3. Paragraph 2 shall not be construed as preventing a Party from conditioning the receipt or continued receipt of an advantage, in connection with the establishment or operation of any enterprise in its territory, on compliance with a requirement to locate production, supply a service, train or employ workers, construct or expand particular facilities, or carry out research and development, in its territory.
4. Subparagraphs 1 (f) and (j) do not apply when:
(a) the requirement is imposed or enforced, or the commitment or undertaking is enforced by a court, administrative tribunal, or competition authority to remedy a practice determined after judicial or administrative process to be a violation of competition law;
(b) a Party authorises the use of an intellectual property right in accordance with Article 31 or Article 31bis of the TRIPS Agreement or adopts or maintains measures requiring the disclosure of data or proprietary information that fall within the scope of, and are consistent with paragraph 3 of Article 39 of the TRIPS Agreement.
5. Subparagraphs 1 (a), 1 (b) and 1(c), and 2(a) and 2(b) do not apply to qualification requirements for goods or services with respect to participation in export promotion and foreign aid programmes.
6. Subparagraphs 2 (a) and (b) do not apply to requirements imposed by an importing Party relating to the content of goods necessary to qualify for preferential tariffs or preferential quotas.
7. Subparagraph 1 (j) does not apply if the requirement is imposed or enforced, or the commitment or undertaking is enforced, by a tribunal as equitable remuneration under the Party's copyright laws.
8. The Parties shall work towards further liberalisation and transparency under Article 2.6 (Performance Requirements) as regards prohibitions, in connection with the establishment or operation of an enterprise in its territory, on the imposition or enforcement of any requirements, or the enforcement of any commitments or undertakings by a Party:
(a) to purchase, use or accord a preference to services provided in its territory, or to purchase services from natural or juridical persons or any other entities in its territory;
(b) to restrict the exportation or sale for export of products or services;
(c) to purchase, use or accord a preference to, in its territory, technology of the Party or of a person of the Party (6); or
(d) that prevent the purchase or use of, or the according of a preference to, in its territory, a particular technology.
9. The Parties shall also work towards further liberalisation and transparency under Article 2.6 (Performance Requirements) as regards prohibitions, in connection with the establishment or operation of an enterprise in its territory, on the conditioning of the receipt, or continued receipt of an advantage, on compliance with a requirement:
(a) to purchase, use or accord a preference to services supplied in its territory, or to purchase services from natural or juridical persons or any other entity in its territory; or
(b) to restrict the exportation or sale for export of products or services
10. To that end, each Party shall conduct consultations, as necessary, with a view to including the performance requirements set out in paragraphs 8 and 9 in Article 2.6 (Performance Requirements), and identifying possible existing measures to be included in their Schedules of Non-Conforming Measures for Services and Investment. (7)
11. The Parties shall endeavour to conclude their respective consultations within two years after the date of entry into force of this Agreement, and at the latest, within three years thereafter.
12. Following the conclusion of these consultations, the Parties shall promptly notify each other of the outcome of such consultations, and the Trade Committee shall adopt a decision on any relevant amendments (8) to Article 2.6 (Performance Requirements) and to the Parties’ Schedules of Non-Conforming Measures for Services and Investment, taking into account the outcome of the Parties’ respective consultations.
Article 9.10. NON-CONFORMING MEASURES AND EXCEPTIONS
1. Articles 2.2 [Market Access], 2.3 [National Treatment], 2.4 [Most Favoured Nation Treatment], 2.5 [Senior management and boards of directors] or 2.6 [Performance Requirements] shall not apply to:
(a) any existing non-conforming measure that is maintained by a Party at the level of:
(i) for the European Union:
(A) the European Union, as set out in its Schedule to Annex I;
(B) the central government of a Member State of the European Union, as set out in its Schedule to Annex I;
(C) a regional government of a Member State of the European Union, as set out in its Schedule to Annex I; or
(D) a local government, other than that referred to in subparagraph (C); and
(ii) for Australia:
(A) the central government, as set out in its Schedule to Annex I;
(B) a regional government, as set out in its Schedule to Annex I; or
(C) a local government;
(b) the continuation or prompt renewal of any non-conforming measure referred to in subparagraph (a); or
(c) a modification to any non-conforming measure referred to in subparagraphs (a) and (b), to the extent that the modification does not decrease the conformity of the measure, as it existed immediately before the modification, with Articles 2.2 (Market Access), Article 2.3 (National Treatment), 2.4 (Most Favoured Nation Treatment), 2.5 (Senior management and boards of directors), or 2.6 (Performance Requirements).
2. Articles 2.2 (Market Access), 2.3 (National Treatment), 2.4 (Most Favoured Nation Treatment), 2.5 (Senior management and boards of directors) or 2.6 (Performance Requirements) shall not apply to a measure of a Party with respect to sectors, subsectors or activities, as set out in its Schedule to Annex II.
3. Neither Party shall, under any measure adopted after the date of entry into force of this Agreement for that Party and covered by its schedule to Annex II, require an investor of the other Party, by reason of its nationality, to sell or otherwise dispose of an enterprise existing at the time the measure becomes effective.
4. Article 2.3 (National Treatment) and Article 2.4 (Most Favoured Nation Treatment) shall not apply to any measure that falls within Article 5 of the TRIPS Agreement, and any measure that is covered by an exception to, or derogation from, the obligations imposed by Article X.4 (National Treatment) of Chapter XX (Intellectual Property), or by Article 3 or Article 4 of the TRIPS Agreement.
5. Notwithstanding Articles 2.3 (National Treatment) and 2.4 (Most-Favoured-Nation Treatment), a Party may require an investor of the other Party or its covered enterprise to provide information concerning that enterprise including for statistical purposes, provided that those requests are reasonable and not unduly burdensome.
6. The Party shall protect such information that is confidential from any disclosure that would prejudice the competitive position of the investor or the covered enterprise. Nothing in this paragraph shall be construed to prevent a Party from otherwise obtaining or disclosing information in accordance with its law. Such laws shall not be applied in a manner which would otherwise constitute a disguised restriction on the establishment or operation of an enterprise.
Article 9.11. FORMAL REQUIREMENTS
Article 2.3 (National treatment) does not prevent a Party from adopting or maintaining formal requirements such as that investments be legally constituted under the laws or regulations of the Party in connection with a covered enterprise, provided that those formalities or requirements do not constitute a means to circumvent that Party's obligations pursuant to that Article.
Section C. CROSS-BORDER TRADE IN SERVICES
Article 9.12. Scope
This Chapter shall apply to measures of a Party affecting cross-border trade in services by service suppliers of the other Party. Such measures include measures affecting:
(a) the production, distribution, marketing, sale or delivery of a service;
(b) the purchase or use of, or payment for, a service; and
(c) the access to and use of distribution, transport or telecommunications networks and services in connection with the supply of a service.
Article 9.13. Market Access
A Party shall not adopt or maintain, either on the basis of its entire territory or [on the basis of a territorial sub-division], a measure that:
(a) imposes limitations on:
(i) the number of service suppliers, whether in the form of numerical quotas, monopolies, exclusive service suppliers or the requirements of an economic needs test;
(ii) the total value of service transactions or assets in the form of numerical quotas or the requirement of an economic needs test;
(iii) 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; or
(b) restricts or requires specific types of legal entity or joint venture through which a service supplier may supply a service.
Article 9.14. National Treatment
Each Party shall accord to services and service suppliers of the other Party treatment no less favourable than that it accords, in like situations, to its own services and service suppliers.
Article 9.15. Most Favoured Nation Treatment
1. Each Party shall accord to services and service suppliers of the other Party treatment no less favourable than that it accords, in like situations, to services and service suppliers of a third country.
2. Paragraph 1 shall not be construed as obliging a Party to extend to services or service suppliers of the other Party the benefit of any treatment resulting from measures providing for recognition (1), including of the standards or criteria for the authorisation, licencing, or certification of a natural person or enterprise to carry out an economic activity, or of prudential measures as referred to in paragraph 3 of the GATS Annex on Financial Services or Article 5.XX (Financial Services – Recognition).
3. Substantive obligations in other international agreements concluded by a Party with a third country, do not in themselves constitute treatment under this Article. Measures of a Party in relation to those obligations can constitute treatment and thus can give rise to a breach of this Article. (2)
Article 9.16. Local Presence
Neither Party shall require a service supplier of the other Party to establish or maintain a representative office or any form of enterprise, or to be resident, in its territory as a condition for the cross-border supply of a service.
Article 9.17. Non-Conforming Measures
1. Articles 3.2 (Market Access), 3.3 (National Treatment), [3.4 (Most Favoured Nation Treatment)] or 3.5 (Local Presence) shall not apply to:
(a) any existing non-conforming measure that is maintained by a Party at the level of:
(i) for the European Union:
(A) the European Union, as set out in its Schedule to Annex I;
(B) the central government of a Member State of the European Union, as set out in its Schedule to Annex I Annex I;
(C) a regional government of a Member State of the European Union, as set out in its Schedule to Annex I; or
(D) a local government, other than that referred to in subparagraph (C); and
(ii) for Australia:
(A) the central government, as set out in its Schedule to Annex I;
(B) a regional government, as set out in its Schedule to Annex I; or
(C) a local government;
(b) the continuation or prompt renewal of any non-conforming measure referred to in subparagraph (a); or
(c) a modification of any non-conforming measure referred to in subparagraphs (a) and (b) to the extent that the modification does not decrease the conformity of the measure, as it existed immediately before the modification, with Articles 3.2 (Market Access), 3.3 (National Treatment), 3.5 (Local Presence), or [3.4 ( Most Favoured Nation Treatment)].
2. Articles 3.2 (Market Access), 3.3 (National Treatment), [3.4 (Most Favoured Nation Treatment)] or 3.5 (Local Presence) shall not apply to any measure of a Party with respect to sectors, subsectors or activities, as set out in its Schedule to Annex II.
Section D. TEMPORARY ENTRY AND PRESENCE OF NATURAL PERSONS FOR BUSINESS PURPOSES
Article 9.18. Scope
1. This Section applies to measures of a Party affecting:
(a) the temporary entry of a natural person of the other Party into the territory of the Party for business purposes; and
(b) the supply of services through the presence of a natural person of a Party in the territory of the other Party,
if natural persons as referred to in points (a) and (b) of this paragraph fall within the categories defined in Article 9.19 (Definitions).
2. For greater certainty, nothing in this Section affects requirements provided for in the law of a Party regarding work and social security measures, including regulations concerning minimum wages and collective wage agreements.
3. This Section does not apply to measures affecting natural persons of a Party seeking access to the employment market of the other Party or to measures regarding nationality or citizenship, residence or employment on a permanent basis.
4. Nothing in this Agreement shall prevent a Party from applying measures to regulate the temporary entry of natural persons into its territory, including measures necessary to protect the integrity of its borders and to ensure the orderly movement of natural persons across them, provided that such measures are not applied in such a manner as to nullify or impair the benefits (1) accruing to the other Party under this Section.
5. Commitments on the temporary entry of natural persons for business purposes may not apply in individual cases where the intent or effect of the temporary entry is to affect the outcome of any labour or management dispute or negotiation, or the employment of any natural person who is involved in that labour or management dispute.
Article 9.19. Definitions
For the purposes of this Section, the following definitions apply:
(a) "business visitors" means:
(i) for Australia:
(A) natural persons seeking to travel to Australia for business purposes, including for investment purposes, or negotiating the sale of goods, whose remuneration and financial support for the duration of the visit must be derived from sources outside Australia and who must not engage in making direct sales to the general public or in supplying goods or services themselves; and
(B) service sellers being natural persons who are not based in Australia and whose remuneration and financial support for the duration of the visit must be derived from sources outside Australia, and who are sales representatives of a service supplier, seeking entry for the purpose of negotiating for the sale of services or entering into agreements to sell services for that service supplier;
(ii) for the Union, natural persons seeking temporary entry into the Union who:
(A) are not engaged in selling their goods or supplying services to the general public;
(B) do not, on their own behalf, receive remuneration from within the Union; and
(C) are not engaged in the supply of a service in the framework of a contract concluded between a juridical person who is not established in the Union, and a consumer in the Union, except as provided for in Annex 9-E (Business Visitors for Establishment Purposes, Intra-Corporate Transferees and Short-Term Business Visitors);
(b) "business visitors for establishment purposes" means natural persons, working in a senior position within a juridical person of a Party, who:
(i) are responsible for setting up an enterprise of a juridical person of a Party in the territory of the other Party;
(ii) do not offer or provide services to a service consumer of the other Party or engage in any economic activity other than that which is required for the purposes of the establishment of the enterprise referred to in point (i); and
(iii) do not receive remuneration from a source located within the other Party;
(c) "contractual services suppliers" means:
(i) for the Union, natural persons employed by a juridical person of Australia, other than through an agency for placement and supply services of personnel , which is not established in the territory of the Union and has concluded a bona fide contract not exceeding 12 months, to supply services to a service consumer of the Union requiring the temporary presence of its employees (2) who:
(A) have offered such services as employees of the juridical person for a period of not less than one year immediately preceding the date of their application for temporary entry;
(B) possess on the date as referred to in point (A), at least three years of professional experience in the sector of activity that is the object of the contract (3), a bachelor's degree or higher, or a qualification demonstrating knowledge of an equivalent level (4) and the professional qualifications legally required to exercise that activity in the Union; and
(C) do not receive remuneration from a source located within the Union;
(ii) for Australia, natural persons with trade, technical or professional skills and experience who demonstrate they possess the skills, qualifications and employment background necessary to perform the nominated occupation including, where required, by providing the results of a skill assessment by the relevant Australian skills assessing authority and who are:
(A) employees of an enterprise of the Union that have concluded a contract for the supply of a service within the territory of Australia and that do not have a commercial presence within the territory of Australia; or
(B) employees of an enterprise of the Union that are engaged by an enterprise lawfully and actively operating in the territory of Australia in order to supply a service under a contract within the territory of Australia;
(d) "independent professionals of Australia" means natural persons engaged in the supply of a service and established as self-employed in the territory of Australia who:
(i) are not established in the territory of the Union;
(ii) have concluded a bona fide contract (other than through an agency for placement and supply services of personnel) for a period not exceeding 12 months to supply services to a service consumer of the Union, requiring their presence on a temporary basis (5); and
(iii) possess, on the date of their application for temporary entry, the qualifications and experience required to exercise the supply services as referred to in point (ii) in the Union, as specified in Annex 9-F (Contractual Service Suppliers and Independent Professionals);
(e) "installers and servicers of the Union" means natural persons who are installers or servicers of machinery, equipment, or computer software, where such installation or servicing by the supplying enterprise is a condition of purchase under contract of the said machinery, equipment, or computer software, and who must abide by Australian workplace standards and conditions, and who must not perform services which are not related to the service activity which is the subject of the contract;
(f) "intra-corporate transferees" means natural persons, who are employees of a juridical person of a Party that has established an enterprise which is lawfully and actively operating in the other Party, who are transferred to fill a position in that enterprise, and who are:
(i) "executives or senior managers", which means natural persons responsible for the entire or a substantial part of the operations of the enterprise in the other Party, receiving general supervision or direction principally from the board of directors or stockholders of the enterprise (6), and whose responsibilities include:
(A) directing the enterprise or a department or subdivision thereof;
(B) supervising and controlling the work of other supervisory, professional or managerial employees; and
(C) having the authority to establish goals and policies of the department or subdivision of the enterprise, including hiring, dismissing or other personnel-related actions; or
(ii) "specialists", which means:
(A) for Australia, natural persons with advanced trade, technical or professional skills and experience who must be assessed as having the necessary qualifications, or alternative credentials accepted as meeting the domestic standards in Australia, for that occupation, and who must have been employed by the employer for not less than two years immediately preceding the date of the application for entry;
(B) for the Union, natural persons essential to the enterprise's areas of activity, techniques or management, which shall be assessed by taking into account not only knowledge specific to the enterprise, but also whether the person has a high level of qualification, including adequate professional experience, referring to a type of work or activity requiring specific technical knowledge, including possible membership of an accredited profession; or
(iii) for the Union, "trainee employees of Australia", which means natural persons possessing a university degree who are temporarily transferred for career development purposes or to obtain training in business techniques or methods (7) and are paid during the transfer;
(g) "investor" means:
(i) for Australia, a natural person of the Union who is an executive of an enterprise headquartered in the Union that has no other representative office, branch or subsidiary in Australia and who is establishing a branch or subsidiary of that enterprise in Australia, and who will be responsible for the entire or a substantial part of the enterprise's operations in Australia, receiving general supervision or direction principally from higher level executives, the board of directors or stockholders of the enterprise, including:
(A) directing the enterprise or a department or subdivision thereof;
(B) supervising and controlling the work of other supervisory, professional or managerial employees; and
(C) having the authority to establish goals and policies of the department or subdivision of the enterprise;
(ii) for the Union, a natural person who establishes an enterprise, and develops or administers the operation of that enterprise in the other Party in a capacity that is supervisory or executive, and to which that natural person or the juridical person employing that natural person has committed, or is in the process of committing, a substantial amount of capital.
Article 9.20. General Obligations
A Party shall allow temporary entry to natural persons of the other Party for business purposes in accordance with this Section and Annex 9-E (Business visitors for establishment purposes, intra-corporate transferees and short-term business visitors) and Annex 9-F (Contractual service suppliers and independent professionals) who comply with its immigration measures, application procedures and any other eligibility requirements or conditions applicable to temporary entry.
Article 9.21. Intra-corporate Transferees, Investors and Business Visitors for Establishment Purposes
1. Each Party shall allow temporary entry to business visitors for establishment purposes, investors and intra-corporate transferees of the other Party in accordance with its commitments set out in Annex 9-E (Business visitors for establishment purposes, intra-corporate transferees and short-term business visitors). (8)
2. Unless otherwise specified in Annex 9-E (Business visitors for establishment purposes, intra-corporate transferees and short-term business visitors), a Party shall not adopt or maintain limitations in the form of numerical quotas or economic needs tests, either on the basis of a territorial subdivision or on the basis of its entire territory, on the total number of natural persons granted temporary entry in accordance with paragraph 1 in a specific sector.
Article 9.22. Business Visitors and Installers and Servicers
1. Each Party shall allow temporary entry to business visitors and installers and servicers of the other Party in accordance with its commitments set out in Annex 9-E (Business visitors for establishment purposes, intra-corporate transferees and short-term business visitors).
2. Unless otherwise specified in Annex 9-E (Business visitors for establishment purposes, intra-corporate transferees and short-term business visitors), a Party shall allow temporary entry of business visitors without the requirement of a work permit or economic needs test.
Article 9.23. Contractual Service Suppliers
1. Each Party shall allow temporary entry to contractual service suppliers of the other Party in accordance with its commitments set out in Annex 9-F (Contractual services suppliers and independent professionals).