services as employees of the juridical person supplying the services for at least two years immediately preceding the date of submission of an application for entry into the other Party;
the natural persons entering the other Party must possess:
a degree or a qualification demonstrating knowledge of an equivalent level24; and
professional qualifications where this is required to exercise an activity pursuant to the laws, regulations or legal requirements of the Party where the service is supplied;
the natural person shall not receive remuneration for the provision of services in the territory of the other Party other than the remuneration paid by the juridical person employing the natural person.
the entry and temporary stay of natural persons within the Party concerned shall be for a period as set out in each schedule;
access accorded under the provisions of this Article relates only to the service activity which is the subject of the contract and does not confer entitlement to exercise the professional title of the Party where the service is provided;
the number of persons covered by the service contract shall not be larger than necessary to fulfil the contract pursuant to relevant laws and regulations of the Party where the service is supplied; and
other discriminatory limitations, including on the number of natural persons in the form of economic needs tests, specified in Annex (…) [reservations on contractual services sellers].]
Article ARTICLE 8.21
Independent professionals
For every sector listed below, the Parties shall allow the supply of services into their territory by independent professionals of the other Party, subject to the conditions specified in paragraph 3 of this Article and any reservations listed in Annex (…) [reservations on independent professionals.
The commitments undertaken by the Parties are subject to the following conditions:
the natural persons must be engaged in the supply of a service on a temporary basis as self-employed persons established in the other Party and must have obtained a service contract for a period not exceeding twelve months;
the natural persons entering the other Party must possess, at the date of submission of an application for entry into the other Party, at least six years professional experience in the sector of activity which is the subject of the contract;
the natural persons entering the other Party must possess:
a degree or a qualification demonstrating knowledge of an equivalent level25 and
professional qualifications where this is required to exercise an activity pursuant to the law, regulations or other legal requirements of the Party where the service is supplied;
the entry and temporary stay of natural persons within the Party concerned shall be for a period as set out in each schedule;
access accorded under the provisions of this Article relates only to the service activity which is the subject of the contract; it does not confer entitlement to exercise the professional title of the Party where the service is provided; and
25 Where the degree or qualification has not been obtained in the Party where the service is supplied, that Party may evaluate whether this is equivalent to a university degree required in its territory. In evaluating the qualification, that Party shall endeavour to take into account relevant information that may be provided by relevant authority of the other Party.
other discriminatory limitations, including on the number of natural persons in the form of economic needs tests, which are specified in Annex (…) [reservations on independent professionals].
Article ARTICLE 8.22
Transparency
Each Party shall make publicly available information on relevant measures that pertain to the entry and temporary stay of natural persons with respect to whom commitments are undertaken in accordance with this Section.
The information referred to in paragraph 1 shall, to the extent possible, include inter alia the following information relevant to the entry and temporary stay of natural persons:
entry conditions;
an indicative list of documentation that may be required in order to verify the fulfilment of the conditions;
indicative processing time;
applicable fees; and
appeal procedures.
For greater certainty, paragraph 2 shall not be construed as to require any Party to provide an appeal procedure that is inconsistent with its legal system.
Article ARTICLE 8.23
Dispute settlement
No Party shall have recourse to Chapter 22 (Dispute Settlement) regarding a refusal to grant temporary entry, unless the matter involves a pattern of practice.
SECTION E REGULATORY FRAMEWORK
SUB-SECTION 1 DOMESTIC REGULATION
Article ARTICLE 8.24
Scope and definitions
This Sub-Section applies to measures by the Parties relating to licencing requirements and procedures, qualification requirements and procedures that affect:
the cross-border supply of services;
the supply of a service or pursuit of any other economic activity through the establishment of an enterprise and operation of a covered enterprise;
the supply of a service through temporary stay in their territory of categories of natural persons as defined in Article 8.17 (Scope and Definitions).
This Sub-Section only applies to sectors for which the Party has undertaken specific commitments and to the extent that these specific commitments apply.
This section does not apply to measures to the extent that they constitute limitations subject to scheduling of commitments under Articles 8.7 or 8.13 (Market Access) and/or Article 8.8 or 8.14
(National Treatment) where applicable or Article 8.11 (Performance Requirements) or Article 8.18, 8.19, 8.20, 8.21.
For the purpose of this Sub-Section:
"licencing requirements" means substantive requirements, other than qualification requirements, with which a natural or a juridical person is required to comply in order to obtain, amend or renew authorisation to carry out the activities as defined in paragraph 1 (a) to (c);
"licencing procedures" means administrative or procedural rules that a natural or a juridical person, seeking authorisation to carry out the activities as referred to in paragraph 1 (a) to (c), including the amendment or renewal of a licence, must adhere to in order to demonstrate compliance with licencing requirements;
"qualification requirements" means substantive requirements relating to the competence of a natural person to supply a service, and which are required to be demonstrated for the purpose of obtaining authorisation to supply a service;
"qualification procedures" means administrative or procedural rules that a natural person must adhere to in order to demonstrate compliance with qualification requirements, for the purpose of obtaining authorisation to supply a service; and
"competent authority" means any central, regional or local government and authority or non-governmental body in the exercise of powers delegated by central or regional or local governments or authorities, which takes a decision concerning the authorisation to supply a service, including through establishment or concerning the authorisation to establish in an economic activity other than services.
Article ARTICLE 8.25
Conditions for licencing and qualification
Each Party shall ensure that measures relating to licencing requirements, licencing procedures, qualification requirements and qualification procedures are based on criteria which preclude the competent authorities from exercising their power of assessment in an arbitrary manner.
The criteria referred to in paragraph 1 shall be:
clear;
objective and transparent; and
pre-established and accessible to the public.
An authorisation or a licence shall, subject to availability, be granted as soon as it is established, in the light of an appropriate examination, that the conditions for obtaining an authorisation or licence have been met.
(a) Each Party shall maintain or institute judicial, arbitral or administrative tribunals or procedures which provide, at the request of an affected investor or service supplier, for a prompt review of, and where justified, appropriate remedies for, administrative decisions affecting establishment, cross border supply of services or temporary presence of natural persons for business purposes. Where such procedures are not independent of the agency entrusted with the administrative decision concerned, each Party shall ensure that the procedures in fact provide for an objective and impartial review.
(b) The provisions of subparagraph (a) shall not be construed to require a Party to institute such tribunals or procedures where this would be inconsistent with the nature of its legal system.
Where the number of licences available for a given activity is limited because of the scarcity of available natural resources or technical capacity, each Party shall apply a selection procedure to potential candidates which provides full guarantees of impartiality and transparency, including, in particular, adequate publicity about the launch, conduct and completion of the procedure.
Subject to the provisions specified by paragraph 5, in establishing the rules for the selection procedure, each Party may take into account legitimate policy objectives, including considerations of health, safety, the protection of the environment and the preservation of cultural heritage.
Article ARTICLE 8.26
Licencing and qualification procedures
Licencing and qualification procedures and formalities shall be clear, pre-established and made publicly available, and shall not in themselves constitute a restriction on the supply of a service or the pursuit of any other economic activity. Each Party shall endeavour to make such procedures and formalities as simple as possible and shall not unduly complicate or delay the provision of the service. Any licencing fees26, except for financial services, which the applicants may incur from their application should be reasonable and shall not, in themselves, restrict the supply of the relevant service or the pursuit of the relevant economic activity.
With regard to financial services, each Party shall ensure that its competent authorities, with respect to authorisation fees that they charge, provide applicants with a schedule of fees or information on how fee amounts are determined, and do not use the fees as a means of avoiding the Party's commitments or obligations.
Each Party shall ensure that the procedures used by, and the decisions of, the competent authority in the licencing or authorisation process are impartial with respect to all applicants. The competent authority should reach its decision in an independent manner and not be accountable to any person supplying the services or carrying out the economic activities for which the licence or authorisation is required.
In case specific time periods for applications exist, an applicant shall be allowed a reasonable period for the submission of an application. The competent authority shall initiate the processing of an application without undue delay. If possible, applications should be accepted in electronic format under the same conditions of authenticity as paper submissions.
Each Party shall ensure that the processing of an application, including reaching a final decision, is completed within a reasonable timeframe after the date of submission of a complete application. Each Party shall endeavour to establish the normal timeframe for processing of an application.
26 Licencing fees do not include payments for auction, tendering or other non-discriminatory means of awarding concessions, or mandated contributions to universal service provision.
The competent authority shall, within a reasonable period of time after the receipt of an application which it considers incomplete, inform the applicant, identify to the extent feasible the additional information required to complete the application, and provide the opportunity to correct deficiencies.
Copies that are authenticated in accordance with the Party’s domestic law should be accepted, whenever possible, in place of original documents.
If an application is rejected by the competent authority, the applicant shall be informed in writing and without undue delay. In principle and in line with each Party´s laws and regulations, the applicant shall, upon formal request, also be informed of the reasons for rejection of the application and of the timeframe for an appeal against this decision. An applicant should be permitted, within reasonable time limits, to resubmit an application.
Each Party shall ensure that a licence or an authorisation, once granted, enters into effect without undue delay in accordance with the terms and conditions specified therein.
SUB-SECTION 2 PROVISIONS OF GENERAL APPLICATION
Article ARTICLE 8.27
Mutual recognition of professional qualifications
Nothing in this Article shall prevent a Party from requiring that natural persons possess the necessary qualifications and/or professional experience specified in the territory where the service is supplied, for the sector of activity concerned.
1a. Where appropriate, the Parties shall encourage the establishment of dialogue between their relevant experts, regulators and/or industry bodies to share and facilitate understanding of the respective qualifications, registration requirements and processes.
The Parties shall encourage the relevant professional bodies or respective authorities as appropriate, in their respective territories to develop and provide a joint recommendation on mutual recognition of professional qualifications to the Specialised Committee on Services, Investment, Digital Trade, Government Procurement, Intellectual Property established pursuant to Article 24.4 (Specialised Committees). Such a joint recommendation shall be supported by evidence of:
the economic value of an envisaged arrangement on mutual recognition of professional qualifications (hereinafter referred to as “Mutual Recognition Arrangement”); and
the compatibility of the respective regimes, i.e., the extent to which the criteria applied by each Party for the authorisation, licensing, operation and certification of entrepreneurs and service suppliers are compatible.
On receipt of a joint recommendation, the [Committee] shall review its consistency with this Title, within a reasonable period of time. The [Committee] may, following such review, develop and adopt a mutual recognition arrangement by decision. 27 The Decision to adopt a mutual recognition arrangement shall be without prejudice to the entry into force of the arrangement as may be provided in the mutual recognition arrangement or in this decision.28
The Guidelines for arrangements on the recognition of professional qualifications set out in Annex XX shall be taken into account in the development of the joint recommendations referred to in paragraph 2 and by the Specialised Committee on Services, Investment, Digital Trade, Government Procurement, Intellectual Property when assessing whether to adopt such an Arrangement, as referred to in paragraph 3.
The Specialised Committee on Services, Investment, Digital Trade, Government Procurement, Intellectual Property may consider:
issues of mutual interest relating to the supply of professional services; and
27 For greater certainty, this paragraph shall be without prejudice to the right of [the Committee] to delegate the review and development of a mutual recognition arrangement to the Specialised Committee. [The Committee] retains the right to adopt a mutual recognition arrangement.
28 For greater certainty, nothing in this Article shall be construed to require the Parties to establish automatic recognition of qualifications, and in the mutual interest of both Parties such arrangements shall set the conditions for the competent authorities granting recognition.
the possibility of developing a comparison of European and Indonesian Qualifications Frameworks to improve understanding of the Parties respective qualification frameworks.
SUB-SECTION 3 DELIVERY SERVICES
Article ARTICLE 8.28
Scope and definitions
This Sub-Section sets out the principles of the regulatory framework for all delivery services.
For the purpose of this Sub-Section:
"delivery services" mean postal and courier/express services, which include the following activities: the collection, sorting, transport, and delivery of postal items;
"postal item" means an item up to 31.5 kg addressed in the final form in which it is to be carried by any type of delivery service provider, whether public or private, and may include items such as a letter, parcel, newspaper, catalogue, and others;
"express delivery services" means the collection, sorting, transport and delivery of postal items at accelerated speed and reliability and may include value added elements such as collection from point of origin, personal delivery to the addressee, tracing, possibility of changing the destination and addressee in transit or confirmation of receipt;
"express mail services" means international express delivery services supplied through the EMS Cooperative, the voluntary association of designated postal operators under Universal Postal Union (UPU);
"postal monopoly" means the exclusive right to supply specified delivery services within a Party’s territory pursuant to a legislative measure by the Party;
"universal service" means the permanent provision of a service of a specified quality at all points in the territory of a Party at affordable prices for all users; and
"licence" means an authorisation, granted to a service supplier by a regulatory authority, setting out procedures, obligations and requirements specific to the delivery services sector pursuant to laws and regulations of each Party.
Article ARTICLE 8. 29
Universal service
Each Party has the right to define the kind of universal service obligation it wishes to maintain. Each Party that maintains a universal service obligation shall administer it in a transparent, non-discriminatory and neutral manner with regard to all suppliers subject to the obligation.
If a Party requires inbound Express Mail Services to be supplied on a universal service basis, it shall not accord preferential treatment to this service over other international express delivery services.
Article ARTICLE 8.30
Universal service funding
The Parties shall not impose discriminatory fees or other charges on the supply of a non-universal delivery service for the purpose of funding the supply of a universal service.29
Article ARTICLE 8.31
29 This paragraph does not apply to generally applicable taxation measures or administrative fees.
Prevention of market distortive practices
Each Party shall ensure that a supplier of delivery services subject to a universal service obligation or a postal monopoly does not engage in the following market distortive practices:
using revenues derived from the supply of such service to cross-subsidize the supply of an express delivery service or any non-universal delivery service30,
unjustifiably differentiating among customers such as businesses, large volume mailers or consolidators with respect to, for example, tariffs for the supply of a service subject to a universal service obligation or a postal monopoly, and
any other market distortive practice stipulated by the laws and regulations of the Party in which the service is supplied.
Article ARTICLE 8.32
Licences
When a Party requires a licence for the provision of delivery services, it shall make publicly available:
all licensing requirements and the period of time normally required to reach a decision concerning an application for a licence; and
the terms and conditions of licences.
The procedures, obligations and requirements of a license shall be transparent, non-discriminatory and based on objective criteria.
30 Measures to demonstrate that revenues derived from the supply of delivery services subject to universal service obligation or postal monopoly are not used to cross-subsidize the supply of non-monopoly or non-universal delivery service may include, among others, maintaining separate accounts.
Each Party shall inform the applicant of the reasons for denial of the licence in writing. Each party shall ensure that it institutes or maintains an appeal procedure through a body that is independent from the parties involved. This body may be a court.
Article ARTICLE 8.33
Independence of the regulatory body
Each Party shall create or maintain a regulatory body which shall be legally distinct from and functionally independent from any supplier of delivery services. Parties that retain ownership or control of undertakings providing delivery services shall ensure effective structural separation of the regulatory function from activities associated with ownership or control. The body may be a government institution.
Each Party shall ensure that regulatory bodies perform their tasks in a transparent and timely manner. They shall ensure that regulatory bodies have adequate financial and human resources to carry out the task assigned to them.
The decisions of and the procedures used by the regulatory body shall be impartial with respect to all market participants.
SUB-SECTION 4 TELECOMMUNICATIONS SERVICES
Article ARTICLE 8.34
Scope
This Sub-Section sets out the principles of the regulatory framework for the provision of public telecommunications networks and services, liberalised pursuant to Sections B, [Liberalisation of Investment,] and C [Cross-Border Supply of Services] of this Chapter.
This Sub-Section does not apply to any measure adopted or maintained by a Party relating to cable or broadcast distribution of radio or television programming.
Article ARTICLE 8.35
Definitions
For the purpose of this Sub-Section:
"associated facilities" means those services, physical infrastructures and other facilities associated with a telecommunications network and/or service which enable and/or support the provision of services via that network and/or service or have the potential to do so;
"essential facilities" mean facilities of a public telecommunications network or service that:
are exclusively or predominantly provided by a single or limited number of suppliers; and
cannot feasibly be economically or technically substituted in order to provide a service;
"interconnection" means linking of public telecommunications networks providing public telecommunications networks or services in order to allow the users of one supplier to communicate with users of another supplier or to access services provided by another supplier;
"leased circuits" means telecommunications services or facilities that set aside capacity for the dedicated use of, or availability to, a user between two or more designated points;
"major supplier" means a supplier of telecommunications networks or services which has the ability to materially affect the terms of participation (having regard to price and supply) in a relevant market for telecommunications networks or services as a result of control over essential facilities or the use of its position in that market;