On signing an Agreement on the procedure for the voluntary approval by the member States of the Eurasian Economic Union with the Eurasian Economic Commission of specific subsidies for industrial goods and the conduct by the Eurasian Economic Commission of proceedings related to the provision of specific subsidies by the member States of the Eurasian Economic Union
Decree of the President of the Republic of Kazakhstan dated May 16, 2017 No. 478
In accordance with Article 8 of the Law of the Republic of Kazakhstan dated May 30, 2005 "On International Treaties of the Republic of Kazakhstan", I HEREBY DECREE:
1. To approve the attached draft Agreement on the procedure for the voluntary coordination by the member States of the Eurasian Economic Union with the Eurasian Economic Commission of specific subsidies for industrial goods and the conduct by the Eurasian Economic Commission of Proceedings related to the Provision of Specific Subsidies by the Member States of the Eurasian Economic Union (hereinafter referred to as the Agreement).
2. To authorize Bakytzhan Abdirovich Sagintayev, Prime Minister of the Republic of Kazakhstan, to sign an Agreement on behalf of the Republic of Kazakhstan, authorizing amendments and additions that are not of a fundamental nature.
3. This Decree shall enter into force from the date of its signing.
President
Republic of Kazakhstan
N.Nazarbayev
Approved by Decree of the President of the Republic of Kazakhstan on May 16, 2017 No. 478
Project
Agreements on the procedure for the voluntary coordination by the member States of the Eurasian Economic Union with the Eurasian Economic Commission of specific subsidies for industrial goods and the conduct by the Eurasian Economic Commission of proceedings related to the provision of specific subsidies by the member States of the Eurasian Economic Union
The Member States of the Eurasian Economic Union, hereinafter referred to as the Member States,
guided by the provisions of the Treaty on the Eurasian Economic Union of May 29, 2014 (hereinafter referred to as the Treaty),
in order to implement the provisions of article 93 of the Treaty and the Protocol on Common Rules for the Provision of Industrial Subsidies (Annex No. 28 to the Treaty) (hereinafter referred to as the Protocol),
Realizing the importance of creating conditions for the functioning and development of the Eurasian Economic Union (hereinafter referred to as the Union), as well as for the development of industrial production,
in order to increase transparency and predictability in the provision by Member States of State support to the industrial sectors of the economy,
Expressing its desire to ensure conditions for the creation of a transparent and predictable environment in the field of the provision by Member States of specific subsidies for industrial goods in relation to the assessment of subsidies implemented by Member States,
Taking into account generally recognized principles and norms of international law,
following the principles, norms and rules of the World Trade Organization,
have agreed on the following:
I General provisions
Article 1 Subject of regulation
This Agreement regulates issues of interaction between the Member States and the Eurasian Economic Commission (hereinafter referred to as the Commission) in connection with the provision of specific subsidies by the Member States for industrial goods, defines the procedure for voluntary coordination with the Commission of the provision of specific subsidies by the Member States (hereinafter referred to as coordination), as well as the Commission's proceedings related to the provision of-members of specific subsidies.
Article 2The Responsible Department
The functions related to the approval procedure and the conduct of proceedings related to the provision of a specific subsidy by a Member State are performed by the structural unit of the Commission, which is responsible for ensuring the implementation of industrial policy and industrial subsidies (hereinafter referred to as the responsible department).
Article 3 Definitions
For the purposes of this Agreement, concepts are used that mean the following::
An "insignificant subsidy" is a subsidy that, due to its small size, cannot have a significant impact on the Union market.;
"joint project" is a project involving Member States aimed at deepening industrial cooperation and cooperation and providing for the fulfillment of one of the following conditions:
conducting joint development work;
establishment of enterprises (production lines);
development of new types of technologies and provision of information related to these types of technologies;
formation of a joint innovation infrastructure;
"authorized body" means the executive authority of a Member State, whose powers include issues related to the implementation of this Agreement.
Other concepts used in this Agreement are applied in the meanings defined by the Treaty and international treaties within the Union.
II The procedure for approving and making a decision by the Commission on the admissibility or inadmissibility of specific subsidies
Article 4 Approval procedure
1. A Member State may apply to the Commission in order to approve a specific subsidy by submitting an appropriate application in accordance with the procedure provided for in Article 5 of this Agreement.
2. The approval is carried out on a voluntary basis.
3. In accordance with paragraph 6 of the Protocol, Member States do not apply compensatory measures to subsidies, the terms, amounts and conditions of which are agreed upon by the Commission.
4. The approval procedure includes:
1) conducting an analysis of a specific subsidy by the responsible department in accordance with Article 7 of this Agreement in order to determine whether a specific subsidy meets or does not meet the criteria provided for in Articles 10 and 11 of this Agreement (hereinafter referred to as the analysis);
2) holding consultations in accordance with Article 8 of this Agreement;
3) preparation, based on the results of the approval, of an opinion on the compliance or non-compliance of a specific subsidy with the criteria provided for in Articles 10 and 11 of this Agreement (hereinafter referred to as the conclusion based on the results of the approval).
5. As part of the approval procedure, the responsible department does not analyze whether there is material damage to a branch of the national economy, the threat of material damage to a branch of the national economy, or serious infringement of the interests of Member States due to the provision of a specific subsidy by one of the Member States.
6. Based on the results of the agreement, the Commission makes a decision on the admissibility or inadmissibility of a specific subsidy in accordance with Article 9 of this Agreement, with the exception of the case provided for in paragraph 4 of Article 9 of this Agreement.
Article 5 Review by the Commission of applications from Member States for the approval of specific subsidies
1. Approval of a specific subsidy planned to be provided or provided is carried out on the basis of an application from the authorized body sent to the Commission for approval of a specific subsidy (hereinafter referred to as the application). The responsible Department shall inform the authorized bodies of other Member States of the receipt of the application by the Commission within 5 working days from the date of its registration with the Commission.
2. The application contains the following information:
1) information about the authorized body that sent the application;
2) information about the authorized body (structure authorized by the Member state) responsible for the implementation of the subsidy;
3) information about the regulatory legal act (draft regulatory legal act) providing for the provision of a specific subsidy (details and name);
4) information confirming the specificity of the subsidy;
5) a description of the specific subsidy, the form and purpose of its provision;
6) information about the potential recipient and source of funding;
7) information about the industry and the product (indicating the code of the unified Commodity nomenclature of foreign economic activity of the Eurasian Economic Union (hereinafter referred to as the EAEU Customs Code);
8) the period for which a specific subsidy is provided;
9) the amount of the specific subsidy;
10) information on the impact of a specific subsidy on the internal market of the Union.
3. The application form and the procedure for completing it are approved by the Board of the Commission.
4. If the authorized body that sent the application submits the documents and information provided for in paragraph 2 of this article in full, the responsible department, within a period not exceeding 10 working days from the date of registration of the application with the Commission, decides to initiate the approval procedure and sends a corresponding notification to the authorized bodies.
5. The notification of the start of the approval procedure must contain:
1) the name of the Member State that submitted the application;
2) information about the administrative-territorial unit of the Member State in which a specific subsidy is planned or provided;
3) the name of the authorized body that sent the application;
4) a brief description of the specific subsidy, information about the purpose of its provision and the potential recipient;
5) information about the regulatory legal act (draft regulatory legal act) providing for the provision of a specific subsidy (details and name);
6) information about the industry and the product (indicating the EAEU HS code);
7) the period for which a specific subsidy is provided;
8) the amount of a specific subsidy.
6. If the authorized body that sent the application fails to provide the documents and information provided for in paragraph 2 of this Article in full, the responsible department, within a period not exceeding 10 working days from the date of registration with the Commission of the application, requests from this authorized body the missing documents and (or) information. Such a request is considered received after 7 calendar days from the date it was sent by mail.
The authorized body that sent the application, within a period not exceeding 30 calendar days from the date of receipt of the specified request, submits the missing documents and (or) information.
If the authorized body that sent the application is unable to provide the documents and/or information requested by the responsible department within the prescribed period, the specified period may be extended by the responsible department for 30 calendar days at the reasoned and written request of this authorized body.
The responsible Department, within 5 working days from the date of registration of the missing documents and (or) information with the Commission, decides to initiate the approval procedure and notifies the authorized bodies about it.
Failure by the authorized body to provide the missing documents and (or) information within the time period established by the second paragraph of this paragraph or by the responsible department in accordance with the third paragraph of this paragraph is the basis for rejecting the application. In this case, the responsible department notifies the authorized body that sent the application.
7. The application may be withdrawn by the authorized body that sent the application before the decision is made by the Board of the Commission.
Article 6 Refusal to conduct the approval procedure
1. The responsible department refuses to carry out the approval procedure if there are the following grounds::
1) if the provision by a Member State of a specific subsidy, which is the subject of the approval procedure, has resulted in material damage to a branch of the national economy of another Member State or a threat of material damage to a branch of the national economy of another Member State, proven in accordance with section V of the Protocol or section IV of this Agreement;
2) if the provision by a Member State of a specific subsidy, which is the subject of the approval procedure, has led to a serious infringement of the interests of any of the Member States, proven in accordance with section V of the Protocol or section IV of this Agreement;
3) if the specific subsidy requested by the authorized body is the subject of an investigation provided for in section V of the Protocol or proceedings provided for in section IV of this Agreement.
2. The responsible Department, within 10 working days from the date of registration of the application with the Commission, notifies the authorized body that sent the application and other authorized bodies of the refusal to carry out the approval procedure.
Article 7The conduct of the analysis
1. After making a decision to start the approval procedure, the responsible department conducts an analysis.
During the analysis, the responsible department ensures that consultations are conducted in accordance with Article 8 of this Agreement.
2. Authorized bodies may submit to the Commission additional information necessary for the Commission to analyze and decide on the admissibility or inadmissibility of a specific subsidy during the entire period of the approval procedure, including at the request of the responsible department.
3. The deadline for the responsible department to conduct an analysis and prepare an opinion on the results of the approval is 30 working days from the date the responsible department sends a notification to the authorized bodies about the start of the approval procedure.
4. Based on the results of the analysis, the responsible department prepares an opinion on the results of the coordination (setting out the relevant evidence and recommendations (if necessary) regarding the regulatory legal act (draft regulatory legal act) providing for the provision of a specific subsidy).
Article 8The conduct of consultations
1. As part of the agreement, the authorized body has the right to initiate consultations at the Commission's site by sending a corresponding proposal to the Commission. The responsible Department informs the authorized bodies of other Member States about this and ensures consultations.
2. If a representative of the authorized body of the applicant State is not present at the consultations, consultations will not be held.
The absence of representatives of authorized bodies of other Member States at the consultations, informed of the date, place and time of the consultations, is not an obstacle to consultations.
3. During the consultations, representatives of the authorized bodies may provide additional information and explanations confirming the position of the relevant authorized bodies on the issue under consideration.
The position of the authorized body is attached to the minutes of the consultations (if it is submitted to the Commission within 5 working days from the date of the consultations).
4. The consultation protocol is signed by the head (deputy head) of the responsible department and sent to the authorized bodies within 7 working days from the date of the consultation.
Article 9The adoption of a decision on the admissibility or inadmissibility of a specific subsidy
1. The decision on the admissibility or inadmissibility of a specific subsidy is made by the Board of the Commission on the basis of an opinion based on the results of the agreement.
2. If a specific subsidy meets the criteria provided for in Article 10 of this Agreement, the Board of the Commission shall decide on the inadmissibility of a specific subsidy.
3. If a specific subsidy does not meet the criteria provided for in Article 10 of this Agreement and meets one or more criteria provided for in Article 11 of this Agreement, the Board of the Commission shall decide on the admissibility of the specific subsidy.
4. If a specific subsidy does not meet the criteria provided for in Article 10 of this Agreement and does not meet any criteria provided for in Article 11 of this Agreement, a member of the Board of the Commission in charge of industry issues shall report this at a meeting of the Board of the Commission and no decision on the admissibility or inadmissibility of such subsidy shall be taken.
In this case, if there is a written request from the authorized body that sent the application, the responsible department conducts an analysis to determine whether there is a threat of material damage to the national economy due to the provision of such a specific subsidy.
The procedure for conducting the analysis provided for in the second paragraph of this paragraph shall be established by the Council of the Commission.
5. Based on the results of the analysis provided for in paragraph 4 of this article, the issue of approving the criterion for the admissibility or inadmissibility of a specific subsidy, according to which the Board of the Commission decides on the admissibility or inadmissibility of a specific subsidy specified in paragraph 4 of this article, is submitted in accordance with the established procedure for consideration at a meeting of the Eurasian Intergovernmental Council.
III The permissibility or non-permissibility of a specific subsidy
Article 10 Criteria for the inadmissibility of a specific subsidy
1. The criterion for the inadmissibility of a specific subsidy is the content in the normative legal act (draft normative legal act) providing for the provision of a specific subsidy of provisions indicating the presence of prohibited subsidies defined in paragraphs 9, 11 and 14 of the Protocol.
2. The Eurasian Intergovernmental Council may define other criteria for the inadmissibility of specific subsidies.
Article 11 Criteria for the admissibility of a specific subsidy
1. A specific subsidy is acceptable if it meets one or more of the following criteria:
1) a specific subsidy is insignificant (in the amount of 100 thousand dollars per recipient (enterprise));
2) a specific subsidy is aimed at the implementation of a joint project, including in accordance with the main directions of industrial cooperation within the Union, approved by the Eurasian Intergovernmental Council. Such joint projects should be aimed at the production of products that are not produced or are produced in insufficient quantities in the customs territory of the Union.;
3) a specific subsidy is aimed at carrying out research and development activities, including joint ones, in order to stimulate high-tech industries;
4) a specific subsidy is aimed at innovation activities;
5) a specific subsidy is aimed at the production of industrial goods that have no analogues in the customs territory of the Union;
6) a specific subsidy is aimed at the production of industrial goods (the code of which is defined at the level of 10 characters of the Customs Code of the EAEU), which are produced in insufficient quantities in the customs territory of the Union;
7) a specific subsidy is aimed at compensating for material damage caused by natural disasters or any other emergency incidents, in the amount necessary to repair the damage caused.;
8) a specific subsidy is aimed at helping enterprises pay up to half the cost of consulting services, services for organizing participation in trade fairs, conducting basic research (including on a large scale), implementing applied industrial developments (up to 70 percent of their cost), and the cost of obtaining licenses and industrial property rights (in an amount equal to the cost of conducting research work, which resulted in obtaining such rights).
The average number of employees of such enterprises is established by the Council of the Commission.
9) a specific subsidy is aimed at helping to improve the professional qualifications of employees of enterprises:
subsidizing programs aimed at improving the overall level of professional training of employees of enterprises, within 50 percent of their cost for enterprises with an average number of employees in the previous calendar year exceeding 250 people, and within 70 percent for enterprises with an average number of employees in the previous calendar year not exceeding 250 people;
10) a specific subsidy is aimed at providing assistance to enterprises in an unstable or crisis financial situation and undergoing restructuring.
It is allowed to subsidize enterprises that have proven their unstable or crisis financial condition.
An unstable financial situation is characterized by a violation of financial discipline (delays in payment, use of funds from the reserve fund, etc.), interruptions in the flow of funds to the company's current accounts and payments, irregular revenue and profit flows.
The crisis financial situation is characterized, along with the signs of instability indicated in the third paragraph of this subparagraph, by the presence of regular non-payments (overdue loans from banks, debts to suppliers for inventory, arrears in payments to budgets and extra-budgetary funds).
Organizations can receive subsidies for restoring financial stability and restructuring after 3 years from the date of their state registration.
The company's own financial contribution to the restructuring must be at least 25 percent, unless otherwise provided by a decision of the Board of the Commission.
Such a subsidy can be agreed upon for the duration of the company's recovery from the crisis to a stable state, but not more than 5 years.
11) a specific subsidy is provided for the purposes and conditions stipulated in section VII of the Protocol.;
12) a specific subsidy is aimed at providing assistance to enterprises that are in the initial stage of formation, if the subsidy level does not exceed 30 percent of the total amount of investments.;
13) a specific subsidy is aimed at providing assistance in order to adapt existing production facilities to Union standards:
reimbursement of the costs of testing products in order to assess their compliance with the requirements of the technical regulations of the Union;
reimbursement of costs for the construction and modernization of testing laboratories;
14) a specific subsidy is aimed at providing assistance in order to ensure that industrial products comply with the requirements of relevant international standards or interstate standards adopted on their basis that are identical to relevant international standards.;
15) a specific subsidy is granted in respect of an industrial product recognized as jointly produced by the Member States in accordance with the procedure determined by the Commission.
2. Conditions for the application of the criteria specified in the sub-paragraphs 1) - 4), 6) - 10), 12) and 15) of paragraph 1 of this Article, established by the Council of the Commission.
3. The Eurasian Intergovernmental Council may define other criteria for the admissibility of specific subsidies.
Article 12 Procedure for obtaining information
1. In accordance with paragraph 6 of article 93 of the Treaty, the Commission monitors and conducts a comparative legal analysis of the legislation of the Member States for compliance with the provisions of the Treaty regarding the provision of subsidies.
2. In order to monitor and conduct a comparative legal analysis of the legislation of the Member States for compliance with the provisions of the Treaty on the provision of subsidies, the authorized bodies:
Every year, no later than July 1 of the year following the reporting year, they submit to the Commission a notification of the specific subsidies provided, agreed with the Commission.;
On a quarterly basis, no later than the 30th day of the month following the reporting quarter, regulatory legal acts adopted in the reporting quarter providing for the provision of specific subsidies are sent to the Commission and to each other.;
After the interdepartmental coordination, draft regulatory legal acts providing for the provision of specific subsidies to producers of goods classified as sensitive goods in accordance with the main directions of industrial cooperation within the Union, approved by the Eurasian Intergovernmental Council, are sent to the Commission and to each other by way of mandatory notification.
According to regulatory legal acts published in open sources, authorized bodies send information to the Commission containing the details and sources of publication of such acts.
Regulatory legal acts providing for the provision of specific subsidies that have not been published in open sources are sent by authorized bodies to the Commission.
3. In accordance with the established procedure, the Commission conducts a comparative legal analysis of the regulatory legal acts of the Member States providing for the provision of specific subsidies for their compliance with article 93 of the Treaty and the Protocol.
4. If a Member State fails to provide a specific subsidy agreed with the Commission during the reporting period, the responsible department shall notify the Member States accordingly.
5. A Member State may apply to the Commission with a proposal to conduct a comparative legal analysis of regulatory legal acts or draft regulatory legal acts of the requesting Member State providing for the provision of subsidies, with a view to their compliance with article 93 of the Treaty and the Protocol in accordance with the procedure determined by the Commission.
6. The notification provided for in the second paragraph of paragraph 2 of this Article shall specify:
1) details of the decision of the Board of the Commission on the admissibility of a specific subsidy;
2) criteria on the basis of which a specific subsidy is agreed;
3) the name of the regulatory legal act in accordance with which the specific subsidy is provided;
4) the period for which information is provided;
5) a description of the form of a specific subsidy and the purpose of its provision;
6) the recipient and the method of providing a specific subsidy;
7) the amount and duration for which a specific subsidy is provided.
7. The notification form for specific subsidies agreed with the Commission, as well as the procedure for completing it, are approved by the Commission's Council.
IV Conducting proceedings on the provision of specific subsidies by Member States
Article 13 Grounds for initiating proceedings
A Member State may apply to the Commission to initiate proceedings on the provision of specific subsidies by Member States if there are the following grounds::
causing material damage to a branch of the national economy due to the provision of a specific subsidy by another Member State;
the threat of material damage to a branch of the national economy due to the provision of a specific subsidy by another Member State;
serious infringement of the interests of a Member State due to the provision of a specific subsidy by another Member State.
Article 14 Adoption of a decision on the commencement of proceedings
1. The proceedings referred to in Article 13 of this Agreement shall be conducted by the Commission on the basis of an application from the authorized body of the Member State for the commencement of proceedings submitted to the Commission in confidential or non-confidential versions (if the application contains confidential information).
2. The application for the commencement of the proceedings shall specify:
1) the name of the authorized body of the applicant State;
2) Product name and description;
3) a list of regulatory legal acts on the basis of which a specific subsidy is provided;
4) information about the nature and amount of a specific subsidy;
5) information about the manufacturers of the subsidized product;
6) information about national producers of similar goods;
7) information on changes in the volume of imports of subsidized goods into the territory of the applicant State for the 3 calendar years preceding the date of filing the application;
8) information on changes in the volume of exports of similar goods from the territory of the applicant State to the territories of other Member States for the 3 calendar years preceding the date of filing the application;
9) information on the availability and volume of production of goods in the territory of the applicant state (in quantitative and monetary terms) for the 3 calendar years preceding the date of filing the application;
10) information on the availability of production of similar goods in the territories of other Member States for the 3 calendar years preceding the date of filing the application;
11) evidence of material damage to a branch of the national economy, the threat of material damage to a branch of the national economy, or serious infringement of the interests of a Member State as a result of the provision of a specific subsidy by another Member State;
12) information on changes in the volume of imports of similar goods into the customs territory of the Union for the 3 calendar years preceding the date of filing the application;
13) information on changes in the volume of exports of similar goods (in quantitative and monetary terms) from the customs territory of the Union for the 3 calendar years preceding the date of filing the application;
14) analysis of other factors that could have an impact on the branch of the national economy during the analyzed period;
15) the conclusions of the authorized body of the applicant State, which are the basis for the commencement of the proceedings.
3. The information provided in the application for the commencement of the proceedings must be accompanied by a reference to the source of their receipt.
4. The application form for the commencement of proceedings, as well as the procedure for completing it, are approved by the Board of the Commission.
5. When specifying the cost indicators contained in the application for the commencement of proceedings, for the purposes of comparability, the monetary unit established by the Commission for the maintenance of statistics on foreign and mutual trade of the Member States is used.
6. The date of filing an application for the commencement of proceedings is the date of its registration with the Commission.
7. From the date of registration with the Commission of the application for the commencement of proceedings, the responsible department shall, within 3 working days, notify in writing the authorized body of the Member State in whose territory the specific subsidy is provided of the receipt of such an application.
8. The responsible department examines the sufficiency of the evidence and information contained in the application.
If the authorized body of the applicant State fails to provide the full list of information provided for in paragraph 2 of this article, the responsible department has the right to request the missing materials and information within 5 working days from the date of registration with the Commission of the application for the commencement of proceedings.
A request for the submission of missing materials and information is considered received 7 calendar days after the date it was sent by mail.
The authorized body of the applicant State submits the missing information within a period not exceeding 15 working days from the date of receipt of the specified request.
9. Failure to provide or incomplete submission of the information provided for in paragraph 2 of this article is grounds for rejecting an application to initiate proceedings, which the authorized body of the applicant State and the authorized body of the subsidizing Member State are notified by the responsible department within a period not exceeding 5 working days from the date of such decision.
The decision to reject an application to initiate proceedings is made by the responsible department within a period not exceeding 45 working days from the date of registration of the application.
10. A decision to refuse to conduct proceedings shall be taken if, based on the results of consideration of the application, it is revealed that the information provided for in paragraph 2 of this article does not indicate material damage to a branch of the national economy, the threat of material damage to a branch of the national economy, or serious infringement of the interests of a Member State as a result of the provision of a specific subsidy by another Member State.
When making a decision to refuse to conduct proceedings, the responsible department shall notify the authorized body of the applicant State and the authorized body of the subsidizing Member State of the reason for the refusal to conduct the proceedings in writing within no more than 5 working days from the date of such decision.
11. The decision to initiate proceedings or to refuse to conduct them is made by the responsible department within a period not exceeding 45 working days from the date of registration of the application with the Commission.
Article 15The conduct of the proceedings
1. When making a decision to initiate proceedings, the Commission, within 5 working days from the date of making such a decision, shall send the notification provided for in Article 17 of this Agreement to the authorized bodies.
2. The responsible department, within 5 working days from the date of the decision to initiate the proceedings, shall send to the authorized body of the subsidizing Member State a copy of the application or its non-confidential version (if the application contains confidential information).
At the request of the Member State concerned, the responsible department shall provide it with a copy of the application or a non-confidential version of it (if the application contains confidential information).
3. An application for the commencement of proceedings may be withdrawn by the applicant State before or during the proceedings.
An application is considered to be unsubstantiated if it is withdrawn before the start of the proceedings.
If the application is withdrawn during the proceedings, the proceedings are terminated.
4. The duration of the proceedings should not exceed 9 months from the date of the decision to initiate the proceedings.
5. Upon completion of the proceedings, the Commission shall send a notification of the completion of the proceedings to the authorized bodies, accompanied by the conclusion provided for in article 21 of this Agreement.
The date of notification is the date of completion of the proceedings.
Article 16The conduct of consultations in the framework of the procedure of the proceedings
1. Prior to the decision to initiate proceedings, as well as throughout the entire period of the proceedings, the Commission may hold consultations on the Commission's site, either on its own initiative or at the suggestion of the authorized body of the applicant State or the authorized body of the subsidizing Member State, in order to clarify the factual circumstances or reach a mutually acceptable solution.
2. The responsible department informs the authorized bodies about the consultations and ensures that they are conducted.
3. If a representative of the authorized body of the applicant State and/or the authorized body of the subsidizing Member State is not present at the consultations, consultations will not be held.
The absence of representatives of authorized bodies of other Member States at the consultations, informed of the date, place and time of the consultations, is not an obstacle to their holding.
4. During the consultations, representatives of the authorized bodies may provide additional information and explanations confirming the position of the authorized body on the issue under consideration.
The position of the authorized body submitted to the Commission based on the results of consultations within 5 working days from the date of their holding is attached to the minutes of consultations.
5. The consultation protocol is signed by the head (deputy head) of the responsible department and sent to the authorized bodies no later than 7 working days from the date of the consultations.
Article 17 Notification of the proceedings
The notification of the commencement of the proceedings must contain the following information:
name of the authorized body of the applicant State;
product name and description (with indication of the EAEU HS code);
summary of the grounds for applying to the Commission for the conduct of the proceedings;
an e-mail address to which authorized bodies of other Member States can send their comments and information related to the proceedings.
Article 18 Collection of information during the proceedings
1. After making a decision to initiate proceedings, the responsible department sends a list of issues (hereinafter referred to in this article as the list of issues) to the authorized body of the subsidizing Member State and the authorized body of the applicant State.
At the request of the Commission, the list of questions is sent by the authorized body to the manufacturers of the subsidized product or similar product (according to the list of manufacturers compiled by the Commission).
The list of questions is considered received after 7 calendar days from the date it was sent by mail.
2. The authorized bodies of the applicant State and the subsidizing Member State to which the list of questions has been sent shall submit responses to the Commission within a period not exceeding 45 calendar days from the date of receipt of the list of questions.
The authorized bodies of the applicant State and the subsidizing Member State to which the list of questions has been sent shall ensure that the responses of the manufacturers of the subsidized product or similar product are submitted to the Commission within a period not exceeding 60 calendar days from the date of receipt of the list of questions.
If it is impossible for the authorized bodies to provide information on certain issues of the list of issues, the relevant justification is sent to the Commission.
3. After receiving answers on certain issues of the list of issues, the Commission may send a request to the authorized bodies in order to clarify the information or obtain additional information necessary for the conduct of the proceedings. The deadline for the submission by the authorized bodies of the applicant State and the subsidizing Member State of the specified information, including information received from manufacturers of subsidized goods or similar goods, may not exceed 15 calendar days from the date of receipt of the Commission's request.
4. The information is submitted to the Commission in Russian. Documents drawn up in the official language of the Member State are accompanied by a translation into Russian.
5. During the course of the proceedings, the Commission has the right to send requests to the public authorities of the applicant State and the subsidizing Member State for the provision of information necessary for the conduct of the proceedings.
The public authorities of the applicant State and the subsidizing Member State shall send to the Commission the information necessary for the conduct of the proceedings within 30 calendar days from the date of receipt of the Commission's request.
Article 19 Participation in the proceedings of the Member States concerned
1. Authorized bodies of other Member States may, within a period not exceeding 15 calendar days from the date of the decision to initiate proceedings, send to the Commission a statement of intent to participate in the proceedings as an interested party (hereinafter referred to as the interested party).
Comments and information related to the proceedings shall be submitted by the interested party to the Commission within a period not exceeding 30 calendar days from the date of registration with the Commission of the statement of intent to participate in the proceedings.
Stakeholders who submit confidential information to the Commission also submit a non-confidential version of such information.
The non-confidential version should contain detailed information necessary to understand the nature of confidential information.
2. The responsible department has the right to request from the interested party additional information necessary for the conduct of the proceedings. The deadline for the interested party to submit the specified information may not exceed 15 calendar days from the date of receipt of the relevant request from the Commission.
The request is considered received after 7 calendar days from the date of its sending to the interested party by mail.
Additional information provided by the interested party after the expiration of the specified period may not be taken into account by the responsible department.
At the reasoned and written request of the interested party, the deadline for submitting additional information may be extended by the responsible department for 30 calendar days.
3. During the proceedings, the Commission provides interested parties, upon their request, with the opportunity to familiarize themselves with information related to the subject matter of the proceedings (with the exception of confidential information).
Article 20 Determination of material damage or threat of material damage to a branch of the national economy or serious infringement of the interests of a Member State due to the provision of a specific subsidy
1. Material damage to a branch of the national economy as a result of the import of subsidized goods is established based on the results of an analysis of the volume of imports of actually subsidized goods and the impact of such imports on the prices of similar goods on the market of the applicant State and the branch of the national economy.
2. The period for which information is analyzed in order to determine whether there is material damage to a branch of the national economy or a threat of material damage to a branch of the national economy is determined by the Commission and may not be less than 3 years preceding the date of filing the application.
3. When analyzing the volume of imports of actually subsidized goods, it is determined whether there has been a significant increase in imports of subsidized goods (in absolute terms or relative to the production or consumption of similar goods in the applicant State).
When analyzing the impact of the import of subsidized goods on the prices of similar goods on the market of the applicant State, the following are established:
were the prices of the subsidized goods significantly lower than the prices of a similar product on the applicant State's market;
has the import of subsidized goods led to a significant reduction in the prices of similar goods on the market of the applicant State;
whether the import of the subsidized product prevented the price increase for a similar product on the market of the applicant State, which would have occurred in the absence of such importation.
The analysis of the impact of the import of subsidized goods on the branch of the national economy consists in assessing all economic factors related to the state of the branch of the national economy, including:
a reduction in production, sales of goods, the share of goods in the national market, profits, productivity, income from attracted investments or the use of production facilities that has occurred or is possible in the future;
factors affecting the prices of similar goods on the market of the applicant State;
the negative impact that has occurred or is possible in the future on cash flows, stocks of goods, employment levels, wages, production growth rates and the possibility of attracting investments.
4. The impact of the import of subsidized goods on a branch of the national economy is assessed in relation to the production of similar goods in the applicant State if the available data allow us to distinguish the production of similar goods in that Member State based on criteria such as the production process, the sale of goods by their manufacturers and profit.
If the available data do not allow us to single out the production of a similar product, the impact of the import of a subsidized product on a branch of the national economy is assessed in relation to the production of the narrowest group or range of goods that include a similar product and about which the necessary data is available.
5. When determining the threat of material damage to a branch of the national economy due to the import of subsidized goods, the Commission takes into account all available factors, including:
the nature and amount of the subsidy(s) and its possible impact on trade;
the growth rate of imports of subsidized goods, indicating the real possibility of a further increase in such imports;
whether producers of subsidized goods in the subsidizing Member State have sufficient opportunities to increase imports of subsidized goods into the territory of other Member States or the threat of an increase in such imports;
the price level of the subsidized product, if such a price level can lead to a decrease or deterrence of price growth of a similar product on the market of the applicant state and a further increase in demand for the subsidized product;
The manufacturer has stocks of subsidized goods.
At the same time, these factors cannot be decisive for determining the threat of material damage to the national economy due to the import of subsidized goods.
6. A decision on the threat of material damage to a branch of the national economy shall be taken if, during the investigation, based on the analysis of the factors specified in paragraphs 1-5 of this article, the Commission has concluded that it is inevitable that the subsidized goods will continue to be imported into the territory of the applicant State and that such importation will cause damage to the branch of the national economy.
7. The fact of displacement of a similar product from the market of a subsidizing member State or from the market of another Member State, or curbing the growth of imports of similar goods into the territory of the subsidizing Member State, or curbing the growth of exports of goods to the territory of another Member State, shall be established if it is proved that there has been an unfavorable change in the share of a similar product in the market of the subsidizing State-a Member State or on the market of another Member State in relation to the subsidized product. This fact is established for a period sufficient to prove clear trends in the development of the market of the relevant product, which under normal conditions should be at least 1 year.
8. An unfavorable change in the share of a similar product in the market of a subsidizing Member State or in the market of another Member State includes one of the following situations:
1) the market share of the subsidized product is increasing;
2) the market share of the subsidized product remains unchanged in circumstances in which, in the absence of a specific subsidy, it should have decreased.;
3) the market share of the subsidized product is falling, but at a slower rate than it would occur in the absence of a specific subsidy.
9. The underestimation of prices is established on the basis of comparing the prices of the subsidized goods on the relevant market with the prices of goods that were not used for production, transportation or export to the territory of any of the Member States of which a specific subsidy was used. Prices are compared at the same trading level and over comparable time periods. In the course of price comparison, any factors affecting comparability are taken into account. If it is not possible to make the specified price comparison, the presence of underestimation of prices can be established on the basis of average export prices.
10. The fact of a serious infringement of interests cannot be established if one of the following circumstances exists during the relevant period of time:
1) the existence of a ban or restrictions on the export of goods from the territory of a member State, establishing the existence of a serious infringement of interests, or a ban or restrictions on the import of goods from the territory of such a state to the market of another Member State;
2) the adoption by the authorized body of a member state that imports a similar product and practices a trade monopoly or state trade in this product, a decision for non-commercial reasons to redirect the import of goods from the territory of a member state, establishing the fact of a serious infringement of interests, to import from another member State;
3) natural disasters, strikes, transport disruptions or other force majeure circumstances that have a serious negative impact on the production, quality, quantity or price of goods intended for export from the territory of a Member State that establishes the existence of a serious infringement of interests;
4) the existence of agreements restricting the export of goods from the territory of a Member State, establishing the existence of a serious infringement of interests;
5) voluntary reduction of the possibility of exporting industrial goods from the territory of a Member State that establishes the existence of a serious infringement of interests (including a situation where the economic entities of this Member State have independently reoriented the export of similar goods to new markets);
6) non-compliance with standards and/or other administrative requirements in the Member State into whose territory the goods are imported.
11. The conclusion that there is a causal relationship between the import of subsidized goods and material damage to a branch of the national economy should be based on an analysis of all evidence and information related to the proceedings available to the Commission.
12. In the course of the proceedings, the responsible department, in addition to the import of subsidized goods, also analyzes other known factors that cause material damage to a branch of the national economy during the same period.
Article 21The adoption of a decision based on the results of the proceedings
1. Following the results of the proceedings, the responsible department prepares one of the following conclusions:
conclusion on the existence of material damage to a branch of the national economy, the threat of material damage to a branch of the national economy, or serious infringement of the interests of the applicant State as a result of the provision of a specific subsidy by another Member State;
a conclusion on the absence of material damage to a branch of the national economy, the threat of material damage to a branch of the national economy, or serious infringement of the interests of the applicant State as a result of the provision of a specific subsidy by another Member State.
2. The conclusion referred to in paragraph 1 of this article is signed by the head (deputy head) of the responsible department, approved by a member of the Board of the Commission, whose competence includes industrial issues, and included in a set of documents and materials prepared for consideration at a meeting of the Board of the Commission.
3. Following the results of the proceedings, based on the conclusion, the Board of the Commission may decide to eliminate or change, within the prescribed period, the conditions, procedure for granting and (or) using a specific subsidy that leads to material damage to a branch of the national economy, the threat of material damage to a branch of the national economy, or serious infringement of the interests of the applicant State.
If a Member State indicates that the information it sends during the proceedings relates to information of limited distribution, the Commission's decisions (draft decisions) on the results of the proceedings conducted using such information shall be published, taking into account article 111 of the Treaty.
4. If, following the results of the proceedings conducted in accordance with Article 15 of this Agreement, the Commission confirms the existence of material damage to a branch of the national economy of one of the Member States, the threat of material damage to a branch of the national economy or serious infringement of its interests as a result of the provision of a specific subsidy by another Member State, the authorized body of such State may transfer to the authorized body application for the application of a compensatory measure to the authority of the subsidizing Member State, with the exception of agreed specific subsidies.
In respect of agreed specific subsidies, if the Board of the Commission makes a decision provided for in paragraph 3 of this Article, the authorized body of the subsidizing Member State shall terminate the provision of these subsidies from the date of such decision.
The introduction of a compensatory measure is carried out in accordance with the Protocol.
5. The decision of the Board of the Commission provided for in paragraph 3 of this article shall not be taken if, after the conclusion of the proceedings and before the decision is taken, the Member States participating in the proceedings have reached an agreement, taking into account the provisions of paragraph five of paragraph 6 of the Protocol.
6. If the Member State in respect of which the decision of the Board of the Commission referred to in paragraph 3 of this Article is adopted does not comply with it, the other Member States have the right to apply to the Court of the Union.
Article 22 Confidential information
With respect to information provided by a Member State to the Commission as part of the implementation of this Agreement and classified as confidential in accordance with the legislation of the Member State (including commercial, tax and other confidential information), the Commission shall ensure an appropriate level of protection in accordance with the established procedure.
V Final provisions
Article 23information about authorized bodies
The Member States shall inform the Commission about the authorized bodies within 3 months from the date of entry into force of this Agreement.
The Member States shall ensure that information on authorized bodies submitted to the Commission is updated.
Article 24 Dispute resolution
Disputes related to the interpretation and/or application of this Agreement are resolved in accordance with the procedure established by the Agreement.
Article 25 Introduction of amendments and additions
By mutual agreement of the Member States, amendments and additions may be made to this Agreement, which are formalized in separate protocols and are integral parts of this Agreement.
Article 26The entry into force of the Agreement
This Agreement shall enter into force on the date of receipt by the depositary, through diplomatic channels, of the last written notification on the completion by the Member States of the internal procedures necessary for the entry into force of this Agreement.
This Agreement is an international agreement concluded within the framework of the Union and is included in the law of the Union.
Committed in the city _________________ "___" ___________________ 20__ year in one original copy in Russian.
The original copy of this Agreement shall be kept at the Eurasian Economic Commission, which, as the depositary of this Agreement, will send each member State a certified copy thereof.
For the Republic of Armenia
For the Republic of Belarus
For the Republic of Kazakhstan
For the Kyrgyz Republic
For the Russian Federation
President
Republic of Kazakhstan
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