(i) has been concluded directly between the juridical person of the European Union and the final consumer, which is a juridical person of the Republic of Kazakhstan;
(ii) requires the temporary presence on the territory of the Republic of Kazakhstan of employees of that juridical person in order to provide the service; and
(iii) complies with the laws, regulations and requirements of the Republic of Kazakhstan;
(b) the contract to provide services is concluded in one of the following sectors of activity which are included and defined in the Republic of Kazakhstan's GATS schedule of commitments:
(i) legal services
(ii) accounting and bookkeeping services
(iii) taxation services
(iv) architectural services
(v) engineering services
(vi) integrated engineering services
(vii) urban planning and landscape architecture services
(viii) computer and related services
(ix) advertising services
(x) market research services
(xi) management consulting services
(xii) services related to management consulting (xiii) technical testing and analysis services
(xiv) advisory and consulting services incidental to mining
(xv) related scientific and technical consulting services
(xvi) translation and interpretation services
(xvii) maintenance and repair of equipment, including transportation equipment, in the context of an after-sales services contract
(xviii) environmental services.
(c) Access accorded under this paragraph relates only to the service activity which is the subject of the contract; it does not confer entitlement to exercise the professional title in the territory of the Republic of Kazakhstan.
3. The European Union reaffirms its respective obligations arising from the commitments under the GATS as regards the entry and temporary stay of contractual service suppliers. The reservations listed therein apply (1).
Article 50. Most-favoured-nation Treatment
1. Treatment accorded by the European Union to contractual service suppliers of the Republic of Kazakhstan shall be no less favourable than that accorded to contractual service suppliers of any third country.
2. Treatment granted under other agreements concluded by the European Union with a third country which have been notified under Article V of the GATS or which benefit from the coverage of the European Union GATS list of most-favoured-nation exemptions, shall be excluded from the scope of paragraph 1. Treatment deriving from the harmonisation of regulations based on agreements concluded by the European Union providing for mutual recognition in accordance with Article VII of the GATS shall also be excluded from the scope of paragraph 1.
3. If the Republic of Kazakhstan grants more favorable treatment than that provided for in this Agreement to contractual service suppliers of any other WTO member, except to countries of the Commonwealth of Independent States (CIS) and countries which are parties to economic integration agreements with the Republic of Kazakhstan, that treatment shall be applied to contractual service suppliers of the European Union. Treatment deriving from the harmonisation of regulations based on agreements concluded by the Republic of Kazakhstan providing for mutual recognition in accordance with Article VII of the GATS shall also be excluded from this provision.
Article 51. Progressive Improvement of Conditions for Temporary Presence of Natural Persons for Business Purposes
The Cooperation Committee meeting in trade configuration shall make recommendations to the Parties for the further liberalisation of the temporary presence of natural persons for business purposes.
Section 4. Domestic Regulation
Article 52. Scope and Coverage
1. The disciplines set out in Article 53 shall apply to measures by the Parties relating to licensing and qualification procedures that affect:
(a) cross-border supply of services;
(b) establishment;
(c) the supply of a service through the presence of a natural person in the territory of the other Party in accordance with Section 3 of this Chapter.
2. The disciplines set out in Article 53 shall apply to all economic activities falling under the scope of this Chapter. For services, they shall apply to the extent of the relevant Party's specific commitments under the GATS (1). The disciplines do not apply to measures to the extent that they constitute limitations subject to scheduling under Article XVI or XVII of the GATS.
Article 53. Licensing and Qualification
1. Each Party shall ensure that licensing and qualification procedures for the purpose of obtaining an authorisation to supply a service or to establish are reasonable, clear and relevant to the underlying policy objectives, taking into account the nature of the requirements to be met and the criteria to be assessed, and do not in themselves constitute a restriction on the supply of services or the establishment.
2. Where 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. Where possible, applications should be accepted in electronic format under the same conditions of authenticity as applications submitted in paper format.
3. Authenticated copies should be accepted, where possible, in place of original documents.
4. Each Party shall ensure that the processing of an application, including reaching a final decision, is completed within a reasonable period specified in its legislation or, in any event, without undue delay. Each Party shall endeavour to establish the normal timeframe for the processing of 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.
5. Each Party shall ensure that licensing fees (1) are reasonable in terms of the costs incurred by the competent authority, and do not in themselves restrict the supply of the service or the establishment.
6. Where the competent authority considers that an application is incomplete or determines that it needs additional information, it shall, within a reasonable period of time:
(a) inform the applicant;
(b) to the extent practicable, identify the information required; and
(c) to the extent practicable, provide the opportunity to correct deficiencies.
7. If the competent authority rejects an application, it shall inform the applicant without undue delay and, to the extent practicable, in writing. The competent authority should inform the applicant, upon request, of the reasons for rejection of the application and, where possible, of any deficiencies that have been identified. It should inform the applicant of the procedures for appeal against the decision in accordance with the relevant legislation. The competent authority should permit an applicant to submit a new application in accordance with the relevant authority's established procedures, except where the relevant authority limits the number of licences or qualification determinations.
8. Each Party shall ensure that the procedures used by, and the decisions of, the competent authority in the licensing or authorisation procedure are impartial with respect to all applicants. The competent authority should reach its decision in an independent manner and not be accountable to any services supplier or investor for which the licence or authorisation is required.
Section 5. Sector Specific Provisions
Article 54. International Maritime Transport
1. This Article sets out the principles for the liberalisation of international maritime transport services. This Article is without prejudice to the rights and obligations deriving from each Party's GATS commitments.
2. For the purposes of this Article, ‘international maritime transport' includes door to door and multi-modal transport operations, which is the carriage of goods using more than one mode of transport, involving a sea leg, under a single transport document and, to this effect, including the right of international maritime transport suppliers to directly contract with providers of other modes of transport.
3. With respect to activities referred to in paragraph 4, undertaken by shipping agencies for the provision of services with regards to international maritime transport, each Party shall permit juridical persons of the other Party to establish subsidiaries or branches in its territory, under conditions of establishment and operation no less favourable than those accorded to its own subsidiaries or branches or to subsidiaries or branches of any third country, whichever are the better.
This paragraph does not apply to the establishment for the purpose of operating a fleet under the national flag of a Member State of the European Union or of the Republic of Kazakhstan.
4. Such activities include, but are not limited to:
(a) marketing and sales of maritime transport and related services through direct contact with customers, from quotation to invoicing, whether these services are operated or offered by the service supplier itself or by service suppliers with which the service seller has established standing business agreements;
(b) purchase and use, on their own account or on behalf of their customers (and resale to their customers) of any transport and related services, including transport services by any inland mode, necessary for the supply of an intermodal service;
(c) preparation of documentation concerning transport documents, customs documents, or other documents related to the origin and character of the goods transported;
(d) provision of business information by any means, including computerised information systems and electronic data interchange (subject to any non-discriminatory restrictions concerning telecommunications);
(e) setting up of any business arrangement with other shipping agencies, including participation of the company's stock and the appointment of personnel recruited locally (or, in the case of foreign personnel, subject to the relevant provisions of this Agreement), with any locally established shipping agency;
(f) acting on behalf of the juridical persons, inter alia, in organising the call of the vessel or taking over cargoes when required.
5. In view of the existing level of liberalisation concerning the cross-border supply of services between the Parties in international maritime transport:
(a) the Parties shall apply effectively the principle of unrestricted access to the international markets and trades on a commercial and non-discriminatory basis;
(b) each Party shall grant to ships operated by service suppliers of the other Party treatment no less favourable than that accorded to its own ships or those of any third country, whichever are the better with regard to, inter alia, access to ports, the use of infrastructure and services of the ports, and the use of maritime auxiliary services, as well as related fees and charges, customs facilities and the assignment of berths and facilities for loading and unloading.
6. In applying the principles set out in paragraph 5, the Parties shall:
(a) not apply, as from the entry into force of this Agreement, any cargo-sharing provisions of bilateral agreements between any Member State of the European Union and the Republic of Kazakhstan;
(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) upon the entry into force of this Agreement, abolish and abstain from introducing any unilateral measures and administrative, technical and other obstacles which could constitute a disguised restriction or have discriminatory effects on the free supply of services in international maritime transport.
7. Natural and juridical persons of the European Union providing international maritime transport services shall be free to provide international sea-river services in the inland waterways of the Republic of Kazakhstan and vice versa.
8. The Parties shall make available to international maritime transport suppliers of the other Party on reasonable and non-discriminatory terms and conditions the following services at port: pilotage, towing and tug assistance, provisioning, fuelling and watering, garbage collecting and ballast water disposal, port captain's services, navigation aids, shore-based operational services essential to ship operations, including communications, water and electricity supplies, emergency repair facilities, anchorage, berth and berthing services.
9. If the Republic of Kazakhstan grants more favourable treatment for maritime transport to any other WTO member, except for coastal states of the Caspian Sea and for CIS countries, those terms shall be applied to the natural and juridical persons of the European Union.
Article 54bis. Road, Rail, Inland Waterways and Air Transport
With a view to ensuring coordinated development of transport between the Parties adapted to their reciprocal commercial needs, the conditions of mutual market access in road, rail and inland waterways and, if applicable, in air transport may be dealt with by potential specific agreements negotiated between the Parties after the entry into force of this Agreement.
Section 6. Exceptions
Article 55. General Exceptions
1. Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where like conditions prevail, or a disguised restriction on establishment, including operations, or the cross-border supply of services, nothing in this Chapter shall be construed as preventing the adoption or enforcement by any Party of measures:
(a) necessary to protect public security or public morals or to maintain public order (1);
(b) necessary to protect human, animal or plant life or health;
(c) relating to the conservation of exhaustible natural resources if such measures are applied in conjunction with restrictions on domestic investors or on the domestic supply or consumption of services;
(d) necessary for the protection of national treasures of artistic, historic or archaeological value;
(e) necessary to secure compliance with laws or regulations which are not inconsistent with this Title, including those relating to:
(i) the prevention of deceptive and fraudulent practices, or those necessary to deal with the effects of a default on contracts;
(ii) the protection of the privacy of individuals in relation to the processing and dissemination of personal data and the protection of confidentiality of individual records and accounts;
(iii) safety;
(f) inconsistent with Article 46, provided that the difference in treatment is aimed at ensuring the effective or equitable imposition or collection of direct taxes in respect of economic activities, investors or services suppliers of the other Party (1).
2. This Chapter shall not apply to the Parties' respective social security systems or to activities in the territory of each Party, which are connected, even occasionally, with the exercise of governmental authority.
(i) apply to non-resident investors and services suppliers in recognition of the fact that the tax obligation of non-residents is determined with respect to taxable items sourced or located in the Party's territory;
(ii) apply to non-residents in order to ensure the imposition or collection of taxes in the Party's territory;
(iii) apply to non-residents or residents in order to prevent the avoidance or evasion of taxes, including compliance measures;
(iv) apply to consumers of services supplied in or from the territory of another Party in order to ensure the imposition or collection of taxes on such consumers derived from sources in the Party's territory;
(v) distinguish investors and service suppliers subject to tax on worldwide taxable items from other investors and service suppliers, in recognition of the difference in the nature of the tax base between them; or (vi) determine, allocate or apportion income, profit, gain, loss, deduction or credit of resident persons or branches, or between related persons or branches of the same person, in order to safeguard the Party's tax base. Tax terms or concepts in point (f) and in this footnote are determined according to tax definitions and concepts, or equivalent or similar definitions and concepts, under the domestic law of the Party taking the measure.
Section 7. Investment
Article 56. Review and Consultations
In order to identify any barriers to investment, the Parties shall jointly review the investment legal framework no later than three years after the date on which this Title starts to apply. On the basis of this review, they shall consider the opportunity to start negotiations to address such barriers, with a view to supplementing this Agreement, including with respect to general principles of investment protection.
Chapter 6. Capital Movements and Payments
Article 57. Current Account
Each Party shall authorise, in a freely convertible currency and in accordance with the Articles of Agreement of the International Monetary Fund (IMF), as applicable, all payments and transfers on the current account of the balance-of-payments between the Parties.
Article 58. Movement of Capital
1. With regard to transactions on the capital and financial account of balance-of-payments and without prejudice to other provisions of this Agreement, the Parties undertake not to impose restrictions on the free movement of capital relating to direct investments made in accordance with the laws of the host country, to economic activities covered by Chapter 5 (Trade in Services and Establishment) of this Title and to the liquidation and repatriation of such invested capital and of any profit generated therefrom.
2. With regard to transactions on the capital and financial account of balance-of-payments not covered by paragraph 1, and without prejudice to other provisions of this Agreement, each Party shall ensure, in accordance with its laws, the free movement of capital relating to, inter alia:
(a) credits relating to commercial transactions, including the provision of services, in which a resident of a Party is participating;
(b) financial loans and credits; or
(c) capital participation in a juridical person with no intention of establishing or maintaining lasting economic links.
3. Without prejudice to other provisions of this Agreement, the Parties shall not introduce any new restrictions on the movement of capital between residents of the Parties and shall not make the existing arrangements more restrictive.
4. The Parties may hold consultations with a view to further facilitating the movement of capital between them.
Article 59. Exceptions
Subject to the requirement that such measures are not applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination between countries where like conditions prevail, or a disguised restriction on capital movements, nothing in this Chapter shall be construed as preventing the adoption or enforcement by either Party of measures:
(a) necessary to protect public security and public morals or to maintain public order; or
(b) necessary to secure compliance with laws or regulations which are not inconsistent with the provisions of this Title, including those relating to:
(i) the prevention of criminal or penal offences, deceptive and fraudulent practices, or those necessary to deal with the effects of a default on contracts (bankruptcy, insolvency and protection of the right of creditors);
(ii) measures adopted or maintained to ensure the integrity and stability of a Party's financial system;
(iii) issuing, trading or dealing in securities, options, futures or other derivatives;
(iv) financial reporting or record keeping of transfers when necessary to assist law enforcement or financial regulatory authorities; or
(v) ensuring compliance with orders or judgements in juridical or administrative proceedings.
Article 60. Temporary Safeguard Measures with Regard to Capital Movements, Payments or Transfers
In exceptional circumstances of serious difficulties for the operation of monetary and exchange rate policy, in the case of the Republic of Kazakhstan, or for the operation of the economic and monetary union, in the case of the European Union, or threat thereof, safeguard measures that are strictly necessary may be taken by the concerned Party with regard to capital movements, payments or transfers for a period not exceeding one year. The Party which maintains or adopts such measures shall inform the other Party forthwith and present, as soon as possible, a time schedule for their removal.
Chapter 7. Intellectual Property
Article 61. Objectives
The objectives of this Chapter are to:
(a) facilitate the production and commercialisation of innovative and creative products between the Parties; and
(b) achieve an adequate and effective level of protection and enforcement of intellectual property rights.
Section 1. Principles
Article 62. Nature and Scope of Obligations
1. The Parties recall their obligation to ensure the adequate and effective implementation of the international agreements dealing with intellectual property to which they are parties, including the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (‘the TRIPS Agreement'). The provisions of this Chapter shall complement and further specify the rights and obligations between the Parties under the TRIPS Agreement and other international agreements in the field of intellectual property.
2. For the purposes of this Agreement, the term ‘intellectual property' refers, inter alia, to all categories of intellectual property referred to in Articles 65 to 96.
3. Protection of intellectual property includes protection against unfair competition as referred to in Article 10bis of the Paris Convention for the Protection of Industrial Property of 1883, as revised and amended (‘the Paris Convention').
4. This Chapter shall not prevent the Parties from applying provisions in their law providing for higher standards for the protection and enforcement of intellectual property rights, provided that those provisions do not contravene the provisions of this Chapter.
Article 63. Transfer of Technology
1. The Parties agree to exchange views and information on their law and international practices on the protection and enforcement of intellectual property rights, affecting transfer of technology. This shall, in particular, include exchanges on measures to facilitate information flows, business partnerships, and voluntary licensing and subcontracting agreements. Particular attention shall be paid to the conditions necessary to create an adequate enabling environment for technology transfer in the host countries, including issues such as the domestic legal framework and the development of human capital.
2. When measures are taken with regard to technology transfer, the legitimate interests of the intellectual property right holders shall be protected.
Article 64. Exhaustion
Each Party shall apply a national or regional (1) exhaustion regime of intellectual property rights, in accordance with its respective domestic law, in respect of copy right and related rights, designs, and trademarks.
Section 2. Standards Concerning Intellectual Property Rights
COPYRIGHT AND RELATED RIGHTS
Article 65. Protection Granted
Each Party shall comply with the rights and obligations set out in the following international agreements:
(a) the Berne Convention for the Protection of Literary and Artistic Works (Berne Convention);
(b) the International Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations (Rome Convention);
(c) the World Intellectual Property Organization (WIPO) Copyright Treaty;
(d) the WIPO Performances and Phonograms Treaty;
(e) the TRIPS Agreement.
Article 66. Authors
Each Party shall, as regards authors, provide for the exclusive right to authorise or prohibit:
(a) the direct or indirect, temporary or permanent, reproduction by any means and in any form, in whole or in part, of their works;
(b) any form of distribution to the public by sale or otherwise of the original of their works or of copies thereof;
(c) any communication to the public of their works, by wire or wireless means, including the making available to the public of their works in such a way that members of the public may access them from a place and at a time individually chosen by them.
Article 67. Performers
Each Party shall, as regards performers, provide for the exclusive right to authorise or prohibit: