CHAPTER I — Labour conditions
1. Subject to the laws, conditions and procedures applicable in each Member State, the Community and the Member States shall endeavour to ensure that the treatment accorded to nationals of the Republic of Tajikistan legally resident and employed in the territory of a Member State shall be free from any discrimination based on nationality, as regards working conditions, remuneration or dismissal, compared with that Member State’s own nationals.
2. Subject to the laws, conditions and procedures applicable in Tajikistan, the Republic of Tajikistan shall endeavour to ensure that the treatment accorded to nationals of a Member State legally resident and employed in the territory of Tajikistan shall be free from any discrimination based on nationality, as regards working conditions, remuneration or dismissal, compared with its own nationals.
The Cooperation Council shall examine what improvements can be made in working conditions for business people consistent with the international commitments of the Parties, including those set out in the document of the CSCE Bonn Conference.
The Cooperation Council shall make recommendations for the implementation of Articles 17 and 18.
CHAPTER II — Conditions affecting the establishment and operation of companies
1. The Community and its Member States shall grant, for the establishment of Tajik companies as defined in Article 22(d), treatment no less favourable than that accorded to any third country companies.
2. Without prejudice to the reservations listed in Annex II, the Community and its Member States shall grant subsidiaries of Tajik companies established in their territories treatment no less favourable than that granted to any Community companies, in respect of their operation.
3. The Community and its Member States shall grant branches of Tajik companies established in their territories treatment no less favourable than that accorded to branches of companies of any third country, in respect of their operation.
4. The Republic of Tajikistan shall grant, for the establishment of Community companies as defined in Article 22(d), treatment no less favourable than that accorded to Tajik companies or to any third country companies, whichever is the better.
5. The Republic of Tajikistan shall grant subsidiaries and branches of Community companies established in its territory treatment no less favourable than that accorded to Tajik companies or branches, or to any third country company or branch, whichever is the better, in respect of their operations.
1. The provisions of Article 20 shall not apply to air transport, inland waterways transport and maritime transport.
2. However, in respect of activities undertaken by shipping agencies for the provision of international maritime transport services, including intermodal activities involving a sea leg, each Party shall permit the companies of the other Party to have a commercial presence in its territory in the form of subsidiaries or branches, under conditions of establishment and operation no less favourable than those accorded to its own companies or to subsidiaries or branches of companies of any third country, whichever are better.
Such activities include but are not limited to:
(a)
the marketing and sale of maritime transport and related services through direct contact with customers, from quotation to invoicing, whether these services are operated or offered by the service supplier itself or by service suppliers with which the service seller has established standing business arrangements;
(b)
the purchase and use, on their own account or on behalf of their customers (and the resale to their customers), of any transport and related services, including inward transport services by any mode, particularly inland waterways, road and rail, necessary for the supply of an integrated service;
(c)
the preparation of transport documents, customs documents, or other documents related to the origin and character of the goods transported;
(d)
the provision of business information by any means, including computerised information systems and electronic data interchange (subject to any non-discriminatory restrictions concerning electronic communications);
(e)
the setting-up of any business arrangement, including participation in the company’s stock and the appointment of personnel recruited locally (or, in the case of foreign personnel, subject to the relevant provisions of this Agreement), with any locally established shipping agency;
(f)
acting on behalf of companies, organising the port of call of the ship or taking over cargoes when required.
For the purpose of this Agreement:
(a)
A ‘Community company’ or a ‘Tajik company’ respectively shall mean a company set up in accordance with the laws of a Member State or of the Republic of Tajikistan respectively and having its registered office, central administration or principal place of business in the territory of the Community or of the Republic of Tajikistan respectively. However, should a company set up in accordance with the laws of a Member State or the Republic of Tajikistan respectively have only its registered office in the territory of the Community or of the Republic of Tajikistan respectively, the company shall be considered a Community or Tajik company respectively if its operations possess a real and continuous link with the economy of one of the Member States or the Republic of Tajikistan respectively.
(b)
‘Subsidiary’ of a company shall mean a company which is effectively controlled by the first company.
(c)
‘Branch’ of a company shall mean a place of business not having legal personality which has the appearance of permanency, such as the extension of a parent body, has a management and is materially equipped to negotiate business with third parties so that the latter, although knowing that there will if necessary be a legal link with the parent body, the head office of which is abroad, do not have to deal directly with such parent body but may transact business at the place of business constituting the extension.
(d)
‘Establishment’ shall mean the right of Community or Tajik companies as referred to in point (a) to take up economic activities by means of the setting up of subsidiaries and branches in the Republic of Tajikistan or in the Community respectively.
(e)
‘Operation’ shall mean the pursuit of economic activities.
(f)
‘Economic activities’ shall mean activities of an industrial, commercial and professional character.
With regard to international maritime transport, including intermodal operations involving a sea leg, nationals of the Member States or of the Republic of Tajikistan established outside the Community or the Republic of Tajikistan respectively, and shipping companies established outside the Community or the Republic of Tajikistan and controlled by nationals of a Member State or nationals of the Republic of Tajikistan respectively, shall also be beneficiaries of the provisions of this Chapter and Chapter III if their vessels are registered in that Member State or in the Republic of Tajikistan respectively in accordance with their respective legislation.
1. Notwithstanding any other provisions of this Agreement, a Party shall not be prevented from taking measures for prudential reasons, including for the protection of investors, depositors, policy holders or persons to whom a fiduciary duty is owed by a financial service supplier, or to ensure the integrity and stability of the financial system. Where such measures do not conform with the provisions of this Agreement, they shall not be used as a means of avoiding the obligations of a Party under this Agreement.
2. Nothing in this Agreement shall be construed as requiring a Party to disclose information relating to the affairs and accounts of individual customers or any confidential or proprietary information in the possession of public entities.
3. For the purposes of this Agreement, ‘financial services’ shall mean those activities described in Annex III.
The provisions of this Agreement shall not prejudice the application by each Party of any measure necessary to prevent the circumvention of its measures concerning third country access to its market, through the provisions of this Agreement.
1. Notwithstanding the provisions of Chapter I of this Title, a Community company or a Tajik company established in the territory of the Republic of Tajikistan or the Community respectively shall be entitled to employ, or have employed by one of its subsidiaries or branches, in accordance with the legislation in force in the host country of establishment, in the territory of the Republic of Tajikistan and the Community respectively, employees who are nationals of Community Member States and the Republic of Tajikistan respectively, provided that such employees are key personnel as defined in paragraph 2, and that they are employed exclusively by companies, or branches. The residence and work permits of such employees shall only cover the period of such employment.
2. Key personnel of the abovementioned companies herein referred to as ‘organisations’ are ‘intra-corporate transferees’ as defined in (c) in the following categories, provided that the organisation is a legal person and that the persons concerned have been employed by it or have been partners in it (other than majority shareholders) for at least the year immediately preceding such movement:
(a)
Persons working in a senior position with an organisation, who primarily direct the management of the establishment, receiving general supervision or direction principally from the board of directors or stockholders of the business or their equivalent, including:
—
directing the establishment or a department or subdivision of the establishment,
—
supervising and controlling the work of other supervisory, professional or managerial employees,
—
having the authority personally to hire and fire or recommend hiring, firing or other personnel actions.
(b)
Persons working within an organisation who possess uncommon 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)
An ‘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 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 a branch or a subsidiary of that organisation effectively pursuing like economic activities in the territory of the other Party.
1. The Parties shall use their best endeavours to avoid taking any measures or actions which render the conditions for the establishment and operation of each other’s companies more restrictive than the situation existing on the day preceding the date of signature of the Agreement.
2. The provisions of this Article are without prejudice to those of Article 34: the situations covered by Article 34 shall be governed exclusively by the provisions thereof.
3. Acting in the spirit of partnership and cooperation and in the light of the provisions of Article 40, the Government of the Republic of Tajikistan shall inform the Community of its intentions to submit new legislation or adopt new regulations which may render the conditions for the establishment or operation in the Republic of Tajikistan of subsidiaries and branches of Community companies more restrictive than the situation existing on the day preceding the date of signature of the Agreement. The Community may request the Republic of Tajikistan to communicate the drafts of such legislation or regulations and to enter into consultations about those drafts.
4. Where new legislation or regulations introduced in the Republic of Tajikistan would result in rendering the conditions for operation of subsidiaries and branches of Community companies established in the Republic of Tajikistan more restrictive than the situation existing on the day of signature of this Agreement, such legislation or regulations shall not apply during three years following the entry into force of the relevant act to those subsidiaries and branches already established in the Republic of Tajikistan at the time of entry into force of the relevant act.
CHAPTER III — Cross-border supply of services between the Community and the Republic of Tajikistan
1. The Parties undertake in accordance with the provisions of this Chapter to take the necessary steps to allow progressively the supply of services by Community or Tajik companies which are established in a Party other than that of the person for whom the services are intended, taking into account the development of the service sectors in the two Parties.
2. The Cooperation Council shall make recommendations for the implementation of paragraph 1.
The Parties shall cooperate with the aim of developing a market-oriented service sector in the Republic of Tajikistan.
1. The Parties undertake to apply effectively the principle of unrestricted access to international maritime market and traffic on a commercial basis:
(a)
The above provision does not prejudice the rights and obligations arising from the United Nations Convention on a Code of Conduct for Liner Conferences, as applicable to one or other Party to this Agreement. Non-conference lines will be free to operate in competition with a conference as long as they adhere to the principle of fair competition on a commercial basis.
(b)
The Parties affirm their commitment to a freely competitive environment as being an essential feature of the dry and liquid bulk trade.
2. In applying the principles of paragraph 1, the Parties shall:
(a)
not apply, as from the entry into force of this Agreement, any cargo-sharing provisions of bilateral agreements between Member States of the Community and the former Soviet Union;
(b)
not introduce cargo-sharing clauses into future bilateral agreements with third countries, other than in those exceptional circumstances where liner shipping companies from one or other Party to this Agreement would not otherwise have an effective opportunity to ply for trade to and from the third country concerned;
(c)
prohibit cargo-sharing arrangements in future bilateral agreements concerning dry and liquid bulk trade;
(d)
abolish, upon entry into force of this Agreement, all unilateral measures, administrative, technical and other obstacles which could have restrictive or discriminatory effects on the free supply of services in international maritime transport.
3. Each Party shall grant, inter alia, no less favourable treatment to ships operated by nationals or companies of the other Party than that accorded to a Party’s own ships with regard to access to ports open to international trade, the use of infrastructure and auxiliary maritime services of the ports, the related fees and charges, customs facilities and the assignment of berths and facilities for loading and unloading.
With a view to assuring the coordinated development of transport between the Parties, adapted to their commercial needs, the conditions of mutual market access and provision of services in transport by road, rail and inland waterways and, if applicable, air may be dealt with by specific agreements negotiated between the Parties after entry into force of this Agreement.
CHAPTER IV — General provisions
1. The provisions of this Title shall be applied subject to limitations justified on grounds of public policy, public security or public health.
2. They shall not apply to activities which in the territory of the Parties are connected, even occasionally, with the exercise of official authority.
For the purpose of this Title, nothing in this Agreement shall prevent the Parties from applying their laws and regulations regarding entry and stay, work, labour conditions and establishment of natural persons and supply of services, provided that, in so doing, they do not apply them in a manner such as to nullify or impair the benefits accruing to any Party under the terms of a specific provision of this Agreement. The above provision does not prejudice the application of Article 31.
Companies which are controlled and exclusively owned by Tajik companies and Community companies jointly shall also be beneficiaries of the provisions of Chapters II, III and IV.
Treatment granted by either Party to the other under this Agreement shall, as from the day one month prior to the date of entry into force of the relevant obligations of the General Agreement on Trade in Services (GATS), in respect of sectors or measures covered by the GATS, in no case be more favourable than that accorded by such first Party under the provisions of GATS and this in respect of each service sector, sub-sector and mode of supply.
For the purposes of Chapters II, III and IV, no account shall be taken of treatment accorded by the Community, its Member States or the Republic of Tajikistan pursuant to commitments entered into in economic integration agreements in accordance with the principles of Article V of the GATS.
1. The most-favoured-nation treatment granted in accordance with the provisions of this Title shall not apply to the tax advantages which the Parties are providing, or will provide in the future, on the basis of agreements to avoid double taxation or of other tax arrangements.
2. Nothing in this Title shall be construed as preventing 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, other tax arrangements or domestic fiscal legislation.
3. Nothing in this Title shall be construed as preventing Member States or the Republic of Tajikistan from distinguishing, in the application of the relevant provisions of their fiscal legislation, between taxpayers who are not in identical situations, in particular as regards their place of residence.
Without prejudice to Article 24, no provision of Chapters II, III and IV shall be interpreted as giving the right to:
—
nationals of the Member States or of the Republic of Tajikistan respectively to enter, or stay in, the territory of the Republic of Tajikistan or the Community respectively in any capacity whatsoever, and in particular as a shareholder or partner in a company or manager or employee thereof or supplier or recipient of services,
—
Community subsidiaries or branches of Tajik companies to employ, or have employed, nationals of the Republic of Tajikistan in the territory of the Community,
—
Tajik subsidiaries or branches of Community companies to employ, or have employed, nationals of the Member States in the territory of the Republic of Tajikistan,
—
Tajik companies or Community subsidiaries or branches of Tajik companies to supply Tajik persons to act for and under the control of, other persons under temporary employment contracts,
—
Community companies or Tajik subsidiaries or branches of Community companies to supply workers who are nationals of the Member States under temporary employment contracts.
CHAPTER V — Current payments and capital
1. The Parties undertake to authorise in freely convertible currency any payments on the current account of the balance of payments between residents of the Community and of the Republic of Tajikistan connected with the movement of goods, services or persons made in accordance with the provisions of this Agreement.
2. With regard to transactions on the capital account of the balance of payments, from entry into force of this Agreement, the free movement of capital shall be ensured for the purposes of direct investments made in companies formed in accordance with the laws of the host country, investments made in accordance with the provisions of Chapter II, and the liquidation or repatriation of these investments and of any profit stemming therefrom.
3. Without prejudice to paragraph 2 or to paragraph 5, as from the entry into force of this Agreement, no new foreign exchange restrictions shall be introduced on the movement of capital and current payments connected therewith between residents of the Community and Tajikistan and nor shall the existing arrangements be made more restrictive.
4. The Parties shall consult each other with a view to facilitating the movement of forms of capital other than those referred to in paragraph 2 between the Community and the Republic of Tajikistan in order to promote the objectives of this Agreement.
5. With reference to the provisions of this Article, until full convertibility of the Tajik currency within the meaning of Article VIII of the Articles of Agreement of the International Monetary Fund (IMF) is introduced, the Republic of Tajikistan may in exceptional circumstances apply exchange restrictions connected with the granting or taking-up of short- and medium-term financial credits to the extent that such restrictions are imposed on Tajikistan for the granting of such credits and are permitted according to the Republic of Tajikistan’s status under the IMF. The Republic of Tajikistan shall apply these restrictions in a non-discriminatory manner. They shall be applied in such a manner as to cause the least possible disruption to this Agreement. the Republic of Tajikistan shall inform the Cooperation Council promptly of the introduction of such measures and of any changes therein.
6. Without prejudice to paragraphs 1 and 2, where, in exceptional circumstances, movements of capital between the Community and the Republic of Tajikistan cause, or threaten to cause, serious difficulties for the operation of exchange-rate policy or monetary policy in the Community or Tajikistan, the Community and the Republic of Tajikistan respectively may take safeguard measures with regard to movements of capital between the Community and the Republic of Tajikistan for a period not exceeding six months, if such measures are strictly necessary.
CHAPTER VI — Intellectual, industrial and commercial property protection
1. Pursuant to the provisions of this Article and of Annex IV, the Republic of Tajikistan shall continue to improve the protection of intellectual, industrial and commercial property rights in order to provide, by the end of the fifth year after the entry into force of this Agreement, a level of protection similar to that existing in the Community, including effective means of enforcing such rights.
2. By the end of the fifth year after entry into force of this Agreement, the Republic of Tajikistan shall accede to the multilateral conventions on intellectual, industrial and commercial property rights referred to in paragraph 1 of Annex IV to which Member States are parties or which are de facto applied by Member States, according to the relevant provisions contained in these conventions. For implementation of this provision, the Community will provide support wherever possible.
Source: EUR-Lex (Publications Office of the EU), © European Union, reuse permitted under Commission Decision 2011/833/EU.
