(c) Article 12.9 (Performance Requirements);
(d) Article 12.10 (Senior Executives and Boards of Directors);
(e) Article 13.5 (Market Access); or
(f) Article 13.6 (Local Presence).
2. Each tab of the List establishes the following elements:
(a) Sector refers to the sector for which the record has been made;
(b) Affected Obligations specifies the obligation or obligations referred to in paragraph 1 that, by virtue of Articles 12.12 (Nonconforming Measures) and 13.7 (Nonconforming Measures), do not apply to the nonconforming aspects of the law, regulation, or other measure, as provided in paragraph 3;
(c) Measures identifies the laws, regulations or other measures for which the record has been made. A measure cited in the Measures element: (1)
(i) means the measure as modified, continued or renewed, as of the date of entry into force of this Agreement; and
(ii) includes any action subordinate to, adopted or maintained under the authority of and consistent with such action; and
(d) Description sets out the liberalization commitments, if any, at the date of entry into force of this Agreement and the remaining non-conforming aspects of the existing measures on which the record has been made.
3. In interpreting a fiche of the List, all elements of the fiche shall be considered. A fiche shall be interpreted in the light of the relevant obligations of the Chapters in respect of which the fiche has been made. To the extent that:
(a) the Measures element is qualified by a liberalization commitment of the Description element, the Measures element so qualified shall prevail over any other element; and
(b) the Measures element is not qualified, the Measures element shall prevail over any other element, except where any discrepancy between the Measures element and the other elements considered as a whole is so substantial and material that it would be unreasonable to conclude that the Measures element should prevail, in which case, the other elements shall prevail to the extent of the discrepancy.
4. Pursuant to Article 12.12 (Nonconforming Measures) and 13.7 (Nonconforming Measures), the articles of this Agreement specified in the Affected Obligations element of a tab do not apply to the law, regulation or other measure identified in the Measures element of that tab.
5. Where a Party maintains a measure requiring a service supplier to be a national, permanent resident or resident in its territory as a condition for the supply of a service in its territory, a Schedule entry made for that measure in relation to Articles 13.3 (National Treatment), 13.4 (Most-Favored-Nation Treatment) or 13.6 (Local Presence) shall operate as a Schedule entry in relation to Articles 12.5 (National Treatment), 12.6 (Most-Favored-Nation Treatment) or 12.9 (Performance Requirements) with respect to such measure.
6. For greater certainty, Article 13.5 (Market Access) refers to non-discriminatory measures.
Annex I. Schedule of the Republic of Colombia
Sector: All Sectors
Obligations Concerned: Local Presence (Article 13.6)
Measures: Code of Commerce, 1971, Articles 469, 471 and 474.
Description: Cross-border trade in services
A legal person incorporated under the laws of another country, and with its principal domicile abroad, must be established as a branch or other legal form in Colombia to develop a concession obtained from the Colombian State.
Sector: All Sectors
Obligations Concerned: Performance requirements (Article 12.9) National Treatment (Article 13.3)
Measures: Substantive Labor Code, 1993, Articles 74 and 75.
Description: Investment and Cross-Border Trade in Services
Every employer that has more than ten (10) workers in its service must employ Colombians in a proportion of not less than ninety percent (90%) of the ordinary workers and not less than eighty percent (80%) of the qualified or specialist personnel or management or trust personnel.
At the request of the employer, this proportion may be reduced in the case of strictly technical and indispensable personnel and only for the time necessary to prepare Colombian personnel and through the obligation of the petitioner to provide the complete education required for this purpose.
Sector: All Sectors
Obligations Concerned: National Treatment (Article 12.5)
Measures: Decree 2080 of 2000, Articles 26 and 27. Description: Investment A foreign investor may make portfolio investments in securities in Colombia only through a foreign equity investment fund.
Sector: All Sectors
Obligations Concerned: National Treatment (Article 12.5)
Measures: Law 226 of 1995, Articles 3 and 11.
Description: Investment
If the Colombian State decides to sell all or part of its interest in an enterprise to a person other than another Colombian state enterprise or other Colombian governmental entity, it must first offer such interest on an exclusive basis, and under the conditions set forth in Article 11 of Law 226 of 1995, to:
(a) workers, pensioners and former workers (other than former workers terminated with just cause) of the company and other companies owned or controlled by that company;
(b) associations of employees or former employees of the company;
(c) labor unions;
(d) federations and confederations of workers' unions;
(e) employee funds;
(f) severance and pension funds; and
(g) cooperative entities.
Colombia does not reserve the right to control any subsequent transfer or other sale of such interest.
Sector: All Sectors
Obligations Concerned: Local Presence (Article 13.6)
Measures: Law 915 of 2004, Article 5
Description: Cross-border trade in services Only a person with its principal place of business in the Free Port of San Andres, Providencia and Santa Catalina can provide services in that region. For the sake of clarity, this measure does not affect the cross-border supply of services as defined in Article 13.1 (Cross-border trade in services or cross-border supply of services) subparagraphs (a) and (b).
Sector: Accounting Services
Obligations Concerned: National Treatment (Article 13.3) Local Presence (Article 13.6)
Measures: Law 43 of 1990, Article 3 Paragraph 1. Resolution No. 160 of 2004, Article 2 Paragraph and Article 6
Description: Cross-border trade in services
Only persons registered with the Central Board of Accountants may practice as accountants. A foreigner must have been domiciled in Colombia uninterruptedly for at least three (3) years prior to the application for registration and demonstrate accounting experience in the territory of Colombia for at least one (1) year. This experience may be acquired simultaneously or subsequent to the public accounting studies.
For natural persons, the term "domiciled" means being a resident in Colombia and intending to remain in Colombia.
Sector: Research and Development Services
Obligations Concerned: National Treatment (Article 13.3)
Measures: Decree 309 of 2000, Article 7
Description: Cross-border trade in services
Any foreign person planning to carry out scientific research on biological diversity in the territory of Colombia must involve at least one (1) Colombian researcher in the research or in the analysis of its results. For greater certainty, this measure does not refer to the rights of any person related to such scientific research or analysis.
Sector: Fishing and Fishing-Related Services
Obligations Concerned: National Treatment (Articles 12.5 and Most-Favored-Nation Treatment (Article 13.4) Market Access (Article 13.5)
Measures: Decree 2256 of 1991, Articles 27, 28 and 67 Agreement 005 of 2003, Section Il and VII.
Description: Investment and Cross-Border Trade in Services
Only Colombian nationals may engage in artisanal fishing.
A foreign flag vessel may engage in fishing and related activities in Colombian territorial waters only through association with a Colombian company holding the permit. The value of the permit and the fishing patent are higher for foreign flag vessels than for Colombian flag vessels.
If the flag of a foreign flag vessel corresponds to a country that is party to another bilateral agreement with Colombia, the terms of that other bilateral agreement will determine whether or not the requirement to associate with a Colombian company holding the permit applies.
Sector: Services Directly Related to Exploration and Minerals and Hydrocarbons Exploitation
Obligations Concerned: Local Presence (Article 13.6)
Measures: Law 685 of 2001, Articles 19 and 20. Legislative Decree 1056 of 1953, Article 10 Commercial Code, 1971, Articles 471 and 474.
Description: Cross-border trade in services
To provide services directly related to the exploration and exploitation of minerals and hydrocarbons in Colombia, any legal person incorporated under the laws of another country must establish a branch, subsidiary or affiliate in Colombia.
The preceding paragraph does not apply to service providers involved in such services for less than one (1) year.
Sector: Surveillance and Private Security Services
Obligations Concerned: National Treatment (Articles 12.5 and 13.3) Market Access (Article 13.5) Local Presence (Article 13.6)
Measures: Decree 356 of 1994, Articles 8, 12, 23 and 25. Description: Investment and Cross-Border Trade in Services
Only a company organized under Colombian law as a limited liability company or as private security and surveillance cooperatives (1) may provide private security and surveillance services in Colombia. The partners or members of these companies must be Colombian nationals.
Companies incorporated prior to February 11, 1994 with foreign partners or capital may not increase the participation of foreign partners. Cooperatives incorporated prior to this date may maintain their legal nature.
Sector: Journalism
Obligations Affected: Senior Executives and Boards of Directors (Article 12.10)
Measures: Law 29 of 1944, Article 13
Description: Investment
The director or general manager of any newspaper published in Colombia that deals with national politics must be a Colombian national.
Sector: Travel and Tourism Agents
Obligations Concerned: National Treatment (Article 13.3) Local Presence (Article 13.6)
Measures: Law 32 of 1990, Article 5 Decree 502 of 1997, Articles 1 to 7
Description: Cross-border trade in services
Foreigners must be domiciled in Colombia to provide travel and tourism agent services within the territory of Colombia.
For greater certainty, this entry does not apply to services provided by tourist guides, nor does it affect the cross-border supply of services as defined in Article 13.1 (Cross-border trade in services or cross-border supply of services) subparagraphs (a) and (b).
Sector: Notary and Registry Services
Obligations Concerned: National Treatment (Article 13.3) Market Access (Article 13.5)
Measures: Decree Law 960 of 1970, Articles 123, 124, 126, 127 and 132. Decree Law 1250 of 1970, Article 60
Description: Cross-border trade in services
Only Colombian nationals may be Notaries and/or Registrars.
Approval of new notaries is subject to an economic needs test that considers the population of the proposed service area, service needs and the availability of communication facilities, among other factors.
Sector: Public Utilities
Obligations Concerned: National Treatment (Article 13.3) Market Access (Article 13.5) Local Presence (Article 13.6)
Measures: Law 142 of 1994, Articles 1, 17, 18, 19 and 23 Code of Commerce, Articles 471 and 472.
Description: Investment and Cross-Border Trade in Services
A domiciliary public utility company must be established under the regime of "Empresas de Servicios Publicos" or "E.S.P.", must be domiciled in Colombia and _ legally constituted under Colombian law as a joint stock company. The requirement to be organized as a joint stock company does not apply in the case of decentralized entities that take the form of an industrial and commercial enterprise of the State.
For the purposes of this entry, domiciliary public utilities include the provision of water, sewage, waste disposal, electric power, fuel gas distribution and basic public switched telephone services (TPBC) and their complementary activities. Complementary activities to basic public switched telephone services are public long distance telephony and mobile telephony in the rural sector, but are not commercial mobile services.
A company in which an organized local community has a majority stake will be preferred over any other company that has submitted an equivalent offer in the granting of concessions or licenses for the provision of residential public services to that community.
Sector: Electric Power
Obligations Concerned: Market Access (Article 13.5)
Measures: Law 143 of 1994, Article 74
Description: Cross-border trade in services Only companies legally incorporated in Colombia prior to July 12, 1994, may carry out the activity of commercialization and transmission of electric energy or carry out more than one of the following activities at the same time: generation, distribution and transmission of electric energy.
Sector: Customs Services
Obligations Concerned: Local Presence (Article 13.6)
Measures: Decree 2685 of 1999, Articles 74 and 76. Description: Cross-border trade in services
To perform the following customs services, a person must be domiciled in Colombia or have a representative domiciled and legally responsible for its activities in Colombia: customs brokerage, brokerage for postal and specialized courier (1) (including express shipments), warehousing of goods, transportation of goods under customs control, or international freight forwarder, or act as Permanent Customs Users or Highly Exporters.
Sector: Postal and Specialized Courier Services
Obligations Affected: Local Presence (Article 13.6)
Measures: Decree 229 of 1995, Articles 14 and 17, numeral
Description: Cross-border trade in services
Only legal entities legally constituted in Colombia may provide postal and specialized courier services in Colombia.
Sector: Telecommunications Services
Obligations Concerned: National Treatment (Article Market Access (Article 13.5) Local Presence (Article 13.6)
Measures: Law 671 of 2001 Decree 1616 of 2003, Articles 13 and 16 Decree 2542 of 1997, Article 2 Decree 2926 of 2005, Article 2
Description: Cross-border trade in services
Only companies legally incorporated in Colombia may receive concessions for the provision of telecommunications services in Colombia.
Until July 31, 2007, concessions for the routing of international long-distance traffic will be granted only to operators on the basis of their facilities.
Colombia may grant licenses to companies for the provision of long distance basic public switched telephone service on less favorable terms, only with respect to payment and duration, than those granted to Colombia Telecomunicaciones S.A. E.S.P. under article 2 of Decree 2542 of 1997, articles 13 and 16 of Decree 1616 of 2003, and Decree 2926 of 2005.
Sector: Cinematography
Obligations Concerned: Performance Requirements (Article 12.9)
Measures:
Description:
National Treatment (Article 13.3) Law 814 of 2003, Articles 5, 14, 15, 18 and 19. Investment and Cross-Border Trade in Services
The exhibition or distribution of foreign films is subject to the Film Development Fee which is established at eight point five percent (8.5%) of the monthly net income derived from such exhibition or distribution.
Obligations Concerned: Performance Requirements (Article 12.9) National Treatment (Article 13.3)