Germany - Italy FCN (1957) - Electronic Database of Investment Treaties (EDIT)

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Germany - Italy FCN (1957)

Title

Treaty of Friendship, Commerce and Navigation between the Italian Republic and the Federal Republic of Germany

Preamble

THE PRESIDENT OF THE ITALIAN REPUBLIC

and

THE PRESIDENT OF THE FEDERAL REPUBLIC OF GERMANY

ANIMATED BY THE COMMON DESIRE to make the friendship between their States increasingly operative and to promote economic exchanges by giving them the freest possible form, have decided to conclude a Treaty of Friendship, Commerce and Navigation based, in general, on the principle of reciprocal national treatment.

decided to conclude a Treaty of Friendship, Commerce and Navigation based, in general, on the principle of reciprocal national treatment and on that of most-favoured-nation treatment applied unconditionally.

To this end, they have designated as their Plenipotentiaries

The President of the Italian Republic:

the Hon. Prof. Giuseppe Pella,

Vice-President of the Council of Ministers,

Minister for Foreign Affairs,

the President of the Federal Republic of Germany:

Dr. Heinrich von Brentano,

Federal Minister for Foreign Affairs,

who, having exchanged their full powers, found in good and due form, have agreed upon the following articles:

Body

Article 1.

1. Each Contracting Party shall accord to the nationals and companies of the other Party, their assets, their enterprises and all their other interests fair and equitable treatment at all times.

2. Within the limits of the provisions of this Treaty, freedom of trade and navigation shall be accorded between the territories of the two Contracting Parties.

Article 2.

1. The nationals of each Contracting Party may enter, stay, settle, travel and transit through the territory of the other Contracting Party, subject to the relevant rules of law, except where considerations of public policy, public security, public health or morality preclude this. Such nationals may also at any time leave the territory of the other Party, unless there are criminal offences.

2. Nationals of each Contracting Party who are lawfully residing in the territory of the other Contracting Party may be expelled only if this is necessary for reasons of State security, public safety, public order or morality. After a lawful stay of at least five years, expulsion shall be permissible only on grounds of State security or if the other reasons mentioned above are particularly serious.

3. A decision to refuse entry into or residence in the territory of one of the Contracting Parties shall be subject to the remedies provided for by the laws of that Party. Nationals of each Contracting Party who are lawfully residing in the territory of the other Contracting Party may not be expelled until they have been given an opportunity to put forward any grounds which they may have for refusing them leave to enter or reside in the territory of the other Contracting Party, to appeal and to be represented to that end by a competent authority.

4. The two Contracting Parties shall grant every possible facility for the travel of tourists and other visitors in respect of their entry, stay and departure and for the distribution of tourist information material.

Article 3.

1. The citizens of each Contracting Party shall be guaranteed full freedom of thought, conscience, religion, assembly, association and public worship in the territory of the other Party in accordance with the provisions of the Constitution of that Party.

Subject to their general laws, the nationals of each Contracting Party may freely engage, including in the form of a society, in any religious, scientific, charitable, educational, cultural, recreational, sporting or social activity and shall be entitled, as shall such societies, to enter into legal transactions, for the purpose of the aforesaid activities as well as in funerary matters, with any natural person or society having its residence, seat or abode in the territory of the other Contracting Party. This applies in particular to the right to enter into contracts, to assume obligations, to hold movable and immovable property, rights and interests of all kinds, to acquire such property by living persons or by reason of death and to dispose of or otherwise dispose of it.

Nothing in this paragraph shall be construed as granting or impliedly granting any right to engage in political activity in the territory of the other Contracting Party.

2. The two Contracting Parties recognise the principles of freedom of the press and free exchange of information.

Subject to their general laws, the citizens of each Contracting Party may collect information in the territory of the other Contracting Party for public dissemination; may freely transmit such material for publication abroad by means of the press, radio, television, film and other media; may freely use public information transmission services for the exchange of information with other persons within and outside that territory.

3. The provisions of this Article shall not affect the legal provisions of either Contracting Party concerning the maintenance of public security, public order or the protection of morals and public health.

Article 4.

1. The nationals of each Contracting Party shall enjoy protection and security in the territory of the other Contracting Party. The legal system of the other Contracting Party shall not place them in a less favourable situation with respect to the protection of their person than that existing in similar cases for nationals of the other Contracting Party. In application of this principle, the two Contracting Parties undertake not to enact any rules containing restrictions, encumbrances or particular burdens on nationals of the other Contracting Party. In no case shall their treatment be less favourable than that corresponding to the principles of international law in force in the matter.

2. In the event of measures taken by the authorities of one of the Contracting Parties restricting the personal liberty of a national of the other Party, the national in question shall within 48 hours be placed at the disposal of the court, which shall question him promptly and contest the charges against him. The arrested citizen has the right to request that the competent court take a decision without delay regarding the legality and continuation of the arrest. He also has the right to request that his case be decided within an appropriate period of time in which he must be allowed sufficient time to prepare his defence, and to have the assistance of a lawyer whom he trusts, or of his own motion if he does not make such an appointment but the law nevertheless requires the presence of a lawyer. All procedural activities must be carried out with the assistance of an interpreter, if necessary. In any case, an interpreter shall always be present if the defendant so requests, including when questioning the police.

3. As soon as a national of one of the Contracting Parties has been arrested by authorities of the other Contracting Party, the next consular representative of the country of which the arrested person is a national shall be informed of the arrest without delay. The consular representative shall have the right to visit the arrested person whenever he considers it necessary, and to keep in touch with him by correspondence. Such visits and correspondence shall take place within the framework of the regulations in force for the establishment where the said citizen is detained. The two Contracting Parties agree, however, that such regulations shall provide the consular representative with adequate opportunities for access to and consultation with the arrested person.

Article 5.

1. The nationals of each Contracting Party shall not be obliged to perform military service to the other Party, nor shall they be compelled to join armed or militarised formations organised by that Party within or outside its territory.

2. Nationals of each Party shall be exempt in the territory of the other Party from any obligation relating to public personal services, except for general civil services provided for the protection of the civilian population, including protection against natural disasters. The exemption shall also extend to compulsory contributions which are required in lieu of personal service benefits.

3. The nationals of each Contracting Party shall be accorded in the territory of the other Contracting Party the same treatment as that accorded to nationals in respect of their obligations to provide public benefits such as requisitions, temporary occupations and similar obligations. They shall be entitled to all the guarantees and remedies to which nationals are entitled, as well as to such indemnities as may be provided by law.

4. The nationals of each Contracting Party shall be entitled in the territory of the other Contracting Party to all benefits from public funds made available for this purpose which are granted to nationals in cases of natural disasters and the like.

5. The provisions of paragraphs 2, 3 and 4 shall apply correspondingly to companies.

Article 6.

1. The assets of nationals and companies of each Contracting Party shall enjoy protection and security in the territory of the other Party.

2. Such property shall enjoy protection not less than that afforded to the property of nationals by the laws of the other Contracting Party. This shall also apply to acts of public authority, searches, inspections and any other action; such acts shall, moreover, be carried out in the manner least burdensome to the persons concerned.

3. The two Contracting Parties undertake not to enact any rules or take any particular measures against nationals and companies of the other Party which render their treatment worse as regards their participation in other economic undertakings, whether by way of contribution of money or by any other contribution permitted by law.

4. The property of nationals and companies of each Party may be expropriated in the territory of the other Party only in the public interest and against adequate compensation. The compensation shall correspond to the value of the expropriated property, be effectively realisable and be paid without unnecessary delay. At the latest at the time of expropriation, appropriate provision shall be made for the determination and payment of the compensation. The legality of the expropriation and the amount of compensation must be able to be examined in a normal legal process. Nationals and companies of each Contracting Party may claim the same rights in connection with the expropriation of property in the territory of the other Contracting Party in which they participate directly or indirectly.

5. In respect of matters covered by paragraphs 2 and 4, nationals of each Contracting Party shall enjoy in the territory of the other Contracting Party most-favoured-nation treatment.

Article 7.

The nationals and companies of each Contracting Party shall enjoy in the territory of the other Contracting Party the same treatment as nationals with regard to access to all courts, tribunals and administrative organs and to all public offices for the protection of their rights and interests.

Article 8.

1. Nationals of each Contracting Party shall, in the territory of the other Contracting Party, enjoy national treatment as regards access to economic or professional activities of any kind and as regards the pursuit of such activities. The same applies to companies and firms.

2. Nationals and companies of each Contracting Party shall have the right to establish companies in the territory of the other Contracting Party, to participate in their establishment or to acquire interests in companies of the other Contracting Party, in accordance with the laws applicable to nationals and companies of the other Contracting Party. Such nationals shall have the right to exercise activities in the management and administration of such companies, in particular as members of the Board of Directors or the Board of Managers.

3. In the territory of one Contracting Party, enterprises shall not be treated less favourably than other enterprises because they are owned or controlled by nationals or companies of the other Contracting Party.

4. The provisions of paragraphs 1 to 3 shall not apply to professions or activities to the exercise of which foreign nationals or foreign companies or firms are not admitted or are admitted only with limitations. However, nationals of one of the Contracting Parties shall be admitted in the territory of the other Contracting Party to the exercise of professions or activities referred to in paragraph 8 of the Protocol according to the provisions applicable to nationals.

5. The provisions of paragraphs 1 to 3 shall not preclude

(a) subjecting companies, the legal form of which differs from the forms of companies allowed by the domestic laws, to the treatment provided for by those laws as regards obligations concerning the registration of company documents in the commercial register, the liability of directors and the disclosure of financial statements;

(b) to require that, as regards share capital and accounts, companies comply with requirements corresponding to those required of national companies of the same legal form; if the companies fulfil these conditions, the authorisation to carry on business which may be required of foreign companies shall be granted.

6. Legal restrictions which may be introduced in the future for foreign nationals and foreign companies shall not apply to an activity already lawfully pursued at the time when these restrictions come into force.

7. Nationals and companies of each Contracting Party as well as enterprises owned or controlled by them shall enjoy in the territory of the other Contracting Party most-favoured-nation treatment in all matters dealt with in this Article.

Article 9.

1. Notwithstanding the provisions of paragraph 1 and the second sentence of paragraph 4 of Article 8, the admission of nationals of each Contracting Party to engage in work as service providers in the territory of the other Contracting Party shall be governed, subject to the following provisions, by the laws and regulations of each Contracting Party relating to foreign service providers.

2. Nationals of each Contracting Party who are lawfully resident in the territory of the other Contracting Party and who are lawfully employed there as workers for at least five years continuously or periodically at intervals not exceeding nine months, or who can prove lawful residence for at least ten years without interruption, shall be issued, on request, with a document whereby they shall not be subject for an unlimited period to any territorial restrictions and, subject to the provisions of Article 8 (4), to any occupational restrictions as regards the exercise of salaried employment. The two Contracting Parties shall endeavour to reduce the above time limits further.

3. On request, the document may also be issued before the expiry of the time limits laid down in paragraph 2 if the application of the laws and regulations of the country of stay relating to foreign service providers and the application of the provisions laid down in paragraph 2 result in particular hardship for the service provider.

4. Managers of an enterprise who are lawfully resident in the territory of the other Contracting Party shall, on application, be granted permission to engage in the activities of a manager without any territorial, temporal or occupational restriction, subject to the provisions of Article 8, paragraph 4:

(a) those who are authorised to represent the enterprise legally;

(b) persons to whom a special or general power of attorney has been issued

5. Nationals of each Contracting Party who are lawfully resident in the territory of the other Contracting Party and who commence or pursue an activity as an employee of companies operating within the scope of Article 3, paragraph 1, shall, upon application, be granted, without prejudice to the greater right under paragraph 2 of this Article 9, permission to engage in such activity.

6. For the spouse and children of a service provider holding the document referred to in paragraph 2, the minimum period of residence required for the issue of a similar document shall be reduced from ten years to five years, unless the document can be issued before the expiry of that period under the provisions of paragraph 3. The two Contracting Parties assure that they shall examine with particular benevolence applications from such family members requesting the application of the provisions of paragraph 3.

7. Residence within the meaning of the foregoing provisions shall not be deemed to be interrupted where the persons mentioned in paragraphs 2 and 6 have left the country of residence solely on account of holidays, illness or other reasons of a temporary nature.

8. Nationals of each Contracting Party who are lawfully summoned to the territory of the other Contracting Party as teachers, aids or assistants at universities or colleges of higher education shall be granted permission to engage in such activities.

Article 10.

1. Nationals and companies of a Contracting Party carrying on business in its territory, as well as their travelling salesmen, shall be entitled to make purchases in the territory of the other Contracting Party for their trade, industry or other activities and to solicit orders for goods from nationals and companies in the course of their business. They may bring with them samples and models but not goods.

2. The exercise of the rights governed by paragraph 1 may be made conditional on the operators holding the legitimation card issued by the home authorities in accordance with the standard card introduced by the International Convention on the simplification of customs formalities signed at Geneva on 3 November 1923. This identity card will not require a consular or other visa.

3. However, this shall be without prejudice to any greater advantage derived from the most-favoured-nation treatment which the two Contracting Parties hereby agree to accord each other in respect of the matters referred to in paragraphs 1 and 2.

Article 11.

1. The nationals and companies of each Contracting Party may, in the territory of the other Contracting Party, freely avail themselves of the services of self-employed persons and employ workers on an equal basis with nationals.

2. For internal purposes within their own enterprises and the enterprises in which they participate, and particularly for carrying out controls, audits and technical examinations, they may employ economic and technical experts of their own country, even if such experts do not possess the qualifications required in the territory of the other Contracting Party for taking up and exercising such activities. In each case, however, the assignment must be of limited duration and the task must be clearly defined.

Article 12.

1. Nationals and companies of each Contracting Party shall be accorded in the territory of the other Contracting Party the treatment of nationals for the conclusion of legal transactions of all kinds with any natural person or company having its residence, seat or domicile in the territory of the other Contracting Party.

2. This applies in particular to the right to enter into contracts, to assume obligations, to hold movable and immovable property, rights and interests of all kinds, to acquire them by deed between living persons or by reason of death and to dispose of or otherwise dispose of them.

Article 13.

The Contracting Parties undertake to co-operate in increasing the exchange and use of scientific and technical knowledge with a view, above all, to increasing productivity and raising the standard of living in their territories.

Article 14.

1. The nationals and companies of each Contracting Party shall not be subjected in the territory of the other Party to taxes, duties, contributions or any other fiscal burden on their persons, property, rights and interests levied by or on behalf of the State, regional and local authorities, which are different from or higher than those levied on nationals and companies of the other Party in identical situations, or on nationals and companies of any third country.

Article 15.

1. Payment relationships shall be settled in accordance with the rights and obligations of both Contracting Parties arising from their membership in International Economic Organisations and from multilateral agreements on the settlement of payment relationships concluded within such Organisations.

2. The other Articles of this Treaty shall not prevent either Contracting Party from applying the limitations provided for under its legislation falling within the scope of the provisions referred to in paragraph 1. Each Contracting Party shall apply such limitations in the most liberal manner and shall endeavour to remove or relax such limitations to the extent that its economic, financial and currency situation permits.

3. Each Contracting Party shall afford to nationals and companies of the other Party adequate opportunities for the transfer of investment capital and income. The same principle shall apply to compensation referred to in Article 5(3) and Article 6(4), which shall be paid after the entry into force of this Treaty.

Article 16.

1. Trade shall be governed by the rights and obligations of both Contracting Parties under relevant multilateral agreements to which the Parties are parties, to the extent that such trade is not governed by this Treaty or other bilateral agreements between the Parties.

2. The provisions contained in this Treaty which relate to matters governed also by the above-mentioned Multilateral Agreements shall be valid under the same conditions as those laid down for the application of the said Multilateral Agreements.

Article 17.

Each Contracting Party shall accord immediately and unconditionally to products originating in or destined for the other Party all advantages, favours, privileges and immunities which it accords or will accord in the future to like products originating in or destined for any other country. This applies to the amount, security and collection of duties and charges of any kind payable on or in connection with importation or exportation, as well as charges due on the transfer of funds made in payment for imports or exports, all customs regulations and formalities relating to the importation, exportation, transit, warehousing, temporary importation or exportation, re-exportation or re-importation of goods, irrespective of the mode or means of transport used.

Article 18.

1. No certificate of origin shall, as a general rule, be required for imports of products of either Contracting Party into the territory of the other Party.

2. Where the production of such certificates is considered to be strictly necessary, the two Contracting Parties shall not subject the issue of such certificates to any unnecessary formalities which would constitute an obstacle to trade. Except in cases of suspected abuse, such certificates shall be exempt from consular visa requirements.

3. When products of third countries are imported through the territory of one of the Contracting Parties into the territory of the other Contracting Party, the customs authorities of the latter Party shall also accept the certificates of origin issued by the customs authorities of the other Party, provided that the said certificates indicate that the products remained under customs supervision during transit.

4. For the purpose of determining the origin of imported products, the provisions of the importing country shall apply.

Article 19.

1. Laws, regulations and decisions of general application which relate to the classification of goods for customs purposes, to duty, taxes or other charges, to restrictions or prohibitions on imports or exports or to the transfer of payments therefor, or which relate to the sale, distribution, transport, insurance, storage, inspection, exhibition, processing, mixing or any other use of the products, shall be published by each Contracting Party as soon as possible to enable the other Party and merchants to acquaint themselves therewith. New, more onerous measures of a general nature shall not, however, be applied before their official publication. The laws, regulations and decisions referred to in this paragraph shall be applied uniformly, impartially and fairly.

2. Each Party shall afford to importers of products of the other Party an opportunity for prompt and impartial review and judicial review of administrative measures relating to customs matters with a view to their possible revision and correction. This shall apply particularly to decisions of the Customs Authorities concerning the classification of goods and the determination of the taxable value.

3. Severe penalties shall not be imposed for minor breaches of customs law or procedure, particularly where these relate to omissions or bona fide errors made in documentation presented to customs.

4. Each Contracting Party undertakes to take all the necessary steps to effectively protect geographical designations of origin and designations of certain products indicating directly or indirectly their origin from one of the Contracting Parties against unfair competition in trade transactions. The two Contracting Parties shall also conclude an agreement on this matter.

Article 20.

Subject to re-exportation or re-importation within a specified time limit and to proof of identity, and subject to the necessary guarantees and control measures, the following shall be admitted by each Contracting Party to temporary importation and exportation free of all entry or exit duties

(a) articles imported from the territory of one of the Contracting Parties into the territory of the other Contracting Party to be repaired and re-exported there after repair;

(b) outer or inner receptacles normally used in trade which, in accordance with recognised commercial usage, and provided that they are not invoiced for permanent transfer, are imported empty to be filled and re-exported or imported full to be emptied and re-exported empty or filled;

(c) tools, implements and mechanical appliances imported by a firm of one of the Contracting Parties into the territory of the other Party for the purpose of assembly, testing, repair or other similar work by its own personnel, whether such articles are dispatched or brought in by its own personnel;

(d) machines, apparatus and parts thereof, consigned from the territory of one of the Contracting Parties for testing in the territory of the other Party under the conditions laid down by the latter;

(e) products of all kinds destined for international exhibitions and fairs recognised by the Government of the country in which they are held.

Article 21.

1. Where either Contracting Party makes the treatment of imported goods dependent on special conditions concerning composition, degree of purity, quality, sanitary condition, area of production or other similar conditions, the two Contracting Parties shall endeavour to conclude specific agreements in order to simplify the import control formalities by means of certificates issued by the authorities of the exporting country.

2. The agreements referred to in paragraph 1 shall regulate the procedure for issuing the certificates and the conditions to be fulfilled by the goods in order for the certificates to be recognised in the importing country.

3. The authorities of the importing country shall have the right to verify the accuracy of such certificates and to satisfy themselves as to the identity of the goods.

Article 22.

1. Taxes, levies or other internal charges levied by or on behalf of the State or regional or local authorities in the territory of one of the Contracting Parties on the production, manufacture, transport, distribution, sale or consumption of any product shall not be due or imposed on products originating in the other Contracting Party to a greater or more onerous extent than on similar domestic products.

2. Products originating in one Contracting Party imported into the territory of the other Contracting Party shall not be subjected to treatment less favourable than that accorded to like domestic products, in respect of all laws, regulations and requirements relating to the sale, offering for sale, purchase, transportation, distribution and use of those products on the domestic market.

3. This shall be without prejudice to any greater benefit derived from most-favoured-nation treatment which the two Contracting Parties herein agree to accord each other in respect of all matters referred to in paragraphs 1 and 2.

Article 23.

No enterprise of each Contracting Party which is publicly owned or controlled and which engages in commercial, industrial, transport or other economic activities within the territory of the other Contracting Party shall claim or enjoy in that territory, either for itself or in respect of its assets, any exemption from taxation, legal process, enforcement or any other requirement to which a private enterprise is subject there.

Article 24.

1. Ships flying the flag of a Contracting Party that carry the documents required to prove their nationality under their national law shall be treated as ships of that Contracting Party.

2. Tonnage certificates issued by the competent authorities shall be mutually recognised. The calculation and payment of the navigation taxes and dues shall be carried out on the basis of those certificates and without re-calculation in accordance with the provisions of the other Contracting Party and under the same conditions as those applicable to its own ships. This recognition is based on the fact that the existing tonnage measurement systems of the two Parties are substantially equivalent; if these systems are subsequently modified, the Party ordering the modification shall inform the other Party so that, by common agreement, it may establish the coefficients to be applied to the new tonnage certificates in order to re-establish equivalence.

3. The vessels of one Contracting Party may not be registered in the maritime registers of the other Contracting Party without a declaration of withdrawal of flag issued by the authorities of the State whose flag they fly.

Article 25.

1. Each Contracting Party shall accord to the ships of the other Contracting Party the same treatment as it accords to its own ships and to the ships of any other State in ports under its sovereignty or authority with regard to free access to and use of the port and full enjoyment of the existing facilities for navigation and commercial operations which it places at the disposal of ships, their cargoes and their passengers. The equality of treatment thus established shall extend to facilities of every kind, such as the assignment of berths, loading and unloading facilities, as well as to dues and taxes of any kind levied in the name of or on behalf of the State, public authorities, concessionaires or bodies of any kind.

2. National treatment and most-favoured-nation treatment shall be accorded to the ships of each Contracting Party in respect of the right to carry cargo of any kind capable of being taken on board to or from the territory of the other Party.

3. The ships of each Contracting Party may, like the ships of the other Contracting Party, discharge part of their cargo and passengers from abroad in any port of the other Contracting Party open to foreign navigation and commerce and retain on board the remainder of their cargo and passengers for other ports open to foreign navigation and commerce in the same country or elsewhere, and may also take on board in the same voyage, in the various ports open to foreign navigation and commerce, cargo and passengers bound for foreign countries.

Article 26.

Goods sailing under the flag of one Contracting Party to or from the territory of the other Party shall enjoy the same facilities as those accorded to goods shipped under the flag of the other Party. This applies in particular to customs duties, other taxes and charges, premiums, refunds and other similar facilities, as well as to the application of customs provisions, loading and unloading by rail or other means of transport.

Article 27.

If a vessel of one Contracting Party runs aground on the coast of the other Contracting Party or is shipwrecked or is forced to seek refuge in a port of the other Contracting Party, the latter shall afford to the vessel, its crew, passengers, crew and passengers' personal property and cargo the same protection and assistance as it would afford in similar situations to a vessel flying its flag. Articles recovered from the ship shall be exempt from the payment of customs duties, provided that they are not used for domestic consumption. Such articles, even if not used for home use, may be subject to customs supervision measures throughout the period during which they remain in that State.

Article 28.

1. The masters of the ships flying the flag of either Contracting Party, the crews of which are not full by reason of sickness or for other reasons, may engage, in any port of the other Contracting Party, such seamen as are necessary for the continuation of the voyage, it being understood that the engagement shall be made in accordance with the law of the flag of the ship.

2. Seamen who are nationals of either Contracting Party and carry a seaman's book issued in lieu of a passport shall be permitted to travel through the territory of the other Contracting Party to join their ship or to return home.

Article 29.

The provisions of this Treaty relating to national treatment in matters of navigation shall not apply to

(a) to regulations established by special laws with regard to the encouragement of the shipbuilding industry and the operation of maritime navigation

(b) the privileges granted to nautical sports societies; or

(c) the operation of maritime services in ports, roadsteads and beaches, including pilotage, towage, salvage and sea assistance

(d) cabotage and inland navigation;

(e) fishing in territorial waters;

(f) emigration and the transport of emigrants.

Article 30.

The two Contracting Parties shall not adopt discriminatory measures which might prejudice the maritime navigation of the other Contracting Party or compromise, contrary to the principles of free competition, the choice of flag.