(f) acting on behalf of companies, organising the port of call of the ship or taking over cargoes when required.
Article 22.
For the purpose of this Agreement:
(a) A Community company or a Tajik company respectively shall mean a company set up in accordance with the laws of a Member State or of the Republic of Tajikistan respectively and having its registered office, central administration or principal place of business in the territory of the Community or of the Republic of Tajikistan respectively. However, should a company set up in accordance with the laws of a Member State or the Republic of Tajikistan respectively have only its registered office in the territory of the Community or of the Republic of Tajikistan respectively, the company shall be considered a Community or Tajik company respectively if its operations possess a real and continuous link with the economy of one of the Member States or the Republic of Tajikistan respectively.
(b) Subsidiary of a company shall mean a company which is effectively controlled by the first company.
(c) Branch of a company shall mean 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 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.
(d) Establishment shall mean the right of Community or Tajik companies as referred to in point (a) to take up economic activities by means of the setting up of subsidiaries and branches in the Republic of Tajikistan or in the Community respectively.
(e) Operation shall mean the pursuit of economic activities.
(f) Economic activities shall mean activities of an industrial, commercial and professional character.
With regard to international maritime transport, including inter-modal operations involving a sea leg, nationals of the Member States or of the Republic of Tajikistan established outside the Community or the Republic of Tajikistan respectively, and shipping companies established outside the Community or the Republic of Tajikistan and controlled by nationals of a Member State or nationals of the Republic of Tajikistan respectively, shall also be beneficiaries of the provisions of this Chapter and Chapter III if their vessels are registered in that Member State or in the Republic of Tajikistan respectively in accordance with their respective legislation.
Article 23.
1. Notwithstanding any other provisions of this Agreement, a Party shall not be prevented from taking measures for prudential reasons, including for the protection of investors, depositors, policy holders or persons to whom a fiduciary duty is owed by a financial service supplier, or to ensure the integrity and stability of the financial system. Where such measures do not conform with the provisions of this Agreement, they shall not be used as a means of avoiding the obligations of a Party under this Agreement.
2. Nothing in this Agreement shall be construed as requiring a Party to disclose information relating to the affairs and accounts of individual customers or any confidential or proprietary information in the possession of public entities.
3. For the purposes of this Agreement, financial services shall mean those activities described in Annex III.
Article 24.
The provisions of this Agreement shall not prejudice the application by each Party of any measure necessary to prevent the circumvention of its measures concerning third country access to its market, through the provisions of this Agreement.
1. Notwithstanding the provisions of Chapter I of this Title, a Community company or a Tajik company established in the territory of the Republic of Tajikistan or the Community respectively shall be entitled to employ, or have employed by one of its subsidiaries or branches, in accordance with the legislation in force in the host country of establishment, in the territory of the Republic of Tajikistan and the Community respectively, employees who are nationals of Community Member States and the Republic of Tajikistan respectively, provided that such employees are key personnel as defined in paragraph 2, and that they are employed exclusively by companies, or branches. The residence and work permits of such employees shall only cover the period of such employment.
2. Key personnel of the abovementioned companies herein referred to as organisations are intra-corporate transferees as defined in (c) in the following categories, provided that the organisation is a legal person and that the persons concerned have been employed by it or have been partners in it (other than majority shareholders) for at least the year immediately preceding such movement:
(a) Persons working in a senior position with an organisation, who primarily direct the management of the establishment, receiving general supervision or direction principally from the board of directors or stockholders of the business or their equivalent, including:
Directing the establishment or a department or subdivision of the establishment,
Supervising and controlling the work of other supervisory, professional or managerial employees,
Having the authority personally to hire and fire or recommend hiring, firing or other personnel actions.
(b) Persons working within an organisation who possess uncommon knowledge essential to the establishments service, research equipment, techniques or management. The assessment of such knowledge may reflect, apart from knowledge specific to the establishment, a high level of qualification referring to a type of work or trade requiring specific technical knowledge, including membership of an accredited profession.
(c) An intra-corporate transferee is defined as a natural person working within an organisation in the territory of a Party, and being temporarily transferred in the context of pursuit of economic activities in the territory of the other Party; the organisation concerned must have its principal place of business in the territory of a Party and the transfer be to a branch or a subsidiary of that organisation effectively pursuing like economic activities in the territory of the other Party.
Article 25.
1. Notwithstanding the provisions of Chapter I of this Title, a Community company or a Tajik company established in the territory of the Republic of Tajikistan or the Community respectively shall be entitled to employ, or have employed by one of its subsidiaries or branches, in accordance with the legislation in force in the host country of establishment, in the territory of the Republic of Tajikistan and the Community respectively, employees who are nationals of Community Member States and the Republic of Tajikistan respectively, provided that such employees are key personnel as defined in paragraph 2, and that they are employed exclusively by companies, or branches. The residence and work permits of such employees shall only cover the period of such employment.
2. Key personnel of the abovementioned companies herein
referred to as ‘organisations’ are ‘intra-corporate transferees’ as
defined in (c) in the following categories, provided that the organisation is a legal person and that the persons concerned have been
employed by it or have been partners in it (other than majority
shareholders) for at least the year immediately preceding such
movement:
(a) Persons working in a senior position with an organisation, who primarily direct the management of the establishment, receiving general supervision or direction principally from the board of directors or stockholders of the business or their equivalent, including:
-directing the establishment or a department or subdivision of the establishment,
-supervising and controlling the work of other supervisory, professional or managerial employees,
-having the authority personally to hire and fire or recommend hiring, firing or other personnel actions.
(b) Persons working within an organisation who possess uncommon knowledge essential to the establishment’s service, research equipment, techniques or management. The assess ment of such knowledge may reflect, apart from knowledge specific to the establishment, a high level of qualification referring to a type of work or trade requiring specific techni cal knowledge, including membership of an accredited profession.
(c) An ‘intra-corporate transferee’ is defined as a natural person working within an organisation in the territory of a Party, and being temporarily transferred in the context of pursuit of economic activities in the territory of the other Party; the organisation concerned must have its principal place of business in the territory of a Party and the transfer be to a branch or a subsidiary of that organisation effectively pursuing like economic activities in the territory of the other Party.
Article 26.
1. The Parties shall use their best endeavours to avoid taking any measures or actions which render the conditions for the establishment and operation of each other’s companies more restrictive than the situation existing on the day preceding the date of signature of the Agreement.
2. The provisions of this Article are without prejudice to those of Article 34: the situations covered by Article 34 shall be gov erned exclusively by the provisions thereof.
3. Acting in the spirit of partnership and cooperation and in the light of the provisions of Article 40, the Government of the Republic of Tajikistan shall inform the Community of its inten tions to submit new legislation or adopt new regulations which may render the conditions for the establishment or operation in the Republic of Tajikistan of subsidiaries and branches of Com munity companies more restrictive than the situation existing on the day preceding the date of signature of the Agreement. The Community may request the Republic of Tajikistan to communi cate the drafts of such legislation or regulations and to enter into consultations about those drafts.
4. Where new legislation or regulations introduced in the Republic of Tajikistan would result in rendering the conditions for operation of subsidiaries and branches of Community companies established in the Republic of Tajikistan more restrictive than the situation existing on the day of signature of this Agreement, such legislation or regulations shall not apply during three years fol lowing the entry into force of the relevant act to those subsidiaries and branches already established in the Republic of Tajikistan at the time of entry into force of the relevant act.
Chapter III. Cross-border Supply of Services between the Community and the Republic of Tajikistan
Article 27 .
1. The Parties undertake in accordance with the provisions of this Chapter to take the necessary steps to allow progressively the supply of services by Community or Tajik companies which are established in a Party other than that of the person for whom the services are intended, taking into account the development of the service sectors in the two Parties.
2. The Cooperation Council shall make recommendations for the implementation of paragraph 1.
Article 28.
The Parties shall cooperate with the aim of developing a market-oriented service sector in the Republic of Tajikistan.
Article 29.
1. The Parties shall use their best endeavours to avoid taking any measures or actions which render the conditions for the establishment and operation of each others companies more restrictive than the situation existing on the day preceding the date of signature of the Agreement.
2. The provisions of this Article are without prejudice to those of Article 34: the situations covered by Article 34 shall be governed exclusively by the provisions thereof.
3. Acting in the spirit of partnership and cooperation and in the light of the provisions of Article 40, the Government of the Republic of Tajikistan shall inform the Community of its intentions to submit new legislation or adopt new regulations which may render the conditions for the establishment or operation in the Republic of Tajikistan of subsidiaries and branches of Community companies more restrictive than the situation existing on the day preceding the date of signature of the Agreement. The Community may request the Republic of Tajikistan to communicate the drafts of such legislation or regulations and to enter into consultations about those drafts.
4. Where new legislation or regulations introduced in the Republic of Tajikistan would result in rendering the conditions for operation of subsidiaries and branches of Community companies established in the Republic of Tajikistan more restrictive than the situation existing on the day of signature of this Agreement, such legislation or regulations shall not apply during three years following the entry into force of the relevant act to those subsidiaries and branches already established in the Republic of Tajikistan at the time of entry into force of the relevant act.
Article 27.
1. The Parties undertake in accordance with the provisions of this Chapter to take the necessary steps to allow progressively the supply of services by Community or Tajik companies which are established in a Party other than that of the person for whom the services are intended, taking into account the development of the service sectors in the two Parties.
2. The Cooperation Council shall make recommendations for the implementation of paragraph 1.
Article 28.
The Parties shall cooperate with the aim of developing a market-oriented service sector in the Republic of Tajikistan.
1. The Parties undertake to apply effectively the principle of unrestricted access to international maritime market and traffic on a commercial basis:
(a) The above provision does not prejudice the rights and obligations arising from the United Nations Convention on a Code of Conduct for Liner Conferences, as applicable to one or other Party to this Agreement. Non-conference lines will be free to operate in competition with a conference as long as they adhere to the principle of fair competition on a commercial basis.
(b) The Parties affirm their commitment to a freely competitive environment as being an essential feature of the dry and liquid bulk trade.
2. In applying the principles of paragraph 1, the Parties shall:
(a) not apply, as from the entry into force of this Agreement, any cargo-sharing provisions of bilateral agreements between Member States of the Community and the former Soviet Union;
(b) not introduce cargo-sharing clauses into future bilateral agreements with third countries, other than in those exceptional circumstances where liner shipping companies from one or other Party to this Agreement would not otherwise have an effective opportunity to ply for trade to and from the third country concerned;
(c) prohibit cargo-sharing arrangements in future bilateral agreements concerning dry and liquid bulk trade;
(d) abolish, upon entry into force of this Agreement, all unilateral measures, administrative, technical and other obstacles which could have restrictive or discriminatory effects on the free supply of services in international maritime transport.
3. Each Party shall grant, inter alia, no less favourable treatment to ships operated by nationals or companies of the other Party than that accorded to a Partys own ships with regard to access to ports open to international trade, the use of infrastructure and auxiliary maritime services of the ports, the related fees and charges, customs facilities and the assignment of berths and facilities for loading and unloading.
Article 29.
1. The Parties undertake to apply effectively the principle of unrestricted access to international maritime market and traffic on a commercial basis:
(a) The above provision does not prejudice the rights and obli gations arising from the United Nations Convention on a Code of Conduct for Liner Conferences, as applicable to one or other Party to this Agreement. Non-conference lines will be free to operate in competition with a conference as long as they adhere to the principle of fair competition on a com mercial basis.
(b) The Parties affirm their commitment to a freely competitive environment as being an essential feature of the dry and liq uid bulk trade.
2. In applying the principles of paragraph 1, the Parties shall:
(a) not apply, as from the entry into force of this Agreement, any cargo-sharing provisions of bilateral agreements between Member States of the Community and the former Soviet Union;
(b) not introduce cargo-sharing clauses into future bilateral agreements with third countries, other than in those excep tional circumstances where liner shipping companies from one or other Party to this Agreement would not otherwise have an effective opportunity to ply for trade to and from the third country concerned;
(c) prohibit cargo-sharing arrangements in future bilateral agree ments concerning dry and liquid bulk trade;
(d) abolish, upon entry into force of this Agreement, all unilat eral measures, administrative, technical and other obstacles which could have restrictive or discriminatory effects on the free supply of services in international maritime transport.
3. Each Party shall grant, inter alia, no less favourable treatment to ships operated by nationals or companies of the other Party than that accorded to a Party’s own ships with regard to access to ports open to international trade, the use of infrastructure and auxiliary maritime services of the ports, the related fees and charges, customs facilities and the assignment of berths and facilities for loading and unloading.
Article 30.
With a view to assuring the coordinated development of transport between the Parties, adapted to their commercial needs, the conditions of mutual market access and provision of services in transport by road, rail and inland waterways and, if applicable, air may be dealt with by specific agreements negotiated between the Parties after entry into force of this Agreement.
Chapter IV. General Provisions
Article 31.
1. The provisions of this Title shall be applied subject to limitations justified on grounds of public policy, public security or public health.
2. They shall not apply to activities which in the territory of the Parties are connected, even occasionally, with the exercise of official authority.
Article 32.
For the purpose of this Title, nothing in this Agreement shall prevent the Parties from applying their laws and regulations regarding entry and stay, work, labour conditions and establishment of natural persons and supply of services, provided that, in so doing, they do not apply them in a manner such as to nullify or impair the benefits accruing to any Party under the terms of a specific provision of this Agreement. The above provision does not prejudice the application of Article 31.
Article 33.
Companies which are controlled and exclusively owned by Tajik companies and Community companies jointly shall also be beneficiaries of the provisions of Chapters II, III and IV.
Article 34.
Treatment granted by either Party to the other under this Agreement shall, as from the day one month prior to the date of entry into force of the relevant obligations of the General Agreement on Trade in Services (GATS), in respect of sectors or measures covered by the GATS, in no case be more favourable than that accorded by such first Party under the provisions of GATS and this in respect of each service sector, sub-sector and mode of supply.
Article 35.
For the purposes of Chapters II, III and IV, no account shall be taken of treatment accorded by the Community, its Member States or the Republic of Tajikistan pursuant to commitments entered into in economic integration agreements in accordance with the principles of Article V of the GATS.
Article 36.
1. The most-favoured-nation treatment granted in accordance with the provisions of this Title shall not apply to the tax advantages which the Parties are providing, or will provide in the future, on the basis of agreements to avoid double taxation or of other tax arrangements.
2. Nothing in this Title shall be construed as preventing the adoption or enforcement by the Parties of any measure aimed at preventing the avoidance or evasion of taxes pursuant to the tax provisions of agreements to avoid double taxation, other tax arrangements or domestic fiscal legislation.
3. Nothing in this Title shall be construed as preventing Member States or the Republic of Tajikistan from distinguishing, in the application of the relevant provisions of their fiscal legislation, between taxpayers who are not in identical situations, in particular as regards their place of residence.
Article 37.
Without Prejudice to Article 24, No Provision of Chapters II, III and IV shall be interpreted as giving the right to:
Nationals of the Member States or of the Republic of Tajikistan respectively to enter, or stay in, the territory of the Republic of Tajikistan or the Community respectively in any capacity whatsoever, and in particular as a shareholder or partner in a company or manager or employee thereof or supplier or recipient of services,
Community subsidiaries or branches of Tajik companies to employ, or have employed, nationals of the Republic of Tajikistan in the territory of the Community,
Tajik subsidiaries or branches of Community companies to employ, or have employed, nationals of the Member States in the territory of the Republic of Tajikistan,
Tajik companies or Community subsidiaries or branches of Tajik companies to supply Tajik persons to act for and under the control of, other persons under temporary employment contracts,
Community companies or Tajik subsidiaries or branches of Community companies to supply workers who are nationals of the Member States under temporary employment contracts.
Article 38.
1. The Parties undertake to authorise in freely convertible currency any payments on the current account of the balance of payments between residents of the Community and of the Republic of Tajikistan connected with the movement of goods, services or persons made in accordance with the provisions of this Agreement.
2. With regard to transactions on the capital account of the balance of payments, from entry into force of this Agreement, the free movement of capital shall be ensured for the purposes of direct investments made in companies formed in accordance with the laws of the host country, investments made in accordance with the provisions of Chapter II, and the liquidation or repatriation of these investments and of any profit stemming therefrom.
3. Without prejudice to paragraph 2 or to paragraph 5, as from the entry into force of this Agreement, no new foreign exchange restrictions shall be introduced on the movement of capital and current payments connected therewith between residents of the Community and Tajikistan and nor shall the existing arrangements be made more restrictive.
4. The Parties shall consult each other with a view to facilitating the movement of forms of capital other than those referred to in paragraph 2 between the Community and the Republic of Tajikistan in order to promote the objectives of this Agreement.
5. With reference to the provisions of this Article, until full convertibility of the Tajik currency within the meaning of Article VIII of the Articles of Agreement of the International Monetary Fund (IMF) is introduced, the Republic of Tajikistan may in exceptional circumstances apply exchange restrictions connected with the granting or taking-up of short-and medium-term financial credits to the extent that such restrictions are imposed on Tajikistan for the granting of such credits and are permitted according to the Republic of Tajikistans status under the IMF. The Republic of Tajikistan shall apply these restrictions in a non-discriminatory manner. They shall be applied in such a manner as to cause the least possible disruption to this Agreement. the Republic of Tajikistan shall inform the Cooperation Council promptly of the introduction of such measures and of any changes therein.
6. Without prejudice to paragraphs 1 and 2, where, in exceptional circumstances, movements of capital between the Community and the Republic of Tajikistan cause, or threaten to cause, serious difficulties for the operation of exchange-rate policy or monetary policy in the Community or Tajikistan, the Community and the Republic of Tajikistan respectively may take safeguard measures with regard to movements of capital between the Community and the Republic of Tajikistan for a period not exceeding six months, if such measures are strictly necessary.
Article 39.
1. Pursuant to the provisions of this Article and of Annex IV, the Republic of Tajikistan shall continue to improve the protection of intellectual, industrial and commercial property rights in order to provide, by the end of the fifth year after the entry into force of this Agreement, a level of protection similar to that existing in the Community, including effective means of enforcing such rights.
2. By the end of the fifth year after entry into force of this Agreement, the Republic of Tajikistan shall accede to the multilateral conventions on intellectual, industrial and commercial property rights referred to in paragraph 1 of Annex IV to
Which Member States are parties or which are de facto applied by Member States, according to the relevant provisions contained in these conventions. For implementation of this provision, the Community will provide support wherever possible.
Article 40.
1. The Parties recognise that an important condition for strengthening the economic links between the Republic of Tajikistan and the Community is the approximation of the Republic of Tajikistans existing and future legislation to that of the Community. The Republic of Tajikistan shall endeavour to ensure that its legislation is gradually made compatible with that of the Community.
2. The approximation of laws shall extend to the following areas in particular: customs law, company law, laws on banking and other financial services, company accounts and taxes, intellectual property, protection of workers at the workplace, rules on competition, including any related issues and practices affecting trade, public procurement, protection of health and life of humans, animals and plants, the environment, consumer protection, indirect taxation, technical rules and standards, nuclear laws and regulations, transport and electronic communications.
3. The Community shall provide the Republic of Tajikistan with technical assistance for the implementation of these measures, which may include:
The exchange of experts,
The provision of early information, especially on relevant legislation,
Organisation of seminars,
Training of personnel involved in the drafting and implementation of legislation,
Aid for translation of Community legislation in the relevant sectors.
4. The Parties agree to examine ways to apply their respective competition laws on a concerted basis in such cases where trade between them is affected.
Article 41.
1. The Community and the Republic of Tajikistan shall establish economic cooperation aimed at contributing to the process of economic reform and recovery and sustainable development of the Republic of Tajikistan. Such cooperation shall strengthen existing economic links to the benefit of the Parties.
2. Policies and other measures will be designed to bring about economic and social reforms and the restructuring of economic systems in the Republic of Tajikistan and will be guided by the requirements of sustainability and harmonious social development; they will also fully incorporate environmental considerations and the fight against poverty.
3. To this end the cooperation will concentrate, in particular, on economic and social development, human resources development, support for enterprises (including privatisation, investment and development of financial services), agriculture and food (including food security), energy (including hydro-electricity), water management and civil nuclear safety, health and the fight against poverty, transport, postal services, electronic communications, tourism, environmental protection, cross-border activities and regional cooperation.
4. Special attention shall be devoted to measures capable of fostering the economic potential of the Republic of Tajikistan and regional cooperation.
5. Where appropriate, economic cooperation and other forms of cooperation provided for in this Agreement may be supported by technical assistance from the Community, taking into account the Communitys relevant Council Regulation applicable to technical assistance in the Independent States, the agreed priorities in the indicative programme for Community technical assistance to Central Asia and its application in the Republic of Tajikistan and its established coordination and implementation procedures. The Republic of Tajikistan may also benefit from other Community programmes in accordance with the appropriate regulations adopted by the Council.
Article 42. Cooperation In the Field of Trade In Goods and Services
The Parties will cooperate with a view to ensuring that the Republic of Tajikistans international trade is conducted in conformity with the rules of the WTO. The Community shall provide the Republic of Tajikistan with technical assistance for this purpose.
Such cooperation shall include specific issues directly relevant to trade facilitation, in particular with a view to assisting the Republic of Tajikistan to harmonise its legislation and regulations with WTO rules and so fulfil as soon as possible the conditions of accession to that Organisation. These include:
The formulation of policy on trade and trade-related questions, including payments and clearing mechanisms,
The drafting of relevant legislation.
Article 43. Industrial Cooperation
1. Cooperation shall aim at promoting the following in particular:
The development of business links between economic operators of both Parties, including between small and mediumsized enterprises,
Community participation in the Republic of Tajikistans efforts to restructure its industry,
The improvement of management,
The improvement of the quality of industrial products and their adaptation to international standards,
The development of efficient production and processing capacity in the raw materials sector,
The development of appropriate commercial rules and practices, including product marketing,
Environmental protection,
Defence conversion,
Training of personnel.
2. The provisions of this Article shall not affect the enforcement of Community competition rules applicable to
Undertakings.
Article 44. Investment Promotion and Protection
1. Bearing in mind the respective powers and competences of the Community and the Member States, cooperation shall aim to establish a favourable climate for private investment, both domestic and foreign, especially through better conditions for investment protection, the transfer of capital and the exchange of information on investment opportunities.
2. The aims of cooperation shall be in particular:
To conclude, where appropriate, agreements between the Member States and the Republic of Tajikistan to avoid double taxation,
To create favourable conditions for attracting foreign investments into the Tajik economy,
To establish stable and adequate business law and conditions, and to exchange information on laws, regulations and administrative practices in the field of investment,
To exchange information on investment opportunities in the form of, inter alia, trade fairs, exhibitions, trade weeks and other events.
Article 45. Public Procurement
The Parties shall cooperate to develop conditions for open and competitive award of contracts for goods and services, in particular through calls for tenders.
Article 46. Cooperation In the Field of Standards and Conformity Assessment
1. Cooperation between the Parties shall promote alignment with internationally agreed criteria, principles and guidelines in the field of metrology, standards and conformity assessment, to facilitate progress towards mutual recognition in the field of conformity assessment, and to improve the quality of Tajik products.
2. To this end the Parties shall seek to cooperate in technical assistance projects which will:
Promote appropriate cooperation with organisations and institutions specialised in these fields,