Decree of the Minister of Foreign Affairs No. 115 / 1968 Coll.
Decree of the Minister for Foreign Affairs on the Agreement on Implementation of Article VI of the General Agreement on Tariffs and Trade
Valid
115
DECLARATION
Minister for Foreign Affairs
of 11 July 1968
on the Agreement on the implementation of Article VI of the General Agreement on Tariffs and Trade
On 30 June 1967, the Agreement on the implementation of Article VI of the General Agreement on Tariffs and Trade was negotiated in Geneva. On behalf of the Czechoslovak Socialist Republic, it was signed in Geneva on 11 March 1968.
The Agreement on the implementation of Article VI of the General Agreement on Tariffs and Trade entered into force on 1 July 1968 for the Czechoslovak Socialist Republic on the basis of Article 13 thereof.
The Czech translation of the Agreement is announced simultaneously.
Minister:
Dr Hájek v. r.
AGREEMENT
on the implementation of Article VI of the General Agreement on Tariffs and Trade
The Contracting Parties to this Agreement,
Considering that on 21 May 1963 the Ministers agreed that substantial easing of world trade is desirable and that the comprehensive trade negotiations, namely the 1964 negotiations, should concern not only customs duties but also other non-tariff barriers;
Considering that anti-dumping measures should not create unjustified barriers to international trade and that anti-dumping duties should only be applied against dumping if such dumping causes or threatens to cause material injury to an industry already in existence or significantly slows down the creation of such an industry;
Considering that it is desirable to establish open and fair rules of procedure for cases in which cases of dumping are to be examined in all detail;
DESIRING to interpret the provisions of Article VI of the General Agreement on Tariffs and Trade and to develop rules for its application in order to achieve greater consistency and legal certainty in its implementation;
they have agreed as follows:
The imposition of anti-dumping duties is a measure which can only be taken under the conditions laid down in Article VI of the General Agreement. The following provisions provide for the application of this Article where proceedings are initiated under anti-dumping laws or other provisions.
A. Determination of dumping
(a) For the purposes of this Code, a product may be considered to be dumped, i.e. a product which is put into circulation in another country at a lower price than normal, if the export price of that product, exported from one country to another, is lower than the comparable price of the like product in the normal course of trade, if this product is intended for consumption in the exporting country.
(b) The term "like product" (produced by similaire - like product), used in this Code, will be interpreted as meaning that it marks the same product, i.e. a product comparable in all respects to the product concerned, or if there is no such product, then another product which, although not comparable in all respects, has characteristics similar to those of the product concerned.
(c) Where products are not exported directly from the country of origin but are exported to the importing country via a third, intermediate country, the price at which the product is sold from the exporting country to the importing country will normally be compared to the comparable price in the exporting country. However, a comparison may be made with the price in the country of origin if, for example, the products are only transhipped in the exporting country or if such products are not manufactured in the exporting country or if there are no comparable prices in the exporting country for those products.
(d) Where no sales of the like products are made on the domestic market of the exporting country in the normal course of trade, or where such sales do not allow a correct comparison due to the specific situation created on that market, the degree of dumping will be established by comparing the comparable price of the like product when exported to any third country, taking into account the highest export price, but must always be representative, or by comparing it with the production price in the country of origin, plus a reasonable amount for administrative, sales and other expenses and a reasonable profit. The amount to be calculated on the basis of profit is normally not to exceed the normal profit established on the domestic market in the country of origin for sales of products of the same general type.
(e) In the absence of an export price, or in the absence of an export price, or the competent authorities *), they consider that the export price is not reliable in view of the existence of contact between the association or the compensation agreements between the exporter and the importer or a third party, the export price may be considered to be the price at which the imported products are first sold to an independent buyer or, if the products are not sold to an independent buyer or if they are not sold to that buyer in the state in which they were imported, the export price will be calculated on a reasonable basis which the authorities can determine.
(f) In order to achieve a correct comparison of the export price with the domestic price of the exporting country (or country of origin) or, where applicable, with the price determined in accordance with Article VI (1) (b). (b) General Agreements on Tariffs and Trade, both prices will be compared in the same trade parity, usually a franco production plant, with regard to sales made within the same time range as possible. In any event, account must be taken of the differences in the conditions under which sales were made and the differences in the terms of the contract, the differences in taxation and other differences which may affect price comparability. In the cases referred to in Article 2 (e), account must also be taken of the costs, including taxes and levies, which had to be incurred during the period between importation and resale, as well as of the profit realised.
(g) The provisions of this Article do not affect the second Additional provision to paragraph 1 of Article VI in Annex 1 to the General Agreement.
B. Determination of material injury or threat of material injury and material delay
Injury finding *)
(a) An injury assessment may be made only if the competent authorities are satisfied that the dumped imports are a manifest and major cause of material injury or a threat of material injury or a major cause of material delay in the establishment of such an industry. In their decision-making, the authorities shall take into account, on the one hand, the effects of dumping and, on the other hand, any other factors taken in whole which may adversely affect the relevant industry. In any event, the findings must be supported by positive facts and not mere assertions or hypothetical possibilities. In the case of delays in the establishment of a new industry in the importing country, convincing evidence of the upcoming establishment of a new industry, such as advanced plans for the establishment of such an industry, or evidence of the construction of the relevant factory building, or of the ordering of the relevant machinery, must be provided.
(b) The injury assessment, i.e. the assessment of the effects of the dumped imports on the relevant industry, must take into account all factors affecting the situation of the industry, such as: the development and prospects of achieving overall turnover, market share, profit, prices (taking into account the difference between the price of the products supplied after duty payment, higher or lower than the comparable price for the like product, which is capped under normal market conditions in the importing country), the state of export, employment, the volume of dumped imports and other imports, the use of domestic production capacity and productivity, as well as well as the existence of measures to limit free trade. None of these factors is capable of providing decisive guidance for further decision-making alone or in combination with just some other factors.
(c) In order to determine whether dumped imports have caused injury, it is necessary to examine all factors which may adversely affect the industry concerned, whether individually or in association with others, such as: the volume and prices of the non-dumped imports of the products concerned, the competition between the domestic producers themselves, the contraction of demand due to the presence of other interchangeable products, or the change in customer's taste.
(d) The effects of the dumped imports must be assessed in relation to the domestic production of the like product where data are available to allow separate identification of production according to criteria such as: production process, producer's profits, etc. If domestic production cannot be assessed separately from others according to these criteria, the effects of the dumped imports will be evaluated by examining the narrowest possible group or range of products, including the like product for which the necessary information can be obtained.
(e) The determination of the threat of material injury must be based on facts and not on mere claims, conjectures, or distant possibilities. The change in circumstances which could be caused by a situation in which dumping could cause material injury must be clearly foreseeable and imminable. * *)
(f) The possibility of applying anti-dumping measures where there is a threat of material injury due to dumped imports must be examined with particular care and the decision on such measures must be carefully considered.
Definition of "industry '
(a) The term "industry" must be interpreted in the determination of material injury in such a way as to affect all domestic producers in whole or at least part of them, the production of which together represents a major proportion of the total domestic production of these products. Exceptionally, however,
(i) if the producers are also importers of the products claimed to be dumped, the term "industry" may be interpreted as referring only to the rest of these producers.
(ii) In exceptional circumstances, certain countries may be divided into two or more competitive markets for the determination of the industry concerned, and producers within each market may be considered as separate industries, provided that all producers in such a separate market sell, for reasons of transport costs, the whole or almost all of their production of the said product on that market, and no or almost any of the said product produced elsewhere in the same country is sold on that market, or that there are specific market conditions of a regional nature (e.g. traditional distribution network or traditional consumer taste) which cause the same degree of isolation of producers on that market from other producers in that industry. In such a case, however, it may be found that the injury occurred only if the injury affects the whole or almost whole production of the product on the market thus defined.
(b) If two or more States have achieved such a degree of integration as to be characterised by a single common market, the industry existing throughout the integration territory will be considered as "industry" within the meaning of Article 4 (a) of this Agreement.
(c) Article 3 (d) of this Agreement applies to this Article.
C. Procedures in matters of detection and administrative matters
Initiation and further examination
(a) The investigation is normally initiated with regard to the request made by the industry concerned, *) which must be accompanied by evidence of both the existence of dumping and the injury affecting the relevant industry due to such dumping. Where, in cases of particular consideration, the authorities decide to initiate an ex officio procedure, they may only continue it if they have evidence of both the existence of dumping and the injury resulting therefrom.
(b) Evidence of the existence of dumping and injury resulting therefrom must be examined jointly, both at the initiation stage and at a later stage in the proceeding. However, in any event, evidence of the existence of dumping and injury resulting therefrom must be examined jointly in order to determine whether a proceeding should be initiated and later in the course of the proceeding, starting at the latest on the date on which provisional measures may be imposed for the first time, except in the cases referred to in Article 10 (d), provided that the authorities comply with the request of the exporter and the importer.
(c) The request will be rejected and the proceeding terminated as soon as the authorities are satisfied that the evidence of the existence of dumping or injury resulting therefrom is not sufficient to justify a continuation of the proceeding. The proceeding will also be terminated immediately in cases where the degree of dumping or the volume of dumped imports, actual or potential or injury is negligible.
(d) The fact that an anti-dumping proceeding has been established must not prejudice the clearance of goods.
Evidence
(a) A foreign supplier and all interested parties must be given sufficient opportunity to submit in writing any evidence they consider appropriate in view of the anti-dumping proceeding in progress. If the participants prove the necessity or suitability, they shall be entitled to submit the evidence orally.
(b) The authorities carrying out the proceedings will provide the complainants, as well as importers and exporters known to be concerned, with the possibility to acquaint themselves with all the facts which are relevant to the preparation of their submissions, provided that they are not confidential within the meaning of paragraph (c) below, and used by those authorities in the anti-dumping proceeding, and prepare their submissions on the basis of that information.
(c) Any information which is confidential by nature (for example, because their knowledge would constitute a significant competitive advantage for a competitor, or because its disclosure would have adverse consequences for the person who provided this information or for the person from whom the information was obtained) or which is provided by the parties to the anti-dumping proceeding as confidential, the competent authorities will be considered to be strictly confidential. The authorities carrying out the proceedings shall not publish them unless they have been empowered by the party who provided this information.
(d) However, if the authorities consider that a request for information to be treated as confidential is not justified, but the party providing it is not willing to make it publicly available or agree to publish it in an elevator or in a abbreviated form, they are entitled to disregard such information unless they can be satisfied from other appropriate sources that it is true.
(e) The authorities are entitled to carry out surveys in other countries as necessary to verify the truthfulness of the information provided or to obtain further details, but only if they are authorised by the participants concerned to do so and notify the representatives of the Government of the country concerned and that Government does not object to such findings.
(f) As soon as the competent authorities are satisfied that in the present case the evidence submitted sufficiently justifies the initiation of an anti-dumping proceeding pursuant to Article 5 of this Agreement, they shall notify the representatives of the exporting country, as well as the importers and exporters known to be concerned. The opening of proceedings may also be notified to the public.
(g) During the anti-dumping proceeding, all parties must be given sufficient opportunity to defend their interests. To this end, the authorities carrying out the procedure for the application of any directly concerned participant shall allow that participant to meet the participants with opposite interests so that those conflicting interests can be interpreted and answered. However, when providing such an option, the competent authorities shall ensure that the confidentiality of the proceedings is maintained and that this is suited to the individual participants. None of the participants is obliged to attend the meeting and the fact that they did not attend the meeting cannot be detrimental to their interests.
(h) The competent authorities shall notify their decision on the imposition or non-imposition of anti-dumping duties on representatives of the exporting country as well as directly to the parties concerned, indicating the reasons for their decision and the criteria used in the decision. Except in cases of special consideration, the decisions of the authorities shall be published.
(i) The provisions of this Article cannot prevent the authorities from taking preliminary decisions, whether positive or negative, or to order them to speed up the provisional measures. In cases where one of the participants does not provide the necessary information to the determining authority, that authority may, in its final decision, base itself either in a positive or negative way on the facts available.
Price commitments
(a) The anti-dumping proceeding may be terminated without the imposition of an anti-dumping duty or without the imposition of provisional measures, provided that exporters submit a voluntary undertaking to review their prices so that the dumped price difference is eliminated or that they cease to export at dumped prices to the relevant territory, provided that the competent authorities consider such an undertaking to be practically feasible, for example if the number of actual or potential exporters of this product is not too large or if such commercial practice is reasonable in this case.
(b) If the exporters concerned undertake, during a specific proceeding, to review their prices or to refrain from further exports to the territory concerned and the competent authorities accept this undertaking, the proceeding concerning the determination of material injury shall be completed despite that, provided that the exporters concerned so wish or the said authorities so decide. If it is then decided that no injury has occurred in the present case, the undertaking of the exporters shall automatically cease to be valid unless the said exporters declare that they do not wish their undertaking to expire. The fact that exporters do not offer such an undertaking in the course of the proceeding, or that they do not comply with the call for action by the implementing authorities, cannot in any way affect the assessment of the whole case. However, the relevant authorities may, of course, conclude that there may be an easier threat of injury if dumped imports continue.
D. Anti-dumping duties and provisional measures
Saving and collecting anti-dumping duties
(a) A decision on whether an anti-dumping duty should be imposed where all the conditions for its application are met and whether the amount of the anti-dumping duty should correspond to the entire dumping margin or whether it should be smaller falls exclusively within the competence of the competent authorities of the importing country or customs territory. The imposition of such anti-dumping duties should be optional in all countries or customs territories of the Parties to this Agreement, and the level of anti-dumping duty should not amount to the full dumping margin if the imposition of a lower rate is sufficient to eliminate the injury caused to the domestic industry.
(b) Where an anti-dumping duty is imposed on any product, such duty shall in any event be collected at an appropriate level without any discrimination from imports of these products, irrespective of the source of imports found to be dumped and causing injury. The competent authorities shall designate the suppliers whose products are dumped on their behalf. However, where there are several suppliers from a single country in the present case and it is not well enough to name all suppliers in full, it is sufficient if there are dumped imports from several importers from several countries, the competent authorities may either indicate on behalf of all individual importers or, if this is not practicable, all countries from which the dumped products are supplied.
(c) The amount of the anti-dumping duty may not exceed the dumping margin determined in accordance with the provisions of Article 2. Therefore, if, after collecting the anti-dumping duty, it is found that the duty collected is in fact in excess of the dumping margin, the amount of duty exceeding the dumping margin must be repaid to the payer as quickly as possible.
(d) The following rules shall be applied to the application of the basic price system, provided that their use complies with the other provisions of the Code:
Where several exporters from one or more countries supply products at dumped prices and are causing material injury, anti-dumping duties, the amount of which corresponds to the amount by which imported goods are cheaper than the basic price of this product, may be imposed for these purposes, which may not exceed the lowest normal price of this product in the supplying country or in countries where normal conditions of competition are given.
In this context, if other products are sold below this basic price previously established in another proceeding, a new anti-dumping proceeding must be initiated if the interested party so requests and provides sufficient evidence. In cases where no dumping is found, the anti-dumping duty already collected must be refunded as soon as possible. If it is found that the anti-dumping duty actually collected exceeds the dumping margin, the amount exceeding this difference shall be repaid as soon as possible.
(e) Where the term "industry" is interpreted as referring only to producers in a specific area, i.e. the market, as defined in Article 4 (1) of the basic Regulation. (a) and (ii), the anti-dumping duty may be levied only on products intended for final consumption in this area, except where the exporter is allowed to refrain from further dumping in the area concerned before the imposition of the anti-dumping duty. In these cases, if a guarantee is given quickly, anti-dumping duties will not be imposed. However, if such an undertaking is not made or is not respected, anti-dumping duties may be imposed without restriction on this area.
Duration of anti-dumping duties
(a) The anti-dumping duty shall remain in force for as long as it is necessary to avert the injury caused by dumping.
(b) The competent authorities shall examine the need for further application of the anti-dumping duty in justified cases, either ex officio or on the proposal of interested importers or suppliers who certify the need for such review.
Provisional measures
(a) Provisional measures may be imposed only where a provisional determination has been made that dumping is involved in the present case and there is sufficient evidence of injury caused by such dumping.
(b) Provisional measures may consist of the imposition of a provisional anti-dumping duty or, giving priority, the lodging of a security in the form of a deposit or undertaking corresponding to the amount of anti-dumping duty provisionally calculated, which may not be higher than the dumping margin provisionally estimated. The rejection of the valuation is a sufficient interim measure, provided that it is also stated how much the normal duty and the amount of the anti-dumping duty is and where such refusal of the valuation is subject to the same conditions as the other provisional measures.
(c) The competent authorities shall inform representatives of the exporting countries and directly interested parties of their decisions imposing provisional measures, indicating the reasons for their decision and the criteria followed in their decision. Such decisions shall be published, except in cases of special consideration.
(d) The provisional measures should be limited as far as possible. In particular, provisional measures should not remain in force for a period of more than three months or six months, in which case both the importer and the exporter must apply for such extended measures.
(e) Article 8 of this Convention applies mutatis mutandis to provisional measures.
Recovery
The anti-dumping duties and provisional measures are to apply only to products which will be released for consumption after the decision referred to in Article 8 (1) has been taken. (a) or 10 (a) shall become legally applicable, except in the following cases:
(i) Where it was found that material injury was caused in the present case (but not that there is a threat of material injury or material delay in the setting-up of the industry), or where the provisional measures consist of the imposition of provisional anti-dumping duties and dumped imports, carried out during the period of validity of this anti-dumping duty, would result in material injury if this duty had not been collected, the anti-dumping duty may be collected retroactively for the whole period during which any provisional measures were in force.
If the anti-dumping duty prescribed in the final decision is higher than the duty provisionally paid, the difference shall not be collected. However, if the anti-dumping duty paid pursuant to the provisional measure or the amount estimated for the purpose of the security is higher than the anti-dumping duty prescribed in the definitive decision, the difference must be repaid or the duty recalculated, depending on the circumstances of the case.
(ii) Where the valuation of a product is suspended for reasons which arose before the anti-dumping proceeding was initiated and which are not related to the issue of dumping, the anti-dumping duty imposed may be applied retroactively for no more than 120 days prior to the submission of the request to initiate the anti-dumping proceeding.
(iii) Where, with regard to the dumped product, the authorities decide that:
(a) there has been dumping which has caused material injury or that the importer knew, or at least should have known, that the exporter is practising dumping and that such dumping will cause material injury, and that
(b) material injury is caused by sporadic dumping (i.e. by massive imports of dumped products over a relatively short period of time), so that, in order to avoid any recurrence, anti-dumping duties should be applied retroactively,
the anti-dumping duty may be imposed on products released for consumption no more than 90 days prior to the imposition of provisional measures.
E. Anti-dumping proceeding in the interest of a third country
(a) The request to initiate an anti-dumping proceeding in the interest of a third country must be submitted by the competent authorities of the country requesting the initiation of the proceeding.
(b) The request must be accompanied by information on the prices which would indicate that the imports are being dumped as well as detailed information showing that there is material injury in the domestic industry of the third country concerned. The Government of a third country requesting the initiation of proceedings must provide the authorities of the importing country with all assistance they may require in obtaining further information.
(c) In examining such a request, the authorities of the importing country will take into account the effects of the dumping claimed on the whole industry in the third country. In other words, the injury should not be assessed solely in the light of the exports to the importing country of the said industry of the products achieved, nor in the light of the overall exports of the products of the industry concerned.
(d) The determination of whether the request is to be granted and the anti-dumping proceeding initiated falls exclusively within the competence of the importing country. If an import country decides to be willing to initiate proceedings, the importing country must take steps to obtain the necessary agreement from the Contracting Parties for such proceedings.
This Agreement shall be read for adoption, signature or otherwise, by the Parties to the General Agreement on Tariffs and Trade and by the European Economic Community. The Agreement shall enter into force on 1 July 1968 and shall bind from that date all States which have adopted it. The Parties which accept this Agreement after that date shall be bound by it from the date of their adoption.
Each Party to this Agreement shall take any action of a general or specific nature necessary to bring its laws, regulations and administrative provisions into line with the provisions of this Anti-dumping Code at the latest by the date on which this Agreement becomes applicable to that Party.
Each Contracting Party to this Agreement shall notify the Contracting Parties to the General Agreement on Tariffs and Trade of any change in its anti-dumping laws and regulations as well as in the administrative provisions governing anti-dumping proceedings.
Each Contracting Party shall submit an annual report on the application of its anti-dumping laws and regulations to the Contracting Parties to the General Agreement on Tariffs and Trade once a year and shall include an analysis of cases where anti-dumping duties have been definitively imposed on such a report in a short lift.
The Parties to this Agreement shall request the Contracting Parties to set up an Anti-dumping Committee, consisting of representatives of the Parties to this Agreement. The anti-dumping committee will meet regularly once a year to allow parties to this Agreement to consult on matters relating to the application of anti-dumping rules in any participating country or customs territory, where such an application could affect the effectiveness of this anti-dumping code or the achievement of its objectives. Such consultations will take place without prejudice to the provisions of Article XXII and Article XXIII of the General Agreement on Tariffs and Trade.
This Agreement will be deposited with the Director-General of the Contracting Parties General Agreement on Tariffs and Trade, which shall immediately send a certified copy of that Agreement and a notification of its adoption to each Contracting Party to the General Agreement on Tariffs and Trade as well as to the European Economic Community.
This Agreement shall be registered in accordance with the provisions of Article 102 of the Charter of the United Nations.
In Geneva, on the 30th day of June in the year one thousand and ninety-seven, in one copy, in the English and French languages, each of which shall be authentic.
*) If the term "authorities" is used in this Code, it will be interpreted as meaning competent authorities at a higher level.
*) In all cases where there is talk of "injury" in this Code, this term will mean - unless otherwise stated - a cause of material harm to the domestic industry, a threat of material harm to the domestic industry, or a significant delay in the establishment of such an industry.
* *) One example, although not exclusive, may be, for example, the fact that there is compelling reason to believe that there will be a substantial increase in future imports of products at dumped prices.
*) As defined in Article 4.
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Regulation Information
| Citation | Decree of the Minister for Foreign Affairs No. 115 / 1968 Coll., on the Agreement on the Implementation of Article VI of the General Agreement on Tariffs and Trade |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 07.08.1968 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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