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REGULATORY APPROXIMATION



 

 

Article 1

 

Scope

 

1. This Annex provides for regulatory approximation between the Parties in the following sectors: Financial Services, Telecommunication Services, Postal and Courier Services, International Maritime Transport Services (hereinafter referred to as "sectors concerned by regulatory approximation").

 

2. The applicable provisions of European Union acts for the sectors concerned by regulatory approximation are contained respectively in Appendices XVII-2 to XVII-5 [to this Agreement], hereinafter referred to as ” the Appendices”.

 

3. Special rules on monitoring of the regulatory approximation process are contained in Appendix XVII-6 [to this Agreement].

 

 

Article 2

 

General principles and obligations on regulatory approximation

 

1. The applicable provisions of the acts referred to in Appendices XVII-2 to XVII-5 [to this Agreement] shall be binding upon the Parties in accordance with the horizontal adaptations and procedural rules laid down in Appendix XVII-1 [to this Agreement] and with the specific arrangements provided in Appendices XVII-2 to XVII-5 [to this Agreement]. The parties shall ensure full and complete implementation of those provisions.133

 

2. The applicable provisions of the acts referred to in paragraph 1 [of this Article] shall be made part of Ukraine's internal legal order as follows:

 

· (a) an act corresponding to a EU
  Regulation or Decision shall as such be made part of the internal legal order of
  Ukraine;            
· (b) an act corresponding to a EU

Directive shall leave to the authorities of Ukraine the choice of form and method of implementation.

 

3. The Parties shall cooperate to ensure compliance with this Annex by Ukraine via:

 

 

133 The acquis applies in its entirety, including with the exceptions granted to EU Member States during their accession process.


 

 


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periodic consultations, within the framework of the Trade Committee on the interpretation of the applicable provisions for the sectors concerned by regulatory approximation and other related areas covered by the Agreement;

 

periodic discussions on institutional, capacity and resourcing issues relevant to the process of regulatory approximation;

 

consultations and exchange of information on existing and new legislation according to Title VII (Institutional, General and Final Provisions) of this Agreement.



 

4. The Parties shall inform each other of their respective authorities responsible for the sectors concerned by regulatory approximation.

 

5. Pursuant to the principle of sincere cooperation, the Parties shall, in full mutual respect, assist each other in carrying out the tasks which flow from this Annex and its Appendices. The Parties shall take any appropriate measure to ensure fulfilment of the obligations arising out of this Annex and its Appendices or resulting from the acts of the institutions of the Union. The Parties shall facilitate the achievement of regulatory approximation and refrain from any measure which could jeopardise or delay the attainment of the objectives of this Agreement.

 

 

Article 3

 

Regulatory approximation before full internal market treatment has been granted in a specific sector

 

1. In line with Articles 114, 124, 133 and 139 of Chapter 6 (Establishment, Trade in Services and Electronic Commerce) and Chapter 7 (Current Payments and Movement of Capital) of Title IV of this Agreement and Article 2(1) of this Annex, Ukraine shall transpose and continuously implement the existing EU legislation listed in the Appendices [to this Agreement] into its domestic legal system in accordance with Article 2(2) of this Annex.

 

2. In order to guarantee legal certainty, the EU Party will inform Ukraine and the Trade Committee regularly in writing on all new or amended sector-specific EU legislation.

 

3. The Trade Committee shall add within three months any new or amended EU legislative act to the Appendices [to this Agreement]. Once a new or amended EU legislative act has been added to the relevant Appendix, Ukraine shall transpose the legislation into its domestic legal system in accordance with Article 2(2) of this Annex. The Trade Committee shall also decide on an indicative period for the transposition of the act.

 

4. In case Ukraine expects to face particular difficulties in transposing an EU legislative act into its domestic legislation, it shall inform the EU and the Trade Committee immediately thereof. The Trade Committee may decide whether Ukraine under exceptional circumstances can be partly and temporarily exempted from its transposition obligations under Article 3(3) of this Annex.


 

 


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5. Should the Trade Committee grant such derogation based on Article 3(4) of this Annex, Ukraine shall report regularly on the progress reached to transpose the relevant EU legislation.

 

 

Article 4

 

Assessment of the transposition and implementation of EU legislation and additional market access

 

1. The gradual transition of Ukraine to full enactment and complete and full implementation of all applicable provisions for the sectors concerned by regulatory approximation shall be subject to regular assessment and monitoring in accordance with Appendix XVII-6 [to this Agreement].

 

2. When Ukraine is satisfied that the conditions for completing the enactment and implementation, including adequate supervisory capacity and supervisory arrangements, of all applicable provisions in a given sector or sectors concerned by regulatory approximation have been fulfilled, it shall inform the European Union that a comprehensive assessment should be carried out in that sector. The assessments shall be carried out by the European Union in cooperation with Ukraine according to the principles set-out in Appendix XVII-6 [to this Agreement]. Upon completion of this assessment the European Union shall propose a decision to the Trade Committee.

 

 

3. If the European Union determines, on the basis of the assessment referred to in paragraph 2 [of this Article], that the conditions are fulfilled, it shall inform the Trade Committee accordingly. The Trade Committee may decide thereafter that the Parties shall grant each other internal market treatment with respect to the services sector(s) concerned by regulatory approximation. Such treatment requires that with respect to the sector(s) there shall be:

 

no restrictions on the freedom of establishment of juridical persons of the EU or Ukraine in the territory of either of them and that juridical persons formed in accordance with the law of an EU Member State or Ukraine and having their registered office, central administration or principal place of business within the territory of the Parties shall, for the purposes of this Agreement, be treated in the same way as juridical persons of EU Member States or Ukraine. This shall also apply to the setting up of agencies, branches or subsidiaries by juridical persons of the EU or Ukraine established in the territory of the other Party; and

 

no restrictions on freedom to provide services by a juridical person within the territory of the other Party in respect of persons of EU Member States and Ukraine who are established in the EU or Ukraine.

 

4. For the purposes of this treatment all relevant definitions contained in Article 86 of Chapter 6 (Establishment, Trade in Services and Electronic Commerce) of Title IV of this Agreement shall apply.


 

 


LIMITE

 

 

5. Such treatment shall not apply, so far as any given Party is concerned, to activities which in that Party are connected, even occasionally, with the exercise of official authority.

 

6. For the sake of clarity, such treatment shall not include the right to take up and pursue activities as self-employed persons and to set up and manage undertakings and shall not prevent a Party from applying measures to regulate the entry of natural persons into, or their temporary stay in, its territory, including those measures necessary to protect the integrity of, and to ensure the orderly movement of natural persons across, its borders, provided that such measures are not applied in such a manner as to nullify or impair the benefits accruing to any Party under the terms of the Agreement.134

 

7. Paragraph 3 [of this Article] and measures taken in pursuance thereof shall not prejudice the applicability of provisions laid down by law, regulation or administrative action providing for special treatment for foreign nationals on grounds of public policy, public security or public health.

 

8. If the European Union determines that the conditions for granting internal market treatment are not fulfilled it shall report so to the Trade Committee. The European Union shall in accordance with Appendix XVII-6 [to this Agreement] recommend to Ukraine specific measures and determine an implementing period within which these improvements can reasonably be implemented. Before the end of that implementing period, a second and, if necessary, further assessments shall be made as to whether the recommended measures have effectively and satisfactorily been implemented.

 

 

Article 5

 

Implementation by Ukraine of EU legislation after the granting of full internal market treatment in a specific sector

 

1. The European Union maintains its right to adopt new legislation or amend its existing legislation in the sectors concerned by regulatory approximation. The European Union shall notify Ukraine and the Trade Committee in writing in a timely manner of any new legally binding act in the sectors concerned by regulatory approximation once it has been adopted by the European Union.

 

2. The Trade Committee shall decide within three months to add a particular new or amended EU legislative act to the Appendices [to this Agreement]

 

3. Once a new or amended EU legislative act has been added to the relevant Appendix [to this Agreement], Ukraine shall transpose and implement the legislation into its domestic legal system in accordance with Article 2(1) and (2) of this Annex and in line within the following deadlines:

 

 

134 The sole fact of requiring a visa for natural persons of certain countries and not for those of others shall not be regarded as nullifying or impairing benefits under the Agreement.


 

 


        LIMITE
· (a) A Regulation shall be
  implemented and enforced at the latest 3 months after the entry into force date
  provided for in Regulation, unless otherwise decided by the Trade Committee.
· (b) Directives shall be implemented
  and enforced at the latest 3 months after the transposition period provided for
  in the Directive has expired, unless otherwise decided by the Trade Committee.

 

Ukraine shall ensure that at the end of the relevant time period, its legal order is fully compliant with the EU legal act to be implemented.

 

4. An assessment of the implementation will be carried out by the European Union in cooperation with Ukraine according to the principles set out in Appendix XVII-6 [to this Agreement].

 

5. In case Ukraine expects to face particular difficulties in transposing a new or amended EU legislative act into its domestic legislation, it shall inform the European Union and the Trade Committee immediately thereof. The Trade Committee may decide whether Ukraine can under exceptional circumstances temporarily and partly be exempted from its transposition obligations under Article 5(3) of this Annex as far as new or amended EU legislative acts are concerned. Should the Trade Committee grant such derogation, Ukraine shall report regularly on the progress reached to transpose the relevant EU legislation.

 

6. If notwithstanding the application of Article 5(2), (3) and (5) of this Annex, agreement cannot be reached on the addition of a new or amended EU legislative to the Appendices [to this Agreement] 3 months after its notification to the Trade Committee, the European Union may decide to suspend the granting of internal market treatment in the sector concerned. In the event that the Ukraine disagrees as to the proportionality of the suspension measures either of them may resort to dispute settlement in accordance with Article 7 of this Annex. These suspension measures shall be lifted immediately once the Trade Committee succeeds, regarding new or amended EU legislative acts, in updating the relevant Appendix [to this Agreement] or finds an otherwise mutually acceptable solution to the problem.

 

7. When Ukraine wishes to adopt new legislation or amend its existing legislation in the sectors concerned by regulatory approximation, the reporting and assessment requirements set out in Appendix XVII-6 [to this Agreement] shall apply.

 

 

Article 6

 

Interpretation

 

Insofar as the provisions of this Annex and the provisions of the applicable provisions specified in the Appendixes [to this Agreement] are identical in substance to corresponding rules of the Treaty on the Functioning of the European Union and to acts adopted pursuant thereto, those provisions shall, in their implementation and application, be interpreted in conformity with the relevant rulings of the Court of Justice of the European Union.


 

 


LIMITE

 

 

Article 7

 

Failure to comply with the Annex

 

1. If a Party is of the opinion that the other Party does not comply with the obligations set out in this Annex, it shall inform the other Party and the Trade Committee immediately and in writing thereof.

 

2. The Party concerned may submit to the other Party and the Trade Committee a formal request that the matter in dispute be resolved, and shall provide all relevant information required for a thorough examination of the situation.

 

3. Following such request, the rules and procedures of Chapter 14 (Dispute Settlement) of Title IV of this Agreement shall apply.

 

4. By way of derogation from Articles 312,313 and 315(1) of Chapter 14 (Dispute Settlement) of Title IV of this Agreement, should it be found that a Party is not complying with an arbitration panel ruling and should there be exceptional circumstances requiring urgent action, the other Party shall be entitled to suspend obligations arising from Article 4(3) of this Annex immediately.

 

5. Such suspension measures shall be lifted immediately following full implementation of the arbitration report by the Party concerned.

 

 

Article 8

 

Safeguard measures – principles

 

1. If serious economic, societal or environmental difficulties of a sectoral or regional nature liable to persist have arisen or threaten to arise in either Party, the Party concerned may take appropriate safeguard measures with respect to the treatment granted pursuant to Article 4(3) of this Annex under the conditions and procedures laid down in Article 9(1) to (6) of this Annex.

 

2. Such safeguard measures shall be restricted with regard to their scope and duration to what is strictly necessary in order to remedy the situation in the sector or region concerned. Priority shall be given to such measures as will least disturb the functioning of this Agreement.

 

 

Article 9

 

Safeguard measures – procedures

 

1. If a Party is considering taking safeguard measures, it shall notify the other Party of its intention through the Trade Committee and shall provide all relevant information.

 

2. The Parties shall immediately enter into consultations in the Trade Committee with a view to finding a mutually acceptable solution. A Party shall abstain from taking safeguard measures until attempts have been made to find a mutually acceptable solution.


 


LIMITE

 

 

3. The Party concerned may not take safeguard measures until one month has elapsed after the date of notification under paragraph 1 of this Article, unless the consultation procedure under paragraph 2 of this Article has been concluded before the expiration of the said time limit. By derogation from this requirement, when exceptional circumstances requiring urgent action exclude prior examination, a Party may immediately apply the protective measures strictly necessary to remedy the situation.

 

4. The Party concerned shall without delay notify the Trade Committee of the safeguard measures taken and shall provide all relevant information.

 

5. Any safeguard measure shall be discontinued once the factors leading to the adoption of that measure cease to exist.

 

6. The safeguard measures taken shall be the subject of continuous consultations in the Trade Committee with a view to their abolition or to the limitation of their scope of application.

 

7. If, notwithstanding the application of paragraph 6 [of this Article], no mutually acceptable solution can be found within 6 months and the safeguard measure creates an imbalance between the rights and obligations of the Parties in the sector concerned, the Party concerned may take such proportionate rebalancing measures as strictly necessary to remedy the imbalance. Priority shall be given to such measures as will least disturb the functioning of the Chapter 6 (Establishment, Trade in Services and Electronic Commerce) of Title IV of this Agreement, this Annex and its Appendices.

 

8. The Party concerned shall without delay notify the Trade Committee of the rebalancing measures taken and shall provide all relevant information. Any such rebalancing measure shall be discontinued immediately once the factors leading to the adoption of that measure cease to exist.

 

9. Any rebalancing measure taken shall be the subject of continuous consultations in the Trade Committee with a view of their abolition or to the limitation of their scope of application.

 

 

Article 10

 

Specific provisions on Financial Services

 

1. With respect to financial services or a specific sector or sub-sector of financial services, nothing in this Agreement shall be construed as limiting the authority of the Parties to take all appropriate and immediate measures pursuant to Article 126 (Prudential carve-out) of Chapter 6 (Establishment, Trade in Services and Electronic Commerce) of Title IV of this Agreement after granting internal market treatment.

 

2. Any measure adopted pursuant to the provisions of paragraph 1 [of this Article] may not be subject to the dispute settlement procedure established under Chapter 14 (Dispute Settlement) of Title IV of this Agreement.


 

 


LIMITE

 

 

Article 11

 

Modification of this Annex

 

The Trade Committee may decide to modify the provisions of this Annex XVII [to this Agreement] in case it deems it necessary.


 

 


LIMITE

 

 

APPENDIX XVII-1

 





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