Title
SUSTAINABLE INVESTMENT FACILITATION AGREEMENT BETWEEN THE EUROPEAN UNION AND THE REPUBLIC OF ANGOLA
Preamble
PREAMBLE
THE EUROPEAN UNION, hereinafter referred to as "the Union",
and
THE REPUBLIC OF ANGOLA, hereinafter referred to as "Angola",
hereinafter jointly referred to as "the Parties" or individually referred to as "Party",
CONSIDERING their wish to further strengthen their economic links and establish close and lasting relations based on partnership and cooperation with the aim of promoting sustainable development,
DESIRING to mobilise and retain investment, create new employment opportunities, and improve living standards in their territories,
RECOGNISING the need to facilitate investment by enhancing transparency and predictability, streamlining authorisation procedures and involving stakeholders to improve the investment climate,
CONVINCED that investment facilitation measures enhance investment in and by micro, small and medium enterprises (hereinafter referred to as "MSMEs"),
RECOGNISING that investment can support sustainable development, economic growth, diversification of economic activities, and contribute to the achievement of the goals defined under the United Nations 2030 Agenda for Sustainable Development, adopted on 25 September 2015 by the United Nations General Assembly (hereinafter referred to as "UN 2030 Agenda"),
RECOGNISING the importance of technical assistance and capacity building for the implementation of this Agreement,
AFFIRMING their commitment to the Charter of the United Nations and having regard to the principles enshrined in the Universal Declaration of Human Rights,
BEARING IN MIND the Partnership Agreement between the members of the African, Caribbean and Pacific Group of States of the one part, and the European Community and its Member States of the other part, signed in Cotonou on 23 June 2000 (hereinafter referred to as "the Cotonou Agreement"), including its essential and fundamental elements,
HAVE AGREED AS FOLLOWS:
Body
Chapter I. GENERAL PROVISIONS
Article 1. Objectives
This Agreement aims at facilitating the attraction, expansion and retention of foreign direct investment between the Parties for the purposes of economic diversification and sustainable development.
Article 2. Scope
1. This Agreement applies to measures adopted or maintained by the Parties affecting investment.
2. The Parties reaffirm the right to regulate within their territories to achieve legitimate policy objectives, such as the protection of public health, social services, public education, safety, the environment, including climate change, public morals, social protection, consumer protection, privacy and data protection, and the promotion and protection of cultural diversity.
3. This Agreement does not create or modify commitments relating to the liberalisation of investments, nor does it create or modify rules on the protection of established investors in the territories of the Parties, or of their investments, or on investor-state dispute settlement.
Article 3. Definitions
For the purposes of this Agreement the following definitions apply:
(1) "activities performed in the exercise of governmental authority" means activities which are performed, including services which are supplied, neither on a commercial basis nor in competition with one or more economic operators;
(2) "authorisation" means the permission to pursue any economic activity related to an investment, resulting from a procedure an investor must adhere to in order to demonstrate compliance with the necessary requirements;
(3) "competent authority" means a central, regional or local government or authority or non- governmental body exercising powers delegated by central, regional or local governments or authorities, which is entitled to take a decision concerning an authorisation;
(4) "economic activity" means any activity of an industrial, commercial or professional character or activities of craftsmen, including the supply of services, except for activities performed in the exercise of governmental authority;
(5) "enterprise" means a legal person or a branch or a representative office of a legal person;
(6) "establishment" means the setting up or the acquisition of a legal person, including through capital participation, or the creation of a branch or representative office, in the territory of a Party, with a view to creating or maintaining lasting economic links;
(7) "investment" means: the establishment and operation to perform economic activities by investors of one Party in the territory of the other Party;
(8) "investor of a Party" means a natural or legal person of a Party that seeks to establish, is establishing, or has established an enterprise in accordance with point (6) in the territory of the other Party;
(9) "legal person" means any legal entity duly constituted or otherwise organised under the applicable law, whether for profit or otherwise and whether privately or publicly owned, including any corporation, trust, partnership, joint venture, sole proprietorship or association;
(10) "legal person of a Party" means:
(a) for the European Union: a legal person constituted or organised under the law of the European Union or its Member States and engaged substantive business operations (1) in the territory of the European Union;
(b) for Angola: a legal person constituted or organised under the law of Angola and engaged in substantive business operations in the territory of Angola;
(11) "measure" means any measure by a Party, whether in the form of a law, regulation, rule, procedure, decision, administrative action or any other form;
(12) "measure of a Party" means any measure adopted or maintained by (2):
(a) central, regional or local governments or authorities; or
(b) non-governmental bodies in the exercise of powers delegated by central, regional or local governments or authorities;
(13) "natural person of a Party" means:
(a) for the Union, a national of a Member State of the Union according to its law (1);
(b) for Angola, a national of Angola according to its law;
(14) "operation" means the conduct, management, maintenance, use, enjoyment, or sale or other form of disposal of an enterprise; and
(15) "publish" means to make available in an official publication, such as an official journal, or an official website.
Article 4. Most Favoured Nation Treatment
1. Each Party shall accord immediately and unconditionally to investors of the other Party and their investments treatment no less favourable than that it accords, in like situations, to investors of any other country and their investments, with respect to the application of this Agreement in its territory.
2. Paragraph 1 shall not be construed as obliging a Party to extend to investors of the other Party or their investments the benefit of any treatment resulting from:
(a) measures providing for recognition, including the recognition of the standards or criteria for the authorisation, licencing, or certification of a natural person or enterprise to carry out an economic activity, or the recognition of prudential measures as referred to in paragraph 3 of the Annex on Financial Services to the General Agreement on Trade in Services set out in Annex 1B to the Marrakesh Agreement Establishing the World Trade Organization, done at Marrakesh on 15 April 1994; or
(b) any bilateral, regional or multilateral agreement which includes commitments to abolish substantially all barriers to investment among the parties or requires the approximation of legislation of the parties in one or more economic sectors.
3. For greater certainty, provisions included in other international agreements concluded by a Party do not in themselves constitute "treatment" as referred to in paragraph 1 and thus cannot be taken into account when assessing a breach of this Agreement.
Article 5. Measures Against Corruption and other Illegal Activities
1. The Parties recognise the negative impact of corruption, money laundering, terrorism financing, tax fraud and tax evasion on economies and societies, including the impeding of sustainable development and discouraging of investment.
2. Each Party confirms its commitment to take adequate measures to prevent and fight corruption, money laundering, terrorism financing, tax fraud and tax evasion, with regard to matters covered by this Agreement, in accordance with internationally agreed standards that have been endorsed or are supported by that Party, such as the United Nations Convention against Corruption adopted by the United Nations General Assembly on 31 October 2003 and the Organisation for Economic Co-operation and Development (hereinafter referred to as "OECD") Guidelines for Multinational Enterprises of 2011, as well as the current standards in the field of international taxation.
Chapter II. TRANSPARENCY AND PREDICTABILITY
Article 6. Administration of Measures of General Application
Each Party shall ensure that all measures of general application falling within the scope of this Agreement are administered in a reasonable, objective and impartial manner.
Article 7. Publication Requirements
Each Party shall promptly publish or otherwise make publicly available in writing and, except in emergency situations, at the latest by the time of their entry into force, all relevant measures of general application falling within the scope of this Agreement in such a manner as to enable investors to be informed of them.
Article 8. Publication In Advance and Opportunity to Comment
1. To the extent practicable and in a manner consistent with its legal system for adopting measures, cach Party (1) shall publish in advance:
(a) the proposals for laws and regulations of general application to be adopted in relation to matters falling within the scope of this Agreement; or
(b) documents that provide sufficient details about the proposals referred to in point (a) to allow investors and other interested persons to assess whether and how their interests might be significantly affected.
2. To the extent practicable and in a manner consistent with its legal system for adopting measures, each Party is encouraged to apply paragraph 1 to procedures and administrative rulings of general application it proposes to adopt in relation to matters falling within the scope of this Agreement.
3. To the extent practicable and in a manner consistent with its legal system for adopting measures, each Party shall provide investors and other interested persons, on a non-discriminatory basis, a reasonable opportunity to comment on proposed measures or documents published pursuant to paragraph 1 or 2.
4. To the extent practicable and in a manner consistent with its legal system for adopting measures, each Party shall consider comments received pursuant to paragraph 3 (1).
5. In publishing a law or regulation of general application referred to in paragraph 1, or in advance of such publication, to the extent practicable and in a manner consistent with its legal system for adopting measures, each Party shall endeavour to explain the purposes and rationale of that law or regulation.
6. Each Party, to the extent practicable, shall endeavour to allow a reasonable time between the publication of a law or regulation referred to in paragraph 1 and the date of its application to investors.
Article 9. Transparency of the Investment Framework
1. Each Party shall make available via electronic means such as a website and, where practicable, accessible through a single portal, and update to the extent possible and as appropriate, the following:
(a) laws and regulations specifically concerning investment;
(b) restrictions and conditions applying to investment; and
(c) contact information of relevant competent authorities for the authorisation of investment.
2. Each Party shall make available, where practicable via electronic means such as a website and accessible through the single portal referred to in paragraph 1, and update to the extent possible and as appropriate, a description that informs investors and other interested persons of the practical steps needed to invest in its territory including the requirements and procedures related to:
(a) company establishment and business registration;
(b) connecting to essential infrastructure such as electricity and water supply;
(c) the acquisition and registering of property such as land ownership rights;
(d) construction permits;
(e) resolving insolvency;
(f) capital transfers and payments;
(g) convertibility of currency;
(h) the payment of taxes; and
(i) access to finance, especially for MSMEs.
3. No fee shall be imposed on any investor in a Party's territory for access to the information provided under this Article or under Article 7.
Article 10. Transparency of Investment Incentives
1, Each Party shall make available via electronic means such as a website and, where practicable, accessible through a single portal, and update to the extent possible and as appropriate, information on investment incentives.
2. The information referred to in paragraph 1 shall cover all the incentives available to investors, including financial incentives, fiscal incentives and in-kind transfers, including non-financial incentives.
3. The information referred to in paragraph 1 shall include the following elements:
(a) the legal basis of the incentive;
(b) the form of the incentive;
(c) the eligibility requirements of the incentive;
(d) the application process for the incentive, including the required forms and documents; and
(e) contact information of the competent authority.
Article 11. Linkages with the Host Economy
Each Party is encouraged to make available to investors and persons seeking to invest in its territory information on domestic suppliers with a view to strengthening linkages with the local economy, increasing the competitiveness of domestic suppliers and enhancing the contribution of investment to sustainable development.
Article 12. Disclosure of Confidential Information
Nothing in this Agreement shall require a Party to provide confidential information the disclosure of which would impede law enforcement or otherwise be contrary to the public interest, or which would prejudice legitimate commercial interests of particular enterprises, public or private.
Chapter III. STREAMLINING OF AUTHORISATION PROCEDURES
Article 13. Scope
This Chapter applies to measures of the Parties relating to the authorisation of investment.
Article 14. Submission of Applications
Each Party shall, to the extent practicable, avoid requiring an applicant to approach more than one competent authority for each application for authorisation. If an activity for which authorisation is requested is within the jurisdiction of multiple competent authorities, multiple applications for authorisation may be required.
Article 15. Application Timeframes
Ifa Party requires authorisation, it shall ensure that its competent authorities, to the extent practicable, permit the submission of an application at any time throughout the year. If a specific time period for applying for authorisation exists, the Party shall ensure that the competent authorities allow a reasonable period of time for the submission of an application.
Article 16. Electronic Applications and Acceptance of Copies
If a Party requires authorisation, it shall ensure that its competent authorities:
(a) to the extent possible, accept applications in electronic format; and
(b) accept copies of documents, that are authenticated in accordance with the Party's law, in place of original documents, unless the competent authorities require original documents to protect the integrity of the authorisation process.
Article 17. Processing of Applications
1. If a Party requires authorisation, it shall ensure that its competent authorities:
(a) to the extent practicable, provide an indicative timeframe for the processing of the application;
(b) upon request of the applicant, provide, without undue delay, information concerning the status of the application;
(c) to the extent practicable, ascertain, without undue delay, the completeness of the application for processing under the Party's laws and regulations;
(d) if they consider an application complete for the purposes of processing under the Party's laws and regulations (1), within a reasonable period of time after the submission of the application ensure that:
(i) the processing of the application is completed; and
(ii) the applicant is informed of the decision concerning the application, to the extent possible, in writing (2);
(c) if they consider an application incomplete for the purposes of processing under the Party's laws and regulations, within a reasonable period of time, to the extent practicable:
(i) inform the applicant that the application is incomplete;
(ii) upon request of the applicant, identify the additional information required to complete the application, or otherwise provide guidance as to why the application is considered incomplete; and
(iii) provide the applicant with the opportunity to provide the additional information that is required to complete the application (1);
if none of the actions referred to in points (i), (ii) and (iii) is practicable, and the application is rejected due to incompleteness, the competent authorities shall ensure that they inform the applicant within a reasonable period of time; and
(f) if an application is rejected, inform the applicant, either upon their own initiative or upon request of the applicant, of the reasons for rejection and of the timeframe for an appeal, and, if applicable, the procedures for resubmission of an application; an applicant shall not be prevented from submitting another application solely on the basis of a previously rejected application.
2, Each Party shall ensure that its competent authorities grant an authorisation as soon as it is established, in light of an appropriate examination, that the applicant meets the conditions for obtaining it.
3. Each Party shall ensure that authorisation, once granted, enters into effect without undue delay, subject to the applicable terms and conditions (2).
Article 18. Fees
1. For all economic activities other than financial services, each Party shall ensure that the authorisation fees charged by its competent authorities are reasonable and transparent and do not in themselves restrict the investment.
2. With regard to financial services, each Party shall ensure that its competent authorities, with respect to the authorisation fees they charge, provide applicants with a schedule of fees or information on how fee amounts are determined, and do not use the fees as a means of avoiding the Party's commitments or obligations.
3. Authorisation fees do not include fees for the use of natural resources, payments for auction, tendering or other non-discriminatory means of awarding concessions or mandated contributions to universal service provision.
4. Except in urgent circumstances, each Party shall allow adequate time between the publication and the entry into force of new or amended fees and charges related to authorisation procedures for investment, or between the publication of information enabling investors to understand the calculation of those fees and charges and their entry into force. Those fees and charges shall not be applied until that information has been published.
5. Each Party shall, to the extent practicable, adopt or maintain procedures allowing the option of electronic payment for fees and charges collected by relevant competent authorities for the authorisation of investments.
Article 19. Objectivity, Impartiality and Independence
If a Party adopts or maintains a measure relating to authorisation, it shall ensure that the competent authority concerned processes an application, reaches and administers its decisions objectively and impartially and in a manner independent from the undue influence of any person carrying out the economic activity for which authorisation is required.
Article 20. Publication and Information Available
1. If a Party requires authorisation, it shall promptly publish the information necessary for investors or persons seeking to invest to comply with the requirements, technical standards and procedures for obtaining, maintaining, amending or renewing that authorisation (1). That information shall include, to the extent that it exists:
(a) the licensing and qualification requirements and procedures;
(b) contact information of relevant competent authorities;
(c) authorisation fees;
(d) applicable technical standards;