1. For every sector committed in accordance with Section 2 (Establishment) of this Chapter and subject to any reser- vations listed in Annexes XXVII-A and XXVII-E or in Annexes XXVII-C and XXVII-G to this Agreement, each Party shall allow entrepreneurs of the other Party to employ in their establishment natural persons of that other Party provided that such employees are key personnel or graduate trainees as defined in Article 214 of this Agreement. The temporary entry and temporary stay of key personnel and graduate trainees shall be for a period of up to three years for intra-corporate transferees, 90 days in any 12 month period for business visitors for establishment purposes, and one year for graduate trainees.
2. For every sector committed in accordance with Section 2 (Establishment) of this Chapter, 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 Annexes XXVII-C and XXVII-G to this Agreement, are defined as limitations on the total number of natural persons that an entrepreneur may employ as key personnel and graduate trainees in a specific sector, in the form of numerical quotas or of a requirement of an economic needs test, and as discriminatory limitations.
Article 216. Business Sellers
For every sector committed in accordance with Section 2 (Establishment) or Section 3 (Cross-border Supply of Services) of this Chapter and subject to any reservations listed in Annexes XXVII-A and XXVII-E, and XXVII-B and XXVII-F to this Agreement, each Party shall allow the entry and temporary stay of business sellers for a period of up to 90 days in any 12 month period.
Article 217. Contractual Service Suppliers
1. The Parties reaffirm their respective obligations arising from their commitments under the General Agreement on Trade in Services (GATS) as regards the entry and temporary stay of contractual services suppliers.
In accordance with Annexes XXVII-D and XXVII-H to this Agreement, each Party shall allow the supply of services into their territory by contractual services suppliers of the other Party, subject to the conditions specified in paragraph 3 of this Article.
2. 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 12 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 shall 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 shall 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 juridical 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, 25 weeks in any 12 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; and
(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.
Article 218. Independent Professionals
1. In accordance with Annexes XXVII-D and XXVII-H to this Agreement, the Parties shall allow the supply of services into their territory by independent professionals of the other Party, subject to the conditions specified in paragraph 2 of this Article.
2. 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, twenty-five weeks in any 12 month period or for the duration of the contract, whichever is less; and
(e) 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.
Section 5. Regulatory Framework
Subsection 1. Domestic Regulation
Article 219. Scope and Definitions
1. The following disciplines apply to measures by the Parties relating to licencing requirements and procedures, qualification requirements and procedures that affect:
(a) cross-border supply of services;
(b) establishment in their territory of juridical and natural persons defined in Article 203(8) of this Agreement;
(c) temporary stay in their territory of categories of natural persons as defined in Article 214(2)(a) to (e) of this Agree- ment.
2. In the case of cross-border supply of services, those disciplines shall only apply to sectors for which the Party has undertaken specific commitments and to the extent that those specific commitments apply. In the case of establishment, those disciplines shall not apply to sectors to the extent that a reservation is listed in accordance with Annexes XXVII-A and XXVILE to this Agreement. In the case of temporary stay of natural persons, those disciplines shall not apply to sectors to the extent that a reservation is listed in accordance with Annexes XXVII-C and XXVII-D and XXVII-G and XXVILH to this Agreement.
3. Those disciplines do not apply to measures to the extent that they constitute limitations subject to scheduling.
4. For the purposes of this Section:
(a) "licencing requirements" means substantive requirements, other than qualification requirements, with which a natural or a juridical person is required to comply in order to obtain, amend or renew authorisation to carry out the activities as defined in paragraph 1(a) to (0);
(b)"licencing procedures" means administrative or procedural rules that a natural or a juridical person, seeking authorisation to carry out the activities as defined in paragraph 1(a) to (c), including the amendment or renewal of a licence, is required to adhere to in order to demonstrate compliance with licencing requirements;
(c) "qualification requirements" means substantive requirements relating to the competence of a natural person to supply a service, and which are required to be demonstrated for the purpose of obtaining authorisation to supply a service;
(d) "qualification procedures" means administrative or procedural rules that a natural person must adhere to in order to demonstrate compliance with qualification requirements, for the purpose of obtaining authorisation to supply a service; and
(e) "competent authority" means any 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 takes 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.
Article 220. Conditions for Licencing and Qualification
1. Each Party shall ensure that measures relating to licencing requirements and procedures, qualification requirements and procedures are 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 shall be:
(a) proportionate to a public policy objective;
(b) clear and unambiguous;
(c) objective;
(d) pre-established;
(e) made public in advance; and
(f) transparent and accessible.
3. An authorisation or a licence shall be granted as soon as it is established, in the light of an appropriate examination, that the conditions for obtaining an authorisation or licence have been met.
4. Each Party shall maintain or institute judicial, arbitral or administrative tribunals or procedures which provide, at the request of an affected entrepreneur or service supplier, for a prompt review of, and where justified, appropriate remedies for, administrative decisions affecting establishment, cross-border supply of services or temporary presence of natural persons for business purposes. Where such procedures are not independent of the agency entrusted with the administrative decision concerned, each Party shall ensure that the procedures in fact provide for an objective and impartial review.
5. Where the number of licences available for a given activity is limited because of the scarcity of available natural resources or technical capacity, each Party 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 of this Article, in establishing the rules for the selection procedure, each Party may take into account public policy objectives, including considerations of health, safety, the protection of the environment and the preservation of cultural heritage.
Article 221. Licencing and Qualification Procedures
1. Licencing and qualification 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. Licencing and qualification procedures and formalities shall be as simple as possible and shall not unduly complicate or delay the provision of the service. Any licencing fees (1) which the applicants may incur from their application should be reasonable and proportionate to the cost of the authorisation procedures in question.
3. Each party shall ensure that the decisions of and the procedures used by the competent authority in the licencing or authorisation process are impartial with respect to all applicants. The competent authority should reach its decision in an independent manner and not be accountable to any supplier of the services for which the licence or authorisation is required.
4. Where specific time periods for applications exist, an applicant shall be allowed a reasonable period for the submission of an application. The competent authority shall initiate the processing of an application without undue delay. Where possible, applications should be accepted in electronic format under the same conditions of authenticity as paper submissions.
5. Each Party shall ensure that the processing of an application, including reaching a final decision, is completed within a reasonable timeframe from the submission of a complete application. Each Party shall endeavour to establish the normal timeframe for processing of an application.
6. The competent authority shall, within a reasonable period of time after receipt of an application which it considers incomplete, inform the applicant, to the extent feasible, identify the additional information required to complete the application, and provide the opportunity to correct deficiencies.
7. Authenticated copies should be accepted, where possible, in place of original documents.
8. If an application is rejected by the competent authority, the applicant shall be informed in writing and without undue delay. In principle, the applicant shall, upon request, also be informed of the reasons for rejection of the application and of the timeframe for an appeal against the decision.
9. Each Party shall ensure that a licence or an authorisation, once granted, enters into effect without undue delay in accordance with the terms and conditions specified therein.
Subsection 2. Provisions of General Application
Article 222. Mutual Recognition
1. Nothing in this Chapter shall prevent a Party from requiring that natural persons possess the necessary qualifications and/or professional experience specified in the territory where the service is supplied, for the sector of activity concerned.
2. Each Party shall encourage the relevant professional bodies to provide recommendations on mutual recognition to the Association Committee in Trade configuration, as set out in Article 438(4) of this Agreement, for the purpose of the fulfilment, in whole or in part, by entrepreneurs and service suppliers of the criteria applied by each Party for the authorisation, licensing, operation and certification of entrepreneurs and service suppliers and, in particular, professional services.
3. On receipt of a recommendation referred to in paragraph 2, the Association Committee in Trade configuration shall, within a reasonable time, review that recommendation with a view to determining whether it is consistent with this Agreement and, on the basis of the information in the recommendation, assess in particular:
(a) the extent to which the standards and criteria applied by each Party for the authorisation, licences, operation and certification of services providers and entrepreneurs are converging; and
(b) the potential economic value of a Mutual Recognition Agreement.
4. Where those requirements are satisfied, the Association Committee in Trade configuration shall establish the necessary steps to negotiate. Thereafter, the Parties shall engage into negotiations, through their competent authorities, of a Mutual Recognition Agreement.
5. Any Mutual Recognition Agreement referred to in paragraph 4 of this Article shall be in accordance with the relevant provisions of the WTO Agreement and, in particular, with Article VII of GATS.
Article 223. 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 entrepreneurs and services suppliers of the other Party, upon request, on all such matters. The Parties shall notify each other their enquiry points within three months after the 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 prejudice legitimate commercial interests of particular enterprises, public or private.
Subsection 3. Computer Services
Article 224. Understanding on Computer Services
1. To the extent that trade in computer services is liberalised in accordance with Section 2 (Establishment), Section 3 (Cross-border Supply of Services) and Section 4 (Temporary Presence of Natural Persons for Business Purposes) of this Chapter, the Parties shall comply with the provisions of this Article.
2. CPC (1) 84, the UN code used for describing computer and related services, covers the basic functions used to provide all computer and related services:
(a) computer programmes defined as the sets of instructions required to make computers work and communicate (including their development and implementation);
(b) data processing and storage; and
(c) related services, such as consultancy and training services for staff of clients.
Technological developments have led to the increased offering of those services as a bundle or package of related services that can include some or all of those basic functions. For example, services such as web or domain hosting, data mining services and grid computing each consist of a combination of basic computer services functions.
3. Computer and related services, regardless of whether they are delivered via a network, including the internet, include all services that provide:
(a) consulting, strategy, analysis, planning, specification, design, development, installation, implementation, integration, testing, debugging, updating, support, technical assistance, or management of or for computers or computer systems;
(b) computer programmes, defined as the sets of instructions required to make computers work and communicate (in and of themselves), and consulting, strategy, analysis, planning, specification, design, development, installation, implementation, integration, testing, debugging, updating, adaptation, maintenance, support, technical assistance, management or use of or for computer programmes;
(c) data processing, data storage, data hosting or database services;
(d) maintenance and repair services for office machinery and equipment, including computers; or
(e) training services for staff of clients, related to computer programmes, computers or computer systems, and not else- where classified.
4. Computer and related services enable the provision of other services (e.g. banking) by both electronic and other means. However, there is an important distinction between the enabling service (e.g. web-hosting or application hosting) and the content or core service that is being delivered electronically (e.g. banking). In such cases, the content or core service is not covered by CPC 84.
Subsection 4. Postal and Courier Services
Article 225. Scope and Definitions
1. This Sub-Section sets out the principles of the regulatory framework for all postal and courier service liberalised in accordance with Section 2 (Establishment), Section 3 (Cross-border Supply of Services) and Section 4 (Temporary Presence of Natural Persons for Business Purposes) of this Chapter.
2. For the purposes of this Sub-Section and of Section 2 (Establishment), Section 3 (Cross-border Supply of Services) and Section 4 (Temporary Presence of Natural Persons for Business Purposes) of this Chapter:
(a) "licence" means an authorisation, granted to an individual supplier by a regulatory authority, which is required before 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 226. 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 227. Universal Service
Each 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.
Article 228. Licences
1. A licence may only be required for services which are within the scope of the universal service.
2. Where a licence is required, the following shall be made publicly available:
(a) all the licensing criteria and the period of time normally required to reach a decision concerning an application for a licence; and
(b) the terms and conditions of licences.
3. The reasons for the denial of a licence shall be made known to the applicant upon request. An appeal procedure through an independent body will be established by each Party. Such a procedure will be transparent, non-discriminatory, and based on objective criteria.
Article 229. Independence of the Regulatory Body
The regulatory body shall be legally separate from, and not accountable to, any supplier of postal and courier services. The decisions of and the procedures used by the regulatory body shall be impartial with respect to all market participants.
Article 230. Gradual Approximation
Each Party recognises the importance of the gradual approximation of the Republic of Moldova's existing and future legislation to the list of the Union acquis set out in Annex XXVIII-C to this Agreement.
Subsection 5. Electronic Communication Networks and Services
Article 231. Scope and Definitions
1. This Sub-Section sets out the principles of the regulatory framework for all electronic communication services liberalised pursuant to Section 2 (Establishment), Section 3 (Cross-border Supply of Services), and Section 4 (Temporary Presence of Natural Persons for Business Purposes) of this Chapter.
2. For the purposes of this Sub-Section and Section 2 (Establishment), Section 3 (Cross-border Supply of Services), and Section 4 (Temporary Presence of Natural Persons for Business Purposes) of this Chapter:
(a) "electronic communication services" means all services which consist wholly or mainly in the conveyance of signals on electronic communication networks, including telecommunication services and transmission services in networks used for broadcasting. Those services exclude services providing, or exercising editorial control over, content transmitted using electronic communication networks and services;
(b) "public communication network" means an electronic communication network used wholly or mainly for the provision of publicly available electronic communication services;
(c) "electronic communication network" means transmission systems and, where applicable, switching or routing equipment and other resources which permit the conveyance of signals by wire, by radio or by optical or other electro-magnetic means, including satellite networks, fixed (circuit- and packet-switched, including internet) and mobile terrestrial networks, electricity cable systems, to the extent that they are used for the purpose of transmitting signals, networks used for radio and television broadcasting, and cable television networks, irrespective of the type of information conveyed;
(d) a "regulatory authority" in the electronic communication sector means the body or bodies charged with the regulation of electronic communication referred to in this Chapter;
(e) a services supplier shall be deemed to have "significant market power" if, either individually or jointly with others, it enjoys a position equivalent to dominance, that is, a position of economic strength affording it the power to behave to an appreciable extent independently of competitors, customers and ultimately consumers;
(f) "interconnection" means the physical and logical linking of public communication networks used by the same or a different supplier in order to allow the users of one services supplier to communicate with users of the same or another services supplier, or to access services provided by another services supplier. Services may be provided by the Parties involved or other parties who have access to the network. Interconnection is a specific type of access implemented between public network operators;
(g) "universal service" means the set of services of specified quality that is made available to all users in the territory of a Party regardless of their geographical location and at an affordable price. Its scope and implementation are decided by each Party;
(h) "access" means the making available of facilities and/or services to another services supplier under defined conditions, on either an exclusive or non-exclusive basis, for the purpose of providing electronic communication services. It covers, inter alia, access to network elements and associated facilities, which may involve the connection of equip- ment, by fixed or non-fixed means (this includes, in particular, access to the local loop and to facilities and services necessary to provide services over the local loop); access to physical infrastructure including buildings, ducts, and masts; access to relevant software systems including operational support systems; access to numbering translation or systems offering equivalent functionality; access to fixed and mobile networks, in particular for roaming; access to conditional access systems for digital televisions services; and access to virtual network services;
(i) "end-user" means a user not providing public communication networks or publicly available electronic communica- tion services;
(j) "local loop" means the physical circuit connecting the network termination point at the subscriber's premises to the main distribution frame or equivalent facility in the fixed public communication network.
Article 232. Regulatory Authority
1. Each Party shall ensure that regulatory authorities for electronic communication services shall be legally distinct and functionally independent from any supplier of electronic communication services. If a Party retains ownership or control of a supplier providing electronic communication networks or services, such Party shall ensure the effective structural separation of the regulatory function from activities associated with ownership or control.
2. Each Party shall ensure that the regulatory authority shall be sufficiently empowered to regulate the sector. The tasks to be undertaken by a regulatory authority shall be made public in an easily accessible and clear form, in particular where those tasks are assigned to more than one body.
3. Each Party shall ensure that the decisions of and the procedures used by the regulatory authorities are impartial with respect to all market participants and transparent.
4. The regulatory authority shall have the power to carry out an analysis of relevant product and service markets susceptible to an ex ante regulation. Where the regulatory authority is required to determine under Article 234 of this Agreement whether to impose, maintain, amend or withdraw obligations it shall determine on the basis of a market analysis whether the relevant market is effectively competitive.
5. Where the regulatory authority determines that a relevant market is not effectively competitive, it shall identify and designate services suppliers with significant market power on that market and shall impose, maintain or amend specific regulatory obligations referred to in Article 234 of this Agreement, as appropriate. Where the regulatory authority concludes that the market is effectively competitive it shall not impose or maintain any of the regulatory obligations referred to in Article 234 of this Agreement.
6. Each Party shall ensure that a services supplier affected by the decision of a regulatory authority shall have a right to appeal against that decision to an appeal body that is independent of the parties involved in the decision. Each Party shall ensure that the merits of the case are duly taken into account. Pending the outcome of any such appeal, the decision of the regulatory authority shall stand, unless the appeal body decides otherwise. Where the appeal body is not judicial in character, written reasons for its decision shall always be given and its decisions shall also be subject to review by an impartial and independent judicial authority. Decisions taken by appeal bodies shall be effectively enforced.
7. Each Party shall ensure that where the regulatory authorities intend to take measures related to any of the provisions of this Sub-Section and which have a significant impact to the relevant market, they give the interested parties the opportunity to comment on the draft measure within a reasonable period of time. Regulatory authorities shall publish their consultation procedures. The results of the consultation procedure shall be made publicly available except in the case of confidential information.
8. Each Party shall ensure that suppliers providing electronic communication networks and services provide all the information, including financial information, necessary for regulatory authorities to ensure conformity with the provisions of this Sub-Section or decisions made in accordance with this Sub-Section. Those suppliers shall provide that information promptly, on request and in accordance with the timelines and level of detail required by the regulatory authority. The information requested by the regulatory authority shall be proportionate to the performance of that task. The regulatory authority shall give the reasons justifying its request for information.
Article 233. Authorisation to Provide Electronic Communication Services
1. Each Party shall ensure that the provision of services shall, as much as possible, be authorised following mere notification.
2. Each Party shall ensure that a licence can be required to address issues of attributions of numbers and frequencies. The terms and conditions for such licences shall be made publicly available.
3. Each Party shall ensure that where a licence is required:
(a) all the licensing criteria and a reasonable period of time normally required to reach a decision concerning an applica- tion for a licence shall be made publicly available;
(b) the reasons for the denial of a licence shall be made known in writing to the applicant upon request;
(c) the applicant shall be able to seek recourse before an appeal body in case a licence is unduly denied; and
(d) licence fees (1) required by any Party for granting a licence shall not exceed the administrative costs normally incurred in the management, control and enforcement of the applicable licences. Licence fees for the use of radio spectrum and numbering resources are not subject to the requirements of this paragraph.
Article 234. Access and Interconnection
1. Each Party shall ensure that any services suppliers authorised to provide electronic communication services shall have the right and obligation to negotiate access and interconnection with suppliers of publicly available electronic communication networks and services. Access and interconnection should, in principle, be agreed on the basis of commercial negotiation between the services suppliers concerned.