(iii) having the authority personally to recruit and dismiss or recommend recruiting, dismissing or other personnel actions;
(b) Persons working within an organisation who possess specialised knowledge essential to the establishment’s service, research equipment, techniques or management. The assessment of such knowledge may reflect, apart from knowledge specific to the establishment, a high level of qualification referring to a type of work or trade requiring specific technical knowledge, including membership of an accredited profession;
(c) Anil ‘intra-corporate transferee’ is defined as a natural person working within an organisation in the territory of a Party, and being temporarily transferred in the context of the pursuit of economic activities in the territory of the other Party; the organisation concerned must have its principal place of business in the territory of a Party and the transfer be to an establishment (branch, subsidiary) of that organisation, effectively pursuing like economic activities in the territory of the other Party.
3. The entry into and the temporary presence within the territory of the EU or in Kosovo of Kosovo citizens and EU nationals respectively shall be permitted when these representatives of companies are persons working in a senior position, as defined in paragraph 2(a), within a company, and are responsible for the setting up of an EU subsidiary or branch of a Kosovo company or of a Kosovo subsidiary or branch of an EU company in a Member State or in Kosovo respectively, when:
(a) those representatives are not engaged in making direct sales or supplying services, and do not receive remuneration from a source located within the host territory of establishment; and
(b) the company has its principal place of business outside the EU or Kosovo, respectively, and has no other representative, office, branch or subsidiary in that Member State or in Kosovo respectively.
Article 56.
In order to make it easier for EU nationals and citizens of Kosovo to take up and pursue regulated professional activities in Kosovo and in the EU respectively, within two years from the entry into force of this Agreement, the SAC shall examine which steps are necessary for the mutual recognition of qualifications. It may take all necessary measures to that end.
Article 57.
Six years from entry into force of this Agreement, the SAC shall establish the modalities to extend the provisions of this chapter to EU nationals and citizens of Kosovo with a view to the temporary entry and stay of service suppliers established as self-employed in a territory of a Party and who have concluded a bona fide contract to supply services with a final consumer in that Party, requiring their presence on a temporary basis in that Party in order to fulfil the contract to provide services.
Article 58.
1. The EU and Kosovo undertake, in accordance with paragraphs 2 and 3, to take the necessary steps to allow progressively the supply of services by EU companies, Kosovo companies or by EU nationals or citizens of Kosovo which are established in the territory of a Party other than that of the person for whom the services are intended.
2. In step with the liberalisation process referred to in paragraph 1, the Parties shall permit the temporary movement of natural persons providing the service or who are employed by the service provider as key personnel as defined in Article 55, including natural persons who are representatives of an EU or Kosovo company or an EU national or Kosovo citizen and are seeking temporary entry for the purpose of negotiating for the sale of services or entering into agreements to sell services for that service provider, where those representatives will not be engaged in making direct sales to the general public or in supplying services themselves.
3. After five years from the entry into force of this Agreement, the SAC shall take the measures necessary to progressively implement paragraphs 1 and 2. Account shall be taken of the progress achieved by Kosovo in its approximation of laws with the EU acquis.
Article 59.
1. The Parties shall not take any measures or actions which render the conditions for the supply of services by EU nationals or companies and Kosovo citizens or companies which have their place of permanent residence or establishment in a Party other than that of the person for whom the services are intended significantly more restrictive as compared to the situation existing on the day preceding the day of entry into force of this Agreement.
2. If one Party is of the view that measures introduced by the other Party since the entry into force of this Agreement result in a situation which is significantly more restrictive in respect of the supply of services as compared with the situation existing at the date of entry into force of this Agreement, such Party may request the other Party to enter into consultations.
Article 60.
With regard to supply of transport services between the EU and Kosovo, the following provisions shall apply:
(1) With regard to air transport, the conditions of mutual market access shall be dealt with by the Multilateral Agreement on the Establishment of the European Common Aviation Area.
(2) With regard to land transport, the conditions of mutual market access and transit traffic in road transport shall be dealt with by the Treaty establishing the Transport Community.
(3) Kosovo shall adapt its legislation, including administrative, technical and other rules, to that of the EU existing at any time in the field of air and land transport insofar as it furthers liberalisation purposes and mutual access to markets of the Parties and facilitates the movement of passengers and of goods.
(4) Kosovo commits to abide by any international conventions relating to road safety, while paying particular attention to the agreed comprehensive network of the South East Europe Transport Observatory (SEETO).
(5) This Chapter shall not apply to maritime services.
Chapter III. Transit Traffic
Article 61. Definitions
For the purposes of this Agreement, the following definitions shall apply:
(1) EU transit traffic: the carriage, by a carrier established in the EU, of goods in transit through the territory of Kosovo en route to or from a Member State;
(2) Kosovo transit traffic: the carriage, by a carrier established in Kosovo, of goods in transit from Kosovo through EU territory and destined for a third country or of goods from a third country destined for Kosovo.
Article 62. General Provisions
1. This chapter shall cease to apply once the Treaty establishing the Transport Community enters into force.
2. The Parties agree to grant unrestricted access to EU transit traffic through Kosovo and to Kosovo transit traffic through the EU with effect from the date of entry into force of this Agreement.
3. If, as a result of the rights granted under paragraph 2 of this Article, transit traffic by EU hauliers increases to such a degree as to cause or threaten to cause serious harm to road infrastructure and/or traffic fluidity on the axes, and under the same circumstances problems arise on EU territory close to the border/boundary of Kosovo, the matter shall be submitted to the SAC in accordance with Article 128 of this Agreement. The Parties may propose exceptional temporary, non-discriminatory measures as are necessary to limit or mitigate such harm.
4. The Parties shall refrain from taking any unilateral action that might lead to discrimination between carriers or vehicles from the EU and carriers or vehicles from Kosovo. The Parties shall take all steps necessary to facilitate road transport to or through the territory of the other Party.
Article 63. Simplification of Formalities
1. The Parties agree to simplify the flow of goods by rail and road, whether bilateral or in transit.
2. The Parties agree to take joint action, to the extent necessary, on, and to encourage, the adoption of further simplification measures.
Chapter IV. Current Payments and Movement of Capital
Article 64.
The Parties undertake to authorise, in freely convertible currency, in accordance with Article VIII of the Articles of Agreement of the International Monetary Fund, any payments and transfers on the current account of balance of payments between the EU and Kosovo.
Article 65.
1. With regard to transactions on the capital and financial account of balance of payments, from the entry into force of this Agreement, the Parties shall ensure the free movement of capital relating to direct investments made in companies formed in accordance with the applicable legislation and investments made in accordance with Chapter I of Title V, and the liquidation or repatriation of these investments and of any profit stemming therefrom.
2. With regard to transactions on the capital and financial account of balance of payments, from the entry into force of this Agreement, the Parties shall ensure the free movement of capital relating to credits related to commercial transactions or to the provision of services, including financial loans and credits, in which a resident of one of the Parties is participating. This Article does not cover portfolio investment, notably the acquisition of shares on the capital market solely with the intention of making a financial investment without any intention to influence the management and control of the undertaking.
3. Kosovo shall, within five years from the entry into force of this Agreement, grant national treatment to EU nationals acquiring real estate on its territory.
4. Without prejudice to paragraph 1, the Parties shall not introduce any new restrictions on the movement of capital and current payments between residents of the EU and Kosovo and shall not make the existing arrangements more restrictive.
5. Without prejudice to this Article and to Article 64, where, in exceptional circumstances, movements of capital cause, or threaten to cause, serious difficulties for the operation of exchange rate policy or monetary policy in the EU or Kosovo, the EU and Kosovo, respectively, may take safeguard measures with regard to movements of capital between the EU and Kosovo for a period not exceeding six months if such measures are strictly necessary.
6. The Parties shall consult each other with a view to facilitating the movement of capital between the EU and Kosovo in order to promote the objectives of this Agreement.
Article 66.
1. During the first year following the date of entry into force of this Agreement, Kosovo shall take measures permitting the creation of the necessary conditions for the further gradual application of EU rules on the free movement of capital.
2. By the end of the second year following the date of entry into force of this Agreement, the SAC shall determine the modalities for full application of EU rules on the free movement of capital in Kosovo.
Chapter V. General Provisions
Article 67.
1. This Title shall be applied subject to limitations justified on grounds of public policy, public security or public health.
2. This Title shall not apply to activities that in the territory of either of the Parties are connected, even occasionally, with the exercise of official authority.
Article 68.
1. For the purpose of this Title, nothing in this Agreement shall prevent the Parties from applying their laws and regulations regarding entry and stay, employment, working conditions, establishment of natural persons and supply of services, notably insofar as the granting, renewal or refusal of a residence permit is concerned, provided that, in so doing, they do not apply them in such a manner as to nullify or impair the benefits accruing to either Party under the terms of a specific provision of this Agreement and the EU acquis. This provision shall be without prejudice to the application of Article 67.
2. This Title shall not apply to measures affecting natural persons seeking access to the employment market of either Party, nor shall it apply to measures regarding citizenship, residence or employment on a permanent basis.
Article 69.
Companies which are controlled and exclusively owned jointly by EU companies or EU nationals and by Kosovo companies or citizens of Kosovo shall also be covered by this Title.
Article 70.
1. The Most-Favoured-Nation treatment granted in accordance with this Title shall not apply to the tax advantages that the Parties are providing or will provide in the future on the basis of Agreements designed to avoid double taxation or other tax arrangements.
2. This Title shall not be construed to prevent the adoption or enforcement by the Parties of any measure aimed at preventing the avoidance or evasion of taxes pursuant to the tax provisions of Agreements to avoid double taxation and other tax arrangements or domestic fiscal legislation.
3. This Title shall not be construed to prevent the Parties, when applying the relevant provisions of their fiscal legislation, from distinguishing between taxpayers who are not in identical situations, in particular as regards their place of residence.
Article 71.
1. The Parties shall endeavour wherever possible to avoid the imposition of restrictive measures, including measures relating to imports, for balance of payments purposes. A Party adopting such measures shall present as soon as possible to the other Party a timetable for their removal.
2. Where one or more Member States or Kosovo is in serious balance of payments difficulties, or facing imminent threat thereof, the EU and Kosovo may, in accordance with the conditions established under the WTO Agreement, adopt restrictive measures, including measures relating to imports, which shall be of limited duration and shall not go beyond what is strictly necessary to remedy the balance of payments situation. The EU and Kosovo shall inform the other Party forthwith.
Article 72.
This Title shall be progressively adjusted, notably in the light of requirements arising from Article V of the GATS.
Article 73.
This Agreement shall be without prejudice to the application by either Party of any measure necessary to prevent the circumvention of its measures concerning third-country access to its market through this Agreement.
Title VI. APPROXIMATION OF KOSOVO’S LAW TO THE EU ACQUIS, LAW ENFORCEMENT AND COMPETITION RULES
Article 74.
1. The Parties recognise the importance of the approximation of the existing legislation in Kosovo to that of the EU and of its effective implementation. Kosovo shall endeavour to ensure that its existing law and future legislation will gradually be made compatible with the EU acquis. Kosovo shall ensure that existing law and future legislation will be properly implemented and enforced.
2. This approximation shall start on the date of signature of this Agreement, and shall gradually extend to all the elements of the EU acquis referred to in this Agreement by the end of the transitional period defined in Article 9.
3. Approximation will, at an early stage, focus on fundamental elements of the EU acquis in the field of the Internal Market, and in the field of Freedom, Security and Justice, as well as on trade-related areas. At a further stage, Kosovo shall focus on the remaining parts of the EU acquis.
Approximation shall be carried out on the basis of a programme to be agreed between the European Commission and Kosovo.
4. Kosovo shall also define, in agreement with the European Commission, the modalities for the monitoring of the implementation of approximation of legislation and law enforcement actions to be taken, including efforts by Kosovo to reform its judiciary to implement its overall legal framework.
Article 75.
Competition and other economic provisions
1. The following are incompatible with the proper functioning of this Agreement, insofar as they may affect trade between the EU and Kosovo:
(a) all Agreements between undertakings, decisions by associations of undertakings and concerted practices between undertakings which have as their object or effect the prevention, restriction or distortion of competition;
(b) abuse by one or more undertakings of a dominant position in the territories of the EU or of Kosovo as a whole or in a substantial part thereof;
(c) any state aid which distorts or threatens to distort competition by favouring certain undertakings or certain products.
2. Any practices contrary to this Article shall be assessed on the basis of criteria arising from the application of the competition rules applicable in the EU, in particular from Articles 101, 102, 106 and 107 of the Treaty on the Functioning of the European Union and interpretative instruments adopted by the EU institutions.
3. The Parties shall ensure that an operationally independent authority is entrusted with the powers necessary for the full application of paragraph 1(a) and (b) of this Article, regarding private and public undertakings and undertakings to which special rights have been granted.
4. Kosovo shall ensure that an operationally independent authority is entrusted with the powers necessary for the full application of paragraph 1(c). This authority shall have, inter alia, the powers to authorise state aid schemes and individual aid grants in conformity with paragraph 2, as well as the powers to order the recovery of state aid that has been unlawfully granted.
5. The EU on one side and Kosovo on the other side shall ensure transparency in the area of state aid, inter alia, by providing to the other Party a regular annual report, or equivalent, following the methodology and the presentation of the EU survey on state aid. Upon request by one Party, the other Party shall provide information on particular individual cases of state aid.
6. Kosovo shall establish a comprehensive inventory of aid schemes instituted and shall align such aid schemes with the criteria referred to in paragraph 2 within a period of no more than three years from the entry into force of this Agreement.
7.
(a) For the purposes of applying paragraph 1(c), the Parties recognise that during the first five years after the entry into force of this Agreement, any state aid granted by Kosovo shall be assessed taking into account the fact that Kosovo shall be regarded as an area identical to those areas of the EU described in Article 107(3)(a) of the Treaty on the Functioning of the European Union.
(b) Within four years from the entry into force of this Agreement, Kosovo shall submit to the European Commission its GDP per capita figures harmonised at NUTS II level. The authority referred to in paragraph 4 and the European Commission shall then jointly evaluate the eligibility of the regions of Kosovo as well as the maximum aid intensities in relation thereto in order to draw up the regional aid map on the basis of the relevant EU guidelines.
8. With regard to products referred to in Chapter II of Title IV:
(a) paragraph 1(c) of this Article shall not apply;
(b) any practices contrary to paragraph 1(a) of this Article shall be assessed in accordance with the criteria established by the EU on the basis of Articles 42 and 43 of the Treaty on the Functioning of the European Union and specific EU instruments adopted on this basis.
9. If either of the Parties considers that a particular practice is incompatible with the terms of paragraph 1, it may take appropriate measures after consultation within the SAC or after 30 working days following referral for such consultation. This Article shall not prejudice or affect in any way the taking, by the EU or Kosovo, of countervailing measures consistent with the GATT 1994 and the WTO Agreement on Subsidies and Countervailing Measures and the respective related internal legislation.
Article 76. Public Undertakings
By the end of the third year following the entry into force of this Agreement Kosovo shall apply to public undertakings and undertakings to which special and exclusive rights have been granted the principles set out in the Treaty on the Functioning of the European Union, with particular reference to Article 106 thereof.
Special rights of public undertakings during the transitional period shall not include the possibility to impose quantitative restrictions or measures having an equivalent effect on imports from the EU into Kosovo.
Article 77. General Aspects of Intellectual Property
1. Pursuant to this Article and Annex VII, the Parties confirm the importance that they attach to ensuring adequate and effective protection and enforcement of intellectual, industrial and commercial property rights.
2. Kosovo shall take the necessary measures in order to guarantee no later than five years after entry into force of this Agreement a level of protection of intellectual, industrial and commercial property rights similar to that existing in the EU, including effective means of enforcing such rights.
3. Kosovo undertakes to abide by the multilateral conventions on intellectual, industrial and commercial property rights referred to in Annex VII. The SAC may decide to oblige Kosovo to abide by specific multilateral Conventions in this area.
Article 78. Trade-related Aspects of Intellectual Property
1. From the entry into force of this Agreement, the Parties shall grant to each other’s companies, EU nationals and Kosovo citizens, in respect of the recognition and protection of intellectual, industrial and commercial property, treatment no less favourable than that granted by them to any third country under bilateral Agreements.
2. If problems in the area of intellectual, industrial and commercial property affecting trading conditions occur, they shall be referred urgently to the SAC, at the request of either Party, with a view to reaching mutually satisfactory solutions.
Article 79. Public Procurement
1. The EU and Kosovo consider the opening-up of the award of public contracts on the basis of non-discrimination and reciprocity, following in particular the WTO rules, to be a desirable objective.
2. From the entry into force of this Agreement, Kosovo companies, whether established in the EU or not, shall be granted access to contract award procedures in the EU pursuant to EU procurement rules under treatment no less favourable than that accorded to EU companies.
The above provisions shall also apply to contracts in the utilities sector once Kosovo has adopted legislation introducing the EU rules in this area. The EU shall examine periodically whether Kosovo has indeed introduced such legislation.
3. From the entry into force of this Agreement, EU companies established in Kosovo under Chapter I of Title V shall be granted access to contract award procedures in Kosovo under treatment no less favourable than that accorded to Kosovo companies.
4. From the entry into force of this Agreement, EU companies not established in Kosovo under Chapter I of Title V shall be granted access to contract award procedures in Kosovo under treatment no less favourable than that accorded to Kosovo companies and EU companies established in Kosovo with the exception of the price preferences described in paragraph 5.
5. From the entry into force of this Agreement, Kosovo shall convert any existing preferences for Kosovo companies or EU companies established in Kosovo, and for contracts awarded under procedures following the criteria of the most economically advantageous tender and the lowest price, to a price preference and shall gradually eliminate the latter within a period of five years in accordance with the following timetable:
—
the preferences shall not exceed 15 % by the end of the second year following the entry into force of this Agreement;
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the preferences shall not exceed 10 % by the end of the third year following the entry into force of this Agreement;
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the preferences shall not exceed 5 % by the end of the fourth year following the entry into force of this Agreement; and
—
the preferences will be completely abolished no later than the end of the fifth year following the entry into force of this Agreement.
6. Within two years from the entry into force of the Agreement, the SAC may review the preferences set out in paragraph 5 and decide to shorten the periods set out in paragraph 5.
7. Within five years from the entry into force of this Agreement, Kosovo shall enact legislation to implement the procedural standards provided for by the EU acquis.
8. Kosovo shall report annually to the SAC on the measures it has taken to enhance transparency and to provide for effective judicial review of decisions taken in the area of public procurement.
9. As regards establishment, operations, supply of services between the EU and Kosovo, Articles 50 to 66 shall apply. With regard to employment and movement of workers linked to the fulfilment of public contracts, the EU acquis related to third country nationals shall apply as regards Kosovo citizens in the EU. With regard to EU nationals in Kosovo, Kosovo shall grant reciprocal rights to workers who are nationals of a Member State similar to those of Kosovo citizens in the EU, with regard to employment and movement of workers linked to the fulfilment of public contracts.
Article 80. Standardisation, Metrology, Accreditation and Conformity Assessment
1. Kosovo shall take the necessary measures in order to gradually achieve conformity with EU horizontal and sectoral product safety legislation and bring quality infrastructure, such as standardisation, metrology, accreditation and conformity assessment procedures up to European standards.
2. To this end, the Parties shall seek to:
(a) promote the use of EU technical regulations, European standards and conformity assessment procedures;
(b) provide assistance to fostering the development of quality infrastructure: standardisation, metrology, accreditation and conformity assessment;
(c) promote Kosovo’s cooperation with the organisations related to standards, conformity assessment, metrology, accreditation and similar functions (e.g. CEN, Cenelec, ETSI, EA, WELMEC, EURAMET) (5) should objective circumstances so permit;
(d) where appropriate, conclude an Agreement on Conformity Assessment and Acceptance of Industrial Products once the legislative framework and the procedures of Kosovo are sufficiently aligned to those of the EU and appropriate expertise is available.
Article 81. Consumer Protection
The Parties shall cooperate with a view to approximating Kosovo’s legislation on consumer protection to the EU acquis with a view to ensuring:
(a) a policy of active consumer protection, in accordance with EU law, including the increase of information and development of independent organisations in Kosovo;
(b) the harmonisation of legislation of consumer protection in Kosovo with that in force in the EU;
(c) effective legal protection for consumers in order to improve the quality of consumer goods and maintain appropriate safety standards;
(d) the monitoring of rules by competent authorities and providing access to appropriate legal redress in case of disputes;
(e) the exchange of information on dangerous products.
Article 82. Working Conditions and Equal Opportunities
Kosovo shall progressively harmonise its legislation to that of the EU in the fields of working conditions, notably on health and safety at work, and equal opportunities.
Title VII. FREEDOM, SECURITY AND JUSTICE
Article 83. Reinforcement of Institutions and Rule of Law
In their cooperation in the field of freedom, security and justice, the Parties shall attach particular importance to the consolidation of the rule of law, and the reinforcement of institutions at all levels in the areas of administration in general and law enforcement and the administration of justice in particular. Cooperation shall notably aim at strengthening the independence, impartiality and accountability of the judiciary in Kosovo and improving its efficiency, developing adequate structures for the police, prosecutors and judges and other judicial and law enforcement bodies to adequately prepare them for cooperation in civil, commercial and criminal matters, and to enable them to effectively prevent, investigate, prosecute and adjudicate organised crime, corruption and terrorism.
Article 84. Protection of Personal Data
The Parties shall cooperate on personal data protection legislation with a view to achieving a level of protection of personal data by Kosovo corresponding to that of the EU acquis. Kosovo shall ensure sufficient financial and human resources for one or more independent supervisory bodies in order to efficiently monitor and guarantee the enforcement of its personal data protection legislation.
Article 85. Visa, Border/boundary Management, Asylum and Migration
The Parties shall cooperate in the areas of visa, border/boundary control, asylum and migration and shall set up a framework for cooperation, including at a regional level, in these fields, taking into account and making full use of other existing initiatives in this area as appropriate.
Cooperation in the matters referred to in the first paragraph shall be based on mutual consultations and close coordination between the Parties and may include technical and administrative assistance for:
(a) the exchange of statistics and information on legislation and practices;
(b) the drafting of legislation;