—
Fish-liver oils and their fractions;
—
Fats and oils and their fractions, of fish, other than liver oils).
Article 27. Processed Agricultural Products
Protocol I lays down the trade arrangements for processed agricultural products which are listed therein.
Article 28. EU Concessions on Imports of Agricultural Products Originating In Kosovo
1. From the date of entry into force of this Agreement, the EU shall abolish all quantitative restrictions and measures having equivalent effect, on imports of agricultural products originating in Kosovo.
2. From the date of entry into force of this Agreement, the EU shall abolish the customs duties and charges having equivalent effect, on imports of agricultural products originating in Kosovo other than those of headings 0102 (live bovine animals), 0201, (Meat of bovine animals, fresh or chilled) 0202 (Meat of bovine animals, frozen), 1701 (Cane or beet sugar and chemically pure sucrose, in solid form), 1702 (Other sugars, including chemically pure lactose, maltose, glucose and fructose, in solid form; sugar syrups not containing added flavouring or colouring matter; artificial honey, whether or not mixed with natural honey; caramel) and 2204 (Wine of fresh grapes, including fortified wines; grape must other than that of heading 2009) of the Combined Nomenclature.
For the products covered by Chapters 7 and 8 of the Combined Nomenclature, for which the Common Customs Tariff provides for the application of ad valorem customs duties and a specific customs duty, the elimination shall apply only to the ad valorem part of the duty.
3. From the date of entry into force of this Agreement, the EU shall fix the customs duties applicable to imports into the EU of ‘baby beef’ products defined in Annex II and originating in Kosovo at 20 % of the ad valorem duty and 20 % of the specific duty as laid down in the Common Customs Tariff, within the limit of an annual tariff quota of 475 tonnes expressed in carcass weight.
Article 29. Kosovo’s Concessions on Agricultural Products
1. From the date of entry into force of this Agreement, Kosovo shall abolish all quantitative restrictions and measures having equivalent effect, on imports of agricultural products originating in the EU.
2. From the date of entry into force of this Agreement, Kosovo shall:
(a) abolish the customs duties applicable to imports of certain agricultural products originating in the EU, other than those listed in Annex III;
(b) abolish progressively the customs duties applicable to imports of certain agricultural products originating in the EU, listed in Annex IIIa, IIIb and IIIc and in accordance with the timetable indicated in that Annex.
3. The duty applicable to certain products listed in Annex IIId shall be the basic duty applied in Kosovo on 31 December 2013.
Article 30. Wine and Spirit Drinks Protocol
The arrangements applicable to the wine and spirit drinks products referred to in Protocol II are laid down in that Protocol.
Article 31. EU Concessions on Fish and Fishery Products
1. From the date of entry into force of this Agreement, the EU shall abolish all quantitative restrictions and measures having equivalent effect on imports of fish and fishery products originating in Kosovo.
2. From the entry into force of this Agreement, the EU shall eliminate all customs duties and measures having equivalent effect on fish and fishery products originating in Kosovo other than those listed in Annex IV. Products listed in Annex IV shall be subject to the provisions laid down therein.
Article 32. Kosovo’s Concessions on Fish and Fishery Products
1. From the date of entry into force of this Agreement, Kosovo shall abolish all quantitative restrictions and measures having equivalent effect on imports of fish and fishery products originating in the EU.
2. From the entry into force of this Agreement, Kosovo shall eliminate all customs duties and measures having equivalent effect on fish and fishery products originating in the EU other than those listed in Annex V. Products listed in Annex V shall be subject to the provisions laid down therein.
Article 33. Review Clause
Taking account of the volume of trade in agricultural and fishery products between the Parties, of their particular sensitivities, of the rules of the EU common policies and of the policies for agriculture and fisheries in Kosovo, of the role of agriculture and fisheries in the economy of Kosovo, as well as developments in the framework of the WTO, the SAC shall examine, no later than three years after the entry into force of this Agreement, product by product and on an orderly and appropriate reciprocal basis, the opportunities for granting each other further concessions with a view to implementing greater liberalisation of the trade in agricultural and fishery products.
Article 34. Safeguard Clause Concerning Agriculture and Fisheries
Notwithstanding other provisions of this Agreement, and in particular Article 43, given the particular sensitivity of the agricultural and fisheries markets, if imports of products originating in one Party, which are the subject of concessions granted pursuant to Articles 27, 28, 29, 30, 31 and 32 cause serious disturbance to the markets or to the domestic regulatory mechanisms of either Party, the Parties shall enter into consultations immediately within the Stabilisation and Association Committee to find an appropriate solution. Pending such solution, the Party concerned may take the appropriate measures it deems necessary.
Article 35. Protection of Geographical Indications for Agriculture and Fishery Products and Foodstuffs other Than Wine and Spirit Drinks
1. Kosovo shall provide protection for the geographical indications of the EU registered in the EU under Regulation (EU) No 1151/2012 of the European Parliament and of the Council of 21 November 2012 on quality schemes for agricultural products and foodstuffs (3), in accordance with the terms laid down in this Article. Geographical indications of Kosovo shall be eligible for registration in the EU under the conditions set out in that Regulation.
2. The geographical indications referred to in paragraph 1 shall be protected against:
(a) any direct or indirect commercial use of a protected name:
(i) for comparable products not compliant with the product specification of the protected name, or
(ii) in so far as such use exploits the reputation of a geographical indication;
(b) any misuse, imitation or evocation, even if the true origin of the product or service is indicated or if the protected name is translated or accompanied by an expression such as ‘style’, ‘type’, ‘method’, ‘as produced in’, ‘imitation’, ‘flavour’, ‘like’ or similar;
(c) any other false or misleading indication as to the provenance, origin, nature or essential qualities of the product, on the inner or outer packaging, advertising material or documents relating to that product, and the packing of the product in a container liable to convey a false impression as to its origin;
(d) any other practice liable to mislead the consumer as to the true origin of a like product.
3. A name proposed for registration that is wholly or partially homonymous with a name already protected, shall not be protected unless there is sufficient distinction in practice between the conditions of local and traditional usage and presentation of the homonym protected subsequently and the name already protected, taking into account the need to ensure equitable treatment of the producers concerned and that consumers are not misled. A homonymous name which misleads the consumer into believing that products come from another territory shall not be registered even if the name is accurate as far as the actual territory, region or place of origin of the products in question is concerned.
4. Kosovo shall refuse the registration of a trade mark the use of which corresponds to the situations referred to in paragraph 2.
5. Trade marks the use of which corresponds to the situations referred to in paragraph 2, which have been registered in Kosovo or established by use, shall no longer be used five years after the entry into force of this Agreement. However, this shall not apply to trade marks registered in Kosovo and trade marks established by use which are owned by nationals of third countries, provided they are not of such a nature as to deceive in any way the public as to the quality, the specification and the geographical origin of the goods.
6. Any use of the geographical indications protected in accordance with paragraph 1 as terms customary in common language as the common name for such goods, or for products that have been legally marketed with that term in Kosovo, shall cease at the latest five years after the entry into force of this Agreement.
7. Kosovo shall ensure that goods exported from its territory five years after the entry into force of this Agreement do not infringe this Article.
8. Kosovo shall ensure the protection referred to in paragraphs 1 to 7 on its own initiative as well as at the request of an interested party.
Chapter III. Common Provisions
Article 36. Scope
This Chapter shall apply to trade in all products between the Parties except where otherwise provided in this Chapter or in Protocol I.
Article 37. Improved Concessions
This Title shall in no way affect the application, on a unilateral basis, of more favourable measures by either Party.
Article 38. Standstill
1. From the date of entry into force of this Agreement, no new customs duties on imports or exports or charges having equivalent effect shall be introduced, nor shall those already applied be increased, in trade between the EU and Kosovo.
2. From the date of entry into force of this Agreement, no new quantitative restriction on imports or exports or measure having equivalent effect shall be introduced, nor shall those existing be made more restrictive, in trade between the EU and Kosovo.
3. Without prejudice to the concessions granted under Articles 28, 29, 30, 31 and 32, paragraphs 1 and 2 of this Article shall not restrict in any way the pursuit of the respective agricultural and fishery policies of the EU and of Kosovo and the taking of any measures under those policies in so far as the import regime in Annexes II to V and Protocol I is not affected.
Article 39. Prohibition of Fiscal Discrimination
1. The EU and Kosovo shall refrain from any measure or practice of an internal fiscal nature establishing, whether directly or indirectly, discrimination between the products of one Party and like products originating in the territory of the other Party. Where such a measure or practice already exists, the EU and Kosovo, as appropriate, shall repeal or abolish it.
2. Products exported to the territory of one of the Parties shall not benefit from repayment of internal indirect taxation in excess of the amount of indirect taxation imposed on them.
Article 40. Duties of a Fiscal Nature
The provisions concerning the abolition of customs duties on imports shall also apply to customs duties of a fiscal nature.
Article 41. Customs Unions, Free Trade Areas, Cross-border/boundary Arrangements
1. This Agreement shall not preclude the maintenance or establishment of customs unions, free trade areas or arrangements for cross-border/boundary trade except in so far as they alter the trade arrangements provided for in this Agreement.
2. During the transitional period specified in Article 20, this Agreement shall not affect the implementation of the specific preferential arrangements governing the movement of goods either laid down in cross-border/boundary Agreements previously concluded between one or more Member States and Kosovo or resulting from the bilateral conventions specified in Title III concluded by Kosovo in order to promote regional trade.
3. Consultations between the Parties shall take place within the SAC concerning the Agreements referred to in paragraphs 1 and 2 and, where requested, on other major issues related to their respective trade policies towards third countries. In particular in the event of a third country acceding to the EU, such consultations shall take place so as to ensure that account is taken of the mutual interests of the EU and Kosovo as set out in this Agreement.
Article 42. Dumping and Subsidy
1. This Agreement shall not prevent any of the Parties from taking trade defence action in accordance with paragraph 2 of this Article and with Article 43.
2. If one of the Parties finds that dumping and/or countervailable subsidisation is taking place in trade with the other Party, that Party may take appropriate measures against this practice consistent with the WTO Agreement on Implementation of Article VI of the GATT 1994 or the WTO Agreement on Subsidies and Countervailing Measures and the respective internal legislation related to those agreements.
Article 43. Safeguards Clause
1. The parties agree that the rules and principles of Article XIX GATT 1994 and the WTO Agreement on Safeguards are applied.
2. Notwithstanding paragraph 1, the importing Party may take appropriate bilateral safeguard measures under the conditions and in accordance with the procedures laid down in this Article, where any product of one Party is being imported into the territory of the other Party in such increased quantities and under such conditions as to cause or threaten to cause:
(a) serious injury to the domestic industry of like or directly competitive products in the territory of the importing Party; or
(b) serious disturbances in any sector of the economy or difficulties which could bring about serious deterioration in the economic situation of a region of the importing Party.
3. Bilateral safeguard measures directed at imports from the other Party shall not exceed what is necessary to remedy the problems, as defined in paragraph 2, which have arisen as a result of application of this Agreement. The safeguard measure adopted shall consist of a suspension in the increase or in the reduction of the margins of preferences provided for under this Agreement for the product concerned up to a maximum limit corresponding to the basic duty referred to in Article 20, paragraph 4(a) and (b) and paragraph 5, for the same product. Such measures shall contain clear elements progressively leading to their elimination at the end of the set period, at the latest, and shall not be taken for a period exceeding two years.
In very exceptional circumstances, measures may be extended for a further period of maximum two years. No bilateral safeguard measure shall be applied to the import of a product that has previously been subject to such a measure for a period of time equal to that during which such measure had been previously applied, provided that the period of non-application is at least two years since the expiry of the measure.
4. In the cases specified in this Article, before taking the measures provided for therein or, in the cases to which paragraph 5(b) of this Article applies, as soon as possible, the EU or Kosovo shall supply the SAC with all relevant information required for a thorough examination of the situation, with a view to seeking a solution acceptable to the Parties.
5. For the implementation of the paragraphs 1, 2, 3 and 4 the following provisions shall apply:
(a) The problems arising from the situation referred to in this Article shall be immediately referred for examination to the SAC, which may take any decisions needed to put an end to such problems.
If the SAC or the exporting Party has not taken a decision putting an end to the problems, or no other satisfactory solution has been reached within 30 days of the matter being referred to the SAC, the importing Party may adopt the appropriate measures to remedy the problem in accordance with this Article. In the selection of safeguard measures, priority must be given to those which least disturb the functioning of the arrangements established in this Agreement. Safeguard measures shall preserve the level/margin of preference granted under this Agreement.
(b) Where exceptional and critical circumstances requiring immediate action make prior information or examination, as the case may be, impossible, the Party concerned may, in the situations specified in this Article, apply forthwith provisional measures necessary to deal with the situation and shall inform the other Party immediately thereof.
The safeguard measures shall be notified immediately to the SAC and shall be the subject of periodic consultations within that body, particularly with a view to establishing a timetable for their abolition as soon as circumstances so permit.
6. In the event of the EU, or Kosovo, subjecting imports of products liable to give rise to the problems referred to in this Article to an administrative procedure having as its purpose the rapid provision of information on the trend of trade flows, it shall inform the other Party.
Article 44. Shortage Clause
1. Where compliance with this Title leads to:
(a) critical shortage, or threat thereof, of foodstuffs or other products essential to the exporting Party; or
(b) re-export to a third country of a product against which the exporting Party maintains quantitative export restrictions, export duties or measures or charges having equivalent effect, and where the situations referred to above give rise, or are likely to give rise to major difficulties for the exporting Party,
that Party may take appropriate measures under the conditions and in accordance with the procedures laid down in this Article.
2. In the selection of measures, priority must be given to those which least disturb the functioning of the arrangements in this Agreement. Such measures shall not be applied in a manner which would constitute a means of arbitrary or unjustifiable discrimination where the same conditions prevail, or a disguised restriction on trade, and shall be eliminated when conditions no longer justify their maintenance.
3. Before taking the measures provided for in paragraph 1 or, as soon as possible in cases to which paragraph 4 applies, the EU or Kosovo shall supply the SAC with all relevant information, with a view to seeking a solution acceptable to the Parties. The SAC may agree on any means needed to put an end to the difficulties. If no agreement is reached within 30 days of the matter being referred to the SAC, the exporting Party may apply measures under this Article on the exportation of the product concerned.
4. Where exceptional and critical circumstances requiring immediate action make prior information or examination, as the case may be, impossible, the EU or Kosovo may apply forthwith the precautionary measures necessary to deal with the situation and shall inform the other Party immediately thereof.
5. Any measures applied pursuant to this Article shall be immediately notified to the SAC and shall be the subject of periodic consultations within that body, particularly with a view to establishing a timetable for their elimination as soon as circumstances so permit.
Article 45. State Monopolies
With regard to state monopolies of a commercial character, Kosovo shall ensure that, by the entry into force of this Agreement, no discrimination regarding the conditions under which goods are procured and marketed exists between nationals of the Member States and Kosovo citizens.
Article 46. Rules of Origin
Except as otherwise stipulated in this Agreement, Protocol III lays down the rules of origin for the implementation of this Agreement.
Article 47. Restrictions Authorised
This Agreement shall not preclude prohibitions or restrictions on imports, exports or goods in transit justified on grounds of public morality, public policy or public security; the protection of health and life of humans, animals or plants; the protection of treasures of artistic, historic or archaeological value or the protection of intellectual, industrial and commercial property, or rules relating to gold and silver. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a disguised restriction on trade between the Parties.
Article 48. Failure to Provide Administrative Cooperation
1. The Parties agree that administrative cooperation is essential for the implementation and the control of the preferential treatment granted under this Title and underline their commitment to combating irregularities and fraud in customs and related matters.
2. Where a Party has made a finding, on the basis of objective information, of a failure to provide administrative cooperation and/or of irregularities or fraud under this Title, that Party (referred to in this Article as ‘the Party concerned’) may temporarily suspend the relevant preferential treatment of the product(s) concerned in accordance with this Article.
3. For the purpose of this Article a failure to provide administrative cooperation means, inter alia:
(a) a repeated failure to respect the obligations to verify the originating status of the product(s) concerned;
(b) a repeated refusal or undue delay in carrying out and/or communicating the results of subsequent verification of the proof of origin;
(c) a repeated refusal or undue delay in obtaining authorisation to conduct administrative cooperation missions to verify the authenticity of documents or accuracy of information relevant to the granting of the preferential treatment in question.
For the purpose of this Article, a finding of irregularities or fraud may be made, inter alia, where there is a rapid increase, without satisfactory explanation, in imports of goods exceeding the usual level of production and export capacity of the other Party, which is linked to objective information concerning irregularities or fraud.
4. The application of a temporary suspension shall be subject to the following conditions:
(a) the Party which has made a finding, on the basis of objective information, of a failure to provide administrative cooperation and/or of irregularities or fraud shall immediately notify the Stabilisation and Association Committee of its finding, together with the objective information, and enter into consultations with the other Party within the Stabilisation and Association Committee, on the basis of all relevant information and objective findings, with a view to reaching a solution acceptable to both Parties.
(b) Where the Parties have entered into consultations within the Stabilisation and Association Committee under point (a) and have failed to agree on an acceptable solution within three months following the notification, the Party concerned may temporarily suspend the relevant preferential treatment of the product(s) concerned. A temporary suspension shall be notified to the Stabilisation and Association Committee immediately.
(c) Temporary suspensions under this Article shall be limited to the minimum necessary to protect the financial interests of the Party concerned. They shall not exceed a period of six months, which may be renewed. Temporary suspensions shall be notified immediately after their adoption to the Stabilisation and Association Committee. They shall be subject to periodic consultations within the Stabilisation and Association Committee, in particular with a view to their termination as soon as the conditions for their application no longer prevail.
5. At the same time as the notification to the Stabilisation and Association Committee under paragraph 4(a), the Party concerned shall publish a notice to importers in its Official Journal. The notice to importers should indicate for the product concerned that there is a finding, on the basis of objective information, of a failure to provide administrative cooperation and/or of irregularities or fraud.
Article 49.
In case of error by the competent authorities in the proper management of the preferential system at export, and in particular in the application of Protocol III where this error leads to consequences in terms of import duties, the Party facing such consequences may request the SAC to examine the possibilities of adopting all appropriate measures with a view to resolving the situation.
Title V. ESTABLISHMENT, SUPPLY OF SERVICES AND CAPITAL
Article 50. Definition
For the purposes of this Agreement:
(1) ‘EU company’ and ‘Kosovo company’ means, respectively, a company set up in accordance with the laws of a Member State, or of Kosovo, and having its registered office or central administration or principal place of business in the territory of the EU or of Kosovo. However, should the company have only its registered office in the territory of the EU or of Kosovo respectively, the company shall be considered an EU or a Kosovo company if its operations possess a real and continuous link with the economy of one of the Member States or of Kosovo;
(2) ‘Subsidiary’ of a company means a company which is effectively controlled by another company;
(3) ‘Branch’ of a company 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 the latter, although knowing that there will, where 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;
(4) ‘Establishment’ means the right to take up economic activities by means of the setting up of companies including subsidiaries and branches in the EU or in Kosovo respectively;
(5) ‘Operations’ means the pursuit of economic activities;
(6) ‘Economic activities’ in principle includes activities of an industrial, commercial or professional character and activities of craftsmen;
(7) ‘EU national’ and ‘citizen of Kosovo’ means respectively a natural person who is a national of a Member State or a citizen of Kosovo;
(8) ‘Financial services’ means the activities described in Annex VI.
Chapter I. Establishment
Article 51.
1. Kosovo shall facilitate the setting up of operations on its territory by EU companies. To that end, Kosovo shall grant, upon entry into force of this Agreement:
(a) as regards the establishment of EU companies on the territory of Kosovo, treatment no less favourable than that accorded to its own companies or to any third country company, whichever is the better;
(b) as regards the operation of subsidiaries and branches of EU companies on the territory of Kosovo once established, treatment no less favourable than that accorded to its own companies and branches or to any subsidiary and branch of any third country company, whichever is the better.
2. The EU shall grant, from the entry into force of this Agreement:
(a) as regards the establishment of Kosovo companies treatment no less favourable than that accorded by the EU to its own companies or to any company of any third country, whichever is the better;
(b) as regards the operation of subsidiaries and branches of Kosovo companies, established in its territory, treatment no less favourable than that accorded by the EU to its own companies and branches, or to any subsidiary and branch of any third country company, established in its territory, whichever is the better.
3. The Parties shall not adopt any new regulations or measures which introduce discrimination as regards the establishment of the other Party’s companies on their territory or in respect of their operation, once established, by comparison with their own companies.
4. Notwithstanding this Article,
(a) subsidiaries and branches of EU companies shall have, from the entry into force of this Agreement, the right to use and rent real property in Kosovo;
(b) subsidiaries and branches of EU companies shall, within five years from the entry into force of this Agreement, have the right to acquire and enjoy ownership rights over real property as Kosovo companies and, as regards public goods/goods of common interest, the same rights as enjoyed by Kosovo companies respectively where these rights are necessary for the conduct of the economic activities for which they are established.
Article 52.
1. Subject to Article 54 the Parties may regulate the establishment and operation of companies on their territory, insofar as these regulations do not discriminate against companies of the other Party in comparison with its own companies.
2. In respect of financial services, notwithstanding any other provisions of this Agreement, a Party shall not be prevented from taking measures for prudential reasons, including for the protection of investors, depositors, policy holders or persons to whom a fiduciary duty is owed by a financial service supplier, or to ensure the integrity and stability of the financial system. Such measures shall not be used as a means of avoiding the Party’s obligations under this Agreement.
3. Nothing in this Agreement shall be construed to require a Party to disclose information relating to the affairs and accounts of individual customers or any confidential or proprietary information in the possession of public entities.
Article 53.
1. This Chapter is without prejudice to provisions of the Treaty establishing the Transport Community with the Western Balkans and of the Multilateral Agreement on the establishment of the European Common Aviation Area signed on 9 June 2006 (4).
2. Within the scope of the EU transport policy, the SAC may make recommendations in specific cases for improving establishment and operations in the areas covered by paragraph 1.
3. This Chapter shall not apply to maritime transport.
Article 54.
1. Articles 51 and 52 do not preclude the application by a Party of particular rules concerning the establishment and operation in its territory of branches of companies of another Party not incorporated in the territory of the first Party, which are justified by legal or technical differences between such branches as compared to branches of companies incorporated in its territory or, as regards financial services, for prudential reasons.
2. The difference in treatment shall not go beyond what is strictly necessary as a result of such legal or technical differences or, as regards financial services, for prudential reasons.
Chapter II. Supply of Services
Article 55.
1. An EU company established in the territory of Kosovo or a Kosovo company established in the EU shall be entitled to employ, or have employed by one of its subsidiaries or branches, in accordance with the legislation in force in the host territory of establishment, in the territory of the EU and of Kosovo respectively, employees who are nationals of the EU or citizens of Kosovo respectively, provided that such employees are key personnel as defined in paragraph 2 and that they are employed exclusively by companies, subsidiaries or branches.
2. Key personnel of the abovementioned companies hereinafter referred to as ‘organisations’ are ‘intra-corporate transferees’ as defined in point (c) in the following categories, provided that the organisation is a legal person and that the persons concerned have been employed by it or have been partners in it (other than as majority shareholders), for at least the year immediately preceding such movement:
(a) Persons working in a senior position with an organisation, who primarily direct the management of the establishment, receiving general supervision or direction principally from the board of directors or stockholders of the business or their equivalent including:
(i) directing the establishment of a department or sub-division of the establishment;
(ii) supervising and controlling the work of other supervisory, professional or managerial employees;