(ii) the selling and marketing of air transport services;
(iii) CRS services;
(iv) ground handling services;
(v) airport operation services.
Article 93. Market Access
1. With respect to market access through the cross-border supply of services, each Party shall accord services and service suppliers of the other Party treatment no less favourable than that provided for in the specific commitments contained in Annexes XVI-B and XVI-E to this Agreement.
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 XVI-B and XVI-E to this Agreement, 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;
(c) limitations on the total number of service operations or on the total quantity of service output expressed in the terms of designated numerical units in the form of quotas or the requirement of an economic needs test.
Article 94. National Treatment
1. In the sectors where market access commitments are inscribed in Annexes XVI-B and XVI-E to this Agreement, and subject to any conditions and qualifications set out therein, each Party shall grant to services and service suppliers of the other Party, in respect of all measures affecting the cross-border supply of services, treatment no less favourable than that it accords to its own like service and services suppliers.
2. A Party may meet the requirement of paragraph 1 of this Article by according to services and service suppliers of the other Party either formally identical treatment or formally different treatment to that it accords to its own like services and service suppliers.
3. Formally identical or formally different treatment shall be considered to be less favourable if it modifies the conditions of competition in favour of services or service suppliers of the Party compared to like services or service suppliers of the other Party.
4. Specific commitments assumed under this Article shall not be construed in such a way as to require any Party to compensate for inherent competitive disadvantages which result from the foreign character of the relevant services or services suppliers.
Article 95. Lists of Commitments
1. The sectors liberalised by each of the Parties pursuant to this Chapter and, by means of reservations, the market access and national treatment limitations applicable to services and services suppliers of the other Party in those sectors are set out in lists of commitments contained in Annexes XVI-B and XVI-E to this Agreement.
2. Without prejudice to the Parties' rights and obligations as they exist or may arise under the Council of Europe's Convention on Transfrontier Television of 1989 and European Convention on Cinematographic Co-Production of 1992, lists of commitments in Annexes XVI-B and XVI-E to this Agreement do not include commitments on audio-visual services.
Article 96. Review
With a view to progressive liberalisation of the cross-border supply of services between the Parties, the Trade Committee shall regularly review the lists of commitments referred to in Article 95 of this Agreement. This review shall take into account the level of advancement as regards the transposition, implementation and enforcement of the EU acquis referred to in Annex XVII to this Agreement and resultant impact on the elimination of remaining obstacles to cross-border supply of services between the Parties.
Section 4. Temporary Presence of Natural Persons for Business Purposes
Article 97. Scope
This Section applies to measures of the Parties concerning the entry into and temporary stay (1) in their territory of categories of natural persons providing services as defined in Article 86 (17) to (21) of this Agreement.
Article 98. Key Personnel
1. A legal person of the EU Party or a legal person of Ukraine shall be entitled to employ, or have employed by one of its subsidiaries, branches and representative offices established in the territory of Ukraine or of the EU Party respectively, in accordance with the legis- lation in force in the host country of establishment, employees who are nationals of the Member States of the European Union and of Ukraine respectively, provided that such employees are key personnel as defined in Article 86 of this Agreement who are employed exclusively by legal persons, subsidiaries, branches and representative offices. The residence and work permits of such employees shall only cover the period of such employment. The entry and temporary stay of such employees shall be for a period of up to three years.
2. The entry into and temporary presence within the territory of the EU Party or Ukraine of natural persons of Ukraine and of the EU Party respectively shall be permitted, when these natural persons are representatives of legal persons and are business visitors within the meaning of Article 86(17)(a) of this Agreement. Notwithstanding paragraph 1 of this Article, the entry and temporary stay of business visitors shall be for a period of up to 90 days in any 12-month period.
Article 99. Graduate Trainees
A legal person of the EU Party or a legal person of Ukraine shall be entitled to employ, or have employed by one of its subsidiaries, branches and representative offices established in the territory of Ukraine or of the EU Party respectively, in accordance with the legis- lation in force in the host country of establishment, graduate trainees who are nationals of the Member States of the European Union and of Ukraine respectively, provided that they are employed exclusively by legal persons, subsidiaries, branches and representative offices. The temporary entry and stay of graduate trainees shall be for a period of up to one year.
Article 100. Business Services Sellers
Each Party shall allow the temporary entry and stay of business services sellers for a period of up to 90 days in any 12-month period.
Article 101. Contractual Services Suppliers
1. The Parties reaffirm their respective obligations arising from their commitments under the General Agreement on Trade in Services of 1994 (hereinafter referred to as "GATS") as regards the entry and temporary stay of contractual services suppliers.
2. For every sector listed below, each Party shall allow the supply of services in their territory by contractual services suppliers of the other Party, subject to the conditions specified in paragraph 3 of this Article and in Annexes XVI-C and XVI-F to this Agreement on reservations on contractual service suppliers and independent professionals:
(a) Legal services
(b) Accounting and bookkeeping services
(c) Taxation advisory services
(d) Architectural services, urban planning and landscape architectural services
(e) Engineering services, integrated engineering services
(f) Computer and related services
(g) Research and development services
(h) Advertising
(i) Management consulting services
(j) Services related to management consulting
(k) Technical testing and analysis services
(l) Related scientific and technical consulting services
(m) Maintenance and repair of equipment in the context of an after-sales or after-lease services contract
(n) Translation services
(o) Site investigation work
(p) Environmental services
(q) Travel agencies and tour operator services
(r) Entertainment services
3. The commitments undertaken by the Parties are subject to the following conditions:
(a) The natural persons must be engaged in the supply of a service on a temporary basis as employees of a juridical person, which has obtained a service contract not exceeding twelve months;
(b) The natural persons entering the other Party should be offering such services as employees of the juridical person supplying the services for at least the year immediately preceding the date of submission of an application for entry into the other Party. In addition, the natural persons must possess, at the date of submission of an application for entry into the other Party, at least three years professional experience (1) in the sector of activity which is the subject of the contract;
(c) The natural persons entering the other Party must possess:
(i) a university degree or a qualification demonstrating knowledge of an equivalent level (2); and
(ii) professional qualifications where this is required to exercise an activity pursuant to the laws, regulations or legal requirements of the Party where the service is supplied.
(d) The natural person shall not receive remuneration for the provision of services in the territory of the other Party other than the remuneration paid by the legal person employing the natural person;
(e) The entry and temporary stay of natural persons within the Party concerned shall be for a cumulative period of not more than six months or, in the case of Luxembourg, twenty-five weeks in any twelve month period or for the duration of the contract, whichever is less;
(f) Access accorded under the provisions of this Article relates only to the service activity which is the subject of the contract and does not confer entitlement to exercise the professional title of the Party where the service is provided;
(g) The number of persons covered by the service contract shall not be larger than necessary to fulfil the contract, as it may be requested by the laws, regulations or other legal requirements of the Party where the service is supplied;
(4) Other discriminatory limitations, including on the number of natural persons in the form of economic needs tests, as specified in Annexes XVI-C and XVI-F to this Agreement on reservations on contractual service suppliers and independent professionals.
Article 102. Independent Professionals
1. The Parties reaffirm their respective obligations arising from their commitments under the GATS as regards the entry and temporary stay of independent professionals.
2. For every sector listed below, the Parties shall allow the supply of services in their territory by independent professionals of the other Party, subject to the conditions specified in paragraph 3 of this Article and in Annexes XVI-C and XVI-F to this Agreement on reservations on contractual service suppliers and independent professionals.
(a) Legal services
(b) Architectural services, urban planning and landscape architecture
(c) Engineering and integrated engineering services
(d) Computer and related services
(e) Management consulting services and services related to management consulting
(f) Translation services
3. The commitments undertaken by the Parties are subject to the following conditions:
(a) The natural persons must be engaged in the supply of a service on a temporary basis as self-employed persons established in the other Party and must have obtained a service contract for a period not exceeding 12 months;
(b) The natural persons entering the other Party must possess, at the date of submission of an application for entry into the other Party, at least six years professional experience in the sector of activity which is the subject of the contract;
(c) The natural persons entering the other Party must possess:
(i) a university degree or a qualification demonstrating knowledge of an equivalent level (1); and
(ii) professional qualifications where this is required to exercise an activity pursuant to the law, regulations or other legal requirements of the Party where the service is supplied.
(d) The entry and temporary stay of natural persons within the Party concerned shall be for a cumulative period of not more than six months or, in the case of Luxembourg, 25 weeks in any twelve- month period or for the duration of the contract, whichever is less.
(e) Access accorded under the provisions of this Article relates only to the service activity which is the subject of the contract; it does not confer entitlement to use the professional title of the Party where the service is provided.;
(f) Other discriminatory limitations, including on the number of natural persons in the form of economic needs tests, which are specified in Annexes XVI-C and XVI-F to this Agreement on reservations on contractual service suppliers and independent professionals.
Section 5. Regulatory Framework
Subsection 1. Domestic Regulation
Article 103. Scope and Definitions
1. The following disciplines apply to measures by the Parties relating to licensing that affect:
(a) cross-border supply of services;
(b) establishment in their territory of legal and natural persons defined in Article 86 of this Agreement; or
(c) temporary stay in their territory of categories of natural persons defined in Article 86(17) to (21) of this Agreement.
2. In the case of cross-border supply of services, these disciplines shall only apply to sectors for which the Party has undertaken specific commitments and to the extent that these specific commitments apply. In the case of establishment, these disciplines shall not apply to sectors to the extent that a reservation is listed in accordance with Annexes XVI-A and XVI-D to this Agreement. In the case of temporary stay of natural persons, these disciplines shall not apply to sectors for which a reservation is listed in accordance with Annexes XVI-C and XVI-F to this Agreement.
3. These disciplines do not apply to measures to the extent that they constitute limitations subject to scheduling under Articles 88, 93 and 94 of this Agreement.
4. For the purposes of this Section:
(a) "Licensing" means the process through which a service supplier or an investor is in effect required to take steps in order to obtain from a competent authority a decision concerning the authorisation to supply a service, including through establishment, or concerning the authorisation to establish in an economic activity other than services, including a decision to amend or renew such authorisation.
(b) "Competent authority" means any central, regional or local government and authority or non-governmental body in the exercise of powers delegated by central or regional or local governments or authorities, which takes a decision conceming licensing.
(c) "Licensing procedures" shall mean the procedures to be followed as a part of licensing.
Article 104. Conditions for Licensing
1. Licensing shall be based on criteria which preclude the competent authorities from exercising their power of assessment in an arbitrary manner.
2. The criteria referred to in paragraph 1 of this Article shall be:
(a) proportionate to a legitimate public policy objective;
(b) clear and unambiguous;
(c) objective;
(d) pre-established;
(e) made public in advance;
(f) transparent and accessible.
3. A licence shall be granted as soon as it is established, in the light of an appropriate examination, that the conditions for obtaining a licence have been met.
4. Article 286 of this Agreement shall apply to provisions of this Chapter.
5. Where the number of licences available for a given activity is limited because of the scarcity of available natural resources or technical capacity, the Parties shall apply a selection procedure to potential candidates which provides full guarantees of impartiality and transparency, including, in particular, adequate publicity about the launch, conduct and completion of the procedure.
6. Subject to the provisions specified by this Article, in establishing the rules for the selection procedure, the Parties may take into account legitimate public policy objectives, including considerations of health, safety, the protection of the environment and preservation of cultural heritage.
Article 105. Licensing Procedures
1. Licensing procedures and formalities shall be clear, made public in advance and be such as to provide the applicants with a guarantee that their application will be dealt with objectively and impartially.
2. Licensing procedures and formalities shall be as simple as possible and shall not unduly complicate or delay the provision of the service. Any licensing fees (1) which the applicants may incur as a result of their application shall be reasonable and proportionate to the cost of the licensing procedures in question.
3. Licensing procedures and formalities shall provide applicants with a guarantee that their application will be processed within a reasonable period which is made public in advance. The period shall run only from the time when all documentation has been received by the competent authorities. When justified by the complexity of the issue, the time period may be extended, by the competent authority, for a reasonable time. The extension and its duration shall be duly motivated and shall be notified to the applicant before the original period has expired.
4. In the case of an incomplete application, the applicant shall be informed as quickly as possible of the need to supply any additional documentation. In this case, the period referred to in paragraph 3 of this Article may be suspended by the competent authorities, until all documentation has been received by the competent authorities.
5. If an application for a licence is rejected, the applicant should be informed without undue delay. In principle, the applicant shall, upon request, be informed of the reasons for rejection of the application and of the timeframe for an appeal against the decision.
Subsection 2. Provisions of General Application
Article 106. Mutual Recognition
1. Nothing in this Chapter shall prevent a Party from requiring that natural persons must possess the necessary qualifications and/or professional experience specified in the territory where the service is supplied, for the sector of activity concerned.
2. The Parties shall encourage the relevant professional bodies in their respective territories to provide recommendations on mutual recog- nition to the Trade Committee, for the purpose of fulfilment, in whole or in part, by investors and service suppliers of the criteria applied by each Party for the authorisation, licensing, operation and certification of investors and service suppliers and, in particular, professional services.
3. On receipt of a recommendation as referred to in paragraph 2 of this Article, the Trade Committee shall, within a reasonable time, review the recommendation with a view to determining whether it is consistent with this Agreement.
4. When, in conformity with the procedure set out in paragraph 3 of this Article, a recommendation as referred to in paragraph 2 of this Article has been found to be consistent with this Agreement and there is a sufficient level of correspondence between the relevant regulations of the Parties, the Parties shall, with a view to implementing that recommendation, negotiate, through their competent authorities, an agreement on the mutual recognition of requirements, qualifications, licences and other regulations.
5. Any such agreement shall be in conformity with the relevant provisions of the WTO Agreement and, in particular, Article VII of the GATS.
Article 107. Transparency and Disclosure of Confidential Information
1. Each Party shall respond promptly to all requests by the other Party for specific information on any of its measures of general application or international agreements which pertain to or affect this Agreement. Each Party shall also establish one or more enquiry points to provide specific information to investors and services suppliers of the other Party, upon request, on all such matters. The Parties shall notify each other of their enquiry points within three months of entry into force of this Agreement. Enquiry points need not be depositories of laws and regulations.
2. Nothing in this Agreement shall require any Party to provide confidential information, the disclosure of which would impede law enforcement, or otherwise be contrary to the public interest or which would prejudice legitimate commercial interests of particular enterprises, whether public or private.
Subsection 3. Computer Services
Article 108. Understanding on Computer Services
1. To the extent that trade in computer services is liberalised in accordance with Sections 2, 3 and 4 of this Chapter and taking into account the fact that computer and related services enable the provision of other services by both electronic and other means, the Parties shall distinguish between an enabling service and the content or core services that is being delivered electronically in such a way that the content or core service is not classified as a computer and related service, as defined in paragraph 2 of this Article.
2. Computer and related services shall mean services defined in the United Nations Code CPC 84 including both basic services and functions or combinations of basic services, regardless of whether they are delivered via a network, including the Internet.
Basie services are all services that provide:
(a) consulting, strategy, analysis, planning, specification, design, devel- opment, installation, implementation, integration, testing, debugging, updating, support, technical assistance, or management of or for computers or computer systems; or
(b) computer programs defined as the set of instructions required to make computers work and communicate (in and of themselves), plus consulting, strategy, analysis, planning, specification, design, development, installation, implementation, integration, testing, debugging, updating, adaptation, maintenance, support, technical assistance, and management or use of or for computer programs; or
(c) data processing, data storage, data hosting or database services; or
(d) maintenance and repair services for office machinery and equipment, including computers; or
(e) training services for staff of clients, related to computer programs, computers or computer systems, and not elsewhere classified.
Subsection 4. Postal and Courier Services
Article 109. Scope and Definitions
1. This Sub-section sets out the principles of the regulatory framework for all postal and courier services liberalised in accordance with Sections 2, 3 and 4 of this Chapter.
2. For the purpose of this Sub-section and of Sections 2, 3 and 4 of this Chapter:
(a) a "licence" means an authorisation, granted to an individual supplier by a regulatory authority, which is required before carrying out the activity of supplying a given service;
(b) "universal service" means the permanent provision of a postal service of specified quality at all points in the territory of a Party at affordable prices for all users.
Article 110. Prevention of Anti-competitive Practices In the Postal and Courier Sector
Appropriate measures shall be maintained or introduced for the purpose of preventing suppliers who, alone or together, have the ability to affect materially the terms of participation (having regard to price and supply) in the relevant market for postal and courier services as a result of use of their position in the market, from engaging in or continuing anti-competitive practices.
Article 111. Universal Service
Any Party has the right to define the kind of universal service obligation it wishes to maintain. Such obligations will not be regarded as anti-competitive per se, provided they are administered in a transparent, non-discriminatory and competitively neutral manner and are not more burdensome than necessary for the kind of universal service defined by the Party.