trade. It also began negotiations on protocols in the fields of energy efficiency, nuclear safety and hydrocarbons, although in the last case negotiations were later suspended until completion of the Energy Charter Treaty.
Negotiations on the Energy Charter Treaty and the Energy Charter Protocol on Energy Efficiency and Related Environmental Aspects were successfully completed in 1994.
The Energy Charter Treaty
III - As a result of its deliberations the European Energy Charter Conference has adopted the text of the Energy Charter Treaty (hereinafter referred to as the «Treaty») which is set out in annex 1 and decisions with respect thereto which are set out in annex 2, and agreed that the Treaty would be open for signature at Lisbon from 17 December 1994 to 16 June 1995.
Understandings
IV - By signing the Final Act, the representatives agreed to adopt the following understandings with respect to the Treaty:
1 - With respect to the Treaty as a whole:
The representatives underline that the provisions of the Treaty have been agreed upon bearing in mind the specific nature of the Treaty aiming at a legal framework to promote long-term cooperation in a particular sector and as a result cannot be construed to constitute a precedent in the context of other international negotiations;
The provisions of the Treaty do not:
Oblige any Contracting Party to introduce mandatory third party access, or
ii) Prevent the use of pricing systems which, within a particular category of consumers, apply identical prices to customers in different locations;
Derogations from most favoured nation treatment are not intended to cover measures which are specific to an investor or group of investors, rather than applying generally.
2 - With respect to article 1, 5):
It is understood that the Treaty confers no fights to engage in economic activities other than economic activities in the energy sector;
The following activities are illustrative of economic activity in the energy sector:
Prospecting and exploration for, and extraction of, e.g., oil, gas, coal and uranium;
ii) Construction and operation of power generation facilities, including those powered by wind and other renewable energy sources;
iii) Land transportation, distribution, storage and supply of energy materials and products, e.g., by way of transmission and distribution grids and pipelines or dedicated rail lines, and construction of facilities for such, including the laying of oil, gas, and coal-slurry pipelines;
iv) Removal and disposal of wastes from energy related facilities such as power stations, including radioactive wastes from nuclear power stations;
Decommissioning of energy related facilities, including oil rigs, oil refineries and power generating plants;
vi) Marketing and sale of, and trade in energy materials and products, e.g., retail sales of gasoline; and
vii) Research, consulting, planning, management and design activities related to the activities mentioned above, including those aimed at improving energy efficiency.
3 - With respect to article 1, 6). - For greater clarity as to whether an investment made in the area of one Contracting Party is controlled, directly or indirectly, by an investor of any other Contracting Party, control of an investment means control in fact, determined after an examination of the actual circumstances in each situation. In any such examination, all relevant factors should be considered, including the investor's:
Financial interest, including equity interest, in the investment;
Ability to exercise substantial influence over the management and operation of the investment; and
Ability to exercise substantial influence over the selection of members of the board of directors or any other managing body.
Where there is doubt as to whether an investor controls, directly or indirectly, an investment, an investor claiming such control has the burden of proof that such control exists.
4 - With respect to article 1, 8). - Consistent with Australia's foreign investment policy, the establishment of a new mining or raw materials processing project in Australia with total investment of $A 10 million or more by a foreign interest, even where that foreign interest is already operating a similar business in Australia, is considered as the making of a new investment.
5 - With respect to article 1, 12). - The representatives recognize the necessity for adequate and effective protection of intellectual property rights according to the highest internationally-accepted standards.
6 - With respect to article 5, 1). - The representatives' agreement to article 5 is not meant to imply any position on whether or to what extent the provisions of the Agreement on Trade-Related Investment Measures annexed to the Final Act of the Uruguay Round of Multilateral Trade Negotiations are implicit in articles III and XI of the GATT.
7 - With respect to article 6:
The unilateral and concerted anti-competitive conduct referred to in article 6, 2), are to be defined by each Contracting Party in accordance with its laws and may include exploitative abuses;
«Enforcement» and «enforces» include action under the competition laws of a Contracting Party by way of investigation, legal proceeding, or administrative action as well as by way of any decision or further law granting or continuing an authorization.
8 - With respect to article 7, 4). - The applicable legislation would include provisions on environmental protection, land use, safety, or technical standards.
9 - With respect to articles 9, 10 and part v. - As a Contracting Party's programmes which provide for public loans, grants, guarantees or insurance for facilitating trade or investment abroad are not connected with investment or related activities of investors from other Contracting Parties in its area, such programmes may be subject to constraints with respect to participation in them.
10 - With respect to article 10, 4). - The supplementary treaty will specify conditions for applying the treatment described in article 10, 3). Those conditions will include, inter alia, provisions relating to the sale or other divestment of state assets (privatization) and to the dismantling of monopolies (demonopolization).
11 - With respect to articles 10, 4), and 29, 6). - Contracting Parties may consider any connection between the provisions of article 10, 4), and article 29, 6).
12 - With respect to article 14, 5). - It is intended that a Contracting Party which enters into an agreement referred to in article 14, 5), ensure that the conditions of such an agreement are not in contradiction with that Contracting Party's obligations under the articles of Agreement of the International Monetary Fund.
13 - With respect to article 19, 1), i). - It is for each Contracting Party to decide the extent to which the assessment and monitoring of environmental impacts should be subject to legal requirements, the authorities competent to take decisions in relation to such requirements, and the appropriate procedures to be followed.
14 - With respect to articles 22 and 23. - With regard to trade in energy materials and products governed by article 29, that articles specifies the provisions relevant to the subjects covered by articles 22 and 23.
15 - With respect to article 24. - Exceptions contained in the GATT and related instrument apply between particular Contracting Parties which are parties to the GATT, as recognized by article 4. With respect to trade in energy materials and products governed by article 29, that article specifies the provisions relevant to the subjects covered by article 24.
16 - With respect to article 26, 2), a). - Article 26, 2), a), should not be interpreted to require a Contracting Party to enact part III of the Treaty into its domestic law.
17 - With respect to articles 26 and 27. - The reference to treaty obligations in the penultimate sentence of article 10, 1), does not include decisions taken by international organizations, even if they are legally binding, or treaties which entered into force before 1 January 1970.
18 - With respect to article 29, 2), a):
Where a provision of GATT 1947 or a related instrument referred to in this paragraph provides for joint action by parties to the GATT, it is intended that the Charter Conference take such action;
The notion «applied on 1 March 1994 and practised with regard to energy materials and products by parties to GATT 1947 among themselves» is not intended to refer to cases where a party to the GATT has invoked article XXXV of the GATT, thereby disapplying the GATT vis-à-vis another party to the GATT, but nevertheless applies unilaterally on a de facto basis some provisions of the GATT vis-à-vis that other party to the GATT.
19 - With respect to article 33. - The provisional Charter Conference should at the earliest possible date decide how best to give effect to the goal of title in of the European Energy Charter that protocols be negotiated in areas of cooperation such as those listed in title III of the Charter.
20 - With respect to article 34:
The provisional Secretary-General should make immediate contact with other international bodies in order to discover the terms on which they might be willing to undertake tasks arising from the Treaty and the Charter. The provisional Secretary-General might report back to the provisional Charter Conference at the meeting which article 45, 4), requires to be convened not later than 180 days after the opening date for signature of the Treaty;
The Charter Conference should adopt the annual budget before the beginning of the financial year.
21 - With respect to article 34, 3), m). - The technical changes to annexes might for instance include, delisting of non-signatories or of signatories that have evinced their intention not to ratify, or additions to annexes N and VC. It is intended that the Secretariat would propose such changes to the Charter Conference when appropriate.
22 - With respect to annex TFU, 1):
If some of the parties to an agreement referred to in paragraph 1) have not signed or acceded to the Treaty at the time required for notification, those parties to the agreement which have signed or acceded to the Treaty may notify on their behalf;
The need in general for notification of agreements of a purely commercial nature is not foreseen because such agreements should not raise a question of compliance with article 29, a), even when they are entered into by state agencies. The Charter Conference could, however, clarify for purposes of annex TFU which types of agreements referred to in article 29, 2), b), require notification under the annex and which types do not.
Declarations
V - The representatives declared that article 18, 2), shall not be construed to allow the circumvention of the application of the other provisions of the Treaty.
VI - The representatives also noted the following declarations that were made with respect to the Treaty:
1 - With respect to article 1, 6). - The Russian Federation wishes to have reconsidered, in negotiations with regard to the supplementary treaty referred to in article 10, 4), the question of the importance of national legislation with respect to the issue of control as expressed in the understanding to article 1, 6).
2 - With respect to articles 5 and 10, 11). - Australia notes that the provisions of articles 5 and 10, 11), do not diminish its rights and obligations under the GATT, including as elaborated in the Uruguay Round Agreement on Trade-Related Investment Measures, particularly with respect to the list of exceptions in article 5, 3), which it considers incomplete.
Australia further notes that it would not be appropriate for dispute settlement bodies established under the Treaty to give interpretations of GATT articles III and XI in the context of disputes between parties to the GATT or between an investor of a party to the GATT and another party to the GATT. It considers that with respect to the application of article 10, 11), between an investor and a party to the GATT, the only issue that can be considered under article 26 is the issue of the awards of arbitration in the event that a GATT panel or the WTO dispute settlement body first establishes that a trade-related investment measure maintained by the Contracting Party is inconsistent with its obligations under the GATT or the Agreement on Trade-Related Investment Measures.
3 - With respect to article 7. - The European Communities and their member States and Austria, Norway, Sweden and Finland declare that the provisions of article 7 are subject to the conventional rules of international law on jurisdiction over submarine cables and pipelines or, where there are no such rules, to general international law.
They further declare that article 7 is not intended to affect the interpretation of existing international law on jurisdiction over submarine cables and pipelines, and cannot be considered as doing so.
4 - With respect to article 10. - Canada and the United States each affirm that they will apply the provisions of article 10 in accordance with the following considerations:
For the purposes of assessing the treatment which must be accorded to investors of other Contracting Parties and their investments, the circumstances will need to be considered on a case-by-case basis. A comparison between the treatment accorded to investors of one Contracting Party, or the investments or investors of one Contracting Party, and the investments or investors of another Contracting Party, is only valid if it is made between investors and investments in similar circumstances. In determining whether differential treatment of investors or investments is consistent with article 10, two basic factors must be taken into account.
The first factor is the policy objectives of Contracting Parties in various fields insofar as they are consistent with the principles of non-discrimination set out in article 10. Legitimate policy objectives may justify differential treatment of foreign investors or their investments in order to reflect a dissimilarity of relevant circumstances between those investors and investments and their domestic counterparts. For example, the objective of ensuring the integrity of a country's financial system would justify reasonable prudential measures with respect to foreign investors or investments, where such measures would be unnecessary to ensure the attainment of the same objectives insofar as domestic investors or investments are concerned. Those foreign investors or their investments would thus not be «in similar circumstances» to domestic investors or their investments. Thus, even if such a measure accorded differential treatment, it would not be contrary to article 10.
The second factor is the extent to which the measure is motivated by the fact that the relevant investor or investment is subject to foreign ownership or under foreign control. A measure aimed specifically at investors because they are foreign, without sufficient countervailing policy reasons consistent with the preceding paragraph, would be contrary to the principles of article 10. The foreign investor or investment would be «in similar circumstances» to domestic investors and their investments, and the measure would be contrary to article 10.
5 - With respect to article 25. - The European Communities and their member States recall that, in accordance with article 58 of the Treaty establishing the European Community:
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