Chapter Three: Establishment, Services, Capital and Movement of Community Nationals

 

Nothing in this Chapter shall be construed as precluding the Member States from adopting measures to remove restrictions on the right of establishment, the right to provide services or the right to move capital within the Community earlier than is required by these provisions.

Where in this Chapter, the Member States or competent Organs are required to remove restrictions on the exercise of the rights mentioned in paragraph 1 of Article 30 the special needs and circumstances of the Less Developed Countries shall be taken into account.

1.         Notwithstanding any provision in this Chapter, a Member State may apply to the Community Council for a waiver of the requirement to grant any of the rights mentioned in paragraph 1 of Article 30 in respect of any industry, sector or enterprise.

2. An application for a waiver within the meaning of paragraph 1 of this Article shall:
   
   (a) be made prior to the establishment of the relevant programme for the removal of restrictions on the rights mentioned in paragraph 1;

(b)        identify the rights in respect of which the waiver is required;

(c)        set out the circumstances justifying the grant of the waiver; and

(d)        indicate the period for which the waiver is required.

3.         The  Community Council  may  require the  applicant to  furnish such  additional information as the Council may specify.

4.         Where the Community Council is satisfied that the waiver should be granted, it shall grant a waiver for a period not exceeding five years, subject to such terms and conditions as the Community Council may determine.

5.         A Member State which has been granted a waiver within the meaning of paragraph 1 of this Article:

(a) shall not, while the waiver is in force, be entitled to espouse a claim on behalf of its nationals against another Member State in respect of the rights for which the waiver was granted;

(b)        shall:

(i) at the termination of the period of the waiver, remove the restrictions and notify the Community Council; or

(ii) where the Member State removes the restrictions before the end of the period of the waiver, notify the Community Council accordingly.

 



 

 

1.         Where the exercise of rights granted under this Chapter creates serious difficulties in any sector of the economy of a Member State or occasions economic hardships in a region of the Community, a Member State adversely affected thereby may, subject to the provisions of this Article, apply such restrictions on the exercise of the rights as it considers appropriate in order to resolve the difficulties or alleviate the hardships.

2.         Where a Member State:

(a) intends to apply restrictions in accordance with paragraph 1 of this Article, it shall, prior to applying those restrictions, notify the competent Organ of that intention and the nature of the restrictions;

(b) is unable to comply with sub-paragraph (a) of this paragraph, it shall, upon applying the restrictions in accordance with paragraph 1, immediately notify the competent Organ of the application and nature of the restrictions.

 

3.      The Member State shall, at the time of application of the restrictions mentioned in paragraph 1, submit to COTED or COFAP, as the case may require,  a programme setting out the measures to be taken by that Member State to resolve the difficulties or to alleviate the hardships.
   
4. The competent Organ shall give its earliest consideration to the programme, and: (a) make a determination in respect of the appropriateness of the restrictions and whether they shall be continued; and

(b) where it decides that the restrictions shall be continued, determine: (i) the adequacy of the programme; and

(ii)        the period for which the restrictions should continue. The competent Organ, in making a determination under sub-paragraph  (b) of this paragraph, may impose such conditions as it considers necessary.

5.         Restrictions applied by a Member State pursuant to paragraph 1 of this Article shall be confined to those necessary:

(a)        to resolve the difficulties in the affected sectors;

(b)        to alleviate economic hardships in a particular region.

6.         In applying restrictions mentioned in paragraph 5, Member States shall:

(a)       minimise damage to the commercial or economic interests of any other Member State; or

(b) prevent the unreasonable exercise of rights granted under this Chapter, the exclusion of which could impair the development of the CSME.

7.         The Member States, in applying restrictions pursuant to paragraph 1 of this Article, shall not discriminate and:

 

(a)        shall progressively relax them as relevant conditions improve;

(b)        may maintain them only to the extent that conditions mentioned in paragraph 1 of this Article continue to justify their application.

8.         If COTED or COFAP, as the case may require, is not satisfied that Member States applying restrictions are acting in accordance with the provisions of paragraph 6 of this Article, it may recommend to the Member States adversely affected thereby alternative arrangements to the same end.

 

1.         Without prejudice to the rights recognised and agreed to be accorded by Member States in Articles 32, 33, 37, 38 and 40 among themselves and to Community nationals, Member States have agreed, and undertake as a first step towards achieving the goal set out in Article 45, to accord to the following categories of Community nationals the right to seek employment  in their jurisdictions:

(a)        University graduates; (b)        media workers;

(c)        sportspersons; (d)        artistes; and

(e)        musicians, recognised as such by the competent authorities of the receiving Member States.

 

2.         Member States shall establish appropriate legislative, administrative and procedural arrangements to:

(a)        facilitate the movement of skills within the contemplation of this Article;

(b) provide  for  movement  of  Community  nationals  into  and  within  their jurisdictions without harassment or the imposition of impediments, including:

(i)         the elimination of the requirement for passports for Community nationals travelling to their jurisdictions;

(ii) the elimination of the requirement for work permits for Community nationals seeking approved employment in their jurisdictions;

(iii)        establishment  of  mechanisms  for  certifying  and establishing equivalency of degrees and for accrediting institutions;

(iv)       harmonisation and transferability of social security benefits.

3.         Nothing in this Treaty shall be construed as inhibiting Member States from according Community nationals unrestricted access to, and movement within, their jurisdictions subject to such conditions as the public interest may require.

4.         The Conference shall keep the provisions of this Article under review in order to:

(a) enlarge, as appropriate, the classes of persons entitled to move and work freely in the Community; and

(b)        monitor and secure compliance therewith.

1.         In the event of serious balance-of-payments and external financial difficulties or threat thereof, a Member State may, consistently with its international obligations and subject to paragraph 5 of this Article, adopt or maintain restrictions to address such difficulties.

2.         The restrictions which may be adopted or maintained pursuant to paragraph 1 of this Article may include quantitative restrictions on imports,  restrictions on the right of establishment, restrictions on the right to provide services, restrictions on the right to move capital or on payments and transfers for transactions connected therewith. However, such restrictions:

(a)        shall, subject to the provisions of this Treaty, not discriminate among Member States or against Member States in favour of third States;

(b) shall at all times seek to minimise damage to the commercial, economic or financial interests of any other Member State;

(c) shall not exceed those necessary to deal with the circumstances described in paragraph 1 of this Article; and

(d) shall be temporary but in any event not longer than a period of eighteen (18) months and be phased out progressively as the situation described   in paragraph 1 improves.

3.         In determining the incidence of such restrictions, the Member State concerned may accord priority to activities which are essential to its economic stability. Such restrictions shall not be adopted or maintained for the purpose of protecting a particular sector in contravention of the relevant provisions of this Treaty, due regard being paid in either case to any special factors which may be affecting the reserves of such Member State or its need for reserves.

4.         Restrictions adopted or maintained pursuant to paragraph 1 of this Article, or any changes therein, shall be promptly notified within three (3) working days to COFAP and to COTED, and, in any event, the Member State concerned shall immediately consult with the competent Organ if and when requested.

5.         COFAP shall establish procedures for periodic consultations including, where possible and desirable, prior consultations with the objective of making recommendations to the Member State concerned for the removal of the restrictions.

6.         The consultations referred to in paragraph 5 of this Article shall:

(a) be designed to assist the Member State concerned to overcome its balance- of-payments and external financial difficulties;

(b) asess the balance-of-payments situation of the Member State concerned and the restrictions adopted or maintained under this Article, taking into account, inter alia:

(i) the nature and extent of the balance-of-payments and the external financial difficulties;

(ii) the external economic and trading environment of the Member State applying the restrictions; and

(iii)        alternative corrective measures which may be available.

 

7.         The consultations shall address the compliance of any restrictions with paragraph 2 of this Article and, in particular, the progressive phase-out of restrictions in accordance with paragraph

2(d).

8.         In such consultations, all findings of statistical and other facts presented by the Committee of Central Bank Governors relating to foreign exchange, monetary reserves and balance-of- payments, shall be accepted and conclusions shall be based on the assessment by the Committee of the balance-of-payments and the external financial situation of the Member State concerned.

 



1.         The Member States shall take such measures as are necessary to coordinate their foreign exchange policies in respect of the movement of capital between them and third States.

2.         The Member States shall keep the competent authorities in other Member States informed of significant unusual movements of capital within their knowledge to and from third States.

1. COHSOD, in  consultation with the competent Organ, shall establish common standards and measures for accreditation or when necessary for the mutual recognition of diplomas, certificates and other evidence of qualifications of the nationals of the Member States in order to facilitate  access  to,  and  engagement in,  employment and  non-wage-earning activities  in  the Community.

2. The Member States shall establish or employ, as the case may be, appropriate mechanisms  to establish common standards to determine equivalency or accord accreditation to diplomas, certificates and other evidence of qualifications secured by nationals of other Member States.

3. COHSOD shall also establish measures for the co-ordination of legislative and administrative requirements of the Member States for the participation of Community nationals in employment and for the conduct of non-wage-earning activities in the Community.

 

1. The Member States may determine that the public interest requires the exclusion or restriction of the right of establishment in any industry or in a particular sector of an industry.

2. Where such a determination has been made:

(a)        if  the  determination results  in  the  continuation  or  establishment of  a government monopoly, the Member State shall adopt appropriate measures to ensure that the monopoly does not discriminate between nationals of Member States, save as otherwise provided in this Treaty, and is subject to the agreed rules of competition established  for   Community  economic enterprises;

(b)        if the determination results in the continuation or establishment of a private sector monopoly, the Member State shall, subject to the provisions of  this Treaty, adopt appropriate measures to ensure that national treatment is accorded to nationals of other Member States in terms of participating in its operations.

1. Save as otherwise provided in this Article and Article 31, the provisions of this Chapter shall apply to the right of establishment, the right to provide services and the right to move capital in the Community.

2. Activities in a Member State involving the exercise of governmental authority shall, in so far as that Member State is concerned, be excluded from the operation of this Chapter.

3. For the purposes of this Chapter, “activities involving the exercise of governmental authority” means activities conducted neither on a commercial basis nor in competition with one or more economic enterprises, and includes:

(a)        activities conducted by a central bank or monetary authority or any other public entity, in pursuit of monetary or exchange rate policies;

(b)        activities forming part of a statutory system of social security or public retirement plans;

(c)        activities forming part of a system of national security or for the establishment or maintenance of public order; and

(d)        other activities conducted by a public entity for the account of or with the guarantee or using financial resources of the government.