‘type of reservation’ specifies the obligation referred to in paragraph 1 of this Annex for which the reservation is taken;
(e)
‘level of government’ indicates the level of government maintaining the measure for which the reservation is taken;
(f)
‘measures’ identifies the laws or other measures as qualified, where indicated, by the ‘description’ element for which the reservation is taken; a ‘measure’ cited in the ‘measures’ element:
(i)
means the measure as amended, continued or renewed as of the date of entry into force of this Agreement;
(ii)
includes any subordinate measure adopted or maintained under the authority of, and consistent with, the measure; and
(iii)
in respect of the schedule of the EU Party, includes any laws or other measures which implement a directive at Member State level; and
(g)
‘description’ sets out the non-conforming aspects of the existing measure for which the reservation is taken.
4.
For greater certainty, if a Party adopts a new measure at a level of government different to that at which the reservation was originally taken, and that new measure effectively replaces, within the territory to which it applies, the non-conforming aspect of the original measure cited in the ‘measures’ element, the new measure shall be deemed to constitute a modification to the original measure within the meaning of subparagraph (c) of Article 17.14(1) or subparagraph (c) of Article 18.8(1).
5.
In the interpretation of a reservation, all elements of the reservation shall be considered. A reservation shall be interpreted in the light of the relevant obligations laid down in the Chapters or Sections against which the reservation is taken. The ‘measures’ element shall prevail over all other elements.
6.
For the purposes of the schedules of the Parties, ‘ISIC Rev. 3.1’ means the International Standard Industrial Classification of All Economic Activities as set out in Statistical Office of the United Nations, Statistical Papers, Series M, No. 4, ISIC Rev. 3.1, 2002.
7.
For the purposes of the schedules of the Parties, a reservation for a requirement to have a local presence in the territory of the Parties is taken with respect to Article 18.6, and not with respect to Article 18.4 or, in Annex 17-C, with respect to Article 18.7. Furthermore, such a requirement is not taken as a reservation with respect to Article 17.9.
8.
A reservation taken at the level of the EU Party applies to a measure of the European Union, to a measure of a Member State at the central level or to a measure of a government within a Member State, unless the reservation excludes a Member State. A reservation taken by a Member State applies to a measure of a government at the central, regional or local level within that Member State. For the purposes of the reservations of Belgium, the central level of government covers the federal government and the governments of the regions and the communities as each of them holds equipollent legislative powers. For the purposes of the reservations of the EU Party, a regional level of government in Finland means the Åland Islands. A reservation taken at the level of Chile applies to a measure of the central government or a local government.
9.
The schedules of the Parties do not include measures relating to qualification requirements and procedures, technical standards and licensing requirements and procedures where they do not constitute a limitation within the meaning of Article 17.9, 18.4 or 18.6. Those measures may include, in particular, the need to obtain a licence, to satisfy universal service obligations, to have recognised qualifications in regulated sectors, to pass specific examinations, including language examinations, to fulfil a membership requirement of a particular profession, such as membership in a professional organisation, to have a local agent for service, or to maintain a local address, or any other non-discriminatory requirements that certain activities may not be carried out in protected zones or areas. Although they are not listed in this Annex, such measures continue to apply.
10.
For greater certainty, for the EU Party, the obligation to grant national treatment does not entail a requirement to extend to natural or juridical persons of Chile the treatment granted in a Member State, pursuant to the Treaty on the Functioning of the European Union, or any measure adopted pursuant to that Treaty, including their implementation in the Member States, to:
(a)
natural persons or residents of another Member State; or
(b)
juridical persons constituted or organised under the law of another Member State or of the European Union and having their registered office, central administration or principal place of business in the European Union.
11.
Treatment granted to juridical persons established by investors of a Party in accordance with the law of the other Party (including, in the case of the EU Party, the law of a Member State) and having their registered office, central administration or principal place of business within that other Party, is without prejudice to any condition or obligation, pursuant to Chapter 17, which may have been imposed on such juridical person when it was established in that other Party, and which shall continue to apply.
12.
The schedules of the Parties apply only to the territories of the Parties in accordance with Article 41.2 and are only relevant in the context of trade relations between the EU Party and Chile. They do not affect the rights and obligations of the Member States under European Union law.
13.
The following abbreviations are used in the schedule of the EU Party:
EU European Union, including all its Member States
AT Austria
BE Belgium
BG Bulgaria
CY Cyprus
CZ Czechia
DE Germany
DK Denmark
EE Estonia
EL Greece
ES Spain
FI Finland
FR France
HR Croatia
HU Hungary
IE Ireland
IT Italy
LT Lithuania
LU Luxembourg
LV Latvia
MT Malta
NL Netherlands
PL Poland
PT Portugal
RO Romania
SE Sweden
SI Slovenia
SK Slovakia
EEA European Economic Area
Appendix 17-A-1. SCHEDULE OF THE EU PARTY
Reservation No. 1 – All sectors
Reservation No. 2 – Professional services (except health-related professions)
Reservation No. 3 – Professional services (health related and retail of pharmaceuticals)
Reservation No. 4 – Research and development services
Reservation No. 5 – Real estate services
Reservation No. 6 – Business services
Reservation No. 7 – Construction services
Reservation No. 8 – Distribution services
Reservation No. 9 – Education services
Reservation No. 10 – Environmental services
Reservation No. 11 – Health services and social services
Reservation No. 12 – Tourism and travel related services
Reservation No. 13 – Recreational, cultural and sporting services
Reservation No. 14 – Transport services and services auxiliary to transport services
Reservation No. 15 – Energy related activities
Reservation No. 16 – Agriculture, fishing and manufacturing
Reservation No. 1 – All sectors
Sector:
All sectors
Type of reservation:
National treatment
Most-favoured-nation treatment
Performance requirements
Senior management and boards of directors
Chapter/Section:
Investment liberalisation and Cross-border trade in services
Level of government:
EU/Member State (unless otherwise specified)
Description:
(a)
Type of establishment
With respect to Investment liberalisation – National treatment:
The EU: Treatment granted pursuant to the Treaty on the Functioning of the European Union to juridical persons formed in accordance with the law of the European Union or of a Member State and having their registered office, central administration or principal place of business within the European Union, including those established in the European Union by investors of Chile, is not accorded to juridical persons established outside the European Union, nor to branches or representative offices of such juridical persons, including to branches or representative offices of juridical persons of Chile.
Treatment less favourable may be accorded to juridical persons formed in accordance with the law of the European Union or of a Member State which have only their registered office in the European Union, unless it can be shown that they possess an effective and continuous link with the economy of one of the Member States.
Measures:
EU: Treaty on the Functioning of the European Union.
With respect to Investment liberalisation – National treatment, Senior management and boards of directors:
This reservation applies only to health, social or education services:
The EU (applies also to the regional level of government): Any Member State, when selling or disposing of its equity interests in, or the assets of, an existing state enterprise or an existing governmental entity providing health, social or education services (CPC 93, 92), may prohibit or impose limitations on the ownership of such interests or assets, and/or restrict the ability of owners of such interests and assets to control any resulting enterprise, with respect to investors of Chile or their enterprises. With respect to such a sale or other disposition, any Member State may adopt or maintain any measure relating to the nationality of senior management or members of the boards of directors.
For the purposes of this reservation:
(i)
any measure maintained or adopted after the date of entry into force of this Agreement that, at the time of the sale or other disposition, prohibits or imposes limitations on the ownership of equity interests or assets or imposes nationality requirements as described in this reservation shall be deemed to be an existing measure; and
(ii)
‘state enterprise’ means an enterprise owned or controlled through ownership interests by any Member State and includes an enterprise established after the date of entry into force of this Agreement solely for the purposes of selling or disposing of equity interests in, or the assets of, an existing state enterprise or governmental entity.
Measures:
EU: As set out in the description element as indicated above.
With respect to Investment liberalisation – National Treatment:
In AT: For the operation of a branch, non-European Economic Area (non-EEA) corporations must appoint at least one person responsible for its representation who is resident in Austria.
Executives (managing directors, natural persons) responsible for the observance of the Austrian Trade Act (Gewerbeordnung) must be domiciled in Austria.
In BG: Foreign juridical persons, unless established under the law of a Member State of the EEA, may conduct business and pursue activities if established in the Republic of Bulgaria in the form of a company registered in the Commercial Register. Establishment of branches is subject to authorisation.
Representative offices of foreign enterprises are to be registered with the Bulgarian Chamber of Commerce and Industry and may not engage in economic activity but are only entitled to advertise their owner and act as representatives or agents.
In EE: If the residence of at least half of the members of the management board of a private limited company, a public limited company or a branch is not in Estonia, in another Member State of the EEA or in the Swiss Confederation, the private limited company, the public limited company or the foreign company shall appoint a point of contact whose Estonian address can be used for the delivery of the procedural documents of the undertaking and the declarations of intent addressed to the undertaking (i.e. the branch of a foreign company).
With respect to Investment liberalisation – National treatment, Senior management and boards of directors, and Cross-border trade in services – Local presence:
In FI: At least one of the partners in a general partnership or of the general partners in a limited partnership needs to have residency in the EEA or, if the partner is a juridical person, be domiciled (no branches allowed) in the EEA. Exemptions may be granted by the registration authority.
To carry on trade as a private entrepreneur, residency in the EEA is required.
If a foreign organisation from a country outside the EEA intends to carry on a business or trade by establishing a branch in Finland, a trade permit is required.
Residency in the EEA is required for at least one of the ordinary and one of the deputy members of the board of directors and for the managing director. Company exemptions may be granted by the registration authority.
In SE: A foreign company which has not established a legal entity in Sweden or is conducting its business through a commercial agent shall conduct its commercial operations through a branch, registered in Sweden, with independent management and separate accounts. The managing director and the vice-managing director, if appointed, of the branch, must reside in the EEA. A natural person not resident in the EEA who conducts commercial operations in Sweden shall appoint and register a resident representative responsible for the operations in Sweden. Separate accounts shall be kept for the operations in Sweden. The competent authority may in individual cases grant exemptions from the branch and residency requirements. Building projects with a duration of less than a year, conducted by a company located or a natural person residing outside the EEA, are exempted from the requirements of establishing a branch or appointing a resident representative.
For limited liability companies and co-operative economic associations, at least 50 % of the members of the board of directors, at least 50 % of the deputy board members, the managing director, the vice-managing director, and at least one of the persons authorised to sign for the company, if any, must reside within the EEA. The competent authority may grant exemptions from this requirement. If none of the company's or society's representatives reside in Sweden, the board must appoint and register a person resident in Sweden who has been authorised to receive servings on behalf of the company or society.
Corresponding conditions prevail for establishment of all other types of legal entities.
In SK: A foreign natural person whose name is to be registered in the appropriate register (Commercial register, Entrepreneurial or other professional register) as a person authorised to act on behalf of an entrepreneur is required to submit a residence permit for Slovakia.
Measures:
AT: Aktiengesetz, BGBL. Nr. 98/1965, § 254 (2);
GmbH-Gesetz, RGBL. Nr. 58/1906, § 107 (2); and Gewerbeordnung, BGBL. Nr. 194/1994, § 39 (2a).
BG: Commercial Law, Article 17a; and
Law for Encouragement of Investments, Article 24.
EE: Äriseadustik (Commercial Code) § 631 (1, 2 and 4).
FI: Laki elinkeinon harjoittamisen oikeudesta (Act on the Right to Carry on a Trade) (122/1919), § 1;
Osuuskuntalaki (Co-Operatives Act) 1488/2001;
Osakeyhtiölaki (Limited Liabilities Company Act) (624/2006); and
Laki luottolaitostoiminnasta (Act on Credit Institutions) (121/2007).
SE: Lag om utländska filialer m.m (Foreign Branch Offices Act) (1992:160);
Aktiebolagslagen (Companies Act) (2005:551);
The Co-operative Economic Associations Act (2018:672); and Act on European Economic Interest Groupings (1994:1927).
SK: Act 513/1991 on Commercial Code (Article 21); Act 455/1991 on Trade Licensing; and
Act no 404/2011 on Residence of Aliens (Articles 22 and 32).
With respect to Investment liberalisation – National Treatment and Performance requirements:
In BG: Established enterprises may employ third-country nationals only for positions for which there is no requirement for Bulgarian nationality. The total number of third-country nationals employed by an established enterprise over a period of the preceding 12 months must not exceed 20 % (35 % for small and medium-sized enterprises) of the average number of Bulgarian nationals, nationals of other Member States, of states parties to the Agreement on the EEA or of the Swiss Confederation hired on an employment contract. In addition, the employer must demonstrate that there is no suitable Bulgarian, EU, EEA or Swiss worker for the respective position by conducting a labour market test before employing a third-country national.
For highly qualified, seasonal and posted workers, as well as for intra-corporate transferees, researchers and students there is no limitation on the number of third-country nationals working for a single enterprise. For the employment of third-country nationals in these categories, no labour market test is required.
Measures:
BG: Labour Migration and Labour Mobility Act.
With respect to Investment liberalisation – National treatment:
In PL: The scope of operations of a representative office may only encompass advertising and promotion of the foreign parent company represented by the office. For all sectors except legal services, establishment by non-European Union investors and their enterprises may only be in the form of a limited partnership, limited joint-stock partnership, limited liability company, and joint-stock company, while domestic investors and enterprises have access also to the forms of non-commercial partnership companies (general partnership and unlimited liability partnership).