Inter alia, to:
(a) improve customs law, harmonise and simplify customs procedures, in accordance with international conventions and standards applicable in the field of customs and trade facilitation, including those developed by the European Union (including Customs Blueprints), the World Trade Organisation and the World Customs Organisation (in particular the Revised Kyoto Convention);
(b) establish modern customs systems, including modern customs clearance technologies, provisions for authorised economic operators, automated risk-based analysis and controls, simplified procedures for the release of goods, postclearance controls, transparent customs valuation, and provisions for customs-to-business partnerships;
(c) encourage the highest standards of integrity in the area of customs, in particular at the border, through the application of measures reflecting the principles set out in the Arusha Declaration of the World Customs Organisation;
(d) exchange best practices, and provide training and technical support for planning and capacity building and for ensuring the highest standards of integrity;
(e) exchange, where appropriate, relevant information and data whilst respecting the Parties' rules on the confidentiality of sensitive data and on personal data protection;
(f) engage in coordinated customs actions between the customs authorities of the Parties;
(g) establish, where relevant and appropriate, mutual recognition of authorised economic operators' programmes and customs controls, including equivalent trade facilitation measures;
(h) pursue, where relevant and appropriate, possibilities for interconnectivity of the respective customs transit systems.
3. The Cooperation Council shall establish a Subcommittee on Customs Cooperation.
4. A regular dialogue shall take place on the issues covered by this Chapter. The Cooperation Committee may establish rules for the conduct of such dialogue.
Article 26. Mutual Administrative Assistance
Without prejudice to other forms of cooperation envisaged in this Agreement, in particular in Article 25, the Parties shall provide each other with mutual administrative assistance in customs matters in accordance with the Protocol to this Agreement on Mutual Administrative Assistance in Customs Matters.
Article 27. Customs Valuation
The Agreement on the Implementation of Article VII of the GATT 1994 shall govern the customs valuation of goods in the trade between the Parties. Its provisions are hereby incorporated into and made part of this Agreement, mutatis mutandis.
Chapter 3. Technical Barriers to Trade
Article 28. Wto Agreement on Technical Barriers to Trade
The Parties affirm that in their relations they will respect the rights and obligations of the WTO Agreement on Technical Barriers to Trade (‘TBT Agreement') which is incorporated into and made part of this Agreement, mutatis mutandis.
Article 29. Technical Regulation, Standardisation, Metrology, Accreditation, Market Surveillance and Conformity Assessment
1. The Parties agree to:
(a) reduce the differences which exist between them in the fields of technical regulation, standardisation, legal metrology, accreditation, market surveillance and conformity assessment, including by encouraging the use of internationally agreed instruments in those fields;
(b) promote the use of accreditation in accordance with international rules in support of conformity assessment bodies and their activities; and
(c) promote the participation and, where possible, the membership of the Republic of Kazakhstan and its relevant bodies in European organisations the activity of which relates to standardisation, metrology, conformity assessment and related functions.
2. The Parties aim to set up and maintain a process through which gradual alignment of their technical regulations, standards and conformity assessment procedures will be achieved.
3. For areas in which alignment has been achieved, the Parties may consider the negotiation of agreements on conformity assessment and acceptance of industrial products.
Article 30. Transparency
1. Without prejudice to the provisions of Chapter 13 (Transparency) of this Title, each Party shall ensure that its procedures for the development of technical regulations and conformity assessment procedures allow for public consultation of interested parties at an early appropriate stage when comments resulting from the public consultation can still be introduced and taken into account, except where this is not possible because of an emergency or a threat thereof related to safety, health, environmental protection or national security.
2. In accordance with Article 2.9 of the TBT Agreement, each Party shall allow a period for comments at an early appropriate stage following the notification of proposed technical regulations or conformity assessment procedures. Where a consultation process on proposed drafts of technical regulations or conformity assessment procedures is open to the public, each Party shall permit the other Party, or natural or legal persons located in the territory of the other Party, to participate on terms no less favourable than those accorded to natural or legal persons located in the territory of that Party.
3. Each Party shall ensure that its adopted technical regulations and conformity assessment procedures are publicly available.
Chapter 4. Sanitary and Phytosanitary Matters
Article 31. Objective
The objective of this Chapter is to set out principles applicable to sanitary and phytosanitary (SPS) measures and animal welfare issues in trade between the Parties. These principles shall be applied by the Parties in a manner which further facilitates trade, while preserving each Party's level of protection of human, animal or plant life or health.
Article 32. Principles
1. The Parties shall ensure that SPS measures are developed and applied on the basis of the principles of proportionality, transparency, non-discrimination and scientific justification.
2. A Party shall ensure that its SPS measures do not arbitrarily or unjustifiably discriminate between its own territory and the territory of the other Party to the extent that identical or similar conditions prevail. SPS measures shall not be applied in a manner which would constitute a disguised restriction on trade.
3. The Parties shall ensure that SPS measures, procedures or controls are implemented and requests for information are addressed by the relevant authorities of each Party without undue delay, and in a manner no less favourable to imported products than to like domestic products.
Article 33. Import Requirements
1. The import requirements of the importing Party shall be applicable to the entire territory of the exporting Party, subject to Article 35 of this Chapter. The import requirements set out in certificates are based on the principles of the Codex Alimentarius Commission (‘Codex'), the World Organisation for Animal Health (OIE) and the International Plant Protection Convention (IPPC), unless the import requirements are supported by a science-based risk assessment conducted in accordance with the applicable international rules as provided for in the WTO Agreement on the Application of Sanitary and Phytosanitary Measures (‘the SPS Agreement').
2. The requirements set out in import permits shall not contain more stringent sanitary and veterinary conditions than the conditions laid down in the certificates under paragraph 1 of this Article.
Article 34. Equivalence
Upon request by the exporting Party and subject to a satisfactory evaluation by the importing Party, equivalence shall be recognised by the Parties, following the relevant international procedures, in relation to an individual measure and/or groups of measures and/or systems applicable in general or to a sector or part of a sector.
Article 35. Measures Linked to Animal and Plant Health
1. The Parties shall recognise the concept of pest-free or disease-free areas and areas of low pest or disease prevalence in accordance with the SPS Agreement and the relevant standards, guidelines or recommendations of the Codex, the OIE and the IPPC.
2. When determining pest-free or disease-free areas and areas of low pest or disease prevalence, the Parties shall consider factors such as geographical location, ecosystems, epidemiological surveillance, and the effectiveness of sanitary or phytosanitary controls in such areas.
Article 36. Trade Facilitation
1. The Parties shall develop and apply trade facilitation tools on the basis of the recognition by the importing Party of the inspection and certification systems of the exporting Party.
2. Such trade facilitation tools aim at avoiding the inspection by the importing Party of each consignment or each exporting establishment in the territory of the exporting Party according to existing legislation. They may include an approval of an exporting establishment and the establishment of lists of the exporting establishments in the territory of the exporting Party based on guaranties given by the exporting Party.
Article 37. Inspections and Audits
Inspections and audits carried out by the importing Party in the territory of the exporting Party to evaluate the latter's inspection and certification systems shall be performed in accordance with the relevant international standards, guidelines and recommendations. The costs of inspections and audits shall be borne by the Party carrying out the audits and the inspections.
Article 38. Exchange of Information and Cooperation
1. The Parties shall discuss and exchange information on existing SPS and animal welfare measures and on their development and implementation. Such discussions and exchange of information shall, as appropriate, take into account the SPS Agreement and the standards, guidelines or recommendations of the Codex, the OIE and the IPPC.
2. The Parties agree to cooperate on animal and plant welfare through the exchange of information, expertise and experience with the objective of building up capacity in this field. Such cooperation shall be specific to the needs of a Party and be conducted with the aim of assisting each Party in complying with the other Party's legal framework.
3. The Parties shall establish a timely dialogue on SPS issues upon request by either Party to consider matters relating to SPS and other urgent issues covered by this Chapter. The Cooperation Committee may adopt rules for the conduct of such dialogues.
4. The Parties shall designate and regularly update the contact points for communication on matters covered by this Chapter.
Chapter 5. Trade In Services and Establishment
Section 1. General Provisions
Article 39. Objective, Scope and Coverage
1. The Parties, reaffirming their respective commitments under the WTO Agreement, hereby lay down the necessary arrangements in view of improving reciprocal conditions for trade in services and establishment.
2. Nothing in this Chapter shall be construed as imposing any obligation with respect to government procurement subject to the provisions of Chapter 8 (Government Procurement) of this Title.
3. The provisions of this Chapter shall not apply to subsidies granted by the Parties.
4. Consistent with the provisions of this Agreement, each Party retains the right to regulate and to introduce new regulations to meet legitimate policy objectives.
5. This Chapter shall not apply to measures affecting natural persons seeking access to the employment market of the European Union or of the Republic of Kazakhstan, nor shall it apply to measures regarding citizenship, residence or employment on a permanent basis.
6. Nothing in this Chapter shall prevent the Parties from applying measures to regulate the entry of natural persons into, or their temporary stay in, their territory, including those measures necessary to protect the integrity of, and to ensure the orderly movement of natural persons across, their borders, provided that such measures are not applied in such a manner as to nullify or impair the benefits accruing to any Party under the provisions of this Chapter (1).
7. This Chapter does not apply to measures adopted or maintained by the Parties affecting trade in services and establishment in the audiovisual sector.
Article 40. Definitions
For the purposes of this Chapter:
(a) ‘measure' means any measure by a Party, whether in the form of a law, regulation, rule, procedure, decision, administrative action or any other form;
(b) ‘measures adopted or maintained by a Party' means measures taken by:
(i) central, regional or local governments or authorities of a Party; and
(ii) non-governmental bodies of a Party in the exercise of powers delegated by central, regional or local governments or authorities of a Party;
(c) ‘natural person of the European Union' or ‘natural person of the Republic of Kazakhstan' means a national of one of the Member States of the European Union or of the Republic of Kazakhstan according to their respective legislation;
(d) ‘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;
(e) ‘juridical person of a Party' means a juridical person of the European Union or of the Republic of Kazakhstan set up in accordance with the law of a Member State of the European Union or of the Republic of Kazakhstan, respectively, and having its registered office, its central administration, or its principal place of business in the territory to which the Treaty on the Functioning of the European Union applies or in the territory of the Republic of Kazakhstan, respectively.
Should the juridical person set up in accordance with the law of a Member State of the European Union or of the Republic of Kazakhstan, have only its registered office or central administration in the territory to which the Treaty on the Functioning of the European Union applies or in the territory of the Republic of Kazakhstan, respectively, it shall not be considered as a juridical person of the European Union or of the Republic of Kazakhstan, respectively, unless it engages in substantive business operations in the territory to which the Treaty on the Functioning of the European Union applies or in the territory of the Republic of Kazakhstan, respectively;
(f) Notwithstanding point (e), with regard to international maritime transport, including intermodal operations involving a sea leg, shipping companies established outside the European Union or the Republic of Kazakhstan and controlled by nationals of a Member State of the European Union or of the Republic of Kazakhstan, respectively, shall also be beneficiaries of the provisions of this Chapter if their vessels are registered in accordance with the respective legislation in that Member State of the European Union or in the Republic of Kazakhstan and fly the flag of a Member State of the European Union or of the Republic of Kazakhstan;
(g) an ‘economic integration agreement' means an agreement substantially liberalising trade in services, including establishment, in accordance with the General Agreement on Trade in Services (GATS), in particular Articles V and V bis of the GATS, and/or containing provisions substantially liberalising establishment in other economic activities meeting, mutatis mutandis, the criteria of Articles V and V bis of the GATS in respect of such activities;
(h) ‘economic activities' shall include activities of an economic nature except economic activities performed in the exercise of governmental authority;
(i) ‘economic activities performed in the exercise of governmental authority' means activities carried out neither on a commercial basis nor in competition with one or more economic operators;
(j) ‘operations' means the pursuit and the maintenance of economic activities;
(k) ‘subsidiary' of a juridical person means a juridical person which is effectively controlled by another juridical person of that Party (1);
(l) ‘branch' of a juridical person means 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 such third parties, 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;
(m) ‘establishment' means any type of business or commercial presence, including
(i) the constitution, acquisition or maintenance of a juridical person (1); or
(ii) the creation or maintenance of a branch or representative office (2) within the territory of a Party for the purpose of performing an economic activity;
(n) ‘investor' of a Party means a natural or juridical person that seeks to perform or performs an economic activity through setting up an establishment;
(o) ‘services' includes any service (3) in any sector except services supplied in the exercise of governmental authority;
(p) ‘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;
(q) ‘services supplier' means any natural or juridical person that supplies a service;
(r) ‘supply of a service' includes the production, distribution, marketing, sale and delivery of a service.
Section 2. Establishment and Cross-border Supply of Services
Subsection 1. All Economic Activities
Article 41. Scope and Coverage
1. This Subsection applies to measures by the Parties affecting establishment in all economic activities and crossborder supply of services.
2. The Parties confirm their respective rights and obligations arising from their commitments under the GATS.
For greater certainty, in regard to services, the Parties' respective GATS schedules of specific commitments (4), including the reservations and lists of most-favoured-nation exemptions, shall be incorporated into and made part of this Agreement and shall apply.
Article 42. Progressive Improvement of Conditions for Establishment
1. The Cooperation Committee meeting in trade configuration shall make recommendations to the Parties for the further liberalisation of establishment in the context of this Agreement.
2. The Parties shall endeavour to avoid the adoption of any measure which renders the conditions for establishment more restrictive than the situation existing on the day preceding the date of signature of this Agreement.
Article 43. Progressive Improvement of Conditions for Cross-border Supply of Services
1. The Parties fully recognise the importance of liberalising the cross-border supply of services between the Parties.
2. The Cooperation Committee meeting in trade configuration shall make recommendations to the Parties for the further liberalisation of cross-border supply of services in the context of this Agreement.
Subsection 2. Economic Activities other Than Services
Article 44. Scope and Coverage
This Subsection applies to measures by the Parties affecting establishment in all economic activities other than services.
Article 45. Most-favoured-nation Treatment
1. Each Party shall grant to juridical persons of the other Party treatment no less favourable than that it accords to juridical persons of any third country with regard to their establishment.
2. Each Party shall grant to juridical persons of the other Party treatment no less favourable than that it accords to juridical persons of any third country with regard to the operation of juridical persons of the other Party established in the former Party's territory.
3. Any advantage, favour, privilege or immunity granted, in relation with local content requirements, by the Republic of Kazakhstan to juridical persons of a WTO member established in the Republic of Kazakhstan in the form of a juridical person shall be accorded immediately and unconditionally to juridical persons of the European Union established in the Republic of Kazakhstan in the form of a juridical person.
4. The treatment granted in accordance with paragraphs 1 and 2 shall not apply to treatment accorded by a Party pursuant to economic integration agreements, free trade agreements, agreements for the avoidance of double taxation and agreements primarily governing taxation matters, nor shall it be construed as extending to investment protection, other than the treatment deriving from Article 46, including investor-to-state dispute settlement procedures.
5. Notwithstanding paragraph 4, as regards strategic resources and objects, the Republic of Kazakhstan shall in no case accord to subsidiaries of juridical persons of the European Union established in the Republic of Kazakhstan in the form of a juridical person, less favourable treatment than that accorded after the date on which this Title starts to apply, to subsidiaries of juridical persons of any third country established in the Republic of Kazakhstan in the form of a juridical person.
Article 46. National Treatment
Subject to the Parties' reservations set out in Annex I,
(a) each Party shall grant to subsidiaries of juridical persons of the other Party established in the former Party's territory treatment no less favourable than that granted to that Party's own juridical persons with respect to their operations;
(b) the Republic of Kazakhstan shall grant to juridical persons and branches of the European Union treatment no less favourable than that accorded to juridical persons and branches of the Republic of Kazakhstan, respectively, in respect of their establishment and operations for economic activities other than services. National treatment granted by the Republic of Kazakhstan is without prejudice to the terms of the Protocol on the Accession of the Republic of Kazakhstan to the WTO.
Section 3. Temporary Presence of Natural Persons for Business Purposes
Article 47. Coverage and Definitions
1. This Section applies to measures by the Parties concerning the entry into, and temporary stay in, their territories of business visitors for establishment purposes, intra-corporate transferees, and contractual services suppliers in accordance with Article 39(5) and (6).
2. For the purposes of this Section:
(a) ‘business visitors for establishment purposes' means natural persons, employed in a senior position by a juridical person of a Party, who are responsible for setting up an establishment in the territory of the other Party. They do not offer or provide services or engage in any other economic activities than required for establishment purposes. They do not receive remuneration from a source located within the host Party;
(b) ‘intra-corporate transferees' means natural persons who have been employed by a juridical person of a Party or have been partners in it (1) for at least one year and who are temporarily transferred to an establishment that may be a subsidiary, branch or head company of the juridical person of a Party in the territory of the other Party.
The natural person concerned must belong to one of the categories as defined in the Parties' respective GATS schedules, which for the purposes of this Section shall apply to all economic activities;
(c) ‘contractual service supplier' means a natural person employed by a juridical person of a Party which itself is not an agency for placement and supply services of personnel, nor acting through such agencies, and which has no establishment in the territory of the other Party and which has concluded a bona fide contract (2) to supply services with a final consumer in the latter Party, requiring the presence on a temporary basis of its employees in that latter Party, in order to fulfil the contract to provide services;
(d) ‘qualifications' means diplomas, certificates and other evidence of formal qualification issued by an authority, designated pursuant to legislative, regulatory or administrative provisions, certifying successful completion of professional training.
Article 48. Intra-corporate Transferees and Business Visitors for Establishment Purposes
1. For services, the Parties reaffirm their respective obligations arising from their commitments under the GATS as regards the entry and temporary stay of intra-corporate transferees or business visitors for establishment purposes. The reservations listed therein apply (3).
2. For economic activities other than services and subject to the reservations set out in Annex II:
(a) each Party shall allow investors engaged in production of goods on the territory of the other Party to transfer intracorporate transferees, as defined in Article 47(2)(b), and business visitors for establishment purposes, as defined in Article 47(2)(a). The entry and temporary stay shall be permitted for a period of up to three years for intra-corporate transferees, and 90 days in any 12-month period for business visitors for establishment purposes;
(b) neither Party shall maintain or adopt measures defined as limitations on the total number of natural persons that an investor may transfer as intra-corporate transferees or business visitors for establishment purposes in the form of numerical quotas or a requirement of an economic needs test and as discriminatory limitations.
Article 49. Contractual Service Suppliers
1. The Republic of Kazakhstan shall allow the supply of services in its territory by juridical persons of the European Union through the presence of natural persons who are citizens of the Member States of the European Union, subject to the following conditions:
(a) natural persons entering the Republic of Kazakhstan shall possess:
(i) a university degree or an advanced technical qualification demonstrating knowledge of an equivalent level; and
(ii) professional qualifications where this is required to exercise an activity in the sector concerned pursuant to the law, regulations or requirements of the Republic of Kazakhstan;
(b) natural persons shall not receive remuneration for the provision of services, other than the remuneration paid by the juridical person of the European Union, during their stay in the Republic of Kazakhstan.
(c) natural persons entering the Republic of Kazakhstan shall have been employed by the juridical person of the European Union for at least the year preceding the date of submission of an application for entry into the Republic of Kazakhstan. In addition, the natural persons shall possess, at the date of submission of an application for entry into the Republic of Kazakhstan, at least five years professional experience in the sector of activity which is the subject of the contract;
(d) the Republic of Kazakhstan may apply the economic needs test and an annual quota for work permits reserved for contractual service suppliers of the European Union gaining access to the services market of the Republic of Kazakhstan. The total number of contractual service suppliers of the European Union entering the services market of the Republic of Kazakhstan shall not exceed 800 persons per year;
(e) after the expiration of a five-year period following the accession of the Republic of Kazakhstan to the WTO, the economic needs test shall not be applied ('). During the period when the Republic of Kazakhstan applies the economic needs test (2), the entry and temporary stay of natural persons within the Republic of Kazakhstan pursuant to the fulfilment of the contract shall be for a cumulative period of not more than four months in any 12-month period or for the duration of the contract, whichever is less. After the expiration of a five-year period following the accession of the Republic of Kazakhstan to the WTO, the entry and temporary stay shall be for a cumulative period of not more than six months in any 12-month period or for the duration of the contract, whichever is less. The juridical persons of the European Union shall be responsible for the timely departure of their employees from the territory of the Republic of Kazakhstan.
(1) All other requirements, laws and regulations regarding entry, stay and work shall continue to apply.
(2) For greater clarity, for the Republic of Kazakhstan, ‘economic needs test' means procedures undertaken by a juridical person of the Republic of Kazakhstan when attracting contractual service suppliers, whereby account must be taken of the admission of a foreign labour force based on the national labour market conditions. These conditions are fulfilled when after the publication of a vacancy announcement in the mass media and after a search for a competent person in the database of the competent authority, none of the applicants meets the requirements described in the vacancy. This should not take longer than one month. Only after this procedure the juridical person can finalise the procedure for hiring contractual service suppliers.
2. The Republic of Kazakhstan shall allow the supply of services into its territory by juridical persons of the European Union through the presence of natural persons if the service contract fulfils the following conditions:
(a) the contract to provide services: