To the extent necessary and justified, the Trade Committee may establish a working group with the aim of performing, among others, the following tasks:
(a) discussing regulatory issues concerning establishment, trade in services and electronic commerce;
(b) proposing guidelines and strategies enabling the signatory Andean Countries to become a safe harbour for the protection of personal data. To this end, the working group shall adopt a cooperation agenda that shall define priority aspects for accomplishing that purpose, especially regarding the respective homologation processes of data protection systems;
(c) seeking the necessary mechanisms to address the aspects covered under Article 162;
(d) recommending mechanisms to assist Micro and SMEs in overcoming obstacles faced by them in the use of electronic commerce;
(e) improving the security of electronic transactions and electronic government, among others;
(f) encouraging the participation of the private sector in training and adoption of codes of conduct, contract models, guidelines and compliance mechanisms for electronic commerce, together with active participation in fora organised between the Parties;
(g) establishing cooperation mechanisms on digital accreditation and certification for electronic transactions and mutual recognition of digital certificates; and
(h) participating actively in regional and multilateral fora to promote the development of electronic commerce.
Chapter 2. Establishment
Article 110. Definitions
For the purposes of this Chapter:
- "branch of a juridical person" means a place of business without legal personality, which:
(a) has the appearance of permanence such as the extension of a parent body:
(b) has a management; and
(c) is materially equipped to negotiate business with third parties; therefore third parties, although knowing that there will, if necessary, be a legal link with the parent body, the head office of which is abroad, do not have to deal directly with such parent body but may transact business at the place of business constituting the extension;
- "economic activity" does not include activities carried out in the exercise of governmental authority, i.e. activities carried out neither on a commercial basis nor in competition with one or more economic operators;
- "establishment" means any type of business or professional establishment (24) through:
(a) the constitution, acquisition or maintenance of a juridical person (25); or
(b) the creation or maintenance of a branch or representative office; within the territory of a Party for the purpose of performing an economic activity;
- "investor of a Party" means any natural or juridical person of that Party that seeks, through concrete actions to perform, is performing or has performed an economic activity in another Party through setting up an establishment;
- "measures of a Party affecting establishment" include measures with respect to all activities covered by the definition of establishment;
- "subsidiary of a juridical person of a Party" means a juridical person which is effectively controlled by another juridical person of that Party (26).
Article 111. Scope of Application
This Chapter applies to measures adopted or maintained by the Parties affecting establishment (27) in any economic activity, with the exception of:
(a) mining, manufacturing and processing of nuclear materials;
(b) production of or trade in arms, munitions and war material;
(c) audio-visual services;
(d) national maritime cabotage (28);
(e) processing, disposition and waste of toxic waste, and
(f) domestic and international air transport services, whether scheduled or non-scheduled and services directly related to the exercise of traffic rights, other than:
(i) aircraft repair and maintenance services during which an aircraft is withdrawn from service;
(ii) the selling and marketing of air transport services;
(iii) computer reservation system (CRS) services; and
(iv) groundhandling services and airport operation services.
Article 112. Market Access
1. With respect to market access through establishment, each Party shall accord to establishments and investors of another Party treatment no less favourable than that provided for in the specific commitments contained in Annex VII (List of Commitments on Establishment).
2. In sectors where market access commitments are undertaken, the measures which a Party 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 Annex VII (List of Commitments on Establishment), are defined as:
(a) limitations on the number of establishments whether in the form of numerical quotas, monopolies, exclusive rights or other establishment requirements such as economic needs test;
(b) limitations on the total value of transactions or assets in the form of numerical quotas or the requirement of an economic needs test;
(c) limitations on the total number of operations or on the total quantity of output expressed in terms of designated numerical units in the form of quotas or the requirement of an economic needs test (29);
(d) limitations on the total number of natural persons that may be employed in a particular economic activity or that an establishment may employ and who are necessary for, and directly related to, the performance of an economic activity in the form of numerical quotas or the requirement of an economic needs test;
(e) limitations on the participation of foreign capital in terms of a maximum percentage limit on foreign shareholding or the total value of individual or aggregate foreign investment; and
(f) measures which restrict or require specific types of establishment (subsidiary, branch, representative office) or joint ventures through which an investor of another Party may perform an economic activity (30).
Article 113. National Treatment
1. In sectors for which market access commitments are listed in Annex VII (List of Commitments on Establishment) by Colombia, and subject to any conditions and qualifications set out therein, Colombia shall grant to establishments and investors of the EU Party, with respect to all measures affecting establishment, treatment no less favourable than that it accords to its own like (31) establishments and investors.
2. In the sectors for which market access commitments are listed in Annex VII (List of Commitments on Establishment) by Peru, and subject to any conditions and qualifications set out therein, Peru shall grant to establishments and investors of the EU Party, with respect to all measures affecting establishment, treatment no less favourable than that it accords in like circumstances to its own establishments and investors (32).
3. In the sectors for which market access commitments are listed in Annex VII (List of Commitments on Establishment) by the EU Party, and subject to any conditions and qualifications set out therein, the EU Party, with respect to all measures affecting establishment, shall grant to establishments and investors of the signatory Andean Countries treatment no less favourable than that it accords to its own like establishments and investors.
3a. In the sectors for which market access commitments are listed in Annex VII (List of Commitments on Establishment) by Ecuador, and subject to any conditions and qualifications set out therein, Ecuador shall grant to establishments and investors of the EU Party, with respect to all measures affecting establishment, treatment no less favourable than that it accords to its own like establishments and investors.
4. The specific commitments assumed under this Article shall not be construed to require any Party to compensate for inherent competitive disadvantages which result from the foreign character of the relevant investors.
Article 114. List of Commitments
Sectors committed by each Party pursuant to this Chapter, as well as any reservation or limitation on market access and/or national treatment applicable to establishments and investors of another Party in those sectors are listed in Annex VII (List of Commitments on Establishment).
Article 115. Other Agreements
1. Nothing in this Title shall be construed as limiting the rights and obligations of the Parties and of their investors established in any existing or future international agreement relating to investment to which a Member State of the European Union and a signatory Andean Country are parties.
2. Notwithstanding paragraph 1, any dispute settlement mechanism established under any existing or future international agreement relating to investment to which the European Union, a Member State of the European Union or a signatory Andean Country is a party shall not be applicable to alleged breaches of this Chapter.
Article 116. Investment Promotion and Review
1. With a view to a progressive liberalisation of investments, the European Union and the signatory Andean Countries shall seek to promote an environment attractive for reciprocal investment within their respective spheres of competence.
2. The promotion referred to in paragraph 1 shall lead to cooperation that shall include, among others, the review of the investment legal framework, the investment environment and the flow of investments between the Parties, consistent with their commitments under international agreements. Such review shall take place no later than five years following the entry into force of this Agreement and subsequently at regular intervals.
Chapter 3. Cross-border Supply of Services
Article 117. Definitions
For the purposes of this Chapter:
- "cross-border supply of services" means the supply of a service:
(a) from the territory of a Party into the territory of another Party (Mode 1); and
(b) in the territory of a Party to the service consumer of another Party (Mode 2);
- "measure by a Party affecting cross-border supply" includes measures in respect of:
(a) the purchase, payment or use of a service; and
(b) the access to and use of, in connection with the cross-border supply of a service, services which are required by that Party to be offered to the public generally.
Article 118. Scope of Application
This Chapter applies to measures of the Parties affecting the cross-border supply of all services sectors, with the exception of:
(a) audiovisual services;
(b) national maritime cabotage (33), and;
(c) national and international air transport services, whether scheduled or non-scheduled, and services directly related to the exercise of traffic rights, other than:
(i) aircraft repair and maintenance services during which an aircraft is withdrawn from service;
(ii) the selling and marketing of air transport services;
(iii) computer reservation system (CRS) services; and
(iv) groundhandling services and airport operation services.
Article 119. Market Access
1. With respect to market access through the cross-border supply of services, each Party shall accord services and service suppliers of another Party treatment no less favourable than that provided for in the specific commitments listed in Annex VIII (List of Commitments on Cross-Border Supply of Services).
2. In sectors where market access commitments are undertaken, the measures which a Party 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 Annex VIII (List of Commitments on Cross-Border Supply of Services), are defined as:
(a) limitations on the number of services suppliers whether in the form of numerical quotas, monopolies, exclusive service suppliers or the requirements of an economic needs test;
(b) limitations on the total value of service transactions or assets in the form of numerical quotas or the requirement of an economic needs test; and
(c) 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 (34).
Article 120. National Treatment
1. In the sectors where market access commitments are listed in Annex VIII (List of Commitments on Cross-Border Supply of Services) by Colombia, and subject to any conditions and qualifications set out therein, Colombia shall grant to services and service suppliers of the EU Party, with respect to all measures affecting the cross-border supply of services, treatment no less favourable than that it accords to its own like services and service suppliers.
2. In the sectors where market access commitments are listed in Annex VIII (List of Commitments on Cross-Border Supply of Services) by Peru, and subject to any conditions and qualifications set out therein, Peru shall grant to services and service suppliers of the EU Party, with respect to all measures affecting the cross-border supply of services, treatment no less favourable than that it accords in like circumstances to its own services and service suppliers (35).
3. In the sectors where market access commitments are listed in Annex VIII (List of Commitments on Cross-Border Supply of Services) by the EU Party, and subject to any conditions and qualifications set out therein, the EU Party shall grant to services and service suppliers of the Signatory Andean Countries, with respect to all measures affecting the cross-border supply of services, treatment no less favourable than that it accords to its own like services and service suppliers.
4. The specific commitments assumed under this Article shall not be construed to require any Party to compensate for any inherent competitive disadvantage resulting from the foreign character of the relevant services or services suppliers.
Article 121. List of Commitments
Sectors committed by each Party pursuant to this Chapter, as well as any reservation or limitation on market access and/ or national treatment applicable to services and services suppliers of another Party in such sectors are listed in Annex VIII (List of Commitments on Cross-Border Supply of Services).
Chapter 4. Temporary Presence of Natural Persons for Business Purposes
Article 122. Scope of Application
This Chapter applies to any measure of a Party concerning the entry and temporary stay in its territory of key personnel, graduate trainees, business service sellers, contractual services suppliers, independent professionals and short term visitors for business purposes, in accordance with Article 107, paragraph 6.
Article 123. Definitions
For the purposes of this Chapter:
- "business services sellers" means natural persons who are representatives of a service supplier of a Party, seeking temporary entry into the territory of another Party, for the purpose of negotiating the sale of services or entering into agreements to sell services for that service supplier. Business services sellers do not engage in direct sales to the general public and do not receive remuneration from a source located within the host Party;
- "business visitors" means natural persons working in a senior position who are responsible for setting up an establishment. Business visitors do not engage in direct transactions with the general public and do not receive remuneration from a source located within the host Party;
- "contractual services suppliers" means natural persons employed by a juridical person of a Party which has no establishment in the territory of another Party and which has concluded with a final consumer in the latter Party a bona fide contract (other than through an agency as defined by the code 872 the United Nations Central Product Classifications (hereinafter referred to as "CPC") to supply services requiring the presence on a temporary basis of its employees in that Party in order to fulfil the contract to provide services (36);
- "graduate trainees" means natural persons who have been employed by a juridical person of a Party or its branch for at least one year, hold a university degree and are temporarily transferred to an establishment of the juridical person in the territory of another Party, for career development purposes or to obtain training in business techniques or methods (37);
- "independent professionals" means natural persons engaged in the supply of a service and established as self-employed in the territory of a Party who have no establishment in the territory of another Party and who have concluded a bona fide contract (other than through an agency as defined by the CPC code 872) to supply services with a final consumer in the latter Party requiring their presence on a temporary basis in that Party in order to fulfil the contract to provide services (38);
- "intra-corporate transferees" means natural persons who have been employed by a juridical person or its branch or have been partners in it for at least one year and who are temporarily transferred to an establishment that may be a subsidiary, branch or parent company of the juridical person in the territory of another Party. The natural person concerned shall belong to one of the following categories:
(a) "managers" means persons working in a senior position within a juridical person, who primarily direct the management of the establishment, receiving general supervision or direction principally from the board of directors or from stockholders of the business or their equivalent, including:
(i) directing the establishment or a department or sub-division thereof;
(ii) supervising and controlling the work of other supervisory, professional or managerial employees;
(iii) having the authority personally to recruit and dismiss, or recommend recruiting, dismissing or other personnel actions; or;
(b) "specialists" means persons working within a juridical person who possess uncommon knowledge essential to the activity, research equipment, techniques, processes, procedures or management of the establishment. In assessing such knowledge, account shall be taken not only of knowledge specific to the establishment, but also of whether the person has a high level of qualification referring to a type of work or trade requiring specific technical knowledge, including membership of an accredited profession (39);
- "key personnel" means natural persons employed by a juridical person of one Party other than a non-profit organisation (40) and who are responsible for the setting-up or appropriate control, management and operation of an establishment, comprising "business visitors" responsible for setting up an establishment and "intra-corporate transferees"; and
- "qualifications" means diplomas, certificates and other evidence (of formal qualification) issued by an authority designated pursuant to legislative, regulatory or administrative provisions and certifying successful completion of professional training.
Article 124. Key Personnel and Graduate Trainees
1. For every sector committed in accordance with Chapter 2 (Establishment) of this Title and subject to any reservations listed in Annex VII (List of Commitments on Establishment) or in Appendix 1 of Annex IX (Reservations Regarding Temporary Presence of Natural Persons for Business Purposes), each Party shall allow investors of another Party to employ in their establishment natural persons of that other Party, provided that such employees are key personnel or graduate trainees as defined in Article 123. The entry and temporary stay of key personnel and graduate trainees shall be for a period of up to three years (41) for intra-corporate transferees, 90 days in any 12 month period for business visitors, and one year for graduate trainees.
2. For every sector committed in accordance with Chapter 2 (Establishment) of this Title, the measures which a Party 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 Appendix 1 of Annex IX (Reservations Regarding Temporary Presence of Natural Persons for Business Purposes), are defined as discriminatory limitations and as limitations on the total number of natural persons that an investor may employ as key personnel and graduate trainees in a specific sector in the form of numerical quotas or a requirement of an economic needs test.
Article 125. Business Services Sellers
For every sector committed in accordance with Chapters 2 (Establishment) or 3 (Cross-Border Supply of Services) and subject to any reservations listed under Annexes VII (List of Commitments on Establishment) and VIII (List of Commitments on Cross-Border Supply of Services), each Party shall allow the entry and temporary stay of business services sellers for a period of up to 90 days in any 12 month period.
Article 126. Contractual Services Suppliers
1. The Parties reaffirm their respective rights and obligations arising from their commitments under the GATS as regards the entry and temporary stay of contractual services suppliers.
2. Colombia and the EU Party shall allow the supply of services into their territory through presence of natural persons, by contractual services suppliers of the EU Party and Colombia respectively subject to the conditions specified in paragraph 4 and in Appendix 2 of Annex IX (Reservations Regarding Temporary Presence of Natural Persons for Business Purposes) for each of the following sectors:
(a) legal advisory services in respect of public international law and foreign law; in the case of the EU Party, European Union law (hereinafter referred to "EU law") shall not be considered as public international law or foreign law;
(b) accounting, and book-keeping services;
(c) taxation advisory services;
(d) architectural services;
(e) urban planning and landscape architectural services;
(f) engineering services;
(g) integrated engineering services;
(h) medical (including psychologists) and dental services;
(i) veterinary services;
(j) midwives services;
(k) services provided by nurses, physiotherapists and paramedical personnel;
(l) computer and related services;
(m) market research and opinion polling;
(n) management consulting services;
(o) services related to management consulting;
(p) design services;
(q) chemical engineering, pharmaceutics, and photochemistry; (r) services in cosmetics technology;