Section C. Cross-border Supply of Services
Article 8.9. Scope
This Section applies to measures of the Parties affecting the cross-border supply of all services sectors with the exception of:
(a) audio-visual services;
(b) national maritime cabotage (19); and
(c) domestic and international air transport services, whether scheduled or non-scheduled, and services directly related to the exercise of traffic rights, other than:
(i) aircraft repair and maintenance services during which an aircraft is withdrawn from service;
(ii) the selling and marketing of air transport services;
(iii) computer reservation system (CRS) services; and
(iv) ground handling services.
Article 8.10. Market Access
1. With respect to market access through the cross-border supply of services, each Party shall accord services and service suppliers of the other Party treatment not less favourable than that provided for under the terms, limitations and conditions agreed and specified in its respective Schedule of Specific Commitments in Annex 8-A (The Union's Schedule of Specific Commitments) or 8-B (Viet Nam's Schedule of Specific Commitments).
2. In sectors where market access commitments are undertaken, the measures which a Party shall not adopt or maintain either on the basis of a regional subdivision or on the basis of its entire territory, unless otherwise specified in its Schedule of Specific Commitments, are defined as:
(a) limitations on the number of service suppliers whether in the form of numerical quotas, monopolies, exclusive service suppliers or the requirement of an economic needs test;
(b) limitations on the total value of service transactions or assets in the form of numerical quotas or the requirement of an economic needs test; and
(c) limitations on the total number of service operations or on the total quantity of service output expressed in terms of designated numerical units in the form of quotas or the requirement of an economic needs test.
Article 8.11. National Treatment
1. In the sectors inscribed in its respective Schedule of Specific Commitments in Annex 8-A (The Union's Schedule of Specific Commitments) or 8-B (Viet Nam's Schedule of Specific Commitments) and subject to any conditions and qualifications set out therein, each Party shall accord to services and service suppliers of the other Party, in respect of all measures affecting the cross-border supply of services, treatment no less favourable than that it accords to its own like services and service suppliers.
2. A Party may meet the requirement of paragraph 1 by according to services and service suppliers of the other Party either formally identical treatment or formally different treatment to that it accords to its own like services and service suppliers.
3. Formally identical or formally different treatment shall be considered to be less favourable if it modifies the conditions of competition in favour of services or service suppliers of the Party compared to like services or service suppliers of the other Party.
4. Specific commitments assumed under this Article shall not be construed as requiring any Party to compensate for inherent competitive disadvantages which result from the foreign character of the relevant services or service suppliers.
Article 8.12. Schedule of Specific Commitments
The sectors liberalised by each Party pursuant to this Section and the terms, limitations, conditions and qualifications referred to in Articles 8.10 (Market Access) and 8.11 (National Treatment) are set out in each Party's Schedule of Specific Commitments included in Appendix 8-A-1 to Annex 8-A (The Union's Schedule of Specific Commitments) or in Appendix 8-B-1 to Annex 8-B (Viet Nam's Schedule of Specific Commitments), respectively.
Section D. Temporary Presence of Natural Persons for Business Purposes
Article 8.13. Scope and Definitions
1. This Section applies to measures of a Party concerning the entry and temporary stay in its territory of business visitors, intra-corporate-transferees, business sellers, contractual service suppliers and independent professionals.
2. For the purposes of this Section:
(a) "business sellers" means natural persons who are representatives of a supplier of goods or services of a Party seeking entry and temporary stay in the territory of the other Party for the purpose of negotiating the sale of services or goods, or entering into agreements to sell services or goods for that supplier and who do not engage in supplying the services or the goods; they do not engage in making direct sales to the general public and do not receive remuneration from a source located within the host Party, nor are they commission agents;
(b) "business visitors for establishment purposes" means natural persons working in a senior position within a juridical person of a Party who are responsible for setting up an enterprise of such juridical person, provided they do not offer or provide services or engage in any other economic activity than required for establishment purposes and they do not receive remuneration from a source located within the host Party;
(c) "contractual services suppliers" means natural persons employed by a juridical person of a Party which is not an agency for placement and supply services of personnel nor acting through such an agency, which has not been established in the territory of the other Party and which has concluded a bona fide contract (20) to supply services with a final consumer in the other Party, requiring the presence on a temporary basis of its employees in that Party, in order to fulfil the contract to provide services;
(d) "independent professionals" means natural persons engaged in the supply of a service and established as self-employed in the territory of a Party who have not been established in the territory of the other Party and who have concluded a bona fide contract (21) other than through an agency for placement and supply services of personnel to supply services with a final consumer in the other Party, requiring their presence on a temporary basis in that Party in order to fulfil the contract to provide services;
(e) "intra-corporate transferees" means natural persons who have been employed by a juridical person or its branch or have been partners in it for at least one year and who are temporarily transferred to an enterprise of the juridical person in the territory of the other Party, provided that the natural person concerned belongs to the categories of managers or executives, specialists or trainee employees;
(f) "managers or executives" means natural persons working in a senior position within a juridical person of a Party, who primarily direct the management of the enterprise (22) in the other Party, and who are receiving general supervision or direction principally from the board of directors or from stockholders of the business or their equivalent, including at least:
(i) directing the enterprise or a department or sub-division thereof;
(ii) supervising and controlling the work of other supervisory, professional or managerial employees; and
(iii) having the personal authority to recruit and dismiss or to recommend recruitment, dismissal or other personnel-related actions;
(g) "qualifications" means diplomas, certificates and other evidence of formal qualification issued by an authority designated pursuant to legislative, regulatory or administrative provisions and certifying successful completion of professional training;
(h) "specialists" means natural persons working within a juridical person possessing specialised knowledge essential to the establishments' areas of activity, techniques or management; in assessing such knowledge, account shall be taken not only of knowledge specific to the establishment, but also of whether the person has a high level of qualification including adequate professional experience referring to a type of work or activity requiring specific technical knowledge, including possible membership of an accredited profession; and
(i) "trainee employees" means natural persons who have been employed by a juridical person or its branch for at least one year, and who possess a university degree and are temporarily transferred for career development purposes or to obtain training in business techniques or methods (23).
Article 8.14. Business Visitors and Intra-Corporate Transferees
1. For the sectors liberalised in accordance with Section B (Liberalisation of Investment), each Party shall allow investors of the other Party to employ in their enterprises natural persons of that other Party provided that such employees are business visitors or intra-corporate transferees (24).
2. The entry and temporary stay shall be:
(a) for managers or executives, a period of up to three years;
(b) for specialists, a period of up to three years;
(c) for trainee employees, a period of up to one year; and
(d) for business visitors for establishment purposes, a period of up to 90 days (25).
3. For every sector liberalised in accordance with Section B (Liberalisation of Investment), a Party shall not adopt or maintain, either on the basis of a regional subdivision or on the basis of its entire territory, limitations on the total number of natural persons that an investor may employ as business visitors for establishment purposes and intra- corporate transferees in a specific sector in the form of numerical quotas or a requirement of an economic needs test and as discriminatory limitations, unless otherwise specified in Appendix 8-A-3 to Annex 8-A (The Union's Schedule of Specific Commitments) and Appendix 8-B-2 to Annex 8-B (Viet Nam's Schedule of Specific Commitments, respectively.
Article 8.15. Business Sellers
For every sector liberalised in accordance with Section B (Liberalisation of Investment) or Section C (Cross-Border Supply of Services) and subject to any reservations listed in Appendix 8-A-3 to Annex 8-A (The Union's Schedule of Specific Commitments) and Appendix 8-B-2 to Annex 8-B (Viet Nam's Schedule of Specific Commitments), respectively, each Party shall allow the entry and temporary stay of business sellers for a period of up to 90 days (26).
Article 8.16. Contractual Service Suppliers
1. The Parties affirm their respective obligations arising from their commitments under GATS with respect to the entry and temporary stay of contractual services suppliers.
2. Each Party shall allow the supply of services into its territory by contractual services suppliers of the other Party, subject to the conditions specified in paragraph 3 and any reservations listed in Appendix 8-A-3 to Annex 8-A (The Union's Schedule of Specific Commitments) and Appendix 8-B-2 to Annex 8-B (Viet Nam's Schedule of Specific Commitments), respectively, for the following sectors or sub-sectors:
(a) architectural services;
(b) urban planning and landscape architecture services;
(c) engineering services;
(d) integrated engineering services;
(e) computer and related services;
(f) higher education services (only privately funded services);
(g) foreign language training; and
(h) environmental services.
3. The commitments undertaken by the Parties are subject to the following conditions:
(a) the natural persons shall be engaged in the supply of a service on a temporary basis as employees of a juridical person, which has obtained a service contract not exceeding 12 months;
(b) the natural persons entering the other Party should be offering such services as employees of the juridical person supplying the services for at least two years immediately preceding the date of submission of an application for entry into the other Party; in addition, the natural persons shall possess, at the date of submission of an application for entry into the other Party, at least five years professional experience (27) in the sector of activity which is the subject of the contract;
(c) the natural persons entering the other Party shall possess:
(i) a university degree or a qualification demonstrating knowledge of an equivalent level (28); and
(ii) professional qualifications in the case that this is required to exercise an activity pursuant to the laws, regulations or legal requirements of the Party where the service is supplied;
(d) the natural person shall not receive remuneration for the provision of services in the territory of the other Party other than the remuneration paid by the juridical person employing the natural person;
(e) the entry and temporary stay of natural persons within the Party concerned shall be for a cumulative period of not more than six months (29) or for the duration of the contract, whichever is less;
(f) access accorded under this Article relates only to the service activity which is the subject of the contract and does not confer entitlement to exercise the professional title of the Party where the service is provided;
(g) the number of persons covered by the service contract shall not be larger than necessary to fulfil the contract, as may be required by the laws and regulations or other measures of the Party where the service is supplied; and
(h) other discriminatory limitations, including on the number of natural persons in the form of an economic needs test, specified in Appendix 8-A-3 to Annex 8-A (The Union's Schedule of Specific Commitments) and Appendix 8-B-2 to Annex 8-B (Viet Nam's Schedule of Specific Commitments).
Article 8.17. Independent Professionals
Five years after the date of entry into force of this Agreement, the Parties shall review this Section to consider establishing the modalities to extend the provisions therein to independent professionals.
Section E. Regulatory Framework
Subsection 1. Domestic Regulation
Article 8.18. Scope and Definitions
1. This Sub-Section applies to measures by the Parties relating to licensing requirements and procedures, qualification requirements and procedures that affect:
(a) cross-border supply of services;
(b) establishment and maintenance of juridical or natural persons; and
(c) temporary stay in their respective territories of categories of natural persons.
2. This Sub-Section only applies to sectors for which a Party has undertaken specific commitments and to the extent that those specific commitments apply.
3. This Sub-Section does not apply to measures to the extent that they constitute limitations as scheduled under Article 8.4 (Market Access), 8.5 (National Treatment), 8.10 (Market Access) or 8.11 (National Treatment).
4. For the purposes of this Section:
(a) "competent authority" means any central, regional or local government or authority or non-governmental body in the exercise of powers delegated by central or regional or local governments or authorities, which takes a decision concerning the authorisation to supply a service, including through establishment or concerning the authorisation to establish an economic activity other than services;
(b) "licensing procedures" means administrative or procedural rules that a natural or a juridical person, seeking authorisation to carry out the activities as referred to in paragraph 1, including the amendment or renewal of a licence, must adhere to in order to demonstrate compliance with licensing requirements;
(c) "licensing requirements" means substantive requirements, other than qualification requirements, with which a natural or a juridical person is required to comply in order to obtain, amend or renew authorisation to carry out the activities as referred to in paragraph 1;
(d) "qualification procedures" means administrative or procedural rules to which a natural person must adhere in order to demonstrate compliance with qualification requirements, for the purpose of obtaining authorisation to supply a service; and
(e) "qualification requirements" means substantive requirements relating to the competence of a natural person to supply a service, and which are required to be demonstrated for the purpose of obtaining authorisation to supply a service.
Article 8.19. Conditions for Licensing and Qualification
1. Each Party shall ensure that measures relating to licensing requirements and procedures, as well as qualification requirements and procedures, are based on criteria which are:
(a) clear;
(b) objective and transparent; and
(c) pre-established and accessible to the public and interested persons.
2. An authorisation or a licence shall, subject to availability, be granted as soon as it is established, on the basis of an appropriate examination, that the conditions for obtaining an authorisation or licence have been met.
3. Each Party shall maintain or institute judicial, arbitral or administrative tribunals or procedures which provide, at the request of an affected investor or service supplier, for a prompt review of, and where justified, appropriate remedies for, administrative decisions affecting establishment, cross-border supply of services or temporary presence of natural persons for business purposes. Where such procedures are not independent of the authority entrusted with the administrative decision concerned, each Party shall ensure that the procedures provide for an objective and impartial review.
This paragraph shall not be construed as requiring a Party to institute such tribunals or procedures where this would be inconsistent with its constitutional structure or the nature of its legal system.
Article 8.20. Licensing and Qualification Procedures
1. Licensing and qualification procedures and formalities shall not in themselves constitute a restriction on the supply of a service or the pursuit of any other economic activity. Each Party shall endeavour to make such procedures and formalities as simple as possible and shall ensure that such procedures and formalities do not unduly complicate or delay the provision of the service. Any licensing fees (30) which the applicants may incur from their applications should be reasonable and shall not in themselves restrict the supply of the relevant service.
2. Each Party shall ensure that the procedures used by, and the decisions of, the competent authority in the licensing or authorisation process are impartial with respect to all applicants. The competent authority should reach its decisions in an independent manner and not be accountable to any person supplying the services or carrying out the economic activities for which the licence or authorisation is required.
3. In case specific time periods for applications exist in each Party's laws and regulations, an applicant shall be allowed a reasonable period of time for the submission of an application. The competent authority shall initiate the processing of an application without undue delay. Where possible, applications should be accepted in electronic format under the same conditions of authenticity as paper submissions.
4. Each Party shall ensure that the processing of an application, including the reaching of a final decision, is completed within a reasonable timeframe after the date of the submission of a complete application. Each Party shall endeavour to establish the normal timeframe for processing an application.
5. The competent authority shall inform the applicant within a reasonable period of time after the receipt of an application which it considers incomplete, identify, to the extent feasible, the additional information required to complete the application, and provide the opportunity to correct deficiencies.
6. Authenticated copies should be accepted, whenever possible, in place of original documents.
7. If an application is rejected by the competent authority, the applicant shall be informed in writing and without undue delay. In principle, the applicant shall, upon formal request, also be informed of the reasons for rejection of the application. An applicant should be permitted, within reasonable time limits, to resubmit an application.
8. Each Party shall ensure that a licence or an authorisation, once granted, enters into effect without undue delay in accordance with the terms and conditions specified therein.
Subsection 2. Provisions of General Application
Article 8.21. Mutual Recognition of Professional Qualifications
1. Nothing in this Article shall prevent a Party from requiring that natural persons possess the necessary qualifications and professional experience specified in the territory where the service is supplied, for the sector of activity concerned.
2. The Parties shall encourage the relevant professional bodies or respective authorities, as appropriate, in their respective territories to develop and provide a joint recommendation on mutual recognition of professional qualifications to the Committee on Investment, Trade in Services, Electronic Commerce and Government Procurement established pursuant to Article 17.2 (Specialised Committees). Such a joint recommendation shall be supported by evidence of:
(a) the economic value of an envisaged agreement on mutual recognition of professional qualifications (hereinafter referred to as "Mutual Recognition Agreement"); and
(b) the compatibility of the respective regimes, such as the extent to which the criteria applied by each Party for the authorisation, licensing, operation and certification of entrepreneurs and service suppliers are compatible.
3. Upon receipt of a joint recommendation, the Committee on Investment, Trade in Services, Electronic Commerce and Government Procurement shall, within a reasonable period of time, review the joint recommendation with a view to determining whether it is consistent with this Agreement.
4. Where, on the basis of the information provided for in paragraph 2, the joint recommendation has been found to be consistent with this Agreement, the Parties shall take necessary steps to negotiate, through their competent authorities or designees authorised by a Party, a Mutual Recognition Agreement.
Subsection 3. Computer Services
Article 8.22. Understanding on Computer Services
1. To the extent that trade in computer services is liberalised in accordance with Section B (Liberalisation of Investment), Section C (Cross-Border Supply of Services) and Section D (Temporary Presence of Natural Persons for Business Purposes), the Parties shall comply with paragraphs 2 to 4.
2. The Parties understand that CPC (31) 84, which is the United Nations code used for describing computer and related services, covers the basic functions used to provide all computer and related services. Technological developments have led to the increased offering of these services as a bundle or package of related services that can include some or all of these basic functions. For example, services such as web or domain hosting, data mining services and grid computing each consist of a combination of basic computer services functions.
3. Computer and related services, regardless of whether they are delivered via a network, including the Internet, include services that provide:
(a) consulting, strategy, analysis, planning, specification, design, development, installation, implementation, integration, testing, debugging, updating, support, technical assistance, or management of or for computers or computer systems;
(b) consulting, strategy, analysis, planning, specification, design, development, installation, implementation, integration, testing, debugging, updating, adaptation, maintenance, support, technical assistance, management or use of or for computer programmes;
(c) data processing, data storage, data hosting or database services;
(d) maintenance and repair services for office machinery and equipment, including computers; or
(e) training services for staff of clients, relating to computer programmes, computers or computer systems, and not elsewhere classified.
4. The Parties understand that, in many cases, computer and related services enable the provision of other services (32) by both electronic and other means. In these cases, it is important to distinguish between the computer and related services, such as web-hosting or application hosting, and the other service enabled by the computer and related service. The other service, regardless of whether it is enabled by a computer and related service, is not covered by CPC 84.
Subsection 4. Postal Services (33)
Article 8.23. Prevention of Anti-Competitive Practices In the Postal Services Sector
Each Party shall maintain or introduce appropriate measures for the purposes of preventing suppliers who, alone or together, have the ability to affect materially the terms of participation in the relevant markets for postal services as a result of use of their position in the market, from engaging in or continuing anti-competitive practices.
Article 8.24. Licences
1. Where a Party requires a licence for providing postal services, it shall make publicly available:
(a) all the licensing criteria and the period of time normally required to reach a decision concerning an application for a licence; and
(b) the terms and conditions of such licence.
2. The reasons for the denial of a licence shall be made known to the applicant upon request and an appeal procedure through a relevant regulatory body shall be established by each Party. The appeal procedure shall be transparent, non-discriminatory and based on objective criteria.
Article 8.25. Postal Regulatory Authority
The regulatory body shall be separate from, and not accountable to, any supplier of postal services. The decisions of and the procedures used by the regulatory body shall be impartial with respect to all market participants.