Act No. 63 / 2000 Coll.
Act on protection against subsidised imports and amending Act No. 2 / 1969 Coll., on the Establishment of Ministries and other Central Authorities of the Czech Republic, as amended
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Law
Effective from 01.04.2000
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63
THE LAW
of 24 February 2000
on protection against subsidised imports and amending Act No. 2 / 1969 Coll., on the Establishment of Ministries and other Central Authorities of the Czech Government, as amended
Parliament has decided on this law of the Czech Republic:
PROTECTION BEFORE IMPORTS OF SUBSIDIATED PRODUCTS
GENERAL PROVISIONS
Subject matter
This law provides for the protection of the domestic industry by countervailing duties against imported products for which a prohibited or countervailable subsidy has been granted abroad. To this end, it sets out the principles for the assessment of subsidies, the examination and the assessment of injury to the domestic industry, the procedure for the investigation of the complaint on subsidised imports and the countervailing duty proceeding.
Definition of terms
For the purposes of this Act:
(a) public subsidies granted by a financial contribution or any other direct or indirect financial support or subsidies from such sources and relief from a tax or other obligation which confers an advantage on the recipient of the subsidy; the subsidy is not the exemption of exported products from export duties or from taxes applicable to similar domestic products,
(b) a specific subsidy which is not granted on a flat-rate and automatic basis, meaning that it is intended only for a particular sector or activity, for a specific geographical area or for certain business entities and access to it is restricted by the legislation or by a decision of a public authority;
(c) non-specific subsidy granted on a flat-rate basis and automatically on the basis of the conditions laid down by law, while maintaining equality for all entities;
(d) a countervailable subsidy which causes injury to the identified and assessed pursuant to Article 4 and is not an countervailable or prohibited subsidy, including a subsidy for an agricultural product which complies with export and other subsidy obligations;
(e) the prohibited subsidy granted on the basis of export results or the preferential use of the domestic product over the imported product; in the case of an agricultural product, the prohibited subsidy to an agricultural product for which the export subsidy limit laid down by the Agreement on Agriculture of the World Trade Organisation and the commitments of a member of the World Trade Organisation to which a member has committed himself within the meaning of the schedule of concessions and obligations of that member is exceeded;
(f) non-specific subsidies, specific subsidies for which no injury was found and assessed pursuant to Article 4, subsidies granted to agricultural products in accordance with the criteria set out in Annex 2 to this Law and subsidies granted by the country of subsidy
1. to assist research activities carried out on a contractual basis, where such assistance constitutes a maximum of 75% of the cost of applied research or 50% of the cost of pre-production development activities, provided that such assistance is provided exclusively for the personnel costs of researchers, technicians and other auxiliary personnel, for the costs of equipment, equipment, land and buildings, for consultation and similar services, for additional overheads, for other production costs and for material costs and supplies,
2. for the development of less-favoured areas of the subsidizing country, provided that the last 3 years of income per person or per household or gross domestic product in these areas is less than 85% of the average income or gross domestic product per person of the subsidizing country or that the unemployment rate in those areas is at least 110% of the average unemployment rate of the subsidizing country;
3. as a one-off contribution to the reconstruction and modification of existing production facilities resulting from the environmental improvement requirements laid down by legislation, provided that this contribution is granted up to a maximum of 20% of the cost of reconstruction and treatment and that this contribution is available to all producers of the product that are interested in reducing the impact of its production on the quality of the environment,
(g) the subsidised product, the product for which a countervailable or prohibited subsidy has been granted abroad,
(h) the same or similar product, which is produced domestically and is identical or comparable in all characters to the product imported from the exporting country or has similar characteristics, composition and characteristics as the product imported and may be interchangeable with the imported product,
(i) by an exporter, a natural or legal person who exports products from the country of origin or export to the Czech Republic;
(j) the domestic industry of the industry which includes producers of the same or the like product in the Czech Republic as a whole; if these producers are related to the exporters or import the subsidised product themselves, the industry is the industry including the remaining producers; the concentration is considered to be direct or indirect control by the exporter of the manufacturer, or vice versa, or control by both third parties or joint control by the manufacturer and the exporter of the third party;
(k) export price price, (1) for which the product is sold to the Czech Republic,
(l) injury to the domestic industry or material delay in the production of the same or like product in the Czech Republic caused by the subsidised imports,
(m) for a threat of injury, a situation in which there is an imminent risk of injury to other subsidised imports;
(n) agricultural product, the product listed in Annex 1 to this Law;
(o) State or integration groupings of States, if they grant subsidies in the present case.
Notification obligation and registration of subsidies
The Ministry of Finance ("the Ministry ') records subsidies granted by foreign governments, which the Czech Republic has been informed of under international agreements. This information shall be provided to the other ministries and other administrative offices according to their competence for the performance of the administration.
Investigation and injury assessment
(1) The existence or threat of injury resulting from the subsidised imports is a condition for the application of countervailing duties (Section 19). In particular, the examination of the injury or threat thereof shall be carried out:
(a) the volume and increase of subsidised imports on the market of the Czech Republic in absolute or relative terms in relation to the production or consumption of the same or the like product and the resulting change in the pattern of consumption,
(b) the subsidy amount per unit of the subsidised product, the export price of the imported product, the stock of the imported product and the price of the same or the like product,
(c) stock of the same or similar product not sold,
(d) the consequent effect of the subsidised imports on the price level of the same or the like product in the Czech Republic in relation to other factors affecting prices on the domestic market, their effect on productivity and return on investment, the actual or potential decrease in production, demand and sales of the same or the like product, the decrease in capacity utilisation, employment and profit in the domestic industry,
(e) the actual and possible negative effect on the movement of funds, on stocks, wages and the ability to raise funds for investments, actual or likely negative effects on the increase of foreign direct investment in the domestic industry, as well as, for agricultural products, whether the cost of government support programmes has increased;
(f) restrictions on trade and competition between foreign and domestic producers and reductions in the capacity of domestic operators to export production;
(g) slowing down the development of technology in the domestic industry;
(h) sufficient freely available capacity or an immediate substantial increase in capacity of the exporter indicating the likelihood of substantially increased subsidised exports to the Czech Republic market, taking into account the capacity of other markets to absorb further imports,
(i) the association of the producers of the subsidised imported product with the domestic producers of the same or the like product.
(2) Other factors affecting the domestic industry concerned which, however, cannot be attributed to subsidised imports, are also examined in the determination or threat of injury. These factors are in particular the volume and prices of non-subsidised imports of the product, the decrease in demand or the change in the pattern of consumption and competition between foreign and domestic producers, the development of technology, export performance and productivity of the domestic industry.
(3) The emergence or threat of injury shall be evidently substantiated.
No injury or threat thereof occurs if:
(a) the product is not subsidised under this Act or the subsidy granted is less than 1% of the export price, where the export price is not known, less than 1% of the customs value;
(b) the subsidised imports are negligible, i.e. less than 2% of the market share of the relevant market in the Czech Republic.
Principles for the assessment of subsidy
The following principles apply to the assessment of the subsidy amount in terms of the benefit conferred on the recipient:
(a) the provision of capital to the capital of a trading company by the Government of the Subsidiary Country is not considered to be an advantage if this was done under normal commercial conditions in the territory of the Subsidiary Country;
(b) a government loan shall not be considered an advantage if there is no difference between the amount which the person receiving the loan pays for the government loan and the amount that a person would pay for a comparable commercial loan that it could actually obtain on the market; only the difference between the two amounts is considered an advantage,
(c) a government guarantee shall not be considered an advantage if there is no difference between the amount which the person acquiring the guarantee pays for a loan with a government guarantee and the amount that that person would pay for a comparable loan without a government guarantee; only the difference between the two amounts is considered an advantage,
(d) the supply of a product or service or the purchase of a product by the Government of the Subsidiary Country shall not be considered to confer an advantage if the normal price at which the goods or services are sold on the market of the Subsidiary Country has been negotiated.
INVESTIGATION OF THE PRODUCT SUBSIDIED IMPORTS
(1) A natural person with a permanent or long-term residence of m2) in the territory of the Czech Republic or a legal person established in the territory of the Czech Republic ("the applicant") may submit a written complaint to the Ministry to investigate whether imports of the subsidised product have taken place.
(2) The complaint shall contain the following information available to the applicant:
(a) details of the applicant; in the case of a legal person, the trade name or name, registered office, legal form and identification number of the person, the name, surname, date of birth or birth number, place of permanent or long-term residence and the business name and identification number of the person,
(b) information on the producer of the product considered to be subsidised, a list of all applicants known to the exporter and importers of the product and the country of export or origin,
(c) a list of known producers in the Czech Republic producing the same or similar product, including a description of the volume and value of their production, or a document supporting the complaint from producers of the same or the like product in the Czech Republic; in the case of industries involving an exceptionally large number of producers, support for the complaint may be determined by means of statistical selection;
(d) a description of the product classified as subsidised, including the indication of the tariff subheading;
(e) information on the existence of a subsidy, the amount of the subsidy and the export price of the product considered to be subsidised and the price of the same or the like product on the market in the exporting country or country of origin known to it,
(f) data suggesting injury or threat of injury caused by imports of the product considered to be subsidised, including a monetary statement of its magnitude;
(g) the volume of imports of products known as subsidised or envisaged import volumes,
(h) data showing a causal link between imports of products deemed to be subsidised and injury or the threat thereof;
(i) the justification for the complaint.
(3) The procedure provided for in this Title of the Act shall not be governed by the Administrative Regulation.4)
(4) With an incentive to investigate whether subsidised imports have taken place, the applicant is obliged to deposit a deposit of CZK 100 000 in a special account of the Ministry, which will be returned to the applicant if the Ministry issues a decision to impose a countervailing duty or if the undertaking of the granting country to abolish or limit the subsidy is accepted. The deposit shall be returned by the Ministry within 14 days of the date on which the decision becomes final.
(5) If the deposit is not refunded in accordance with paragraph 4, it shall become revenue of the State budget.
(1) The investigation is initiated by the Ministry at the initiative of the Ministry pursuant to Article 7. The investigation may also be initiated by the Ministry on its own initiative if it has sufficient information on the subsidised imports and the injury caused to the domestic industry.
(2) The investigation is initiated on the date on which the Ministry received the complaint or the day on which the Ministry decided to initiate the investigation on its own initiative.
(3) The Ministry will invite producers of the same or the like product in the Czech Republic to submit written comments on the complaint or the investigation initiated within 30 days of the date of receipt of the request. In the case of a large number of producers, statistical selection of producers may be used.
(4) The Ministry shall request the written opinion of the Ministry of Industry and Trade, the Ministry of Foreign Affairs, the Office for Competition and the Directorate-General for Customs within 15 days of the initiation of the investigation. In the case of agricultural products, the Ministry of Agriculture will also request an opinion. Depending on the nature of the case, another administrative authority may request an opinion. It shall provide for a period not exceeding 30 days from the date of receipt of the request for an opinion.
(5) If the requested opinions and observations are not submitted by the deadline referred to in paragraphs 3 and 4, the Ministry shall carry out the investigation on the basis of the information available to it.
(6) The Ministry is investigating the complaint
(a) whether the complaint contains all the required particulars in accordance with Article 7; if the complaint does not have all the required particulars, the Ministry shall invite the applicant to supplement it within the prescribed time limit; the deadline for completion may not exceed 30 days from the date of receipt of the call;
(b) whether there is sufficient support for the complaint in accordance with paragraph 9 (b);
(c) whether the subsidy has actually been granted abroad and, if so, assess whether the subsidy is prohibited, specific, non-specific, countervailable or not;
(d) on the basis of its own investigations and opinions by ministries and other administrative offices as referred to in paragraph 4, whether or not the domestic industry has suffered injury.
(7) The Ministry shall inform the competent authority of the subsidizing country and country of export or origin of the initiation of the investigation.
(8) The investigation must be concluded within 3 months of the date of initiation of the investigation.
(9) The Ministry shall postpone the case and inform the applicant in writing, stating the reasons, if it finds that:
(a) the complaint contains manifestly false information or does not contain the information available pursuant to Article 7 (2) or the person who lodged the complaint has not remedied its deficiencies even after the letter of invitation by the Ministry within the prescribed period; or
(b) the production volume of the same or the like product of those producers that supported the complaint is less than 50% of the production volume of the same or the like product produced by that part of the producers that were in favour or opposed to the complaint, or where the total production of the same or the like product of those producers that supported the complaint is less than 25% of the total production volume of the same or like product produced by the domestic industry; or
(c) the subsidy is non-countervailable; or
(d) the subsidised product does not cause injury or threat to it.
(10) In the event that the Ministry fails to establish the reasons for the postponement, it shall enter into consultations in accordance with Title III.
CONSULTATION
(1) The Ministry shall enter into bilateral consultations with the competent authorities in the subsidizing country following the adoption of the initiative or on its own initiative if it receives information suggesting that a subsidised product is imported into the Czech Republic which is causing injury or a threat thereof.
(2) The purpose of the consultations is to clarify the facts established and to achieve a mutually acceptable solution under the Agreement.
(3) In the absence of such a solution, the Ministry shall refer the matter to the World Trade Organisation authorities, (5) which may take appropriate corrective action on this basis and at the same time the Ministry shall initiate the procedure laid down in Title IV.
PROCEDURE FOR THE EDUCATION OF DUTY AND THE ACCESS OF THE UNDERTAKING
Initiation
(1) The Ministry shall initiate proceedings where the result of the investigation is a provisional finding of imports of the subsidised product, that such imports cause injury or threat thereof, and that at the same time there are no grounds for postponement pursuant to Article 8 (9). The procedure shall be initiated if bilateral consultations pursuant to Article 9 have not led to a mutually acceptable solution. The proceedings shall be initiated on the day on which the Ministry publishes the notice of initiation without undue delay in the Commercial Journal and via the Internet, but no later than 30 days after the date of completion of the complaint investigation.
(2) The notice of initiation shall contain:
(a) the designation of the applicant, the manufacturer and the exporter of the product referred to as subsidised and the parties to the proceedings pursuant to Article 11;
(b) the description of the product under procedure, including the indication of the tariff subheading;
(c) country of export and country of origin,
(d) the basic data on which the allegation of the existence of subsidised imports is based,
(e) details of the type of subsidy and its amount;
(f) data on injury or threat to the domestic industry;
(g) the address to which the parties' opinions are to be sent;
(h) a time limit which may not be less than 30 days from the date of initiation of the proceeding in which other producers of the same or the like product may make themselves known in the Czech Republic as interested parties; the delay cannot be forgiven,
(i) the country of subsidy.
(3) The notice of initiation shall be notified to all parties and to the country of subsidisation.
(4) For exporters with which no proceeding has been initiated for reasons other than the refusal to cooperate in the previous investigation, a proceeding shall be initiated separately and a separate countervailing duty shall be imposed on the basis of this proceeding.
(1) The parties are:
(a) the applicant, if the complaint was initiated,
(b) known producers of the product considered to be subsidised;
(c) known exporters of the product considered to be subsidised,
(d) producers of the same or similar product in the Czech Republic who supported or commented on the complaint.
(2) The parties to the proceedings are not the persons referred to in paragraph 1 (b), (c) and (d) in the case of a number so large as to prevent economic and efficient management of the administrative procedure, unless they express an interest in being a party to the proceedings.
(3) A party may be a party to the proceedings if they are not themselves parties to the proceedings referred to in paragraph 2.
(4) In the event that the persons referred to in paragraph 1 (b) and (c) are not parties to the proceedings, the Ministry shall, in addition to the notice of initiation, submit the supporting documents for the decision to the authorities of the granting country which shall transmit them to the relevant exporters and producers (or to their associations of interests) for any comment. Such persons may send their observations to the Ministry within 60 days of their receipt to the granting country.
Detection of evidence
(1) In order to assess whether the subsidised imports resulting from or threatening to cause injury have occurred, the Ministry shall request the necessary information from the parties, ministries and other administrative offices (hereinafter referred to as the provider). They are obliged to provide such information for free.
(2) The provisions of paragraph 1 shall be without prejudice to the provisions of specific provisions relating to the protection of classified information, personal data in information systems, commercial and banking secrecy or statutory confidentiality obligations. 6)
(3) In the light of the Ministry's request, the Ministry of Industry and Trade and the Competition Authority shall submit its opinion on the assessment and threat of injury and on competition matters. As regards the agricultural product, the Ministry of Agriculture shall also comment on the injury and threat of injury.
(4) In order to obtain information, the Ministry may use a questionnaire which it shall set a time limit of 30 days from the date of receipt of the questionnaire. At the duly substantiated request of the party, the time limit may be extended.
In order to verify the information requested by the Ministry from persons in other countries or to obtain further information, the Ministry may, if necessary, carry out investigations on the territory of other States, provided that it informs the competent authority of that country and that it does not raise any objections to that intention, and also if it receives the consent of the body concerned.
Protection of confidential information
(1) For the purposes of this Act, confidential information or information provided on a confidential basis shall mean information the disclosure of which would confer a significant advantage on other persons or which would have a very adverse effect on the provider of confidential information.
(2) Confidential information may be provided only to parties and only with the consent of the provider of confidential information and only for management purposes. The Ministry shall ask the provider to obtain from it a sufficiently detailed extract which shall not be of a confidential nature. If the provider considers that processing of such an extract is not possible, he shall be obliged to prove it.
(3) The Ministry will disregard any information it finds that the request for confidential treatment is not justified. The Ministry shall inform the providers thereof without delay.
(4) Persons who come into contact with information found in the course of proceedings are required to maintain confidentiality, not disclose it and not abuse its knowledge.
Oral proceedings
(1) The Ministry shall order oral proceedings whenever a party so requests or considers it necessary. If a party does not attend an oral hearing, his absence may not be prejudicial to his rights.
(2) Oral information shall not be taken into account if it is not submitted by a party to the proceedings to the Ministry within the prescribed period and in writing.
(3) The date of the oral hearing referred to in paragraph 1 shall be published by the Ministry without undue delay in the Trade Journal and via the Internet and shall inform the parties in writing.
Provision of information
(1) In the course of the proceedings, the Ministry will allow the parties and the persons referred to in paragraphs 11 (b), 11 (c) and 11 (d), if they are not parties to the proceedings, to consult, at their request, all the documents relevant to the decision which do not contain confidential information and the documents submitted by one of the parties. The parties to the proceedings may submit their observations within a reasonable time limit which shall not exceed 30 days.
(2) Before drawing up the decision, the Ministry shall inform all parties to the proceedings of the essential facts underlying the decision and shall provide them with a period of 30 days to make their views known.
(3) Where the party fails to provide the necessary information within the time limit or delay the hearing, an administrative decision under this law may be given on the basis of the information available.
The Ministry shall terminate the procedure by a decision imposing a definitive countervailing duty or terminating the procedure within a maximum period of 9 months from the date of initiation of the procedure. In particularly complex cases, it shall decide not more than 15 months after the date of initiation of the procedure.
Suspension and suspension of proceedings
(1) The Ministry of Management shall suspend proceedings where the reason for the proceedings has ceased, in particular where it has been subsequently established that:
(a) the volume of imports of the subsidised product is negligible pursuant to Article 5 (b);
(b) the product is not subsidised at all or the subsidy granted does not exceed the limit laid down in Section 5 (a);
(c) the subsidy does not cause injury;
(d) the subsidy is non-countervailable;
(e) accept the exporter's undertaking pursuant to Article 21;
(f) the subsidy has been abolished.
(2) The proceeding shall not be terminated where an undertaking has been accepted by the exporter and the country of subsidy requests a continuation of the proceeding or there are other reasons for continuing the proceeding.
(3) In the event of acceptance of an undertaking of a transitional nature, the proceedings shall only be suspended until the expiry of the period for the validity of the undertaking.
(4) The decision to terminate or stay the proceedings shall be notified to the parties, the country of subsidisation and the notification of those decisions, including the justification, shall be published without undue delay in the Trade Journal and via the Internet.
(5) The Ministry will request a written opinion from the Ministry of Industry and Trade, the Ministry of Foreign Affairs, the Office for the Protection of Competition and the Directorate-General for Customs on the application for termination of proceedings. In the case of agricultural products, the Ministry of Agriculture will also request an opinion. These authorities are obliged to comment within 15 days of the date of receipt of the request, otherwise they agree to the proposal.
Imposition of countervailing duty
(1) If the Ministry finds that imports of the subsidised product cause injury or threaten to cause injury, it may issue a countervailing duty decision. The countervailing duty may be provisional or definitive.
(2) The decision imposing a countervailing duty shall apply, from the date of the acquisition of legal authority, to all declarants who, under customs procedures, propose to be placed under the customs procedure for free circulation the products referred to in the decision, provided that such products are sold or dispatched to the country by the exporters also mentioned in that decision.
(3) The countervailing duty may not exceed the subsidy granted and may not exceed the amount sufficient to eliminate or threaten to cause injury.
(4) In the decision imposing countervailing duties, the Ministry shall indicate in particular:
(a) the normal commercial description of the product;
(b) tariff subheading,
(c) the country of export and the origin of the product;
(d) the applicant's designation;
(e) the designation of the manufacturer, exporter and persons proposing the release of the subsidised product for the customs free circulation procedure;
(f) the amount of subsidy granted per unit of product expressed in cash and in the form of a percentage to its export price or customs value, if that price is not known,
(g) quantification and assessment of injury or threat to the domestic industry;
(h) the countervailing duty rate,
(i) the period of application of the countervailing duty;
(j) the country of subsidy,
(k) the date from which the countervailing duty applies.
(5) The decision to impose a countervailing duty shall be notified to all parties and to the subsidised country, including a statement of reasons, shall be published without undue delay in the Trade Journal and via the Internet. The Ministry shall send a copy of the decision imposing countervailing duties to the Directorate-General for Customs, which shall ensure its implementation without delay.
(6) If all exporters of the subsidised product are not known or if their number is high pursuant to Article 11 (2), the decision shall indicate the country of subsidy instead of the names of the exporters. In such a case, the decision imposing the countervailing duty shall apply to all the declarants who propose the release of the subsidised product under the customs free circulation procedure during the period of validity of this Decision, if the country of export or origin of the country which is designated as subsidised in the decision.
(7) Any countervailing duty may be applied for a period which is strictly necessary, not more than five years after its imposition or the date of its last review, except for the procedure laid down in Article 28.
(8) The countervailing duty may not be levied retroactively for the period prior to the initiation of the proceeding, except for the application of the definitive countervailing duty to a subsidised product for which a prohibited subsidy has been established, imported in such quantities and in such a short period that the late application of this countervailing duty could cause irreparable or hard to repair injury to the domestic industry. The definitive countervailing duty may be applied retroactively to the subsidised product in such cases, but for a maximum period of 90 days before the date on which the provisional countervailing duty was applied.
(9) The Ministry will request the Ministry of Industry and Trade, the Office for the Protection of Competition, the Ministry of Foreign Affairs and the Directorate-General for Customs to comment on the proposals for decisions imposing countervailing duties. In the case of agricultural products, the Ministry of Agriculture shall also request comments. These authorities are obliged to comment within 15 days of the date of receipt of the request, otherwise they agree to the proposal.
Provisional countervailing duty
(1) The Ministry may decide to impose an provisional countervailing duty if it finds provisionally during the proceeding that imports of the subsidised product have been caused or are threatening to cause injury to the domestic industry and that late imposition of the definitive countervailing duty may result in irreparable or hard to eliminate injury to the domestic industry.
(2) The provisional countervailing duty may be imposed for a fixed period of time, but not more than 4 months from the date on which the decision imposing that duty was taken.
(3) Provisional countervailing duties may be imposed subject to the following conditions:
(a) a proceeding has been initiated pursuant to Article 10 and at least 60 days have elapsed since the initiation of the investigation pursuant to Article 8;
(b) the parties were given the opportunity to submit information and comments,
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Regulation Information
| Citation | Act No. 63 / 2000 Coll., on protection against subsidised imports and amending Act No. 2 / 1969 Coll., on the establishment of ministries and other central government bodies of the Czech Republic, as amended |
|---|---|
| Regulation Type | Law |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 29.03.2000 |
|---|---|
| Effective from | 01.04.2000 |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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