2. Neither Party may adopt new or more discriminatory measures with regard to establishments and entrepreneurs of the other Party in relation to the specific commitments undertaken in conformity with paragraph 1.
Section D. TEMPORARY PRESENCE OF NATURAL PERSONS FOR BUSINESS PURPOSES
Article 8.13. Scope and Definitions
1. This Section applies to measures of the Parties concerning the entry into, and temporary stay in, their respective territories of key personnel, graduate trainees and business service sellers in accordance with paragraph 4 of Article 8.1 (Objective and Scope).
2. For the purposes of this Section:
(a) "key personnel" means natural persons employed within a juridical person of one Party, other than a non-profit organisation, and who are responsible for the setting up or the proper control, administration and operation of an establishment;
key personnel comprises business visitors for establishment purposes responsible for setting up an establishment and intra-corporate transferees:
(i) "business visitors for establishment purposes" means natural persons working in a senior position who are responsible for setting up an establishment and who do not engage in direct transactions with the general public and do not receive remuneration from a source located within the host Party; and
(ii) "intra-corporate transferees" means natural persons who have been employed by a juridical person of one Party or, in the case of professionals providing business services, have been partners in it for at least one year and who are temporarily transferred to an establishment (that may be a subsidiary, branch or head company of the enterprise) in the territory of the other Party and who must belong to one of the following categories:
(1) "executives", meaning natural persons within a juridical person who direct the management of the establishment, exercise wide latitude in decision-making, and receive general supervision or direction from the board of directors, or stockholders of the business or their equivalent, and who do not directly perform tasks related to the actual provision of the service or services of the juridical person;
(2) "managers", meaning natural persons working in a senior position within a juridical person, who primarily direct the management of the establishment, receiving general supervision or direction from high-level executives, the board of directors or stockholders of the business or their equivalent, including:
(aa) directing the establishment or a department or sub-division thereof;
(bb) supervising and controlling the work of other supervisory, professional or managerial employees; and
(cc) having the authority personally to recruit and dismiss or recommend recruiting, dismissing or other personnel actions; or
(3) "specialists", meaning natural persons working within a juridical person, who possess uncommon knowledge or expertise essential to the establishment's production, research equipment, techniques or management; in assessing such knowledge, account will be taken not only of knowledge specific to the establishment, but also, where relevant, of whether the person has a high level of qualification referring to a type of work or trade requiring specific technical knowledge, including membership of an accredited profession;
(b) "graduate trainees" means natural persons who have been employed by a juridical person of a Party for at least one year, who possess a university degree and who are temporarily transferred to an establishment in the territory of the other Party for career development purposes or to obtain training in business techniques or methods (17); and
(c) "business services sellers" means natural persons who are representatives of a service supplier of a Party seeking temporary entry into the territory of the other Party for the purpose of negotiating the sale of services or entering into agreements to sell services for that service supplier and 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.
Article 8.14. Key Personnel and Graduate Trainees
1. For every sector liberalised in accordance with Section C (Establishment) and subject to any reservations listed in its Schedule of Specific Commitments, each Party shall allow entrepreneurs of the other Party to temporarily employ in their establishment natural persons of that other Party, provided that such employees are key personnel or graduate trainees as defined in Article 8.13 (Scope and Definitions). Their temporary entry and stay shall be permitted for a period of up to three years for intra-corporate transferees, 90 days in any twelve-month period for business visitors for establishment purposes, and one year for graduate trainees. For intra-corporate transferees, this period may be extended for up to two additional years, subject to domestic law (18).
2. For every sector liberalised in accordance with Section C (Establishment), the measures which a Party shall not maintain or adopt, unless otherwise specified in its Schedule of Specific Commitments, are defined as limitations on the total number of natural persons that an entrepreneur may transfer as key personnel or graduate trainees in a specific sector in the form of numerical quotas or a requirement of an economic needs test and as discriminatory limitations.
Article 8.15. Business Services Sellers
For every sector liberalised in accordance with Section B (Cross-border Supply of Services) or Section C (Establishment) and subject to any reservations listed in its Schedule of Specific Commitments, each Party shall allow the temporary entry and stay of business service sellers for a period of up to 90 days in any twelve-month period (19).
Section E. REGULATORY FRAMEWORK
Subsection 1. PROVISIONS OF GENERAL APPLICATION
Article 8.16. Mutual Recognition of Professional Qualifications
1. 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.
2. The Parties shall encourage the relevant professional bodies in their respective territories to develop and provide a joint recommendation on mutual recognition to the Committee on Trade in Services, Investment and Government Procurement established pursuant to Article 16.2 (Specialised Committees). Such a recommendation shall be supported by evidence on:
(a) the economic value of an envisaged an agreement on mutual recognition of professional qualifications (hereinafter referred to as "Mutual Recognition Agreement"); and
(b) 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.
3. On receipt of a joint recommendation, the Committee on Trade in Services, Investment and Government Procurement shall, within a reasonable time, review the joint recommendation with a view to determining whether it is consistent with this Agreement.
4. Where, on the basis of the information provided for in paragraph 2, the recommendation has been found to be consistent with this Agreement, the Parties shall take necessary steps to negotiate a Mutual Recognition Agreement through their competent authorities or authorised designees.
Article 8.17. Transparency
Each Party shall respond promptly to all requests by the other Party for specific information on any of its measures of general application or international agreements which pertain to or affect this Chapter. Each Party shall also establish one or more enquiry points pursuant to Article 13.4 (Enquiries and Contact Points) to provide specific information on all such matters upon request to entrepreneurs and service suppliers of the other Party.
Subsection 2. DOMESTIC REGULATION
Article 8.18. Scope and Definitions
1. This Sub-Section applies to measures of the Parties relating to licensing requirements and procedures or qualification requirements and procedures that affect:
(a) cross-border supply of services as defined in Article 8.4 (Definitions);
(b) establishment in their territory of juridical and natural persons as defined in Article 8.8 (Definitions); or
(c) temporary stay of natural persons in their territory as referred to in Article 8.13 (Scope and. Definitions).
2. This Sub-Section shall only apply to sectors for which a Party has undertaken specific commitments and to the extent that these specific commitments apply.
3. This Sub-Section does not apply to measures to the extent that the measures constitute limitations as scheduled in Articles 8.5 (Market Access) and 8.10 (Market Access) or Articles 8.6 (National Treatment) and 8.11 (National Treatment).
4. For the purposes of this Sub-Section:
(a) "competent authorities" means any central, regional or local government or authority, or any non-governmental body exercising 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 an economic activity other than services;
(b) "licensing procedures" means administrative or procedural rules to which a natural or a juridical person must adhere, in order to demonstrate compliance with licensing requirements when seeking authorisation to supply a service or establish an economic activity other than services, including the amendment or renewal of a license;
(c) "licensing 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 supply a service or establish in an economic activity other than services;
(d) "qualification procedures" means administrative or procedural rules to which a natural person must adhere in order to demonstrate compliance with qualification requirements for the purpose of obtaining authorisation to supply a service; and
(e) "qualification requirements" means substantive requirements relating to the competence of a natural person to supply a service, compliance with which is required to be demonstrated for the purpose of obtaining authorisation to sup- ply a service.
Article 8.19. Conditions for Licensing and Qualification
1. Each Party shall ensure that measures relating to licensing requirements and procedures as well as qualification requirements and procedures are based on criteria which are:
(a) clear;
(b) objective and transparent; and
(c) pre-established and accessible to the public and interested persons.
2. An authorisation or a licence shall, subject to availability, be granted as soon as it has been established, on the basis of an appropriate examination, that the conditions have been met.
3. Each Party shall maintain or institute judicial, arbitral or administrative tribunals or procedures which provide, at the request of an affected entrepreneur 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 stay 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.
This paragraph shall not be construed. as requiring a Party to institute such tribunals or procedures where this would be inconsistent with its constitutional structure or the nature of its legal system.
Article 8.20. Licensing and Qualification Procedures
1. Each Party shall ensure that licensing and qualification procedures and formalities are as simple as possible and do not unduly complicate or delay the supply of the service. Any licensing or authorisation fees (20) which the applicants may incur from their application should be reasonable and should not in themselves restrict the supply of the service.
2. Each Party shall ensure that the competent authority uses procedures and takes decisions in the licensing or authorisation process that are impartial with respect to all applicants. The competent authority should reach its decisions in an independent manner and should not be accountable to any supplier of the services for which the licence or authorisation is required.
3. Where specific time periods for applications exist, an applicant shall be allowed a reasonable period of time for the submission of an application. The competent authority shall initiate the processing of such applications without undue delay. Where possible, applications should be accepted in electronic format under the same conditions of authenticity as for paper submissions.
4. Each Party shall ensure that the processing of an application, including the reaching of a final decision, is completed within a reasonable timeframe from the submission of a complete application. Each Party shall endeavour to establish a normal timeframe for the processing of an application.
5. Where the competent authority considers that an application is incomplete, it shall, within a reasonable period of time after the receipt of that application inform the applicant that the application is incomplete and, to the extent feasi- ble, specify the additional information required to complete the application, and shall provide the applicant with the opportunity to correct deficiencies.
6. Where possible, authenticated copies should be accepted in place of original documents.
7. Where the competent authority rejects an application, it shall inform the applicant in writing without undue delay. In principle, the applicant should, where it so requests, also be informed of the reasons for rejection of the application and of the timeframe for an appeal against the decision. Where applicable, an applicant should be permitted, within reasonable time limits, to resubmit an application.
8. 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.
Subsection 3. COMPUTER SERVICES
Article 8.21. Computer Services
1. The Parties subscribe to the understanding set out in the following paragraphs in respect of computer services liberalised in accordance with Section B (Cross-border Supply of Services), Section C (Establishment) and Section D (Temporary Presence of Natural Persons for Business Purposes).
2. The Parties understand that CPC (21) 84, the United Nations code used for describing computer and related ser- vices, covers all computer and related services. Technological developments have led to the increased offering of these services as a bundle or package of related services that can include some or all of the basic functions listed in paragraph 3. For example, services such as web or domain hosting, data mining services and grid computing each consist of a combination of basic computer services functions.
3. Computer and related services, regardless of whether they are delivered via a network, including the Internet, include all services that provide any of the following or any combination thereof:
(a) consulting, adaptation, strategy, analysis, planning, specification, design, development, installation, implementation, integration, testing, debugging, updating, support, technical assistance or management of or for computers or computer systems;
(b) consulting, strategy, analysis, planning, specification, design, development, installation, implementation, integration, testing, debugging, updating, adaptation, maintenance, support, technical assistance, management or use of or for software (22);
(c) data processing, data storage, data hosting or database services; (d) maintenance and repair services for office machinery and equipment, including computers; and
(d) training services for staff of clients, related to software, computers or computer systems, and not elsewhere classified.
4. The Parties understand that, in many cases, computer and related services enable the provision of other services (23) by both electronic and other means. However, in such cases, there is an important distinction between the computer and related service (.g., web-hosting or application hosting) and the other service (24) enabled by the computer and related service. The other service, regardless of whether it is enabled by a computer and related service, is not covered by CPC 84.
Subsection 4. POSTAL SERVICES
Article 8.22. Prevention of Anti-Competitive Practices In the Postal Sector (25)
Each Party shall introduce or maintain appropriate measures (26) for the purpose of preventing suppliers of postal services who, alone or together, are a major supplier in the relevant market for postal services, from engaging in or continuing anti-competitive practices.
Article 8.23. Independence of Regulatory Bodies
Regulatory bodies shall be separate from, and shall not be accountable to, any supplier of postal services. The decisions of and the procedures used by regulatory bodies shall be impartial with respect to all market participants.
Subsection 5. TELECOMMUNICATIONS SERVICES
Article 8.24. Scope
1. This Sub-Section applies to measures that affect trade in telecommunications services and sets out the principles of the regulatory framework for telecommunications services, liberalised pursuant to Section B to Section D.
2. 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.
3. Nothing in this Sub-Section shall be construed as requiring a Party:
(a) to authorise a service supplier of the other Party to establish, construct, acquire, lease, operate, or provide telecommunications transport networks or services, other than as provided for in its Schedule of Specific Commitments; or
(b) to establish, construct, acquire, lease, operate, or provide telecommunications transport networks or services where such networks or services are not offered to the public generally, or to compel any service supplier to do so.
4. Each Party shall impose, maintain, amend or withdraw the rights and obligations of service suppliers provided for in the Article 8.26 (Access to and Use of Public Telecommunications Networks and Services), Article 8.28 (Interconnec- tion), Article 8.29 (Interconnection with Major Suppliers), Article 8.30 (Conduct of Major Suppliers), Article 8.32 (Unbundled Network Elements), Article 8.33 (Co-location), Article 8.34 (Resale), Article 8.35 (Facility Sharing), Article 8.36 (Provisioning of Leased Circuits Services) and Article 8.38 (Submarine Cable Landing Stations) in a manner consistent with its domestic law and internal procedures for the regulation of its telecommunications markets. For the Union, such procedures entail the analysis by the Union regulators of the relevant product and service markets provided for in the relevant Union legislation, of the designation of a service supplier as having significant market power and the decision of regulators, based upon such analysis, to impose, maintain, amend or withdraw such rights and obligations.
Article 8.25. Definitions
For the purposes of this Sub-Section:
(a) "broadcasting service" refers to the uninterrupted chain of transmission via wired or wireless means, regardless of the location of the originating transmission, required for the reception or display of aural or visual programme signals by all or any part of the public, but does not cover contribution links between operators;
(b) "end-user" means a service consumer or a service supplier to whom a public telecommunications network or service is supplied other than for use in the further supply of a public telecommunications network or service;
(c) "essential facilities" mean facilities of a public telecommunications transport network or service that:
(i) are exclusively or predominantly provided by a single or limited number of suppliers; and
(ii) cannot feasibly be economically or technically substituted in order to provide a service;
(d) "interconnection" means linking with suppliers providing public telecommunications transport networks or services in order to allow the users of one supplier to communicate with users of another supplier and to access services provided by another supplier;
(e) "major supplier" means a supplier of public telecommunications networks or services that has the ability to materially affect the terms of participation in the relevant market for public telecommunications networks or services, having regard to price and supply, as a result of:
(i) control over essential facilities; or
(ii) use of its position in the market;
(f) "non-discriminatory" means treatment that is no less favourable than that accorded to any other user of like public telecommunications transport networks or services in like circumstances;
(g) "number portability" means the ability of end-users of public telecommunications networks or services to retain existing telephone numbers at the same location, without impairment of quality, reliability or convenience when switching between like suppliers of public telecommunications networks or services;
(h) "public telecommunications network" means a telecommunications network which a Party requires to provide telecommunications services between defined network termination points;
(i) "public telecommunications service" means any telecommunications service that a Party requires, explicitly or in effect, to be offered to the public generally;
(j) "submarine cable landing station" means the premises and buildings where international submarine cables arrive and terminate and are connected to backhaul links;
(k) "telecommunications" means the transmission and reception of signals by any electromagnetic means;
(l) "telecommunications services" means all services consisting of the transmission and reception of electromagnetic signals, but excludes broadcasting services and economic activities consisting of the provision of content which requires telecommunications for its transport; and
(m) "telecommunications regulatory body" means the national body or bodies charged with the regulation of telecommunications.
Article 8.26. Access to and Use of Public Telecommunications Networks and Services
1. Each Party shall ensure that all service suppliers of the other Party have access to and use of any public telecom- munications network and service offered in its territory or across its borders, including private leased circuits, on reasonable, non-discriminatory and transparent terms and conditions, including as set out in paragraphs 2 and 3.
2. Each Party shall ensure that such service suppliers are permitted to:
(a) purchase or lease, and attach terminal or other equipment which interfaces with the public telecommunications network;
(b) interconnect private leased or owned circuits with public telecommunications networks and services in its territory, or across its borders, or with circuits leased or owned by other service suppliers, and
(c) use operating protocols of their choice, other than as necessary to ensure the availability of telecommunications networks and services to the public generally.
3. Each Party shall ensure that all service suppliers of the other Party may use public telecommunications networks and services for the movement of information in its territory or across its borders, including for intra-corporate communications of such service suppliers and for access to information contained in databases or otherwise stored in machine-readable form in the territory of either Party. Any new or amended measures of a Party significantly affecting such use shall be notified to the other Party and shall be subject to consultations.
Article 8.27. Confidentiality of Information
Each Party shall ensure the confidentiality of telecommunications and related traffic data by means of any public telecommunications network or service, without restricting trade in services.
Article 8.28. Interconnection (27)
1. Each Party shall ensure that any service supplier authorised to provide public telecommunications networks or services has the right and obligation to negotiate interconnection with other suppliers of public telecommunications networks or services. Interconnection should be agreed on the basis of commercial negotiations between the parties concerned.
2. Regulatory authorities shall ensure that suppliers that acquire information from another undertaking during the process of negotiating interconnection arrangements use that information solely for the purpose for which it was supplied, and at all times respect the confidentiality of information transmitted or stored.
Article 8.29. Interconnection with Major Suppliers
1. Each Party shall ensure that any major supplier in its territory provides interconnection for the facilities and equipment of suppliers of public telecommunications networks or services of the other Party at any technically feasible point in the major supplier's network. Such interconnection shall be provided:
(a) under non-discriminatory terms, conditions (including technical standards and specifications) and rates, and of a quality no less favourable than that provided for the own like services of such major supplier, or for like services of non-affiliated suppliers of public telecommunications networks or services, or for its subsidiaries or other affiliates;
(b) in a timely fashion, on terms, conditions (including technical standards and specifications), and cost-oriented rates that are transparent, are reasonable, having regard to economic feasibility, and are sufficiently unbundled so that the supplier need not pay for network components or facilities that it does not require for the service to be provided; and
(c) upon request, at points in addition to the network termination points offered to the majority of suppliers of public telecommunications networks or services, subject to charges that reflect the cost of construction of necessary additional facilities.
2. Each Party shall ensure that major suppliers in its territory make publicly available their interconnection agreements or a reference interconnection offer.
3. The procedures applicable for interconnection to a major supplier shall be made publicly available.
4. When suppliers of public telecommunications networks or services are unable to resolve disputes regarding the terms, conditions and rates on which interconnection is to be provided by a major supplier, they shall have recourse to the regulatory authority, which shall aim to resolve the disputes in the shortest possible timeframe and in any case within 180 days of the referral to it, provided that the resolution of complex disputes may take longer than 180 days.
Article 8.30. Conduct of Major Suppliers
1. Each Party may impose obligations of non-discrimination on major suppliers in relation to interconnection or access.
2. Obligations of non-discrimination shall ensure, in particular, that the major supplier applies equivalent conditions in equivalent circumstances to other suppliers providing equivalent services and provides services and information to others under equivalent conditions and of the same quality as it provides for its own services or for the services of its subsidiaries or partners.
Article 8.31. Competitive Safeguards on Major Suppliers
Each Party shall introduce or maintain appropriate measures (28) for the purpose of preventing suppliers of public telecommunications networks or services who, alone or together, are a major supplier in its territory from engaging in or continuing anti-competitive practices. These anti-competitive practices shall include in particular:
(a) engaging in anti-competitive cross-subsidisation or margin squeeze;
(b) using information obtained from competitors with anti-competitive results;
(c) not making available to suppliers of public telecommunications networks or services, on a timely basis, technical information about essential facilities and commercially relevant information which are necessary for them to provide public telecommunications services;
(d) pricing services in a manner that is likely to unreasonably restrict competition, such as predatory pricing.
Article 8.32. Unbundled Network Elements
1. Each Party shall impose obligations on major suppliers to meet reasonable requests for access to, and use of, spe- cific network elements and associated facilities at any technically feasible point, on an unbundled basis, in a timely fash- ion and on terms and conditions that are reasonable, transparent, and non-discriminatory, and in particular:
(a) to give access to specified network elements and/or facilities, including access to network elements which are not active, and/or unbundled access to the local loop to, inter alia, allow subscriber line resale offers;