2. Unless otherwise specified in Annex 9-F (Contractual services suppliers and independent professionals) a Party shall not adopt or maintain limitations, in the form of numerical quotas or an economic needs test, on the total number of contractual service suppliers of the other Party allowed temporary entry.
Article 9.24. Independent Professionals
1. The Union shall allow temporary entry and presence to independent professionals of Australia in accordance with its commitments set out in Annex 9-F (Contractual services suppliers and independent professionals).
2. Unless otherwise specified in Annex 9-F (Contractual services suppliers and independent professionals), the Union shall not adopt or maintain limitations, in the form of numerical quotas or the requirement of an economic needs test, on the total number of independent professionals of Australia allowed entry.
Article 9.25. Non-conforming Measures or Obligations In other Chapters
1. This Agreement does not impose any obligations on a Party regarding its immigration measures, except as specifically provided for in this Section.
2. Without prejudice to any decision relating to the grant of temporary entry of a natural person of the other Party, including the permissible length of stay pursuant to any such grant, Article 9.13 (Market access – Cross-border trade in services), Article 9.14 (National treatment – Cross-border trade in services) and Article 9.15 (Most favoured nation treatment – Cross-border trade in services), apply to this Section, and apply to measures affecting a service supplied in accordance with point (b) of Article 9.18(1) (Scope), to the extent that each Article applies to measures that affect the supply of a service through the presence of natural persons of a Party present in the territory of the other Party.
3. The Articles that apply to this Section pursuant to paragraph 2 shall not apply to:
(a) any existing non-conforming measure of a Party at the level of:
(i) for the Union:
(A) the Union, as set out in its Schedule to Annex 9-C (Existing measures);
(B) the central government of a Member State, as set out in its Schedule to Annex 9-C (Existing measures);
(C) a regional government of a Member State, as set out in its Schedule to Annex 9-C (Existing measures); or
(D) a local government, other than that referred to in point (C); and
(ii) for Australia:
(A) the central government, as set out in its Schedule to in Annex 9-C (Existing measures);
(B) a regional government, as set out in its Schedule to Annex 9-C (Existing measures); or
(C) a local government;
(b) the continuation or prompt renewal of any non-conforming measure referred to in point (a);
(c) a modification of any non-conforming measure referred to in points (a) and (b) to the extent that it does not decrease the conformity of the measure, as it existed immediately before the modification, with the Articles that apply to pursuant to paragraph 2; or
(d) a measure of a Party with respect to sectors, subsectors or activities, as set out in its Schedule in Annex 9-D (Future measures).
4. For greater certainty, the Articles referred to in paragraph 2 do not apply to measures relating to the granting of temporary entry into a Party to natural persons of that Party or of a third country.
Article 9.26. Transparency
1. Further to Chapter 21 (Transparency), each Party shall make publicly available information on relevant measures that pertain to the temporary entry and presence of natural persons of the other Party referred to in Article 9.18(1) (Scope).
2. The information referred to in paragraph 1 shall, to the extent possible, include inter alia, the following information relevant to the temporary entry and presence of natural persons:
(a) entry conditions;
(b) an indicative list of documentation that may be required in order to verify the fulfilment of the conditions;
(c) indicative processing time;
(d) applicable fees;
(e) appeal procedures; and
(f) relevant laws of general application pertaining to the temporary entry and presence of natural persons.
Article 9.27. Annex on Temporary Entry-related Procedures
Additional provisions on procedures related to the temporary entry of natural persons of each Party are set out in Annex 9-A (Movement of natural persons for business purposes).
Article 9.28. Non-application of Dispute Settlement
No Party shall have recourse to Chapter 24 (Dispute settlement) regarding a refusal to grant temporary entry to a particular natural person or persons.
SECTION E REGULATORY FRAMEWORK
SUB-SECTION 1 DOMESTIC REGULATION
Article ARTICLE 9.29
Scope and definitions
This Sub-Section applies to measures of a Party relating to licensing requirements and procedures, qualification requirements and procedures, and technical standards1 affecting:
cross-border trade in services;
establishment or operation; or
1 As far as measures relating to technical standards are concerned, this Sub-Section only applies to such measures affecting trade in services. Technical standards do not include regulatory or implementing technical standards for financial services.
the supply of a service through the presence of a natural person2 of a Party in the territory of the other Party where such natural persons fall within the categories defined in Article 9.2 (Definitions – General provisions).
This Sub-Section does not apply to a measure to the extent that the measure is not subject to an obligation in Section B (Investment Liberalisation) or Section C (Cross-Border Trade in Services) of this Chapter by reason of Article 9.10 (Non-conforming measures and exceptions) or Article 9.17 (Non-conforming measures).
For the purposes of this Sub-Section:
"authorisation" means the permission to carry out any of the activities referred to in points (a) to (c) of paragraph 1 resulting from a procedure that a natural or juridical person must adhere to in order to demonstrate compliance with licensing requirements, qualification requirements or technical standards.
"competent authority" means a central, regional or local government or authority or non-governmental body in the exercise of powers delegated by central, regional or local governments or authorities, which is entitled to take a decision concerning authorisation.
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.
Application timeframes
If a 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.3 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.
Electronic applications and acceptance of copies
If a Party requires authorisation, it shall ensure that its competent authorities:
to the extent possible, accept applications in electronic format; and
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.
Processing of applications
If a Party requires authorisation, it shall ensure that its competent authorities:
to the extent practicable, provide an indicative timeframe for the processing of an application;
at the request of the applicant, provide without undue delay information concerning the status of the application;
to the extent practicable, ascertain without undue delay the completeness of an application for processing under the Party's laws and regulations;
if they consider an application complete for processing4 under the Party's laws and regulations, within a reasonable period of time after the submission of the application ensure that:
the processing of the application is completed;
the applicant is informed of the decision concerning the application,5 to the extent possible in writing; and6
an authorisation is granted as soon as the competent authority determines that the conditions for authorisation have been met;
if they consider an application incomplete for processing under the Party's laws and regulations, within a reasonable period of time, to the extent practicable:
inform the applicant that the application is incomplete;
at the request of the applicant identify the additional information required to complete the application or otherwise provide guidance on why the application is considered incomplete; and
4 Competent authorities may require that all information is submitted in a specified format to consider it "complete for processing".
5 Competent authorities may meet this requirement by informing an applicant in advance in writing, including through a published measure, that a lack of response after a specified period of time from the date of submission of the application indicates acceptance of the application.
6 For greater certainty, "in writing" may include in electronic form.
provide the applicant with the opportunity7 to provide the additional information that is required to complete the application;
however, if none of the above is practicable, and the application is rejected due to incompleteness, ensure that they inform the applicant within a reasonable period of time; and
if an application is rejected, to the extent possible, either upon their own initiative or upon request of the applicant, inform the applicant of the reasons for rejection and, if applicable, the timeframe for an appeal against that decision and the procedures for resubmission of an application. An applicant should not be prevented from submitting another application solely on the basis of a previously rejected application.
A Party shall ensure that authorisation, once granted, enters into effect without undue delay, subject to the applicable terms and conditions.
Fees
For all economic activities covered by this Sub-section other than financial services, each Party shall ensure that the authorisation fees8 charged by its competent authorities are reasonable, transparent and do not in themselves restrict the supply of the relevant service or the pursuit of any other economic activity.
With regard to financial services, each Party shall ensure that its competent authorities, with regard to authorisation fees that 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.
7 Such opportunity does not require a competent authority to provide extensions of deadlines.
8 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 the provision of universal service.
Assessment of qualifications
If a Party requires an examination for authorisation, it shall ensure that its competent authorities schedule such an examination at reasonably frequent intervals and provide a reasonable period of time to enable applicants to request to take the examination. To the extent practicable, each Party shall accept requests in electronic format to take such examinations, and shall consider the use of electronic means in other aspects of examination processes.
Objectivity, impartiality and independence
If a Party adopts or maintains a measure relating to authorisation, it shall ensure that its competent authority processes an application, and reaches and administers its decisions, objectively and impartially and in a manner independent from any person carrying out the economic activity for which authorisation is required.
Publication and information available
If a Party requires authorisation, it shall promptly publish9 the information necessary for service suppliers or persons seeking to supply a service, and for persons carrying out or seeking to carry out the economic activity for which the licence or authorisation is required, to comply with
9 For the purposes of this Sub-Section, "publish" means to include in an official publication, such as an official journal, or on an official website. The Parties are encouraged to consolidate electronic publications into a single portal.
the requirements and procedures for obtaining, maintaining, amending and renewing such authorisation.
The information referred to in paragraph 1 shall include, where it exists:
the requirements and procedures;
contact information of relevant competent authorities;
authorisation fees;
applicable technical standards;
procedures for appeal or review of decisions concerning applications;
procedures for monitoring or enforcing compliance with the terms and conditions of licences or qualifications;
opportunities for public involvement, such as through hearings or comments; and
indicative timeframes for the processing of an application.
Technical standards
A Party shall encourage its competent authorities, when adopting technical standards, to adopt technical standards developed through open and transparent processes, and shall encourage any body, including relevant international organisations, designated to develop technical standards to do so through open and transparent processes.
Development of measures
If a Party adopts or maintains measures relating to authorisation, it shall ensure that:
such measures are based on clear, objective and transparent criteria;10
the procedures are impartial, easily accessible to all applicants and adequate for applicants to demonstrate whether they meet the requirements, where such requirements exist; and
the procedures do not in themselves unjustifiably prevent fulfillment of requirements.
Limited number of licences
If the number of licences available for a given economic activity is limited because of the scarcity of available natural resources or technical capacity, a Party shall apply a selection procedure to potential candidates which is impartial and transparent and provides for adequate publicity about the launch, conduct and completion of the procedure. The selection procedure may take into account legitimate policy objectives, including considerations of health, safety, protection of the environment and the preservation of cultural heritage.
10 Such criteria may include competence and the ability to supply a service or any other economic activity, including to do so in a manner consistent with a Party's regulatory requirements, such as health and environmental requirements. Competent authorities may assess the weight to be given to each criterion.
SECTION E REGULATORY FRAMEWORK
SUB-SECTION 2 PROFESSIONAL SERVICES
Article ARTICLE 9.41
Mutual Recognition of Professional Qualifications
The Parties shall encourage the relevant professional bodies or authorities in their respective territories1 to develop and provide a joint recommendation on mutual recognition of professional qualifications to the [Committee on Trade in Services, Digital Trade, Establishment, Government Procurement, Intellectual Property Rights] established pursuant to Article X (Specialised Committees). Such a joint recommendation shall be supported by an evidence-based assessment of:
1 For the Union, professional bodies or authorities are those covering the territory of the EU as a whole.
the economic value of an envisaged understanding2 on mutual recognition of
professional qualifications (hereinafter referred to as “Understanding”); and
the compatibility of the respective regimes, i.e., the extent to which the requirements applied in each Party for the authorisation, licensing, operation and certification are compatible and how divergent regimes would be bridged.
On receipt of a joint recommendation, the Committee shall review that recommendation within a reasonable period of time.
The [Committee], on the basis of its review of the joint recommendation, may make a recommendation to the relevant professional bodies or authorities to negotiate an Understanding based on the joint recommendation, if it is satisfied that an Understanding would have significant economic value for the Parties to this Agreement, that their regimes are compatible and that divergence between them can be bridged. The [Committee] shall abstain from making a recommendation if the joint recommendation contains elements that give rise to concern that any ensuing Understanding would be inconsistent with this Agreement.
The Parties shall encourage the professional bodies and authorities to use the Guidelines for Understandings set out in Annex XX [Guidelines for understandings on the recognition of professional qualifications] in the development of the joint recommendations referred to in paragraph 1 of this Article. The [Committee] shall take the Guidelines for Understandings into account when reviewing the joint recommendation and assessing whether to recommend to the relevant professional bodies or authorities to negotiate, as referred to in paragraph 3 of this Article.
Nothing in this Article shall prevent a Party from requiring that natural persons possess the necessary qualifications or professional experience specified in the territory where the service is supplied, for the sector of activity concerned.
Additional Recognition Disciplines
The obligations contained in this Article shall not apply to the non-conforming aspects of measures adopted or maintained in accordance with Article X.X (Non-conforming measures investment) or Article X.X (Non-conforming measures services).
Each Party shall accord to service suppliers of the other Party treatment no less favourable than that it accords, in like situations, to its own service suppliers with respect to:
for the EU, recognition by one Member State of the European Union of a professional qualification, or a licence or registration relating to that professional qualification, obtained in another Member State of the European Union;
for Australia, recognition by one State or Territory of Australia of a professional qualification, or a licence or registration relating to that professional qualification, obtained in another State or Territory of Australia.
For the Union, this Article shall only apply if the service supplier:
has established an enterprise in a Member State of the European Union where the service is provided, or
is established as self-employed in a Member State of the European Union where the service is provided, or
is employed or contracted by an enterprise established in a Member State where the service is provided as defined in Chapter IV, Art 4.2(c) or in Chapter IV, Art. 4.2(d), or
is providing a service to a consumer in a Member State of the European Union under a contractual arrangement defined in Chapter IV, Art 4.2(b).
This Article shall not apply to cross-border trade in services between the territories of the Parties or within the Union.3
Regulation of Professional Services
The Parties recognise that professional services play an essential role in facilitating trade and investment across both goods and services sectors and in promoting economic growth and business confidence.
If a Party regulates or seeks to regulate the provision of professional services by foreign service suppliers4, (herein after referred to as “foreign professionals”), the Party may consider providing for a regulatory framework that allows:
the presence of foreign professionals on a temporary basis for business purposes in order to provide professional services in the territory of the Party on the basis of their right to provide those services in their home jurisdiction;
where relevant and appropriate, for local ethical, conduct and disciplinary standards to be applied to foreign professionals in a manner that is no more burdensome for foreign professionals than the requirements applied to domestic (host-country) suppliers of those professional services in like situations;
requirements, such as requirements that foreign professionals:
are members of a professional organisation;
participate in collective compensation funds for members of professional organisations;
post a bond or other form of financial security, or establish or contribute to a trust account;
maintain a particular type and amount of insurance, or provide other similar guarantees; or
provide access to records or alternatively disclose to clients their status as a foreign professional; and
the following modes of providing professional services to be accommodated: