WT/REG353/2  
 
8 June 2017 
(17-3057) Page: 1/14 
Committee on Regional Trade Agreements  Original: English  
 
DEEP AND COMPREHENSI VE FREE TRADE AREA C ONCLUDED AS A PART O F  
THE ASSOCIATION AGRE EMENT BETWEEN THE EUROPEAN UNION  AND UKRAINE  
(GOODS AND SERVICES ) 
QUESTIONS AND REPLIE S 
 The following communication, dated  7 June 2017, is being circulated at the request of the 
delegations of the European Union  and Ukraine . 
 
_______________  
 
 
Question from the delegation of Canada  
 
1.1.  Paragraph 5.41: This section indicates that the Parties commit to reviewing, 
monitoring and assessing the impact of the implementation of Titl e IV of the AA on 
sustainable development (Article 298).  
 Would the Parties ' review, monitoring and assessment of the impact of the 
implementation of Title IV of the AA include the identification of areas for cooperation 
on trade -related aspects of environ mental policies, such as trade and climate change 
and trade and investment in environmental goods and services? Would other areas for 
possible cooperation be explored?  
 
Parties reply :  
 In Article 298, the Parties commit to reviewing, monitoring and assess ing the impact on 
sustainable development of the implementation of the DCFTA, through:  
1. their respective participative processes and institutions, as well as  
 
2. the processes and institutions set up under the Association Agreement - for instance, 
through tra de-related sustainability impact assessments,  
 
 However, Article 298 covers the whole DCFTA . Therefore, the impact assessment may also 
concern the areas for cooperation, and it is up to the Parties to decide how to follow -up on the 
impact assessment based  on Art. 298, including with regard to identifying possible areas of 
co-operation.  
 
Question s from the delegation of Japan  
 
1.2.  Paragraph 5.27: Article 160 of the EU -Ukraine FTA allows for each Party to 
establish exhaustion of intellectual property, being a very different provision from 
Article  6 of the TRIPS  Agreement.  
 We would like to know the intention of such wording as well as the systems and 
corresponding legislations of international exhaustion of both Parties.  
 
 
 
 WT/REG353/2  
 
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  Parties reply :  
 
 As stated in Artic le 158 of the Association Agreement (Nature and Scope of Obligations) the 
Parties shall ensure the adequate and effective implementation of the international treaties dealing 
with intellectual property to which they are parties including the Agreement on T rade-related 
Aspects of Intellectual Property Rights, (hereinafter referred to as the "TRIPS Agreement "). The 
provisions of Chapter 9 "Intellectual Property " shall complement and further specify the rights and 
obligations between the Parties under the TRIP S Agreement.  
 
 Article 160 of the DCFTA lays down that "The Parties shall be free to establish their own 
regime for exhaustion of intellectual property rights, subject to the provisions of the 
TRIPS  Agreement". This Article reflects the flexibility provide d by the TRIPS Agreement. The 
wording of Article 160 is in line with the TRIPS Agreement, which leaves it to the Members to 
decide which regime they apply (national, regional or international).  
 
1.3.  Paragraph 5.28 : with respect to the corrective measure for in fringement provided 
for in Article 237 of the EU -Ukraine FTA, we would like to know what is expected to be 
included in recall and removal from the channel of commerce other than destruction of 
infringing goods. May such measures be interpreted to include a uction or charity 
conducted by the competent authorities?  
Parties reply :  
 
 Article 237 of the Association Agreement (Corrective Measures) provides that all goods, 
infringing intellectual  property rights, may be recalled or removed from the channels of com merce, 
or destructed without any compensation for the owner under court order. The recall and the 
removal from the channels of commerce of counterfeit or pirated goods are not the same as the 
destruction of these goods. The wording of Article 237 is based on the provisions of Article 46 of 
the TRIPS Agreement and Article 10 of Directive 2004/48/EC of the European Parliament and of 
the Council of 29 April 2004 on the enforcement of intellectual property rights. Furthermore, these 
are measures resulting from the decision of the court on the merits of the case and their aim is to 
correct the infringement and eliminate from the course of trade the products which were found to 
infringe IPR. The recall and the definitive removal are both preconditions for destruct ion. Recall 
means that the infringer has to recall the infringing goods from the retailers. It can be used when 
the infringing goods reached the retailers but not the final costumers. It is a temporary measure  
that has to be distinguished from a definitive  removal, which would be permanent.  The removal 
from the channels of commerce is a definitive and permanent measure, which is meant to prevent 
the goods being on the market again. The infringing goods are not supposed to be sold in aucti ons 
or distributed as charity.  
 
1.4.  Paragraph 5.28 : with respect to the transition period provided for in Article 249 
and Article 250.3 of the EU -Ukraine FTA, we would like to know which Ukrainian 
legislation related to intellectual property will be enacted or modified and also  the time 
frame thereo f. 
Response from the delegation of Ukraine  
 
 Article 249 of the Agreement (Transitional Period) provides that Ukraine shall fully 
implement the obligations of the Sub -section 2 "Liability of intermediary service providers " within 
18 months of entry into force of the Association Agreement.  
 
 In this regard, the provisions, regulating the procedure of termination of copyright and 
related rights infringements on the Internet, and establishing limits of liability of websites 
(webpages) own ers and hosting service providers, were included in the Law of Ukraine "On the 
State Support of Cinematography in Ukraine "(adopted on 23 March 2017) and the Code of 
Ukraine on Administrative Offenses.  
 
 Paragraph 6 of Article 250 of the Association Agreem ent (Border Measures) provides that 
Ukraine shall fully implement the obligation of this Article within three years of entry into force of 
this Agreement. In pursuance of this paragraph the Ukrainian side is taking measures on making 
amendments to customs legislation aimed at implementing EC Regulation № 608/2013 of the WT/REG353/2  
 
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  European Parliament and of the Council concerning customs enforcement of intellectual property 
rights.  
 
1.5.  Regarding paragraph 5.29 :  
a. what does the term "Critical and scientific publications" p rovided for in Article 
166 mean? We would like to know the definition and expected examples of 
protection of such publications.  
Parties reply :  
 
 The term "critical and scientific editions " is understood to mean works that contain scholastic 
analysis of pr ior works, which are already in the public domain. The maximum term of protection 
of such rights shall be 30 years from the time when the publication was first lawfully published.  
 
 This norm is based on the provisions of Directive 2006/116 of the European  Parliament and 
of the Council on the term of protection of copyright and certain related rights (paragraph 19 of 
the preamble and paragraph 5) and provides for a right, not an obligation of the Parties to protect 
such publications.  
 
 Current Ukrainian cop yright legislation does not provide special regime for the protection of 
critical and scientific publications which have come into the public domain. They are protected 
under general regime (as a literary written work with a term of protection – through li fe of the 
author and until the expiration of the 70th year after the author's death).  
 
b. We understand that Article 166 corresponds to Article 5 of EU Directive 
2006/116/EC and would like to know the intent of the provision.  
Response from the delegation of t he European Union  
 
 The aim of this provision is to protect new critical editions of authors whose works have 
already fallen into the public domain, but where there is still a necessity for philological studies 
and publications.  
 
Question s from the delegat ion of the Russian Federation  
 
Technical Barriers to Trade  
 
1.6.  Paragraph  3.36: Chapter 3 of Title IV on Technical Barriers to Trade (TBT) applies 
to the preparation, adoption and application of all standards, technical regulations and 
conformity assessment p rocedures. The Parties reaffirm their rights and obligations 
under the WTO TBT Agreement which is incorporated into the Agreement (Article 54). 
The Agreement also requires the approximation of the Parties' TBT measures, which 
implies that Ukraine must take  the necessary measures to align its technical regulations 
and national legislation with those of the EU. With this objective, Ukraine shall gradually 
incorporate the EU regulations listed in Annex III to Title IV into its legislation 
according to the corr esponding timetable. The implementation period varies between 
one to five years from the date of entry into force of the Agreement. Ukraine shall also 
progressively transpose the European standards as its national standards and withdraw 
any conflicting nat ional standard (Article 56). The Parties also agree to conclude an 
Agreement on Conformity Assessment and Acceptance of Industrial Products (ACAA) 
and add it as a Protocol to the AA once its TBT related legislation has been fully aligned 
with that of the E U. Under the ACAA, trade between the EU and Ukraine for the goods 
covered will take place under the same conditions as trade between EU Member States 
(Article 57). The Chapter also includes provisions on technical cooperation (Article 55), 
marking and labe lling (Article 58).  
a. In accordance with Annex 3 to the EU -Ukraine Agreement Ukraine shall align 
legislation on technical barriers to trade with respect to horizontal issues within 1 year 
after the entry into force of the EU -Ukraine Agreement. What kind of c hanges have 
already been made in the Ukrainian legislation? Which EU Directives were used as a 
basis for alignment?  WT/REG353/2  
 
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  Response from the delegation of Ukraine  
 
 A system of state market surveillance and control of non -food products is implemented in 
Ukraine. The following laws set the legal and organizational framework:  
- "On State Market Surveillance and Control of Non -food Products " (of 02.12.2010 № 2735), which 
corresponds with Regulation (EC) № 765/2008 of the European Parliament and the Council of 
9 July 2008 setting out the requirements for accreditation and market surveillance relating to the 
marketing of products and repealing Regulation (EEC) № 339/93 and Decision № 768/2008/EC of 
the European Parliament and the Council of 9 July 2008 on a common fram ework for the 
marketing of products, and repealing Council Decision 93/465/EEC;  
 
- "On General Safety of Non -food Products " (of 02.12.2010 № 2736), which corresponds with 
Directive 2001/95/EС of the European Parliament and the Council of 3 December 2001 on  general 
products safety and entirely reflects the provisions of this Directive;  
 
- "On Liability for Damage Caused by a Defect in Products " (of 19.05.2011 № 3390), which 
corresponds with Council Directive 85/374/EEC of 25 July 1985 on the approximation o f the laws, 
regulations and administrative provisions of the Member States concerning liability for defective 
products.  
 
 These Laws envisage carrying out market surveillance on safety of products already placed 
on the market, in accordance with the EU pra ctices.  
 
 The Law of Ukraine № 124 -VIII "On Technical Regulations and Conformity Assessment " was 
adopted on 15.01.2015. The Law was developed on the basis of Decision № 768/2008/EC of the 
European Parliament and the Council of 9 July 2008 on a common framework for the marketing of 
products, and repealing Council Decision 93/465/EEC.  
 
 The Law of Ukraine "On accreditation of conformity assessment bodies ", in compliance with 
Regulation (EC) № 765/2008 of the European Parliament and the Council was adopted on 
9 July 2008. It sets out the requirements for accreditation and market surveillance relating to the 
marketing of products.  
 
On 5 June 2014, Ukraine adopted:  
 
- Law № 1314 -VII on Metrology and Metrological Activity, which provides harmonization with 
documents of th e International Organization of Legal Metrology (OIML), EU legal acts on metrology 
and documents of the European Cooperation in Legal Metrology (WELMEC). The implementation of 
the Law allows creation of modern metrological system in Ukraine and its integra tion with global 
and European system.  
 
- Law № 1315 -VII on Standardization (new edition), which includes provisions on establishment of 
a single non -governmental National Standardization Body; cancellation of  mandatory standards 
and other regulatory documents in the field of standardization; wi thdrawal of specifications 
registration; withdrawal of agency -level agreements on draft national standards and cancellation 
of normative regulation of relations connected with development of standards and specifications of 
enterprises, institutions and org anizations. The implementation of the Law brings the national 
standardization system in line with the European model.  
 
b. In accordance with Annex 3 to the EU -Ukraine Agreement Ukraine shall align 
legislation on technical barriers to trade with respect to ver tical issues during the period 
2017 -2020. What changes are planned to be made in the Ukrainian legislation? Which 
EU Directives will be used as a basis for alignment?  
Response from the delegation of Ukraine  
 The drafting of regulatory acts amending the cur rent technical regulations and adoption of 
new technical regulations in compliance with the EU laws are specified in para 9 of the Action Plan 
on implementation of the Strategy of technical regulation system development until 2020, 
annexed to the Strategy of technical regulation system development until 2020 and approved by 
the Decree № 844 -p of the Cabinet of Ministers of Ukraine of 19 August 2015.  
 WT/REG353/2  
 
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  c. In accordance with the Agreement on Conducting the Coordinated Policy in the 
Field of Standardization, Metro logy and Certification of 13.03.1992, of which Ukraine is 
one party, the Parties recognize the current GOST standards as interstate. How does this 
correspond to the obligation of Ukraine under the EU -Ukraine Agreement to 
progressively transpose the Europea n standards as national standards, and to withdraw 
any conflicting national standards, including its interstate standards (GOST), developed 
before 1992 (Article  56.8)?  
Response from the delegation of Ukraine  
 Pursuant to the Programme of Activity of the Ca binet of Ministers of Ukraine, adopted by the 
Decree № 695 of the Cabinet of Ministers of Ukraine on 9 December 2014 and approved by the 
Decree № 26 -VIII of the Verkhovna Rada of Ukraine on 11 December 2014, the State Enterprise 
"Ukrainian Scientific, Rese arch and Training Center on Standardization, Certification and Quality 
Problems " (the "UkrNDNC "), which performs functions of the National Standardization Body 
(Decree № 1163 -p of the Cabinet of Ministers of Ukraine as of 26 November 2014 
"On Determination  of the State Enterprise which Performs the Functions of the National 
Standardization Body "), has cancelled all interstate standards (GOST) valid in Ukraine that were 
developed before 1992.  
 
 According to Article 56.8 of the Association Agreement, Ukraine shall progressively 
transpose the corpus of European Standards (identified by a unique reference code: EN) as 
national standards, including the harmonized European standards, the voluntary use of which shall 
be presumed to be in conformity with legislation  listed in Annex III to the Association Agreement. 
Simultaneously with such transposition, Ukraine shall withdraw conflicting national standards, 
including the interstate standards (GOST), developed before 1992.  
 
 Annex III to the Association Agreement de fines 27 acts of the European sectoral legislation 
(EU Directives) and the schedule of their implementation into national legislation of Ukraine. 24 of 
them envisage publishing of lists of Harmonized European Standards, voluntary application of 
which may s erve as proof of compliance with requirements of European Directives. Therefore, in 
accordance with Annex III to the Association Agreement, the European Harmonized Standards 
represent a priority for their adoption in Ukraine.  
 
 During the adoption of a new  national standard, including replacement of old national 
standard or interstate standard, a transitional period is always being established. After the 
expiration of this period, the new national standard begins to operate and validity of old national 
standard or interstate standards is terminated. This transitional period is established at the 
proposal of the technical committee on standardization. The technical committee on 
standardization is composed of all stakeholders, including enterprises operating i n respective areas 
that usually use this standard.  
 
 Information on adoption of a new national standard, cancellation of old national standard or 
interstate standard is placed on the website of the National Standardization Body and is available 
to all user s. 
 
 Simultaneously, Ukraine is interested in adoption as national standards of interstate 
standards, harmonized with international and/or European Standards that comply with 
requirements of technical regulations and international obligations of Ukraine in  order not to use 
standards which would create technical barriers to trade.   
 
d. In accordance with the Agreement on the Principles of Conducting and 
Reciprocal Recognition of Works on Certification of 04.06.1992, of which Ukraine is one 
party, the Parties sh all carry out mutual recognition of certification bodies, testing 
laboratories (centres), test results and certification; certification and conformity marks 
for mutually supplied products. How does this correspond to the obligation of Ukraine 
under the EU -Ukraine Agreement Ukraine to make the administrative and institutional 
reforms that are necessary to implement the Agreement on Conformity Assessment and 
Acceptance of Industrial Products. (Article 56.2)?  
 
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  Response from the delegation of Ukraine  
 
 In acco rdance with the "Agreement on the Principles of Conducting and Reciprocal 
Recognition of Works on Certification of 04.06.1992", of which Ukraine is one party, the Parties 
shall carry out mutual recognition of certification bodies, testing laboratories (cen tres), test results 
and certification; certification and conformity marks for mutually supplied products.  
 
 Herewith, Article 7 of this Agreement defines that "Certification for mutually supplied 
products is carried out for compliance with requirements of interstate, international or national 
standards recognized by states, which are participants to the Agreement on Conducting the 
Coordinated Policy in the Field of Standardization, Metrology and Certification " (of 13.03.1992).  
 
 Legal and economic framework  for state certification system in Ukraine is established by the 
Decree № 46 -93 of the Cabinet of Ministers of Ukraine of 10.05.1993 "On Standardization and 
Certification " (hereinafter referred to as "the Decree "). 
 
 The first paragraph of Article 15 of th e Decree stipulates that mandatory certification 
for compliance with requirements of regulatory documents  is conducted by certification bodies 
regardless of ownership exceptionally in the state certification system . 
 
 The list of products subject to mandat ory certification in Ukraine (hereinafter referred as to 
"the List") was approved by Order № 28 of Derzhspozhyvstandart of 01.02.2005 (registered in the 
Ministry of Justice of Ukraine 04.05.2005 № 466/10746), are subject to mandatory certification 
(hereinafter referred to as "the List "). 
 
 Currently , according to the mentioned Agreement (of 04.0 6.1992), the recognition of 
conformity certificates may be carried out only for the products contained in the List of products 
subject to mandatory certification in Ukraine. It should be noted that the validity of Decree of 1993 
will be terminated as from 1 January 2018. From that date the validity of the Order № 28 of 
Derzhspozhyvstandart of 01.02.2005 approving the List will also be terminated. Thus, as from 
January 2018 the recognition of conformity certificates in accordance with the Agreement of 1992 
will become impossible.  
 
 Simultaneously, the Protocol on Amending the Agreement the Principles of Conducting and 
Reciprocal Recognition of Works on Certification of 04.06.1992, which was approved at the 
47th meeting of the Interstate Council for Standardization, Metrology and Certification (was held on 
17-18 Jun e 2015), envisages the extension of the 1992 Agreement to the recognition of 
conformity assessment results, performed by conformity assessment bodies of the countries 
belonging to the Commonwealth of Independent States (CIS). The above mentioned recognitio n 
concerns the conformity assessment results with the requirements of national technical regulations 
and with the technical regulations developed by CIS countries, in order to avoid creating technical 
barriers to mutual trade.  
 
 The Law of Ukraine № 124 -VIII "On Technical Regulations and Conformity Assessment ", 
which establishes uniform legal and organizational principles of development and sets the criterial 
for the  adoption and the application of technical regulations and conformity assessment 
procedures  was adopted on 15 January 2015.  
 
Article 45 of that Law stipulates that the documents of conformity with the requirements of 
technical regulations based on the results of the conformity assessment performed in another 
state are accepted if Ukraine and the  other state have entered into an international agreement on 
mutual recognition of the results of conformity assessment activities.  
 
 Simultaneously, Article 45 envisages that designated bodies are entitled to recognizing the 
results of products conformity  assessment conducted by foreign accredited conformity assessment 
bodies on the basis of agreements with such conformity assessment bodies and under certain 
conditions, namely:  
 
- national accreditation bodies accrediting conformity assessment bodies both in Ukraine and in 
other state are members of international or regional organization for accreditation and/or have 
signed an agreement with such an organization on mutual recognition of relevant activities on 
conformity assessment;  WT/REG353/2  
 
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  – designated body applies  a conformity assessment procedure or part of it and issues document of 
compliance envisaged by this procedure at its own responsibility on the basis of a document of 
compliance issued by foreign conformity assessment body.  
e. In accordance with the EU -Ukrain e Agreement, only Ukraine shall notify the EU 
Party of any changes in its national legislation (Art. 56.6). At the same time, Ukraine 
shall refrain from amending its horizontal and sectorial legislation, listed in Annex III to 
the EU -Ukraine Agreement, exc ept in order to align such legislation progressively with 
the corresponding EU acquis, and to maintain such alignment (Art. 56.5). How 
technically is it planned to implement changes in Ukrainian legislation in the event of 
changes in EU legislation if the EU is not obliged to inform the Ukrainian side of such 
changes?  
Response from the delegation of Ukraine  
 
 The responsible authority that regulates any appropriate field independently monitors the EU 
legislation, on the basis of which national legislation i s developed. Pursuant to Article 55 of the 
Association Agreement, which refers to technical cooperation between the parties, a 
TBT Regulatory Dialog is conducted regularly between the EU and Ukraine which also serves the 
update on development of EU Legisla tion. 
 
Safeguard mechanisms  
 
1.7.  Paragraph 3.38: The Agreement allows for the application of global safeguards, as 
well as bilateral safeguards for motor vehicles, metals and agricultural goods. It also 
provides for a bilateral safeguard under the SPS Chapter.  The Agreement does not 
include any specific provision regarding safeguard measures for balance of payments 
reasons or special safeguards.  
 How would the parties to the Agreement explain that they allow the application of 
safeguards for agricultural goods  while aiming at liberalizing trade? What particular 
tariff lines are going to be concerned?  
 
Parties reply :  
 
 The Agreement does not provide for safeguards on imports of agricultural products. Thus, 
the safeguard clause for agricultural goods is a contin gency measures that can be taken on 
imports temporarily to deal with special circumstances that may e merge in view of trade 
liberaliz ation. Ukraine may apply a "safeguard measure" on a very limited number of agricultural 
goods such as: the hide raw materia ls falling within the following Ukrainian customs codes: 4101, 
4102, 4103 90 and the sunflower seeds, whether or not broken – 1206 00 if their annual exports 
to the EU exceed a certain level.  The products concerned the value of the surcharge and the 
trigge r levels for applying it are specified in Annex I -D to Title IV of the Agreement. It will take the 
form of a surcharge to the export duty which can be applied for a limited period of 15 years since 
the entry into force of the Agreement.  
 
 This is not contr adictory to the overall ambitious schedule for liberaliz ation of trade as at the 
end of the transition period in 2023, 95.8% of the EU's tariff lines will be duty free for imports 
from Ukraine, corresponding to 97.9% of its imports by value. Whereas on the  Ukrainian side, by 
2026 96.5% of Ukraine's tariff will be duty free for imports from the EU, corresponding to 97.7% 
of imports by value.  
 
1.8.  Paragraph 3.54: In general, any State aid that distorts (or threatens to distort) 
competition and affect trade among the Parties is incompatible with the functioning of 
the Agreement (Article 262). With the view of ensuring transparency in the area of State 
aid, every year the Parties must notify each other the type of State aid, its total amount 
and sectoral distributio n, that may affect their bilateral trade. Any aid below EUR 
200,000 over a period of three years does not need to be notified (Article 263). Ukraine 
also commits to adopt national State aid legislation, and establish within three years of 
the entry into fo rce of the Agreement an independent authority to monitor that the State WT/REG353/2  
 
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  aid is granted according to the principles set out in the Agreement.1 This body will be 
responsible for inter alia  authoriz ing State aid schemes and grants, and to order the 
recovery o f State aid that has been unlawfully granted. Ukraine will also establish an 
inventory of aid schemes instituted before the establishment of the authority and make 
them compatible, within a period of respectively five and seven years from the entry 
into fo rce of the Agreement (Article 267).  
 When will the independent authority to monitor State Aid start operating? At what 
stage is the establishment of the mentioned inventory of aid schemes by Ukraine?  
 
Parties reply :  
 
 According to paragraph 1 of the final  and transitional clauses provisions of the Law of 
Ukraine "On State Aid to Undertakings" (adopted on 1 July 2014) and of the second paragraph of 
Article 8 of the Law, the Antimonopoly Committee of Ukraine (hereinafter – the AMCU) is the 
authorized body in  the field of monitoring of state aid.  
 
 The State Aid Register will start being used once the Law of Ukraine "On State Aid to 
Undertakings" will enter into force, i.e. after 2 August 2017. Granting bodies will also need to 
notify existing aid measures be fore 2 August 2018. The information necessary to establish the 
inventory of existing aid schemes will therefore be submitted by granting bodies between 
2 August  2017 and 2 August 2018.  
 
 In addition, the AMCU is also carrying out the following activities:  
 
 a. conducing a tender for the purchase of software for information systems of the AMCU, 
 which will ensure, in particular, the functioning of State Aid Register;  
 
b. preparing a series of workshops for the State Aid Granters concerning the 
 implementatio n of the Law.  
1.9.  Under Article 8 of the Association Agreement  the Parties shall cooperate in 
promoting peace and international justice by ratifying and implementing the Rome 
Statute of the International Criminal Court (ICC) of 1998 and its related instruments .  
 Did Ukraine ratify the Rome Statute? If not please explain which reasons hinder 
that and when this commitment will be fulfilled?  
 
Response from the delegation of Ukraine  
 
 Article 8 of the EU -Ukraine Association Agreement stipulates that the Parties sh all cooperate 
in order to strengthen peace and international justice by ratifying and implementing the Rome 
Statute of the International criminal court (ICC) 1998 and related documents.  
 
 Ukraine signed the Rome Statute of ICC on 20 January 2000, but has n ot ratified it yet. 
According to the Conclusions of Constitutional Court of Ukraine on 11 July 2001, No 3 -в /2001, the 
provisions of paragraph ten of the preamble and Article 1 of the Rome Statute of the International 
Criminal Court, according to which "th e International Criminal Court ... complements national 
criminal justice authorities» was not compliant with the Constitution of Ukraine.  
 
 According to paragraph 2 of Article 9 of the Constitution of Ukraine the conclusion of the 
international agreements which contradict the Constitution of Ukraine is possible only after 
appropriate amendments to the Constitution of Ukraine.  
 
 On 2 June 2016, the Verkhovna Rada of Ukraine adopted the Law of Ukraine "On 
amendments to the Constitution of Ukraine (regarding j ustice)" No 1401 -VIII which introduced in 
particular a new wording of Article 124 of the Constitution of Ukraine. Thus, paragraph 6 of 
Article  124 of the Constitution of Ukraine (new wording) creates the constitutional preconditions 
                                                
1 Ukraine indicated in this regard that it adopted on 1 July 2014 the "Law on State aid to 
undertakings" which establishes Ukraine's Anti -monopoly C ommittee which will be the national 
body responsible for state aid issues. This law is expected to enter into force in August 2017.  WT/REG353/2  
 
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  for recognition by Ukra ine of the jurisdiction of the International Criminal Court under conditions 
defined by the Rome Statute of the International Criminal Court.  
 
 According to the final and transitional provisions of this Law it shall take effect three months 
after the day o f its publication except the paragraph 6 of Article 124 of the Constitution of Ukraine 
in the wording of the law, which shall take effect three years from the day following the day of its 
publication, i.e. on 30 June 2019.  
 
1.10.   Article 17 of the Association Ag reement stipulates that, subject to the laws, 
conditions and procedures applicable in the Member States and the EU, treatment 
accorded to workers who are Ukrainian nationals and who are legally employed in the 
territory of a Member State shall be free of a ny discrimination based on nationality as 
regards working conditions, remuneration or dismissal, compared to the nationals of 
that Member State.  
 Would the EU explain the meani ng "shall be free of any discrimination based on 
nationality as regards working  conditions, remuneration or dismissal ". Will Ukrainian 
citizens enjoy equal treatment with the EU nationals for the purpose of recruitment in 
the EU territory?  
 
Response from the delegation of the European Union  
 
 Article 17 of the EU -Ukraine Association  Agreement does not grant Ukrainian citizens access 
to the EU labour market. However, Ukrainian citizens who are legally employed within the EU have 
a right to equal treatment with nationals of the host Member State as regards working conditions, 
remunerat ion or dismissal.  
 
1.11.   Article 44 (Section 2 of the Agreement) concerns safeguard measures on 
passenger cars.  
 Could the Parties clarify the necessity of such specific regulation for this product?  
 
Parties reply :  
 
 Due to the vulnerable situation in the Ukrai nian automobile industry in result of staging 
elimination of import duties, the safeguard clause has been part of the agreement on tariff 
concessions.  
 
1.12.   Article 76 of Chapter 5 "Customs and Trade Facilitation" of the Agreement 
stipulates that both Parties s hall provide for advance binding rulings on tariff 
classification and rules of origin.  
 Could the Parties clarify for how long such rulings can be valid?  
 
Parties reply :  
 
 Within the EU customs legislation, advance binding rulings on rules of origin are referred to 
as Binding Origin Information (BOI) decisions and advance binding rulings on tariff classification 
are referred to as Binding Tariff Information (BTI) decisions. Article 33(3) of Regulation (EU) 
952/2013 of the European Parliament and of the Co uncil of 9 October 2013, laying down the Union 
Customs Code, stipulates that BOI and BTI decisions shall be valid for a period of 3 years from the 
date on which the decision takes effect.  
 
 Under paragraph 6 of Article 23 of the Customs Code of Ukraine, th e period of validity of 
previous decisions on the classification of goods and the determination of the origin of goods is 
three years from the date of its establishment if the facts and conditions (including rules of origin), 
on which decision was taken re mained unchanged.  
 
1.13.   Could the Parties provide the information regarding the implementation of 
Article  23 "Approved exporter", in particular where the list of such exporters can be 
found and what are the criteria for foreign trade participants to obtain this  status?  WT/REG353/2  
 
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  Parties reply :  
 
 EU Member States are responsible for all export related matters and information in this 
regard. The customs authorities can grant the status of approved exporter to any frequent 
exporter subject to conditions they consider approp riate; and withdraw it at any time.  
 
 In Ukraine, the criteria to be followed for a company to become an "Approved exporter" are 
set out in the Order No 1013 on granting and revocation of authorized (approved) exporter by 
customs, approved by regulation o f the Ministry of Finance of Ukraine from 7 October 2014. 
According to this Order, a legal entity can be granted with the status of approved exporter if it:  
 
  carries out export operations with the preferential origin goods from Ukraine for at least 
one ye ar; 
  did not violate the rules of preferential origin of goods before the date of applying to the 
customs authorities with a statement of the status of authorized (approved) exporter;  
  provides the ability of monitoring production of goods and source docum ents related with 
the production, that confirm preferential origin of Ukraine, by customs according the order 
that is established by the legislation.  
 Goods, which are exported by the company, should follow the rules of preferential origin. 
The status of a pproved exporter in Ukraine is granted to legal entities (exporting companies) that 
are registered in Ukraine. Publication of the list of companies that have received the status of 
approved exporter is envisaged by the Order No 1013 of 2014 as well as inte rnational agreements 
concluded by Ukraine which provide the possibility of obtaining of such status by the companies.  
1.14.   Paragraph 3.33: In Chapter 4 of Title IV on sanitary and phytosanitary (SPS) 
measures, the Parties re -affirm their rights and obligations  under the WTO SPS 
Agreement. Ukraine further agrees to gradually approximate its SPS and animal welfare 
legislation to that of the EU (Article 63). To do so, Ukraine shall submit not later than 
three months after the entry into force of the Agreement a co mprehensive strategy for 
the implementation of this chapter (Article 64). The Parties indicate that Ukraine 
submitted its strategy in March 2016 and that the adoption of the document by the 
SPS Sub-Committee is being prepared. Once adopted it will become a n integral part of 
the AA.  
a. Would the Parties clarify whether the mentioned Strategy was approved?  
b. Was this Strategy subject to public discussion before its adoption? If not when 
it is expected to be approved?  
c. When is the SPS Sub-Committee stipulated unde r the Agreement expected to 
meet this year?  
 The Comprehensive Strategy is in the process of being formally approved by the parties. On 
the EU side, the EU Member States were consulted on this matter. On the Ukrainian side, the 
SPS Strategy was approved b y the Resolution of Cabinet of Ministers of Ukraine No. 288 -p of 
24 February 2016. Currently, both sides carry out discussions on approval the SPS Strategy. The 
1st meeting of the EU – UA Sanitary and Phytosanitary (SPS) Sub -Committee was held on 
16 May 2017 in Kyiv, as it is stipulated by the Article 74 of the Agreement.  
 
1.15.   Regarding paragraph 5.7 (Relationship with other agreements concluded by the 
Parties), there is no information about the Free Trade Agreement between Ukraine and 
Canada.  
 Would Ukraine pr ovide the information about the expected date of entry into force 
of that Agreement?  
 
 
 WT/REG353/2  
 
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  Response from the delegation of Ukraine  
 
 The FTA between Ukraine and Canada was signed on 11 July 2016 and the relevant 
information can be found on the WTO web -site un der FTA early announcement procedures. 
Currently, the Agreement is in the process of entering info force according to para 2 of Article 19.5 
"Entry into Force " of the CUFTA. It shall enter into force on the first day of the second month 
following receipt o f the latter notification of the completion of the procedures for entry into force.  
 
Question s from the delegation of Thailand  
 
Commercial presence  
1.16.   Paragraph  4.13: Under the Agreement, the definition of economic activities that 
natural and legal persons of  a party can undertake by establishing themselves in the 
territory of the other party seems to cover not only services but also goods as it includes 
activities of "an industrial, commercial and professional character " (Article 86).  
Paragraph 4.14: The Part ies agree to regularly review the legal framework on 
establishment with the obje ctive of progressively liberaliz ing the establishment 
conditions, and including provisions on investment protection and on investor -to-State 
dispute settlement (Article  89).  
a. According to the underlined term in paragraph 4.13, what does professional 
character mean and which service sectors, if any, will fall under this term?  
Parties reply :  
 The aim of the definition of economic activities is to ensure that the scope of the Chap ter 6 
Establishment, trade in services and electronic commerce  extends beyond services sectors and 
cover non -services activities. All professional services covered by the DCFTA, such as legal 
services, accounting, auditing, architectural services etc., wil l fall under the term of professional 
character.   
 
b. According to paragraph 4.14, Thailand would like to seek the current status of 
the EU 's efforts on the progressive liberalization under the existing legal 
framework on establishment the way forward to achi eve the objective of 
liberalization on the establishment as well as improvement of investment 
protection and ISDS?   
Response from the delegation of the European Union  
 
 The EU and Ukraine are now focusing on the implementation of the DCFTA, including 
Section 2 (of Chapter 6) related to establishment, which are dealt with within the institutional 
set-up established by the DCFTA.  
 
Education Services  
 
1.17.   Paragraph 4.37: In a few cases, like Italy and Latvia, some commitments for 
modes 1 -2 in education services u nder the Agreement seem more stringent than under 
the GATS schedule, while in some others, like Austria, seem broader.  
 Please elaborate on the commitments made by Italy and Latvia which are more 
stringent under the Agreement than under the GATS schedule.  
 
Response from the delegation of the European Union  
 
 A detailed comparison of the commitments offered by the EU to Ukraine and those under 
GATS shows that this assumption is wrong. With respect to Italy, the relevant reservation was 
included in GATS too but only under National Treatment. This did not limit Italy to apply the same 
reservation to market access. Under the EU -Ukraine Agreement however the architecture chosen 
is different from GATS and therefore the reservation of Italy was simply transferred under Market 
Access. In substance, there was no change compared to GATS.  WT/REG353/2  
 
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   With respect to Latvia, the change reflects the fact that Latvia acceded to the EU at a later 
stage than the original GATS following the relevant GATS provisions and procedures and therefore 
its commitments/limitations are accordingly reflected.  
 
Business services  
 
1.18.   Paragraph  4.28: The EU made full commitments for modes 1 -2 for computer and 
related services, which are unbound or restricted for a few EU Member States under the 
GATS. In  real estate services and rental/leasing services without operators, it also made 
broader commitments in modes 1 -2 by expanding their geographical coverage, while 
maintaining some establishment requirements . In research and development services, 
unbound fo r most EU Member States under the GATS, the Agreement includes only one 
restriction under which the EU reserves the right to grant rights/authorization for 
publicly funded R&D services only to EU nationals and companies having their 
headquarters in the EU.  
Paragraph 4.29: In other business, the EU made full commitments for modes 1 -2 in 
advertising, market research and public opinion polling services, management 
consulting services, services incidental to manufacturing, packaging, printing, 
publishing, and c onvention services, which are restricted or unbound for certain EU 
Member States under the GATS. The EU made also some commitments in scientific and 
technical consulting services, which are excluded under the GATS . Other business 
activities remain subject to restrictions or largely unbound like, for instance, 
investigation services or placement and supply services of personnel.  
a. According to the underlined phrase in paragraph 4.28, what are establishment 
requirements that EU Member States need to maintain?  
Response from the delegation of the European Union  
 Those requirements are:  
 
Relating to Aircraft (CPC 83104):  
 
For Mode 2:  
 
Austria, Belgium, Germany, Denmark, Spain, Estonia, Finland, France, Greece, Hungary, Ireland, 
Italy, Lithuania, Luxemburg, The Netherland, Portugal, Slovenia, Sweden, United Kingdom: 
Aircraft used by an air carrier of the European Union have to be registered in the Member State of 
the European Union licensing the air carrier or elsewhere in the European Union. Waivers can be 
grant ed for short term lease contracts or under exceptional circumstances.  
 
Relating to Other Transport Equipment (CPC 83101, CPC 83102 and CPC 83105):  
 
For Mode 1:  
 
Bulgaria, Cyprus, Hungary, Latvia, Malta, Poland, Romania, Slovenia: Unbound (all establishment  
requirements are therefore possible).  
 
Sweden: Suppliers of rental or leasing services of cars and certain off -road vehicles 
(terrängmotorfordon) without a driver, rented or leased for a period of less than one year, are 
obliged to appoint someone to be responsible for ensuring, inter alia, that the business is 
conducted in accordance with applicable rules and regulations and that the road traffic safety rules 
are followed. The responsible person must reside in Sweden.  
 
b. According to the underlined sentenc e in paragraph 4.29, what are the 
commitments in scientific and technical consulting services that the EU made?  
Response from the delegation of the European Union  
 
 Annex XVI -B to Chapter 6 contains the list of commitments on cross -border services 
referre d to in Article 95. The list of commitments indicate s the services sectors liberaliz ed by the WT/REG353/2  
 
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  EU pursuant to Article 95 and, by means of reservations, the market access and national 
treatment limitations that apply to services and service suppliers of Ukra ine in those sectors.  
 
 One of the sectors liberaliz ed by the EU is (k) Related Scientific and Technical Consulting 
Services (CPC 8675) under the following reservations:  
 
For Mode 1:  
 
Belgium, Bulgaria, Cyprus, Germany, Denmark, Spain, France, Greece, I reland, Italy, Luxemburg, 
Malta, The Netherland, Poland, Portugal, Romania, Slovenia, and United Kingdom: Unbound for 
exploration services. Croatia: None, except that services of basic geological, geodetic and mining 
research as well as related environment al protection research services on the territory of Croatia 
can be carried out only jointly with/or through domestic legal persons.  
 
For Mode 2: None.  
 
Besides, annex XVI -C to Chapter 6 contains a list of reservations indicatin g the services sectors 
liberalized pursuant to Articles 101(2) and 102(2) for which limitations on contractual service 
suppliers and independent professionals apply and specifies such limitations.  
 
For Related Scientific and Technical Consulting Services (CPC 8675) the only reserva tions are the 
following:  
 
Belgium, Estonia, Greece, Spain, Croatia, Ireland, Italy, Luxemburg, The Netherland, Poland, 
Slovenia, Sweden, United Kingdom: None.  
 
Austria, Cyprus, Czech Republic, Germany, Denmark, Finland, Hungary, Lithuania, LV, Malta, 
Portugal, Romania, and Slovakia: Economic needs test.  
 
Germany: Unbound for publicly appointed surveyors.  
 
France: Unbound for "surveying" operations relating to the establishment of property rights and to 
land law where unbound.  
 
Bulgaria: Unbound.  
 
Commu nication Services  
 
1.19.   Paragraph 4.57: Ukraine accompanies these commitments by a number of 
regulatory provisions to ensure the proper functioning of the sector (Articles 109 -114). 
In particular, it recognizes the importance of making compatible its legislatio n to that of 
the EU in this area (Article 114) and agrees to require after three years of the 
Agreement's entry into force a license only for services which qualify as universal 
service (Article 112) . It also commits to maintain or adopt measures to prevent 
anti-competitive practices in postal and courier services (Article 110) and guarantee the 
independence of the regulatory body in this area.  
 According to the underlined phrase, which services are de fined as universal service 
and require a license?  
 
Parties reply :  
 
 Under the agreement (Article 109), "universal service" means the set of services of specified 
quality that is made available to all users in the territory of a Party regardless of their geographical 
location and at an affordable price; its scope and implementation being decided by each Party. It is 
therefore up to the Parties to determine for themselves which services would fall within this 
definition and the list need not be static.  
 
 Within the EU, at a minimum, Member States must ensure a universal service that provides 
for the collection, sorting, transport, and distribution of (i) postal items weighing up to 2 kg and 
(ii) postal packages up to 10 kg, as well as services for registere d items and insured items in both 
categories. In addition, the Postal Directive requires Member States to ensure that the postal WT/REG353/2  
 
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  services which comprise the universal service meet certain standards. For example, delivery must 
be made at least five days per  week to every home or business address. Prices must be 
'affordable ', 'cost-oriented ', 'transparent and non -discriminatory '. Member States shall ensure that 
users enjoy the right to a universal service involving the permanent provision of a postal service of 
specified quality at all points in their territory at affordable prices for all users.  
 
 Within Ukraine, the National mail operator must ensure a universal service that provides for 
the collection, sorting, transport, and distribution of (i) postcards, letters, parcels, Secogram - 
ordinary and registered; (ii) without declared value parcels weighing up to 10 kilograms.  
 
The postal operators are required to provide: (i) postal services specified level of quality in 
accordance with the regulations governin g the activities of postal operators, and the contract; 
(ii) sending mail belonging to universal postal services in regulatory terms established by the 
Ministry of Infrastructure; (iii) safety of mails and money; (iv) secret information in the field of 
postal services; (v) user 's access to information provided by the Law of Ukraine "On Postal 
Communication". The National mail operator shall ensure that users enjoy the right to a universal 
service in all territory of Ukraine.  
 
Other sector -specific provision s 
 
1.20.   Paragraph 4.71: The Agreement also includes regulatory provisions on computer 
services (Article 108), postal and courier services (Articles 109 -114), electronic 
communication services (Articles 115 -124), financial services (Articles 125 -133), and 
transp ort services (Articles 134 -138). In particular, Ukraine commits to gradually 
transpose the EU legislation into its domestic law for: international maritime transport 
services, financial services, postal and courier services, as well as telecommunication 
services (Annex XVII and its appendixes XVII -2 to XVII -5). In the long term, if the EU 
determines, based on a comprehensive assessment, that the process of transposition 
and implementation carried out by Ukraine has been completed, the Parties may grant 
each  other internal market treatment with respect to the corresponding sector 
(Annex  XVII to Chapter 6).  
 Is there a time frame for Ukraine to complete the transposition of the EU 
legislation into its domestic law regarding international maritime transport se rvices, 
financial services, postal and courier services, and telecommunication services?  
 
Parties reply :  
 
 Ukraine has committed to gradually transpose the EU legislation into its domestic law for in 
the areas of international maritime transport services,  financial services, postal and courier 
services, and telecommunication services. For this purpose, there are expected timelines listed in 
Annex XVII and its appendixes XVII -2 to XVII -5 for most of the EU legislation to be transposed in 
its domestic law. T o this end, on 17 September 2014, the Government of Ukraine approved:  
 
 - an action Plan on implementation of the Association Agreement for the years 2014 -2017;  
 
 - an action Plan on implementation of the Title IV "Trade and Trade -related matters " of the 
Association Agreement for the years 2016 -2019.  
 
 - a comprehensive program for the financial sector in Ukraine by 2020, approved by 
Resolution of Nationa l Bank of Ukraine of 18 June 2015 № 391 (amended by resolution of National 
Bank of Ukraine of 16 January 2017 № 28), which involves the creation of a financial system that 
can provide sustainable economic development through effective redistribution of fin ancial 
resources in the economy through the development of full market competitive environment.  
 
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