Section XV
TRADE IN SERVICES, INCORPORATION, ACTIVITIES
AND INVESTMENTS
Article 65
Subject and Purpose of Regulation, Sphere of Application
The purpose of this Section is to ensure freedom of trade in services, incorporation, activities and investments within the Union in accordance with the terms of this Section and Annex 16 to this Treaty.
The legal basis for the regulation of trade in services, incorporation, activities and investments in the Member States shall be specified in Annex 16 to this Treaty.
The provisions of this Section shall be applied to all measures taken by the Member States with regard to the delivery and receipt of services, as well as incorporation, activities and investments.
The provisions of this Section shall not apply:
to state (municipal) procurement transactions governed by Section XXII of this Treaty;
to services delivered and activities carried out as part of the functions of the state government.
Services covered by Sections XVI, XIX, XX and XXI of this Treaty shall be governed by the provisions of these Sections respectively. The provisions of this Section shall be applied insofar as they do not conflict with the above Sections.
Specific features of legal relations arising in connection with trade in telecommunication services shall be determined under the Procedure for Trade in Telecommunication Services (Annex 1 to Annex 16 to this Treaty).
Specific features of entry, exit, stay and employment of natural persons shall be governed by Section XXVI of this Treaty insofar as they do not conflict with this Section.
Nothing in this Section shall be construed as:
requiring any Member State to provide any information the disclosure of which is considered by such state as contrary to its essential security interests;
preventing any Member State from taking any action it deems necessary to protect its essential security interests through the adoption of legislation, including:
with regard to the supply of services, directly or indirectly, for the purpose of supplying a military institution;
with regard to fissionable and fusionable materials or materials they are derived from;
any action taken in time of war or other emergency in international
relations;
preventing any Member State from taking any action required to fulfil its obligations under the Charter of the United Nations in order to maintain international peace and security.
7. No provision of this Section shall prevent the Member States from taking or adopting any measures:
required to protect public morals or maintain public order. Exceptions with regard to the public order may only be applied in cases where there is a genuine and sufficiently serious threat to one of the fundamental interests of the society;
required to protect life or health of people, animals or plants;
required to comply with the legislation of the Member States that is not contrary to the provisions of this Section, including those related to:
the prevention of misleading and fraudulent practices or consequences of non-compliance with civil law contracts;
the protection of privacy of individuals in processing and dissemination of personal data and the protection of confidentiality of individual records and accounts;
security;
inconsistent with paragraphs 21 and 24 of Annex 16 to this Treaty, provided that the difference in the actually provided treatment is aimed at ensuring equitable or effective imposition of direct taxes and their collection from nationals of another Member State or third states in respect of trade in services, creation and management, and that such measures shall not conflict with the provisions of international treaties of the Member States;
5) inconsistent with paragraphs 27 and 29 of Annex 16 to this Treaty, provided that the difference in treatment is the result of an agreement on taxation, including that on the avoidance of double taxation, to which the respective Member State is a participant.
No measures stipulated in paragraph 7 of this Article shall lead to arbitrary or unjustifiable discrimination between the Member States or any disguised restrictions on trade in services, as well as on incorporation, activities and investments.
If a Member State maintains restrictions on trade in services, as well as on the incorporation, activities and investments, in respect of a third state, nothing in this Section shall be construed as obliging this Member State to extend the provisions of this Section to persons from another Member State if such persons belong to or are controlled by the said third state, and the extension of the provisions of this Section would lead to circumvention or violation of these prohibitions and restrictions.
A Member State may not extend its obligations assumed in accordance with this Section on a person from another Member State in respect of trade in services, incorporation, activities and investments, if it is proven that this person of another Member State does not conduct any significant business operations on the territory of that (another) Member State and belongs to or is controlled by a person from the first Member State or a third state.
Article 66
Liberalisation of Trade in Services, Incorporation, Activities and Investments
The Member States shall not introduce new discriminatory measures with regard to the trade in services, incorporation and activities of persons of other Member States as compared with the regime in force at the date of entry into force of this Treaty.
In order to ensure freedom of trade in services, incorporation, activities and investments, the Member States shall conduct gradual liberalisation of mutual conditions of trade in services, incorporation, activities and investments.
The Member States shall seek to establish and ensure the functioning of a common market for services as set out in paragraphs 38-43 of Annex 16 to this Treaty for the maximum number of service sectors.
Article 67
Liberalisation Principles for Trade in Services, Incorporation, Activities and Investments
The liberalisation of trade in services, incorporation, activities and investments shall be conducted with due account of international principles and standards through the harmonisation of the legislation of the Member States and organizing mutual administrative cooperation between the competent authorities of the Member States.
In the process of liberalisation of trade in services, incorporation, activities and investments, the Member States shall be guided by the following principles:
optimisation of internal control: gradual simplification and|or elimination of excessive internal regulations, including licensing requirements and procedures for suppliers, service recipients, persons engaged in incorporation or activities, and investors with account of the best international regulation practices for specific service sectors and, when such practices are unavailable, by selecting and applying the most advanced models of the Member States;
proportionality: requirement for and sufficient levels of harmonisation of the legislation of the Member States and mutual administrative cooperation for the efficient functioning of the services market, incorporation, activities, or investments;
mutual benefit: liberalisation of trade in services, incorporation, activities and investments on the basis of equitable sharing of benefits and obligations with account of the sensitivity of service sectors and types of activities for each Member State;
coherence: adoption of any measures relating to the trade in services, incorporation, activities and investments, including harmonisation of the legislation of the Member States and administrative cooperation based on the following:
no deterioration of mutual access conditions shall be allowed for any service sector and type of activities as compared to the conditions prevailing as of the date of signing this Treaty and the terms and conditions set forth in this Treaty;
gradual reduction of restrictions, exemptions, additional requirements and conditions stipulated by individual national lists of restrictions, exemptions, additional requirements and conditions to be approved by the
Supreme Council, referred to in indent 4 of paragraph 2 and paragraphs 15-17, 23, 26, 28, 31, 33 and 35 of Annex 16 to this Treaty;
5) economic feasibility: as part of the creation of a common market of services as stipulated in paragraphs 38-43 of Annex 16 to this Treaty, liberalisation of trade in services on a priority basis with regard to service sectors most intensely affecting the cost, competitiveness and|or amounts of goods manufactured and sold in the internal market of the Union.
Article 68
Administrative Cooperation
The Member States shall assist each other in ensuring efficient cooperation between competent authorities on matters governed by this Section.
In order to ensure efficient cooperation, including the exchange of information, the competent authorities of the Member States shall conclude agreements.
Administrative cooperation shall include:
prompt information exchange between competent authorities of the Member States with regard to both entire service sectors and specific market participants;
establishment of a mechanism to prevent violations of the rights of service providers and legitimate interests of consumers, bona fide market participants, as well as public (state) interests.
3. Competent authorities of a Member State may request competent authorities of other Member States, as under the agreements concluded, to provide any information related to the jurisdiction of the latter and required
for the effective implementation of the requirements in this Section, including information regarding:
persons of such other Member States that have incorporated or are supplying services on the territory of the first Member State and, in particular, information confirming that such persons are actually incorporated in their territories and that, according to the competent authorities, these persons are engaged in entrepreneurial activities;
permits issued by the competent authorities and types activities for which the permits have been issued;
administrative measures, criminal and legal sanctions and insolvency (bankruptcy) recognition decisions adopted by the competent authorities in relation to respective persons and directly affecting the jurisdiction or professional reputation of such persons. Competent authorities of a Member State shall submit any requested information to requesting competent authorities of another Member State, including that on liability incidents for persons having completed incorporation or supplying services on the territory of the first Member State.
4. Administrative cooperation of competent authorities of the Member States (including those exercising control and supervision functions in respect of activities) shall be carried out in order to:
create an efficient system to protect the rights of beneficiaries of one Member State at delivery of these services by a supplier from another Member State;
execute tax-related and other obligations by suppliers and recipients of services;
eliminate unfair business practices;
4) ensure reliability of statistical data on the amounts of services for the Member States.
If a Member State becomes aware of any actions of service providers, persons engaged in incorporation or activities or investors that may harm the health or safety of people, animals, plants or the environment on the territory of that Member State or on the territories of other Member States, the first Member State shall inform all Member States and the Commission thereof as soon as possible.
The Commission shall assist in the creation and participate in the functioning of information systems of the Union on the matters governed by this Section.
The Member States may inform the Commission of any failure of other Member States to fulfil their obligations under this Article.
Article 69
Transparency
Each Member State shall ensure transparency and availability of its legislation on matters governed by this Section.
For this purposes, all regulatory legal acts of a Member State that affect or may affect the matters governed by this Section shall be published in an official source and, if possible, also on the corresponding website on the information and telecommunications network “Internet” (hereinafter “the Internet”) so that any person whose rights and|or obligations may be affected by such regulatory legal acts could become familiar with them.
Regulatory legal acts of the Member States referred to in paragraph 1 of this Article shall be published within time limits ensuring legal certainty
and responding to reasonable expectations of persons whose rights and|or obligations may be affected by these regulatory legal acts, but in any case before their effective dates (entry into force).
3. The Member States shall ensure preliminary publication of draft regulatory legal acts specified in paragraph 1 of this Article.
The Member States shall post on the Internet, on official websites of governmental agencies responsible for development of draft regulatory legal act or on specially created websites for draft regulations, all information regarding the procedures for filing individual comments and suggestions to such acts, as well as information on the duration of public discussion of draft regulatory legal acts in order to enable all interested persons to send their comments and suggestions.
Draft regulatory legal acts shall be generally published within 30 calendar days before the date of their adoption. Such preliminary publication shall not be required in exceptional cases requiring rapid response, as well as in cases where preliminary publication of draft regulatory legal acts may prevent their execution or otherwise be contrary to the public interest.
All comments and|or suggestions received by the competent authorities of the Member States during public discussions shall be taken into account to the extent possible when finalizing draft regulatory legal acts.
4. Publications of (draft) regulatory legal acts referred to in paragraph 1 of this Article shall include explanation of the purpose of their adoption and implementation.
The Member States shall establish mechanisms for responding to written or electronic requests from any persons regarding any acting and|or planned regulatory legal acts referred to in paragraph 1 of this Article.
The Member States shall ensure consideration of appeals from persons from other Member States on matters governed by this Section, in accordance with their legislation in the procedure determined for their own nationals.