b) Belarus shall grant to subsidiaries and branches of Community companies, established in its territory, in respect of their operations, treatment no less favourable than that accorded to its own companies or branches, or to Belarusian subsidiaries or branches of any third country, whichever is the better, and this in conformity with its legislation and regulations.
3. The provisions of paragraphs 1.b) and 2.b) cannot be used so as to circumvent a Party's legislation and regulations applicable to access to specific sectors or activities by subsidiaries or branches of companies of the other Party established in the territory of such first Party.
The treatment referred to in paragraph 1.b), 1.c) and 2.b) and 2.c) shall benefit companies and branches established in the Community and Belarus respectively at the date of entry into force of this Agreement and companies and branches established after that date once they are established.
Article 23.
1. The provisions of Article 22 shall not apply to air transport, inland waterways transport and maritime transport, without prejudice to the provisions of Article 78.
2. However, in respect of activities undertaken by shipping agencies for the provision of international maritime transport services, including intermodal activities involving a sea leg, each Party shall permit to the companies of the other Party their commercial presence in its territory in the form of subsidiaries or branches, under conditions of establishment and operation no less favourable than those accorded to its own companies or to subsidiaries or branches of companies of any third country, whichever are the better.
Such activities include, but are not limited to:
(a) marketing and sales of maritime transport and related services through direct contact with customers, from quotation to invoicing, whether these services are operated or offered by the service supplier itself or by service suppliers with which the service seller has established standing business arrangements;
(b) purchase and use, on their own account or on behalf of their customers (and the resale to their customers) of any transport and related services, including inward transport services by any mode, particularly inland waterways, road and tail, necessary for the supply of an integrated service;
(c) preparation of documentation conceming transport documents, customs documents, or other documents related to the origin and character of the goods transported;
(d) provision of business information of any means, including computerised information systems and electronic data interchange (subject to any non-discriminatory restrictions conceming telecommunications);
(e) setting up of any business arrangement, including participation in the company's stock and the appointment of personnel recruited locally (or, in the case of foreign personnel, subject to the relevant provisions of this Agreement), with any locally established shipping agency;
(f) acting on behalf of the companies, organising the call of the ship or taking over cargoes when required.
Article 24.
For the purposes of this Agreement:
a) A "Community company" or a "Belarusian company" respectively shall mean a company set up in accordance with the laws of a Member State or of Belarus respectively and having its registered office or central administration or principal place of business in the territory of the Community or Belarus respectively. However, should the company, set up in accordance with the laws of a Member State or Belarus respectively, have only its registered office in the termitory of the Community or Belarus respectively, the company shall be considered a Community or Belarusian company respectively if its operations possess a real and continuous link with the economy of one of the Member States or Belarus respectively.
b) "Subsidiary" of a company shall mean a company which is effectively controlled by the first company.
c) "Branch" of a company shall mean a place of business not having legal personality which has the appearance of permanency, such as the extension of a parent body, has a management and is materially equipped to negotiate business with third parties so that the latter, 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.
d) "Establishment" shall mean the right of Community or Belarusian companies as referred to in Article 24 a) to take up economic activities by means of the setting up of subsidiaries and branches in Belarus or in the Community respectively.
e) "Operation" shall mean the pursuit of economic activities.
f) "Economic activities" shall mean activities of an industrial, commercial and professional character.
g) With regard to international mamitime transport, including intermodal operations involving a sea leg, shall also be beneficiaries of the provisions of this Chapter and Chapter HI, nationals of the Member States or of Belarus established outside the Community or Belarus respectively, and shipping companies established outside the Community or Belarus and controlled by nationals of a Member State or Belarusian nationals respectively, if their vessels are registered in that Member State or in Belarus respectively in accordance with their respective legislations.
Article 25.
1. Notwithstanding any other provisions of the Agreement, a Party shall not be prevented from taking measures for prudential reasons, including for the protection of investors, depositors, policy holders or persons to whom a fiduciary duty is owed by a financial service supplier, or to ensure the integrity and stability of the financial system. Where such measures do not conform with the provisions of the Agreement, they shall not be used as a means of avoiding the obligations of a Party under the Agreement.
2. Nothing in the Agreement shall be construed to require a Party to disclose information relating to the affairs and accounts of individual customers or any confidential or proprietary information in the possession of public entities.
3. For the purpose of this Agreement, "financial services" shall mean those activities described in Annex V.
Article 26.
The provisions of the present Agreement shall not prejudice the application by each Party of any measure necessary to prevent the circumvention of its measures conceming third country access to its market, through the provisions of this Agreement.
Article 27.
1. Notwithstanding the provisions of Chapter I of this Title, a Community company or a Belarusian company established in the territory of Belarus or the Community respectively shall be entitled to employ, or have employed by one of its subsidiaries or branches, in accordance with the legislation in force in the host country of establishment, in the territory of Belarus and the Community respectively, employees who are nationals of Community Member States and Belarus respectively, provided that such employees are key personnel as defined in paragraph 2 of this Article, and that they are employed exclusively by companies, subsidiaries or branches. The residence and work permits of such employees shall only cover the period of such employment.
2. Key personnel of the above mentioned companies herein referred to as "organisations" are "intra-corporate transferees" as defined in (c) of this Article in the following categories, provided that the organisation is a juridical person and that the persons concerned have been employed by it or have been partners in it (other than as majority shareholders), for at least the year immediately preceding such movement:
(a) Persons working in a senior position with an organisation, who primarily direct the management of the establishment, receiving general superviston or direction principally from the board of directors or stockholders of the business or their equivalent, including:
- directing the establishment or a department or sub-division of the establishment;
- supervising and controlling the work of other supervisory, professional or managerial employees;
- having the authority personally to hire and fire or recommend hiring, firing or other personnel actions.
(b) Persons working within an organisation who possess uncommon knowledge essential to the establishment's service, research equipment, techniques or management. The assessment of such knowledge may reflect, apart from knowledge specific to the establishment, a high Jevel of qualification referring to a type of work or trade requiring specific technical knowledge, including membership of an accredited profession.
(c) An "intra-corporate transferee" is defined as a natural person working within an organisation in the territory of a Party, and being temporarily transferred in the context of pursuit of economic activities in the territory of the other Party, the organisation concerned must have its principal place of business in the territory of a Party and the transfer be to an establishment (branch, subsidiary) of that organisation, effectively pursuing like economic activities in the territory of the other Party.
Article 27bis.
1. The Parties shall use their best endeavours to avoid taking any measures or actions which render the conditions for the establishment and operation of each other's companies more restrictive than the situation existing on the day preceding the date of signature of the Agreement.
2. The provisions of this Article are without prejudice to those of Article 32b : the situations covered by such Article 32b shall be solely governed by its provisions to the exclusion of any other.
3. Acting in the spirit of partnership and cooperation and in the light of the provisions contained in Article 35, the Government of Belarus shall inform the Community of its intentions to submit new legislation or adopt new regulations which may render the conditions for the establishment or operation in Belarus of subsidiaries and branches of Community companies more restrictive than the situation existing on the day preceding the date of signature of the Agreement. The Community may request Belarus to communicate the drafts of such legislation or regulations and to enter into consultations about those drafts.
4. Where new legislation or regulations introduced in Belarus would result in rendering the conditions for establishment of Community companies into its territory and for the operation of subsidiaries and branches of Community companies established in Beiarus more restrictive than the situation existing on the day of signature of the Agreement, such respective legislation or regulations shall not apply during three years following the entry into force of the relevant act to those subsidiaries and branches already established in Belarus at the time of entry into force of the relevant act.
Chapter III. Cross-border Supply of Services between the Community and the Republic of Belarus
Article 28.
1. The Parties undertake in accordance with the provisions of this Chapter to take the necessary steps to allow progressively the supply of services by Community or Belarusian companies who are established in a Party other than that of the person for whom the services are intended taking into account the development of the services sectors in the Parties.
2. The Cooperation Council shall make recommendations for the implementation of paragraph 1 of this article.
3. The Parties shall cooperate with the aim of developing a market oriented service sector in the Republic of Belarus. Article 28bis
For the sectors listed in Annex VI to this Agreement, the Parties shall grant each other treatment no less favourable than that accorded to any third country with regard to the conditions affecting the cross border supply of services, by Community or Belarusian companies into the territory of Belarus or the Community respectively, pursuant to the legislation and regulations applicable in each Party.
Article 29.
Subject to the provisions of Article 32 of this Agreement, the Parties shall permit for the sectors listed in Annex VI to this Agreement the temporary movement of natural persons, who are representatives of a Community or a Belarusian company and are seeking temporary entry for the purpose of negotiating for the sales of cross-border services or entering into agreements to sell cross-border services for that | company, where those representatives will not be engaged in making direct sales to the general public or in supplying services themselves.
Article 30.
1. For the sectors listed in Annex VI, each Party may regulate the conditions of cross border supply of services into its territory. Insofar as these regulations are of general application they shall be administered in a reasonable, objective and impartial manner.
2. Paragraph 1 is without prejudice to the provisions of Articles 28bis and 32e.
3. By the end of the third year after signature of the Agreement at the latest, the Parties shall examine within the Cooperation Council:
— measures introduced by either Party since the signature of the Agreement which affect the cross-border supply of services covered by Article 28bis; and
- whether it is possible for the Parties to assume:
- the obligation not to take any measures or actions which may render the conditions for the cross-border supply of services covered by Article 28bis more restrictive than the situation existing at the time of such examination, or
- other obligations affecting their freedom of action
- in areas agreed between the Parties in respect of the commitments assumed in Article 28bis.
If after such examination one Party is of the view that measures introduced by the other Party since the signature of the Agreement result in a situation which is significantly more restrictive in respect of cross-border supply of services covered by Article 28bis as compared with the situation existing at the date of signature of the Agreement, such first Party may request the other Party to enter into consultations. In such case the provisions of Part A of Annex VII shall apply.
4. In furtherance of the aims of this Article, measures shall be taken as indicated in Part B of Annex VII.
5. The provisions of this Article are without prejudice to those of Article 32b: the situations covered by such Article 32b shall be solely governed by its provisions to the exclusion of any other.
Article 30bis.
1. The Parties undertake to apply effectively the principle of unrestricted access to the international maritime market and traffic on a ‘commercial basis.
a) The above provision does not prejudice the nghts and obligations arising from the United Nations Code of Conduct for Liner Conferences, as applicable to one or other Contracting Party to the present Agreement. Non-conference lines will be free to operate in competition with a conference as long as they adhere to the principle of fair competition on a commercial basis.
b) The Parties affirm their commitment to a freely competitive environment as being an essential feature of the dry and liquid bulk trade.
2. In applying the principles of paragraph 1, the Parties shall:
a) not apply, as from entry into force of this agreement, any cargo sharing provisions of bilateral agreements between any Member State of the Community and the former Soviet Union;
b) not introduce cargo sharing clauses in future bilateral agreements with third countries, other than in those exceptional circumstances where liner shipping companies from one or other Party to the present agreement would not otherwise have an effective opportunity to apply for trade to and from the third country concerned;
c) prohibit cargo sharing arrangements in future bilateral agreements concerning dry and liquid bulk trade;
d) abolish, upon entry into force of this Agreement, all unilateral measures, administrative, technical and other obstacles which could have restrictive or discriminatory effects on the free supply of services in international maritime transport.
Each Party shall grant, inter alia, no less favourable treatment for the ships operated by ‘nationals or companies of the other party than that accorded to a Party's own ships with regard to access to ports open to international trade, the use of infrastructure and auxiliary maritime services of the ports, as well as related fees and charges, customs facilities and the assignment of berths and facilities for loading and unloading.
3. Nationals and companies of the Community providing intemational maritime transport services shall be free to provide international sea-river services in the inland waterways of the Republic of Belarus and vice versa.
Article 30ter.
With a view to assuring a co-ordinated development of transport between the Parties, adapted to their commercial needs, the conditions of mutual market access and provision of services in transport by road, rail and inland waterways and, if applicable, in air transport may be dealt with by specific agreements where appropriate negotiated between the Parties as defined in Article 75d after entry into force of this Agreement.
Chapter IV. General Provisions
Article 31.
1. The provisions of this Title shall be applied subject to limitations justified on grounds of public policy, public security or public health.
2. They shall not apply to activities which in the territory of either Party are connected, even occasionally, with the exercise of official authority.
Article 32.
For the purpose of Title IV, nothing in this Agreement shall prevent the Parties from applying their laws and regulations regarding entry and stay, work, labour conditions and establishment of natural persons and supply of services, provided that, in so doing, they do not apply them in a manner as to nullify or impair the benefits accruing to any Party under the terms of a specific provision of the Agreement. The above provision does not prejudice the application of Article 31.
Article 32a.
Companies: which are controlled and exclusively owned by Belarusian companies and Community companies jointly shall also be beneficiaries of the provisions of Chapters II, III and IV of this Title.
Article 32b.
Treatment granted by either Party to the other hereunder shall, as from the day one month prior to the date of entry into force of the relevant obligations of the GATS, in respect of sectors or measures covered by the GATS, in no case be more favourable than that accorded by such first Party under the provisions of GATS and this in respect of each service sector, sub-sector and mode of supply.
Article 32c.
For the purposes of Chapters II, III and IV of this Title, no account shall be taken of treatment accorded by the Community, its Member States or Belarus pursuant to commitments entered into in economic integration agreements in accordance with the principles of Article V of the GATS.
Article 32d.
1. The Most Favoured Nation treatment granted in accordance with the provisions of this Title shall not apply to the tax advantages which the Parties are providing or will provide in the future on the basis of agreements to avoid double taxation, or other tax arrangements.
2. Nothing in this Title shall be construed to prevent the adoption or enforcement by the Parties of anv measure aimed at preventing the avoidance or evasion of taxes pursuant to the tax provisions of agreements to avoid double taxation and other tax arrangements, or domestic fiscal legislation.
3. Nothing in this Title shall be construed to prevent Member States or Belarus from distinguishing, in the application of the relevant provisions of their fiscal legislation, between taxpayers who are not in identical situations, in particular as regards their place of residence.
Article 32e.
Without prejudice to Article 27, no provision of Chapters IL, If and IV hereof shall be interpreted as giving the right to:
- nationals of the Member States or of Belarus respectively to enter, or stay in, the territory of Belarus or the Community respectively in any capacity whatsoever, and in particular as a shareholder or partner in a company or manager or employed thereof or supplier or recipient of services;
- Community subsidiaries or branches of Belarusian companies to employ or have employed in the territory of the Community nationals of Belarus;
- Belarusian subsidiaries or branches of Community companies to employ or have employed in the territory of Belarus nationals of the Member States;
- Belarusian companies or Community subsidiaries or branches of Belarusian companies to supply worker who are Belarusian nationals to act for and under the control of other persons by temporary employment contracts;
- Community companies or Belarusian subsidiaries or branches of Community companies to supply workers who are nationals of the Member States to act for and under the control of other persons by temporary employment contracts.
Title V. Current Payments and Capital
Article 33.
1. The Parties undertake to authorize, in freely convertible currency, any payments on the current account of balance of payments between residents of the Community and of the Republic of Belarus connected with the movement of goods, services or persons made in accordance with the provisions of the present Agreement .
2. With regard to transactions on the capital account of balance of payments, from entry into force of the Agreement the free movement of capital relating to direct investments made in companies formed in accordance with the laws of the host country and investments made in accordance with the provisions of Chapter II of Title IV, and the liquidation or repatriation of these investments and of any profit stemming therefrom shall be ensured.
3. Without prejudice to Paragraph 2 or to Paragraph 5, as from entry into force of this Agreement, no new foreign exchange restrictions on the movement of capital and current payments connected therewith between residents of the Community and the Republic of Belarus shall be introduced and the existing arrangements shall not become more restrictive.
4. The Parties shall consult each other with a view to facilitate the movement of forms of capital other than those referred to in paragraph 2 between the Community and the Republic of Belarus, in order to promote the objectives of the present Agreement.
5. With reference to the provisions of this Article, until a full convertibility of the Belarusian currency within the meaning of Article VIII of the articles of agreement of the International Monetary Fund is introduced, the Republic of Belarus may in exceptional circumstances apply exchange restrictions connected with the granting or taking up of short and medium-term financial credits to the extent that such restrictions are imposed on the Republic of Belarus for the granting of such credits and are permitted according to the Republic of Belarus's status under the IMF.
The Republic of Belarus shall apply these restrictions in a non-discriminatory manner. They shall be applied in such a manner as to cause the least possible disruption to this Agreement. The Republic of Belarus shall inform the Cooperation Council promptly of the introduction of such measures and of any changes therein.
6. Without prejudice to paragraph 1 and 2, where, in exceptional circumstances, movements of capital between the Community and the Belarus cause, or threaten to cause, serious difficulties for the operation of exchange rate policy or monetary policy in the Community or Belarus, the Community and Belarus, respectively, may take safeguard measures with regard to movements of capital between the Community and Belarus for a period not exceeding six months if such measures are strictly necessary.
Title VI. Competition, Intellectual, Industrial and Commercial Property Protection and Legislative Cooperation
Article 34.
1. The parties agree to work to remedy or remove through the application of their competition laws or otherwise, restrictions on competition by enterprises or caused by State intervention insofar as they may affect trade between the Community and the Belarus.
2. In order to attain the objectives mentioned in paragraph 1:
2.1 The Parties shall ensure that they have and enforce laws addressing restrictions on competition by enterprises within their jurisdiction.
2.2 The Parties shall refrain from granting State aids favouring certain undertakings or the production of goods other than primary products as defined in the General Agreement on Tariffs and Trade, or the provision of services, which distort or threaten to distort competition insofar as they affect trade between the Community and the Belarus.
2.3 Upon request by one Party, the other Party shall provide information on its aid schemes or on particular individual cases of State aid. No information needs.to be provided which is covered by legislative requirements of the Parties on professional or commercial secrets.
2.4 In the case of State monopolies of a commercial character, the Parties declare their readiness, as from the fourth year from the date of entry into force of their Agreement, to ensure that there is no discrimination between nationals of the Parties regarding the conditions under which goods are procured or marketed.
2.5 In the case of public undertakings or undertakings to which Member States of the European Union or the Belarus grant exclusive rights, the Parties declare their readiness, as from the fourth year from the date of entry into force of this Agreement, to ensure that there is neither enacted nor maintained any measure distorting trade between the Community and the Belarus to an extent contrary to the Parties' respective interests. This provision shall not obstruct the performance, in 1 Taw or fact, of the particular tasks assigned to such undertakings.
2.6 The period defined in paragraphs 2.4 and 2.5 may be extended by agreement of the Parties.
3. Consultations may take place within the Cooperation Committee at the request of the Community or Belarus on the restrictions or distortions of competition referred to in paragraphs 1 and 2 and on the enforcement of their competition mules, subject to limitations imposed by laws regarding disclosure of information, confidentiality and business secrecy. Consultations may also comprise questions on the interpretation of paragraphs 1 and 2.
4. The Parties with experience in applying competition rules shal! give full consideration to providing other Parties, upon request and within available resources, technical assistance for the development and implementation of competition rules.
5. The above provisions in no way affect the Parties' rights to apply adequate measures, notably those referred to in Article 14, in order to address distortions of trade in goods or services.
Article 34a.
1. Pursuant to the provisions of this Article and of Annex VIII, Belarus shall continue to improve the protection of intellectual, industrial and commercial property rights in order to provide, by the end of the fifth year after the entry into force of the Agreement for a level of protection similar to that existing in the Community, including effective means of enforcing such rights.
2. By the end of the fifth year after entry into force of the Agreement, Belarus shall accede to the multilateral conventions on intellectual, industrial and commercial property rights referred to in Paragraph 1 of Annex VIII to which Member States of the Community are parties or which are de facto applied by Member States according to the relevant provisions contained in these conventions.
Article 35.
1. The Parties recognize that an important condition for strengthening the economic links between the Republic of Belarus and the Community is the approximation of the Republic of Belarus' existing and future legislation to that of the Community. The Republic of Belams shall endeavour to ensure that its legislation will be gradually made compatible with that of the Community.
The Community shall provide the Republic of Belarus with technical assistance for the implementation of these measures, which may include i.e.:
- the exchange of experts,
- the provisions of early information specially on relevant legislation,
- organization of seminars,
- training activities,
- aid for translation of Community legislation in the relevant sectors.
Title VII. Economic Cooperation
Article 36.
1. The Community and the Republic of Belarus shall establish economic cooperation aimed at contributing to the process of economic reform and recovery and sustainable development of the Republic of Belarus. Such cooperation shall strengthen existing economic links, to the benefit of both parties.
2. Policies and other measures will be designed to bring about economic and social reforms and restructuring in the Republic of Belarus and will be guided by the requirements of sustainability and harmonious social development; they will also fully incorporate environmental considerations.
3. To this end the cooperation will concentrate on industrial cooperation, investment promotion and protection, public procurement, standards and conformity assessment, mining and raw materials, science and technology, education and training, agriculture and the agro-industrial sector, energy, environment, transport, telecommunications, financial services, money laundering, monetary policy, regional development, social cooperation, tourism, small and medium sized entreprises, information and communication, consumer protection, customs, statistical cooperation, economics and drugs."
4. Where appropriate, economic cooperation and other forms of cooperation provided for in this Agreement may be supported by technical assistance from the Community, taking into account the Community's relevant Council regulation applicable to technical assistance in the Independent States, the priorities agreed upon in the indicative programme related to European Community technical assistance to the Republic of Belarus and its established co-ordination and implementation procedures. Special attention shall be devoted to measures capable of fostering cooperation between the Independent States with a view to stimulating a harmonious development of the region.
5. The Cooperation Council shall make recommendations as to the development of cooperation in fields identified in paragraph 3 of this Article.
Article 37. Industrial Cooperation
1. Cooperation shall aim at promoting the following in particular:
- the development of business links between economic operators of both sides :
- Community participation in the Republic of Belarus' efforts to restructure its industry;
- the improvement of management;
- the development of appropriate commercial rules and practices;
- environmental protection.
- adaptation of the structure of industrial production to the standards of an advanced market economy;
- the conversion of the military-industrial complex.
2. The provisions of this article shall not affect the enforcement of Community competition rules applicable to undertakings.
Article 38. Investment Promotion and Protection
1. Bearing in mind the respective powers and competences of the Community and the Member States, cooperation shall aim to establish a favourable climate for private investment, both domestic and foreign, especially through better conditions for investment protection, the transfer of capital and the exchange of information on investment opportunities.