In order to ensure compliance with the provisions of this Chapter the Parties shall, inter alia:
(a) exchange information concerning customs legislation and procedures;
(b) develop joint initiatives relating to import, export and transit procedures, as well as work towards ensuring that an effective service is provided to the business community;
(c) cooperate on the automation of customs and other trade procedures;
(d) exchange, where appropriate, information and data subject to respect of the confidentiality of data and standards and regulations on protection of personal data;
(e) cooperate in preventing and combating illicit cross-border traffic in goods, including in tobacco products;
(f) exchange information or enter into consultations with a view to establishing, where possible, common positions in international organisations in the field of customs such as the WTO, the WCO, the UN, the United Nations Confer- ence on Trade and Development (Unctad) and the UNECE;
(g) cooperate in the planning and delivery of technical assistance, notably to facilitate customs and trade facilitation reforms in line with the relevant provisions of this Agreement;
(h) exchange best practices in customs operations, in particular on intellectual property rights enforcement, especially in relation to counterfeit products;
(i) promote coordination between all border authorities of the Parties to facilitate the border crossing process and enhance control, taking into account joint border controls, where feasible and appropriate; and
(j) establish, where relevant and appropriate, mutual recognition of trade partnership programmes and customs controls, including equivalent trade facilitation measures.
Article 198. Mutual Administrative Assistance In Customs Matters
Without prejudice to other forms of cooperation envisaged in this Agreement, in particular in Article 197 of this Agreement, the Parties shall provide each other with mutual administrative assistance in customs matters in accordance with the provisions of Protocol III on Mutual Administrative Assistance in Customs Matters to this Agreement.
Article 199. Technical Assistance and Capacity Building
The Parties shall cooperate with a view to providing technical assistance and capacity building for the implementation of trade facilitation and customs reforms.
Article 200. Customs Sub-Committee
1. The Customs Sub-Committee is hereby established. It shall report to the Association Committee in Trade configura- tion, as set out in Article 438 (4) of this Agreement.
2. The function of the Sub-Committee shall include regular consultations and monitoring of the implementation and the administration of this Chapter, including the matters of customs cooperation, cross-border customs cooperation and management, technical assistance, rules of origin, trade facilitation, as well as mutual administrative assistance in customs matters.
3. The Customs Sub-Committee shall inter-alia:
(a) see to the proper functioning of this Chapter and of Protocols II and III to this Agreement;
(b) adopt practical arrangements, measures and decisions to implement this Chapter and Protocols II and III to this Agreement, including on exchange of information and data, mutual recognition of customs controls and trade partnership programmes, and mutually agreed benefits;
(c) exchange views on any points of common interest, including future measures and the resources needed for their implementation and application;
(d) make recommendations where appropriate; and
(e) adopt its internal rules of procedure.
Article 201. Approximation of Customs Legislation
Gradual approximation to the Union's customs law and certain international law shall be carried out as set out in Annex XXVI to this Agreement.
Chapter 6. Establishment, Trade In Services and Electronic Commerce
Section 1. General Provisions
Article 202. Objective, Scope and Coverage
1. The Parties, reaffirming their respective commitments under the WTO Agreement, hereby lay down the necessary arrangements for the progressive reciprocal liberalisation of establishment and trade in services and for cooperation on electronic commerce.
2. Government procurement is covered in Chapter 8 (Public Procurement) of Title V (Trade and Trade-related Matters) of this Agreement. Nothing in this Chapter shall be construed to impose any obligation with respect to government procurement.
3. Subsidies are covered in Chapter 10 (Competition) of Title V (Trade and Trade-related Matters) of this Agreement. The provisions of this Chapter shall not apply to subsidies granted by the Parties.
4. In accordance with the provisions of this Chapter, each Party retains the right to regulate and to introduce new regulations to meet legitimate policy objectives.
5. This Chapter shall not apply to measures affecting natural persons seeking access to the employment market of a Party, nor shall it apply to measures regarding citizenship, residence or employment on a permanent basis.
6. Nothing in this Chapter shall prevent a Party from applying measures to regulate the entry of natural persons into, or their temporary stay in, its territory, including those measures necessary to protect the integrity of, and to ensure the orderly movement of natural persons across its borders, provided that those measures are not applied in such a manner as to nullify or impair the benefits accruing to any Party under the terms of a specific commitment in this Chapter and Annexes XXVII and XXVIII to this Agreement (1).
Article 203. Definitions
For the purposes of this Chapter:
(1) "measure" means any measure by a Party, whether in the form of a law, regulation, rule, procedure, decision, administrative action, or any other form;
(2) "measures" adopted or maintained by a Party's means measures taken by:
(a) central, regional or local governments and authorities; and
(b) non-governmental bodies in the exercise of powers delegated by central, regional or local governments or authorities;
(3) "natural person of a Party" means a national of an EU Member State or a national of the Republic of Moldova according to respective legislation;
(4) "juridical person" means any legal entity duly constituted or otherwise organised under applicable law, whether for profit or otherwise, and whether privately-owned or governmentally-owned, including any corporation, trust, part- nership, joint venture, sole proprietorship or association;
(5) "juridical person of the Union" or "juridical person of the Republic of Moldova" means a juridical person as defined in point 4 set up in accordance with the law of a Member State or of the Republic of Moldova, respectively, and having its registered office, central administration, or principal place of business in the territory to which the Treaty on the Functioning of the European Union applies (1) or in the territory of the Republic of Moldova, respectively.
Should that juridical person have only its registered office or central administration in the territory to which the Treaty on the Functioning of the European Union applies or in the territory of the Republic of Moldova, respectively, it shall not be considered as a juridical person of the Union or a juridical person of the Republic of Moldova respectively, unless its operations possess a real and continuous link with the economy of the Union or of the Republic of Moldova, respectively.
Notwithstanding the preceding paragraph, shipping companies established outside the Union or the Republic of Moldova and controlled by nationals of a Member State or of the Republic of Moldova, respectively, shall also be beneficiaries of the provisions of this Agreement if their vessels are registered in accordance with their respective legislation in that Member State or in the Republic of Moldova and fly the flag of a Member State or of the Republic of Moldova;
(6) "subsidiary" of a juridical person of a Party means a legal person which is effectively controlled by another juridical person of that Party (2);
(7) "branch" of a juridical person means a place of business not having legal personality which has the appearance of permanency, such as the extension of a parent body, has a management structure and is materially equipped to negotiate business with third parties so that the latter, although knowing that there will if necessary be a legal link with the parent body, the head office of which is abroad, do not have to deal directly with such parent body but may transact business at the place of business constituting the extension;
(8) "establishment" means:
(a) as regards juridical persons of the Union or of the Republic of Moldova, the right to take up and pursue economic activities by means of setting up, including the acquisition of, a juridical person and/or to create a branch or a representative office in the Union or in the Republic of Moldova respectively;
(b) as regards natural persons, the right of natural persons of the Union or of the Republic of Moldova to take up and pursue economic activities as self-employed persons and to set up undertakings, in particular companies, which they effectively control;
(9) "economic activities" shall include activities of an industrial, commercial and professional character and activities of craftsmen and do not include activities performed in the exercise of governmental authority;
(10) "operations" means the pursuit of economic activities;
(11) "services" includes any service in any sector except services supplied in the exercise of governmental authority;
(12) "services and other activities performed in the exercise of governmental authority" means services or activities which are performed neither on a commercial basis nor in competition with one or more economic operators;
(13) "cross-border supply of services" means the supply of a service:
(a) from the territory of a Party into the territory of the other Party (Mode 1); or
(b) in the territory of a Party to the service consumer of the other Party (Mode 2);
(14) "service supplier" of a Party means any natural or juridical person of a Party that seeks to supply or supplies a service;
(15) "entrepreneur" means any natural or juridical person of a Party that seeks to perform or performs an economic activity through setting up an establishment.
Section 2. Establishment
Article 204. Scope
This Section applies to measures adopted or maintained by the Parties affecting establishment in all economic activities with the exception of:
(a) mining, manufacturing and processing (1) of nuclear materials;
(b) production of, or trade in, arms, munitions and war materiel;
(c) audiovisual services;
(d) national maritime cabotage (2); and
(e) domestic and international air transport services (3), whether scheduled or non-scheduled, and services directly related to the exercise of traffic rights, other than:
(i) aircraft repair and maintenance services during which an aircraft is withdrawn from service;
(ii) the selling and marketing of air transport services;
(iii) computer reservation system (CRS) services;
(iv) ground-handling services;
(v) airport operation services.
Article 205. National Treatment and Most-favoured-nation Treatment
1. Subject to reservations listed in Annex XXVII-E to this Agreement, the Republic of Moldova shall grant, upon entry into force of this Agreement:
(a) as regards the establishment of subsidiaries, branches and representative offices of juridical persons of the Union, treatment no less favourable than that accorded by the Republic of Moldova to its own juridical persons, their branches and representative offices, or to subsidiaries, branches and representative offices of any third country's juridical persons, whichever is better;
(b) as regards the operation of subsidiaries, branches and representative offices of juridical persons of the Union in the Republic of Moldova, once established, treatment no less favourable than that accorded by the Republic of Moldova to its own juridical persons, their branches and representative offices, or to subsidiaries, branches and representative offices of any third country's juridical persons, whichever is better. (4)
2. Subject to reservations listed in Annex XXVII-A to this Agreement, the Union shall grant, upon entry into force of this Agreement:
a) as regards the establishment of subsidiaries, branches and representative offices of juridical persons of the Republic of Moldova, treatment no less favourable than that accorded by the Union to its own juridical persons, their branches and representative offices, or to subsidiaries, branches and representative offices of any third country's juridical persons, whichever is better;
(b) as regards the operation of subsidiaries, branches and representative offices of juridical persons of the Republic of Moldova in the Union, once established, treatment no less favourable than that accorded by the Union to its own juridical persons, their branches and representative offices, or to subsidiaries, branches and representative offices of any third country's juridical persons, whichever is better. (1)
3. Subject to reservations listed in Annexes XXVII-A and XXVII-E to this Agreement, the Parties shall not adopt any new regulations or measures which introduce discrimination as regards the establishment of juridical persons of the Union or of the Republic of Moldova on their territory or in respect of their operation, once established, by comparison with their own juridical persons.
Article 206. Review
1. With a view to progressively liberalising the establishment conditions, the Parties shall regularly review the establishment legal framework (2) and the establishment environment, consistent with their commitments in international agreements.
2. In the context of the review referred to in paragraph 1, the Parties shall assess any obstacles to establishment that have been encountered. With a view to deepening the provisions of this Chapter, the Parties shall find appropriate ways to address such obstacles, which could include further negotiations, including with respect to investment protection and to investor-to-state dispute settlement procedures.
Article 207. Other Agreements
Nothing in this Chapter shall be construed to limit the rights of entrepreneurs of the Parties to benefit from any more favourable treatment provided for in any existing or future international agreement relating to investment to which a Member State and the Republic of Moldova are parties.
Article 208. Standard of Treatment for Branches and Representative Offices
1. The provisions of Article 205 of this Agreement do not preclude the application by a Party of particular rules concerning the establishment and operation in its territory of branches and representative offices of juridical persons of another Party not incorporated in the territory of the first Party, which are justified by legal or technical differences between such branches and representative offices as compared to branches and representative offices of juridical persons incorporated in its territory or, as regards financial services, for prudential reasons.
2. The difference in treatment shall not go beyond what is strictly necessary as a result of such legal or technical differences or, as regards financial services, for prudential reasons.
Section 3. Cross-border Supply of Services
Article 209. Scope
This Section applies to measures of the Parties affecting the cross-border supply of all services sectors with the exception of:
(a) audiovisual services;
(b) national maritime cabotage (1); and
(c) domestic and international air transport services (2), whether scheduled or non-scheduled, and services directly related to the exercise of traffic rights other than:
(i) aircraft repair and maintenance services during which an aircraft is withdrawn from service;
(ii) the selling and marketing of air transport services;
(iii) computer reservation system (CRS) services;
(iv) ground-handling services;
(v) airport operation services.
Article 210. 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 a treatment not less favourable than that provided for in the specific commitments contained in Annexes XXVII-B and XXVII-F 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 Annexes XXVII-B and XXVII-F 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 requirement 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 211. National Treatment
1. In the sectors where market access commitments are inscribed in Annexes XXVII-B and XXVII-F 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 services and services suppliers.
2. A Party may meet the requirement provided for in paragraph 1 by according to services and service suppliers of the other Party either formally identical treatment or formally different treatment to that which 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 entered into under this Article shall not be construed to require any Party to compensate for inherent competitive disadvantages which result from the foreign character of the relevant services or services suppliers.
Article 212. Lists of Commitments
1. The sectors liberalised by each of the Parties pursuant to this Section 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 included in Annexes XXVII-B and XXVILF to this Agreement.
2. Without prejudice to Parties' rights and obligations as they exist or may arise under the European Convention on Transfrontier Television and the European Convention on Cinematographic Co-production, lists of commitments in Annexes XXVII-B and XXVII-F to this Agreement do not include commitments on audiovisual services.
Article 213. Review
With a view to the progressive liberalisation of the cross-border supply of services between the Parties, the Association Committee in Trade configuration, as set out in Article 438(4) of this Agreement, shall regularly review the list of commitments referred to in Article 212 of this Agreement. This review shall take into account, inter alia, the process of gradual approximation, referred to in Articles 230, 240, 249 and 253 of this Agreement, and its 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 214. Scope and Definitions
1. This Section applies to measures of the Parties concerning the entry and temporary stay in their territories of key personnel, graduate trainees and business sellers, contractual service suppliers and independent professionals, without prejudice to Article 202(5) of this Agreement.
2. For the purposes of this Section:
(a) "key personnel" means natural persons employed within a juridical person of one Party other than a non-profit organisation (1) and who are responsible for the setting up or the proper control, administration and operation of an establishment. "Key personnel" comprises "business visitors" for establishment purposes and "intra-corporate transferees":
(i) "business visitors" for establishment purposes means natural persons working in a senior position who are responsible for setting up an establishment. They do not offer or provide services or engage in any economic activity other than that required for establishment purposes. They do not receive remuneration from a source located within the host Party;
(i) "intra-corporate transferees" means natural persons who have been employed by a juridical person or have been partners in it for at least one year and who are temporarily transferred to an establishment that may be a subsidiary, branch or head company of the enterprise/juridical person in the territory of the other Party. The natural person concerned shall belong to one of the following categories:
(1) managers: persons working in a senior position within a juridical person, who primarily direct the manage- ment of the establishment, receiving general supervision or direction principally from the board of directors or from stockholders of the business or their equivalent, including at least:
- directing the establishment or a department or sub-division thereof;
- supervising and controlling the work of other supervisory, professional or managerial employees; and
- having the authority personally to recruit and dismiss or recommend recruiting, dismissing or other personnel actions;
(2) specialists: persons working within a juridical person who possess uncommon knowledge essential to the establishment's production, research equipment, techniques, processes, procedures or management. In assessing such knowledge, account will be taken not only of knowledge specific to the establishment, but also of whether the person has a high level of qualification referring to a type of work or trade requiring specific technical knowledge, including membership of an accredited profession;
(b) "graduate trainees" means natural persons who have been employed by a juridical person of one Party or its branch for at least one year, possess a university degree and are temporarily transferred to an establishment of the juridical person in the territory of the other Party, for career development purposes or to obtain training in business techniques or methods (1);
(c) "business sellers" (2) means natural persons who are representatives of a services or goods supplier of one Party seeking entry and temporary stay in the territory of the other Party for the purpose of negotiating the sale of services or goods, or entering into agreements to sell services or goods for that supplier. They do not engage in making direct sales to the general public and do not receive remuneration from a source located within the host Party, nor are they commission agents;
(d) "contractual services suppliers" means natural persons employed by a juridical person of one Party which itself is not an agency for placement and supply services of personnel nor acting through such an agency, has no establishment in the territory of the other Party and has concluded a bona fide contract to supply services with a final consumer in the latter Party, requiring the presence on a temporary basis of its employees in that Party, in order to fulfil the contract to provide services (3);
(e) "independent professionals" means natural persons engaged in the supply of a service and established as self-employed in the territory of a Party who have no establishment in the territory of the other Party and who have concluded a bona fide contract (other than through an agency for placement and supply services of personnel) to supply services with a final consumer in the latter Party, requiring their presence on a temporary basis in that Party in order to fulfil the contract to provide services (4);
(f) "qualifications" means diplomas, certificates and other evidence (of formal qualification) issued by an authority designated pursuant to legislative, regulatory or administrative provisions and certifying successful completion of professional training.