(b) would be violated or circumvented if the benefits of this Chapter where accorded to that investor or covered enterprise, including where the measures prohibit transactions with a natural or juridical person who owns or controls either of them.
Chapter 11. CROSS-BORDER TRADE IN SERVICES
Article 11.1. [EU: Objectives
The Parties, reaffirming their respective commitments under the WTO Agreement and their commitment to create a better climate for the development of trade between them, hereby lay down the necessary arrangements for the progressive reciprocal liberalisation of trade in services. ]
Article 11.2. Right to Regulate
The Parties reaffirm the right to regulate within their territories to achieve legitimate policy objectives, such as the protection of public health, social services, education, safety, environment, including climate change, or public morals, social or consumer protection, privacy and data protection or the promotion and protection of cultural diversity.
Article 11.3. Definitions for the Purposes of this Chapter: Aircraft Repair and Maintenance Services During Which an Aircraft Is Withdrawn from Service
means such activities when undertaken on an aircraft or a part thereof while it is withdrawn from service and do not include so-called line maintenance;
computer reservation system (CRS) services means services provided by computerised systems that contain information about air carriersâ schedules, availability, fares and fare tules, through which reservations can be made or tickets may be issued;
cross-border trade in services or 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; (b) in the territory of a Party, to the service consumer of the other Party ground handling services means the supply at an airport, on a fee or contract basis, of the
following services: airline representation, administration and supervision; passenger handling; baggage handling; ramp services; catering, except the preparation of the food; air
cargo and mail handling; fuelling of an aircraft; aircraft servicing and cleaning; surface transport; and flight operations, crew administration and flight planning.
Ground handling services do not include: self-handling; security; line maintenance; aircraft repair and maintenance; or management or operation of essential centralised airport infrastructure, such as de-icing facilities, fuel distribution systems, baggage handling systems and fixed intra-airport transport systems;
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, partnership, joint venture, sole proprietorship or association;
juridical person of a Party means!:
6D) for the European Union:
A a juridical person constituted or organised under the law of the European Union or of at least one of its Member States and engaged in substantive business operations? in the territory of the European Union; and
B shipping companies established outside the European Union, and controlled by natural persons of a Member State of the European Union, whose vessels are registered in, and fly the flag of, a Member State of the European Union.
(ii) for Chile: A a juridical person constituted or organised under the law of Chile and engaged in substantive business operations in the territory of Chile; and
B shipping companies established outside Chile, and controlled by natural persons of Chile, whose vessels are registered in, and fly the flag of, Chile.
natural person of the EU means a national of one of the Member States of the European Union according to its legislation?
natural person of Chile means a Chilean as defined in Article 10 of the Political Constitution of the Republic of Chile;
selling and marketing of air transport services means opportunities for the air carrier concerned to sell and market freely its air transport services, including all aspects of marketing such as market research, advertising and distribution. These activities do not include the pricing of air transport services or the applicable conditions;
! For greater certainty, the shipping companies mentioned in this definition are only considered as
juridical persons of a Party with respect to their activities relating to the supply of maritime transport services.
2 In line with its notification of the Treaty establishing the European Community to the WTO (WT/REG39/1), the European Union understands that the concept of âeffective and continuous link" with the economy of a Member State of the European Union enshrined in Article 54 of the TFEU is equivalent to the concept of "substantive business operationsâ.
3 The definition of natural person also includes natural persons permanently residing in the Republic of Latvia who are not citizens of the Republic of Latvia or any other state but who are entitled, under laws and regulations of the Republic of Latvia, to receive a non-citizenâs passport.
service includes any service in any sector but not services supplied in the exercise of governmental authority;
service supplier of a Party means any natural or juridical person of a Party that seeks to supply or supplies a service;
[service supplied in the exercise of governmental authority means any service which is
supplied neither on a commercial basis, nor in competition with one or more service suppliers];
Article 11.4. Scope
1. This Chapter shall apply to measures of a Party affecting cross-border trade in services supplied by service suppliers of the other Party. Such measures include those that affect:
(a) the production, distribution, marketing, sale and delivery of a service;
(b) the purchase or use of, or payment for, a service;
(c) the access to and use of, in connection with the supply of a service services
which are required by a Party to be offered to the public generally, including
distribution, transport or telecommunications networks;
(d) the provision of a bond or other form of financial security, as a condition for the supply of a service.
2. This Title\Chapter applies to measures adopted or maintained by: (a) governments and authorities at all levels;
(b) non-governmental bodies in the exercise of powers delegated by governments or authorities at all levels.
(c) any entity which is in fact acting on the instructions of or under the direction or the control of a Party with regard to the measure.*
3. This Chapter shall not apply to:
(a) financial services, as defined in Article X.1 (Chapter XX Financial Services - Definitions);
(b) audio-visual services;
4 For greater certainty, if a Party claims that an entity is acting as referred to in subpargraph 2 (c), such Party bears the burden of proof and at least must provide solid indicia.
(c) national maritime cabotageâ;
(d) Domestic and international air services®, whether scheduled or non-scheduled, and services directly related to the exercise of traffic rights, other than:
@ aircraft repair and maintenance services during which an aircraft is withdrawn from service;
Gi) the selling and marketing of air transport services; Gii) | computer reservation system (CRS) services; and (iv) ground handling services.
(e) government procurement, [as defined in Article 21.1 (Chapter 21 Government Procurement Definitions);] and
(f) â subsidies or grants provided by a Party or a state-owned enterprise including government-supported loans, guarantees and insurance.
Article 11.5. National Treatment
1. Each Party shall accord to services and service suppliers of the other Party treatment no less favourable than that it accords in like situations, to its own services and service suppliers.
2. The treatment accorded by a Party under paragraphs 1 means:
(a) with respect to a regional or local level of government of Chile, treatment no less favourable than the most favourable treatment accorded, in like situations, by that level of government to its own services and service suppliers of Chile.
(b) with respect to a government of, or in, a Member State of the European Union, treatment no less favourable than the most favourable treatment accorded, in like situations, by that government to its own services and service suppliers.
5 Without prejudice to the scope of activities which may be considered as cabotage under the relevant
national legislation, national maritime cabotage under this Chapter covers transportation of passengers or goods between a port or point located in Chile or a Member State of the European Union and another port or point located in Chile or that same Member State of the European Union, including on its continental shelf, as provided in the UN Convention on the Law of the Sea, and traffic originating and terminating in the same port or point located in Chile or a Member State of the European Union.
6 For greater certainty, Air services or related services in support of air services include, but are not limited to, the following services: air transportation; services provided by using an aircraft whose primary purpose is not the transportation of goods or passengers, such as aerial fire-fighting flight training, sightseeing, spraying, surveying, mapping, photography, parachute jumping, glider towing, helicopter-lift for logging and construction, and other airborne agricultural, industrial and inspection services; the rental of aircraft with crew; and airport operation services.
3. A Party may meet the requirement of paragraph 1 by according to services and service suppliers of the other Party either formally identical treatment or formally different treatment to that it accords to its own services and service suppliers.
4. 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 service suppliers of the other Party.
5. Nothing in this Article shall 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 11.6. Most-Favoured-Nation Treatment
1. Each Party shall accord to services and service suppliers of the other Party treatment no less favourable than that it accords, in like situations, to services and service suppliers of a non-Party state.
2. Paragraph 1 shall not be construed as obliging a Party to extend to services and service suppliers of the other Party the benefit of any treatment resulting from:
(a) an international agreement for the avoidance of double taxation or other international agreement or arrangement relating wholly or mainly to taxation; or
(b) measures providing for recognition, including of the standards or criteria for the authorisation, licencing, or certification of a natural person or enterprise to carry out an economic activity, or of prudential measures.
3. For greater certainty the âtreatmentâ referred to in paragraphs 1 and 2 does not include investment dispute resolution procedures or mechanisms provided for in other international investment treaties and other trade agreements. The substantive provisions in other international or trade agreements do not in themselves constitute âtreatmentâ as referred to in paragraphs 1 and 2, and thus cannot give rise to a breach of this Article, absent measures adopted or maintained by a Party. Measures applied pursuant to such substantive provisions may constitute âtreatmentâ under this Article.
[DN: We should copy mutatis mutandi the investment provision]
Article 11.7. Local Presence a Party Shall Not Require a Service Supplier of the other Party to Establish or Maintain an
enterprise or to be resident in its territory as a condition for the cross-border supply of a service.
Article 11.8. Market Access
In sectors or subsectors where market access commitments are undertaken, neither Party may adopt or maintain, either on the basis of a regional subdivision or on the basis of its entire territory, measures that:
1.
of:
(a)
(b)
impose limitations on:
@
Gi)
iii)
(iv)
the number of service suppliers, whether in the form of numerical quotas, monopolies, exclusive service suppliers or the requirement of an economic needs test;
the total value of service transactions or assets in the form of numerical quotas or the requirement of an economic needs test;
the total number of service operations or the total quantity of services output, expressed in terms of designated numerical units, in the form of quotas or the requirement of an economic needs testâ; or
the total number of natural persons that may be employed in a particular service sector or that a service supplier may employ and who are necessary for, and directly related to, the supply of a specific service in the form of numerical quotas or the requirement of an economic needs test, or
restrict or require specific types of legal entity or joint venture through which a service supplier may supply a service.
Article 11.9. Non-Conforming Measures
Article 11.5. National Treatment), 11.6 (Most-Favoured-Nation Treatment) and 11.7 (Local Presence) Shall Not Apply to:(a)
any existing non-conforming measure that is maintained by a Party at the level
@ (ii) iii)
the European Union, as set out in its Annex I; a national government, as set out by that Party in its Annex J;
regional government, as set out by that Party in its Annex I; or
This subparagraph does not cover the measures of a Party that limit inputs for the supply of services.
(iv) a local government.
(b) the continuation or prompt renewal of any non-conforming measure referred to in subparagraph (a); or
(d) an amendment to any non-conforming measure referred to in subparagraph (a), to the extent that the amendment does not decrease the conformity of the measure as it existed immediately before the amendment, with Articles 11.5 (National Treatment), 11.6 (Most-Favoured-Nation Treatment) and 11.7 (Local Presence).
2. Articles 11.5 (National Treatment), 11.6 (Most-Favoured-Nation Treatment) and 11.7 (Local Presence) shall not apply to any measure that a Party adopts or maintains with respect to sectors, sub-sectors or activities, as set out in its Schedule to Annex II.
3. Article 11.8 (Market Access) shall not apply to any measure that a Party adopts or maintains with respect to committed sectors or subsectors as set out in its Annex HI.
Article 11.10. Denial of Benefits
A Party may deny the benefits of this Chapter to an economic operator of the other Party or to a covered enterprise if the denying Party adopts or maintains measures related to the maintenance of international peace and security, including the protection of human rights, which:
a. prohibit transactions with that economic operator or covered enterprise, or
with a natural or juridical person who owns or controls either of them, or
b. would be violated or circumvented if the benefits of this Chapter were
accorded to that economic operator or covered enterprise.
Chapter 12. Temporary Presence of Natural Persons for Business Purposes
Article 12.1. Scope and Definitions
This Chapter applies to measures of the Parties concerning the performance of economic activities through the entry and temporary stay in their territories of natural persons of a Party] who are [Business Visitors for Establishment Purposes, Investors], Intra-corporate Transferees, Business Sellers, Contractual Service Suppliers and Independent Professionals in accordance with paragraph X.X.
This Chapter shall not apply to the sectors excluded from the scope of Chapter 11 [CBTS] pursuant to letters (b) to (d) of paragraph 3 of Article 11.4 [Scope].
This Agreement/Chapter shall not apply to measures affecting natural persons seeking access to the employment market of the other Party, nor shall it apply to measures regarding citizenship, nationality, residence or employment on a permanent basis.
Nothing in this Agreement shall prevent a Party from applying measures to regulate the entry of natural persons of the other 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 border, provided that those measures are not applied in a manner as to nullify or impair the benefits accruing to the other Party under this Agreement.
The sole fact that a Party requires persons of the other Party to obtain a visa shall not be regarded as nullifying or impairing the benefits accruing to the other Party under this Agreement.
To the extent that commitments are not undertaken in this Chapter, all requirements provided for in the law of a Party regarding the entry and temporary stay of natural persons shall continue to apply, including laws and regulations concerning the period of stay.
Notwithstanding the provisions of this Chapter, all requirements provided for in the law of a Party regarding work and social security measures shall continue to apply, including laws and regulations concerning minimum wages and collective wage agreements.
Commitments on the entry and temporary stay of natural persons for business purposes do not apply in cases where the intent or effect of the entry and temporary stay is to interfere with or otherwise affect the outcome of any labour or
10.
(a)
(a)
(b)
management dispute or negotiation, or the employment of any natural person who is involved in that dispute.
The definitions in [Articles 10.1 and 11.3] apply to this Chapter.
For the purpose of this Chapter:
âbusiness visitors for establishment purposesâ mean natural persons working in a senior position within a juridical person of a Party who are responsible for establishing an enterprise of such juridical person. They do not offer or provide services or engage in any other economic activity than required for establishment purposes. They do not receive remuneration from a source located within the host Party.
bis: Investor means natural persons who establish an enterprise, and develop or administer the operation of that enterprise in the other Party in a capacity that is supervisory or executive, and to which that person or the juridical person employing that person has committed, or is in the process of committing, a substantial amount of capital.
âintra-corporate transfereesâ mean 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 enterprise of the juridical person in the territory of the other Party. The natural person concerned must belong to one of the following categories:
(i) managers: Persons working in a senior position within [a juridical person (to be decided after agreeing on the definition of juridical person)] of a Party, who primarily direct the management of the [enterprise (to be decided after agreeing on the definition of enterprise)] in the other Partyâ, receiving general supervision or direction principally from higher level executives, the board of directors or from stockholders of the business or their equivalent. Its responsibilities shall include:
(A) directing the [enterprise] or a department or subdivision thereof;
(B) supervising and controlling the work of other supervisory, professional or managerial employees; and
For greater certainty, while managers do not directly perform tasks concerning the actual supply of the services, this does not prevent them, in the course of executing their duties as described above, from performing such tasks as may be necessary for the provision of the services.
(C) having the personal authority to recruit and dismiss or to recommend recruitment, dismissal or other personnel-related actions.
(ii) specialists: persons working within a juridical person possessing specialised knowledge essential to the enterpriseâs areas of activity, techniques or management. In assessing such knowledge, account shall be taken not only of knowledge specific to the enterprise, but also of whether the person has a high level of qualification, including adequate professional experience, referring to a type of work or activity requiring specific technical knowledge including, but not limited to, possible membership of an accredited profession.
(ii) trainee employees: Persons who have been employed by a juridical person or its branch for at least one year, possess a university degree and are temporarily transferred for career development purposes or to obtain training in business techniques or methodsâ,
(c) âshort-term business visitorsâ means natural persons who are seeking entry and temporary stay in the territory of the other Party, who do not engage in making direct sales to the general public and do not receive remuneration from a source located within the host Party. The natural person concerned must belong to one of the following categories:
@ âbusiness sellersâ are short-term business visitors who are representatives of a services or goods supplier of one Party for the purpose of negotiating the sale of services or goods, or entering into agreements to sell services or goods for that supplier, including: attending meetings or conferences; engaging in consultations with business colleagues, taking orders or negotiating contracts for an enterprise located in the territory of the other Party. They are not engaged in the supply of a service in the framework of a contract concluded between an enterprise that has no commercial presence in the territory of the Party where the short-term business visitors are staying temporarily, and a consumer in that territory. They are not commission agents.
(ii) âinstallers and maintainersâ are short-term business visitors possessing specialised knowledge essential to a seller's or lessor's contractual obligation, performing services or training workers to perform services,
The recipient enterprise may be required to submit a training programme covering the duration of the stay for prior approval, demonstrating that the purpose of the stay is for training. For AT, CZ, DE, FR, ES, HU and LT, training must be link to the university degree which has been obtained.
(d)
(e)
pursuant to a warranty or other service contract incidental to the sale or lease of commercial or industrial equipment or machinery, including computer and related services, purchased or leased from an enterprise located outside the territory of the Party into which temporary entry is sought, throughout the duration of the warranty or service contract.
âcontractual services suppliersâ mean natural persons employed by a juridical person of a Party which is not itself established in the territory of the other Party and is not an agency for placement and supply services of personnel nor acting through such an agency and which has concluded a bona fide contract to supply services with a final consumer in the other Party, requiring the presence on a temporary basis of its employees in that Party, in order to fulfil the contract to
provide services®.
âindependent professionalsâ mean natural persons engaged in the supply of a service established as self-employed in the territory of a Party, but not in the territory of the other Party, who have concluded a bona fide contract (other than through an agency for placement and supply services of personnel), with a final consumer to supply services in the latter Party, requiring their presence on a temporary basis in that Partyâ.
Article 12.2. Intra-corporate Transferees, Business Visitors for Establishment Purposes and Investors
1. Subject to the relevant conditions and qualifications specified in Annex IV [reservations for ICTs, BVEP and STBV], each Party:
a) shall allow the entry and temporary stay of Intra-corporate Transferees, Business Visitors for Establishment Purposes and Investors; b) _ shall allow the employment in its territory of Intra-corporate Transferees of the other Party; and c) â shall not maintain or adopt limitations in the form of numerical quotas or economic needs tests on the total number of natural persons that, in a specific sector, are allowed entry as business visitors for establishment purposes [or investors], or that may be employed as intra-corporate transferees, either on the basis of a territorial subdivision or on the basis of its entire territory. d) _ shall accord to intra-corporate transferees, business visitors for establishment purposes [and investors] of the other Party, with regard to their temporary stay 3 The service contract referred to under (d) and (e) shall comply with the requirements of the laws, and regulations and requirements of the Party where the contract is executed. 4 The service contract referred to under (d) and (e) shall comply with the requirements of the laws, and
regulations and requirements of the Party where the contract is executed.
in its territory, treatment no less favourable than that it accords, in like situations, to its own natural persons.
The permissible length of stay shall be: