(b) "Schedule" means a Schedule referred to in Article 3.18 (Schedules of Specific Commitments) and contained in Annex VIII (Schedules of Specific Commitments); and
(c) "specific commitment" means a specific commitment in a Schedule referred to in Article 3.18 (Schedules of Specific Commitments).
Article 3.3. Definitions
1. The following definitions of Article I of the GATS are hereby incorporated into and made part of this Chapter:
(a) "trade in services";
(b) "services"; and
(c) "a service supplied in the exercise of governmental authority".
2. For the purposes of this Chapter:
(a) "service supplier" means any person that supplies, or seeks to supply, a service; (2)
(b) "natural person of another Party" means a natural person who, under the legislation of that other Party, is:
(i) a national of that other Party who resides in the territory of any Member of the WTO; or
(ii) a permanent resident of that other Party who resides in the territory of a Party, if that other Party accords substantially the same treatment to its permanent residents as to its nationals in respect of measures affecting trade in services. For the purpose of the supply of a service through presence of natural persons (Mode 4), this definition covers a permanent resident of that other Party who resides in the territory of a Party or in the territory of any Member of the WTO;
(c) "juridical person of another Party" means a juridical person which is either:
(i) constituted or otherwise organised under the law of that other Party, and is engaged in substantive business operations in the territory of:
(aa) a Party; or
(bb) any Member of the WTO and is owned or controlled by natural persons of that other Party or by juridical persons that meet all the conditions of subparagraph (c)(i)(aa); or
(ii) in the case of the supply of a service through commercial presence, owned or controlled by:
(aa) natural persons of that other Party; or
(bb) juridical persons of that other Party identified under subparagraph (c)(i).
3. The following definitions of Article XX VII of the GATS are hereby incorporated into and made part of this Chapter:
(a) “measure”;
(b) “supply of a service”;
(c) “measures by Members affecting trade in services”;
(d) “commercial presence”;
(e) “sector” of a service;
(f) “service of another Member”;
(g) “monopoly supplier of a service”;
(h) “service consumer”;
(i) “person”;
(j) “juridical person”;
(k) “owned”, “controlled” and “affiliated”; and
(l) “direct taxes”.
Article 3.4. Most-Favoured-Nation Treatment
1. Without prejudice to measures taken in accordance with Article VII of the GATS, and except as provided for in its List of MFN Exemptions contained in Annex IX (Lists of MFN-Exemptions), each Party shall accord immediately and unconditionally, in respect of all measures affecting the supply of services, to services and service suppliers of another Party treatment no less favourable than the treatment it accords to like services and service suppliers of any non-Party.
2. Treatment granted under other existing or future agreements concluded by a Party and notified under Article V or Article Vbis of the GATS shall not be subject to paragraph 1.
3. If a Party concludes or amends an agreement notified under Article V or Article Vbis of the GATS, it shall, upon the request from another Party, afford adequate opportunity to that Party to negotiate the benefits granted therein.
4. Nothing in this Chapter shall be so construed as to prevent any Party from conferring or according advantages to adjacent countries in order to facilitate exchanges limited to contiguous zones of services that are both locally produced and consumed.
Article 3.5. Market Access
Article XVI of the GATS applies to this Chapter and is hereby incorporated into and made part of this Agreement, mutatis mutandis.
Article 3.6. National Treatment
Article XVI of the GATS applies to this Chapter and is hereby incorporated into and made part of this Agreement, mutatis mutandis.
Article 3.7. Additional Commitments
Article XVII of the GATS applies to this Chapter and is hereby incorporated into and made part of this Agreement, mutatis mutandis.
Article 3.8. Domestic Regulation
1. Each Party shall ensure that all measures of general application affecting trade in services are administered in a reasonable, objective and impartial manner.
2. Each Party shall maintain or institute, as soon as practicable, judicial, arbitral or administrative tribunals or procedures which provide, at the request of an affected service supplier of another Party, for the prompt review of, and where justified, appropriate remedies for, administrative decisions affecting trade in services. Where such procedures are not independent of the agency entrusted with the administrative decision concerned, the Party shall ensure that the procedures in fact provide for an objective and impartial review.
3. Where authorisation is required by a Party for the supply of a service, the competent authorities of that Party shall, within a reasonable period of time after the submission of an application is considered complete under that Partyâs domestic laws and regulations, inform the applicant of the decision concerning the application. At the request of the applicant, the competent authorities of that Party shall provide, without undue delay, information concerning the status of the application.
4. Each Party shall ensure that measures relating to qualification requirements and procedures, technical standards and licensing requirements and procedures, in all services sectors, are based on objective and transparent criteria, such as competence and the ability to supply the service.
5. With a view to ensuring that measures relating to qualification requirements and procedures, technical standards and licensing requirements and procedures do not constitute unnecessary barriers to trade in services, the Joint Committee shall take a decision aiming at incorporating into the Agreement any disciplines developed in the WTO in accordance with paragraph 4 of Article VI of the GATS. The Parties may also, jointly or bilaterally, decide to develop further disciplines.
6. In sectors in which a Party has undertaken specific commitments, pending the entry into force of a decision incorporating WTO disciplines for these sectors pursuant to paragraph 5, and, if agreed between Parties, disciplines developed jointly or bilaterally under this Agreement pursuant to paragraph 5, the Party shall not apply qualification requirements and procedures, technical standards and licensing requirements and procedures that nullify or impair such specific commitments in a manner which is:
(a) more burdensome than necessary to ensure the quality of the service; or
(b) in the case of licensing procedures, in itself a restriction on the supply of the service.
7. In determining whether a Party is in conformity with the obligation under paragraph 6, account shall be taken of international standards of relevant international organisations (3) applied by that Party.
8. Each Party shall provide for adequate procedures to verify the competence of professionals of any other Party.
Article 3.9. Recognition
1. For the purposes of the fulfilment of its relevant standards or criteria for the authorisation, licensing or certification of service suppliers, each Party shall give due consideration to any requests by another Party to recognise the education or experience obtained, requirements met, or licences or certifications granted in that other Party. Such recognition may be based upon an agreement or arrangement with that other Party, or otherwise be accorded autonomously.
2. Where a Party recognises, by agreement or arrangement, the education or experience obtained, requirements met, or licences or certifications granted, in the territory of a non-party, that Party shall afford another Party adequate opportunity to negotiate its accession to such an agreement or arrangement, whether existing or future, or to negotiate a comparable agreement or arrangement with it. Where a Party accords recognition autonomously, it shall afford adequate opportunity for another Party to demonstrate that the education or experience obtained, requirements met, or licences or certifications granted, in the territory of that other Party should also be recognised.
3. Any such agreement or arrangement or autonomous recognition shall be in conformity with the relevant provisions of the WTO Agreement, in particular paragraph 3 of Article VII of the GATS.
Article 3.10. Movement of Natural Persons
1. This Article applies to measures affecting natural persons who are service suppliers of a Party, and natural persons of a Party who are employed by a service supplier of a Party, with respect to the supply of a service.
2. 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 nationality, residence or employment on a permanent basis.
3. Natural persons covered by a specific commitment shall be allowed to supply the service in accordance with the terms of that commitment.
4. This Chapter shall not prevent a Party from applying measures to regulate the entry of natural persons of another Party 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 such 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. (4)
Article 3.11. Transparency
Paragraphs 1 and 2 of Article II and Article Ibis of the GATS apply to this Chapter and are hereby incorporated into and made part of this Agreement, mutatis mutandis.
Article 3.12. Monopolies and Exclusive Service Suppliers
Paragraphs 1, 2 and 5 of Article VIII of the GATS apply to this Chapter and are hereby incorporated into and made part of this Agreement, mutatis mutandis.
Article 3.13. Business Practices
Article IX of the GATS applies to this Chapter and is hereby incorporated into and made part of this Agreement, mutatis mutandis.
Article 3.14. Payments and Transfers
1. Except under the circumstances envisaged in Article 3.15 (Restrictions to Safeguard the Balance of Payments), no Party shall apply restrictions on international transfers and payments for current transactions with another Party.
2. Nothing in this Chapter shall affect the rights and obligations of the Parties under the Articles of Agreement of the International Monetary Fund (IMF), including the use of exchange actions which are in conformity with the Articles of Agreement of the IMF, provided that a Party shall not impose restrictions on capital transactions inconsistently with its specific commitments regarding such transactions, except under Article 3.15 (Restrictions to Safeguard the Balance of Payments) or at the request of the IMF.
Article 3.15. Restrictions to Safeguard the Balance of Payments
1. The Parties shall endeavour to avoid the imposition of restrictions to safeguard the balance of payments.
2. Paragraphs 1 to 3 of Article XII of the GATS apply to this Chapter and are hereby incorporated into and made part of this Agreement, mutatis mutandis .
3. A Party adopting or maintaining such restrictions shall promptly notify the Joint Committee thereof.
Article 3.16. Subsidies
1. A Party which considers that it is adversely affected by a subsidy of another Party may request ad hoc consultations with that Party on such matters. The requested Party shall enter into such consultations.
2. The Parties shall review any disciplines agreed under Article XV of the GATS with a view to incorporating them into this Agreement.
Article 3.17. Exceptions
Article XIV and paragraph 1 of Article XIVbis of the GATS apply to this Chapter and are hereby incorporated into and made part of this Agreement, mutatis mutandis.
Article 3.18. Schedules of Specific Commitments
1. Each Party shall set out in a Schedule the specific commitments it undertakes under Articles 3.5 (Market Access), 3.6 (National Treatment) and 3.7 (Additional Commitments). With respect to sectors where such commitments are undertaken, each Schedule shall specify:
(a) terms, limitations and conditions on market access;
(b) conditions and qualifications on national treatment;
(c) undertakings relating to additional commitments referred to in Article 3.7 (Additional Commitments); and
(d) where appropriate, the time-frame for implementation of such commitments and the date of entry into force of such commitments.
2. Measures inconsistent with both Articles 3.5 (Market Access) and 3.6 (National Treatment) shall be subject to paragraph 2 of Article XX of the GATS.
3. The Parties' Schedules of Specific Commitments are set out in Annex VIII (Schedules of Specific Commitments).
Article 3.19. Modification of Schedules
The Parties shall, upon written request by a Party, hold consultations to consider any modification or withdrawal of a specific commitment in the requesting Partyâs Schedule of Specific Commitments. The consultations shall be held within three months from the receipt of the request. In the consultations, the Parties shall aim to ensure that a general level of mutually advantageous commitments no less favourable to trade than that provided for in the Schedule of Specific Commitments prior to such consultations is maintained. Modifications of Schedules are subject to the procedures set out in Articles 10.1 Joint Committee) and 12.2 (Amendments).
Article 3.20. Review
With the objective of further liberalising trade in services between them, the Parties shall periodically review their Schedules of Specific Commitments and their Lists of MEN Exemptions, taking into account in particular any autonomous liberalisation and on-going work under the auspices of the WTO. The first such review shall take place no later than three years from the entry into force of this Agreement.
Article 3.21. Annexes
The following Annexes form an integral part of this Chapter:
(a) Annex VIII (Schedules of Specific Commitments);
(b) Annex IX (List of MFN Exemptions);
(c) Annex X (Financial Services);
(d) Annex XI (Telecommunication Services); and
(e) Annex XII (Movement of Natural Persons); and Annex XIII (Maritime Transport and Related Services).
Chapter 4. ESTABLISHMENT
Article 4.1. Scope and Coverage
1. This Chapter applies to commercial presence in all sectors, with the exception of services sectors as set out in Article 3.1 (Scope and Coverage). (5)
2. This Chapter shall be without prejudice to the interpretation or application of other international agreements relating to investment or taxation to which one or several EFTA States and the Republic of Moldova are parties.
Article 4.2. Definitions
For the purposes of this Chapter:
(a) “juridical person” means any legal entity duly constituted or otherwise organised under the domestic laws and regulations of a Party, whether for profit or otherwise, and whether privately owned or governmentally-owned, including any corporation, trust, partnership, joint venture, sole proprietorship or association;
(b) “juridical person of a Party” means a juridical person constituted or otherwise organised under the domestic laws and regulations of a Party and engaged in substantive business operations in that Party;
(c) “natural person” means a person who has the nationality, or is a permanent resident, of a Party in accordance with its domestic laws and regulations;
(d) “commercial presence” means any type of business establishment, including through:
(i) the constitution, acquisition or maintenance of a juridical person; or
(ii) the creation or maintenance of a branch or a representative office, in the territory of another Party for the purpose of performing an economic activity.
Article 4.3. National Treatment
Each Party shall, subject to Article 4.4 (Reservations) and the reservations set out in Annex XIV (List of Reservations), accord to juridical and natural persons of another Party, and to the commercial presence of such persons, treatment no less favourable than that it accords, in like situations, to its own juridical and natural persons, and to the commercial presence of such persons.
Article 4.4. Reservations
1. Article 4.3 (National Treatment) shall not apply to:
(a) any reservation in Annex XIV (List of Reservations);
(b) an amendment to a reservation referred to in subparagraph (a) to the extent that the amendment does not decrease the conformity of the reservation with Article 4.3 (National Treatment); and
(c) any new reservation adopted by a Party, and incorporated into Annex XIV (List of Reservations) which does not affect the overall level of commitments of that Party under this Agreement; to the extent that such reservations are inconsistent with Article 4.3 (National Treatment).
2. As part of the review provided for in Article 4.12 (Review), the Parties undertake to review the reservations set out in Annex XIV (List of Reservations) at least every three years with a view to reducing or removing such reservations.
3. A Party may, at any time, either upon request of another Party or unilaterally, remove in whole or in part its reservations set out in Annex XIV (List of Reservations) by written notification to the other Parties.
4. A Party may, at any time, incorporate a new reservation into Annex XIV (List of Reservations) in accordance with subparagraph 1(c), by written notification to the other Parties. On receiving such written notification, another Party may request consultations regarding the reservation. On receiving the request for consultations, the Party incorporating the new reservation shall enter into consultations with the requesting Party.
Article 4.5. Key Personnel
1. Each Party shall, subject to its domestic laws and regulations, grant natural persons of another Party, and key personnel who are employed by natural or juridical persons of another Party, entry and temporary stay in its territory in order to engage in activities connected with commercial presence, including the provision of advice or key technical services.
2. Each Party shall, subject to its domestic laws and regulations, permit natural or juridical persons of another Party, and their commercial presence, to employ, in connection with commercial presence, any key personnel of the natural or juridical personâs choice regardless of nationality and citizenship provided that such key personnel has been permitted to enter, stay and work in its territory and that the employment concerned conforms to the terms, conditions and time limits of the permission granted to such key personnel.
3. Each Party shall, subject to its domestic laws and regulations, grant entry and temporary stay and provide any necessary confirming documentation to the spouse and minor children of a natural person who has been granted entry, temporary stay and authorisation to work in accordance with paragraphs 1 and 2. The spouse and minor children shall be admitted for the period of the stay of that person.
Article 4.6. Right to Regulate
1. Subject to this Chapter, a Party may, on a non-discriminatory basis, adopt, maintain or enforce any measure that is in the public interest, such as measures to meet health, safety or environmental concerns or reasonable measures for prudential purposes.
2. No Party shall waive or otherwise derogate from, or offer to waive or otherwise derogate from, measures to meet health, safety or environmental concerns as an encouragement for the establishment, acquisition, expansion or retention in its territory of a commercial presence of persons of another Party or a non-Party.
Article 4.7. Transparency
1. Laws, regulations, judicial decisions and administrative rulings of general application made effective by a Party, and agreements in force between the Parties, which affect matters covered by this Chapter shall be published promptly, or otherwise made publicly available, in such a manner as to enable the Parties and their juridical and natural persons to become acquainted with them.
2. Nothing in this Article shall require any Party to disclose confidential information, the disclosure of which would impede law enforcement, or otherwise be contrary to the public interest, or would prejudice the legitimate commercial interests of any juridical or natural person.
Article 4.8. Payments and Transfers
1. Except under the circumstances envisaged in Article 4.9 (Restrictions to Safeguard the Balance of Payments), no Party shall apply restrictions on current payments and capital movements relating to commercial presence activities in non-services sectors.
2. Nothing in this Chapter shall affect the rights and obligations of the Parties under the Articles of Agreement of the IMF, including the use of exchange actions which are in conformity with the Articles of Agreement of the IMF, provided that no Party shall impose restrictions on capital transactions inconsistent with its obligations under this Chapter.
Article 4.9. Restrictions to Safeguard the Balance of Payments
1. The Parties shall endeavour to avoid the imposition of restrictions to safeguard the balance of payments.
2. For the purposes of this Chapter, paragraphs 1 to 3 of Article XII of the GATS apply and are hereby incorporated into and made part of this Agreement, mutatis mutandis.
3. A Party adopting or maintaining such restrictions shall promptly notify the Joint Committee.
Article 4.10. General Exceptions
For the purposes of this Chapter, Article XIV of the GATS applies and is hereby incorporated into and made part of this Agreement, mutatis mutandis.
Article 4.11. Security Exceptions
For the purposes of this Chapter, paragraph 1 of Article XIVbis of the GATS applies and is hereby incorporated into and made part of this Agreement, mutatis mutandis.
Article 4.12. Review
This Chapter shall be subject to periodic review by the Joint Committee regarding the possibility to further develop the Parties' commitments.