The agreement on application of special protective, anti-dumping and countervailing measures in relation to the third countries

of January 25, 2008

The governments of state members of the Customs union within Eurasian economic community which are hereinafter referred to as with the Parties

agreed as follows:

I. General provisions

Article 1. Scope of application

1. This agreement governs the relations arising in connection with introduction and application of special protective, anti-dumping and countervailing measures concerning the goods coming from foreign states and intended for single customs area of the Customs union.

2. This agreement does not govern the relations connected with rendering services, performance of works, transfer of exclusive rights on intellectual property items or provision of the right to use intellectual property items, implementation of investments, currency and export exchange control.

Article 1-1 the Legal base of the Customs union on special protective, anti-dumping and countervailing measures

1. The legal base of the Customs union on special protective, anti-dumping and countervailing measures consists from:

1) this agreement and international treaties of the states of the Parties signed within forming of the Customs union and regulating legal relationship in scope of special protective, anti-dumping and countervailing measures in the part which is not contradicting provisions of this agreement;

2) the decisions of bodies of the Customs union made according to this agreement and (or) international treaties of the states of the Parties signed within forming of the Customs union.

Article 2. Basic concepts

The terms used in this agreement mean the following:

"the similar goods" - the goods completely identical to goods which are or can become object of investigation (repeated investigation) or for lack of such goods other goods having the characteristics close to characteristics of goods which are or can become object of investigation (repeated investigation);

"anti-dumping measure" - measure for counteraction to dumped imports which is applied according to the decision of the Commission of the Customs union by means of introduction of anti-dumping duty, including preliminary anti-dumping duty, or approval of the price obligations assumed by the exporter;

"anti-dumping duty" - duty which is applied in case of introduction of anti-dumping measure and is levied by customs authorities of the states of the Parties irrespective of import customs duty;

"margin of dumping" - the relation of normal value of a product expressed as a percentage less export price of such goods to its export price or the difference between the normal value of a product and its export price expressed in absolute measures;

"import quota" - restriction of commodity import for single customs area of the Customs union on its quantity and (or) cost;

"foreign state" - the state (merging of the states), not being the participant of this agreement, and also the territory included in the Qualifier of the countries of the world approved by the Commission of the Customs union;

"countervailing measure" - the measure for neutralization of impact of specific subsidy of the exporting foreign state for industry of economy of the states of the Parties applied according to the decision of the Commission of the Customs union by means of introduction of the compensatory duty, including the preliminary compensatory duty, or approval of obligations assumed by authorized body of the subsidizing foreign state or the exporter;

"compensatory duty" - duty which is applied in case of introduction of countervailing measure and is levied by customs authorities of the states of the Parties irrespective of import customs duty;

"material damage of industry of economy of the states of the Parties" - the deterioration of the situation of industry of economy of the states of the Parties confirmed with proofs which is expressed, in particular, in production reduction of similar goods in the states of the Parties and amount of its realization in the market of the states of the Parties, decrease in profitability of production of such goods, and also in negative impact on trade inventories, employment, the salary level in this industry of economy of the states of the Parties and the level of investments into this industry of economy of the states of the Parties;

"directly competing goods" - the goods comparable to goods which are or can become object of investigation (repeated investigation), according to the destination, to application, quality and technical characteristics and also on other main properties in such a way that the buyer replaces or are ready to replace it in the course of consumption with goods which are or can become object of investigation (repeated investigation);

"the regular course of trade" - purchase and sale of similar goods in the market of the exporting foreign state at the price not below its weighted average cost determined proceeding from the weighted average costs of production and the weighted average trading, administrative and total costs;

"industry of economy of the states of the Parties" - all producers of similar goods (for the purposes of anti-dumping and compensation investigations) or the similar or directly competing goods (for the purposes of special protective investigation) in the states of the Parties or those from them, share in total production in the states of the Parties according to which similar goods or the similar or directly competing goods constitutes essential part, but at least 25 percent;

"payers of the special, anti-dumping, compensatory duties (including the preliminary special, preliminary anti-dumping, preliminary compensatory duties)" - the customs applicant or other persons on whom according to the Customs Code of the Customs Union, international treaties of the states of the Parties and (or) the legislation of the states of the Parties assign obligation on payment of import customs duties and taxes concerning the goods imported from foreign states on single customs area of the Customs union to which the special, anti-dumping and compensatory duties are applied (including the preliminary special, preliminary anti-dumping and preliminary compensatory duties);

"preceding period" - 3 calendar years directly prior to date of filing of application about conducting investigation for which there are necessary statistical data;

"the connected persons" - persons who answer one or several of the following criteria:

each of these persons is employee or the head of the organization created with participation of other person;

persons are business partners, that is are connected by contractual relations, act for the purpose of generation of profit and jointly incur the expenses and losses connected with implementation of joint activities;

persons are employers and employees of one organization;

any person directly or indirectly owns, controls or is nominee holder of 5 and more percent of voting shares or shares of both persons;

one of persons directly or indirectly controls other person;

both persons are directly or indirectly controlled by the third party;

both persons together directly or indirectly control the third party;

faces consist in the marriage relations, the relations of relationship or property, the adoptive father or adopted, and also the custodian and the ward.

At the same time direct control is understood as possibility of legal entity or physical person to determine the decisions made by the legal entity by means of one or several following actions:

- implementation of functions of its executive body;

- receipt of the right to determine conditions of conducting business activity of the legal entity;

- the order in more than 5 percent of total quantity of the voices falling on shares (shares) constituting the authorized (share) capital (fund) of the legal entity.

Indirect control is understood as possibility of legal entity or physical person to determine the decisions made by the legal entity through physical person or legal entity or through several legal entities between whom there is direct control;

"serious damage of industry of economy of the states of the Parties" - essential deterioration in production, trade and financial position of industry of economy of the states of the Parties which is expressed in general deterioration in the situation connected with production of the similar or directly competing goods in the states of the Parties and is determined, as a rule, for preceding period;

"special protective measure" - measure for restriction of the increased commodity import for single customs area of the Customs union which is applied according to the decision of the Commission of the Customs union by means of introduction of the import quota or the special duty, including the preliminary special duty;

"special duty" - duty which is applied in case of introduction of special protective measure and is levied by customs authorities of the states of the Parties irrespective of import customs duty;

"subsidized import" - commodity import on single customs area of the Customs union, in case of production, export or transportation of which the specific subsidy of the exporting foreign state was used;

"the subsidizing body" - state body or local government body of the exporting foreign state, or the person acting at the request of the relevant state body or local government body or authorized by the relevant state body or local government body according to the legal act or proceeding from the actual circumstances;

"threat of causing material damage of industry of economy of the states of the Parties" - the inevitability of causing material damage of industry of economy of the states of the Parties confirmed with proofs;

"threat of causing serious damage of industry of economy of the states of the Parties" the inevitability of causing serious damage of industry of economy of the states of the Parties confirmed with proofs;

"export price" - the price which is paid or shall be paid by the buyers who are not the connected persons with foreign producers or exporters in case of commodity import on single customs area of the Customs union.

Article 3. Investigation

1. Precedes introduction of special protective, anti-dumping or countervailing measure in case of commodity import the investigation made according to this agreement.

2. The investigation specified in Item 1 of this Article is conducted for the purpose of establishment:

availability of the increased import on single customs area of the Customs union and the serious damage of industry of economy of the states of the Parties caused by it or threat of its causing;

availability of dumped or subsidized imports on single customs area of the Customs union and the material damage of industry of economy of the states of the Parties caused by it or threat of its causing or essential delay of creation of industry of economy of the states of the Parties.

3. The decision on introduction and application of special protective, anti-dumping or countervailing measure, including introduction and application of the preliminary special, preliminary anti-dumping or preliminary compensatory duty, about review or cancellation of special protective, anti-dumping or countervailing measure or about non-use of measure according to provisions of Article 40 of this agreement is accepted by the Commission of the Customs union.

4. The body responsible for conducting investigations (further - the body making investigations), is determined by the Commission of the Customs union.

5. The body making investigations is effective within the powers conferred to it by this agreement and decisions of bodies of the Customs union made according to this agreement and (or) other international treaties of the Parties signed within forming of the Customs union.

6. The body making investigations by results of investigation represents to the Commission of the Customs union the report containing offers on feasibility of introduction and application of special protective, anti-dumping or countervailing measure or review or cancellation of special protective, anti-dumping or countervailing measure with appendix of the draft of the relevant decision of the Commission of the Customs union.

7. In the cases provided by Articles 6, 14 and 24 this agreements, the body making investigations before completion of investigation represents the report containing offers on feasibility of introduction and application of the preliminary special, preliminary anti-dumping or preliminary compensatory duty to the Commission of the Customs union.

8. Proofs, the data and correspondence relating to investigations shall be represented to the body making investigations in Russian, and originals of documents which are constituted in foreign language shall be followed by transfer into Russian with the certificate of the provided transfer.

II. Special protective measures

Article 4. General principles of application of special protective measure

1. Special protective measure can be applied to goods only if by results of investigation it is determined that import of these goods on single customs area of the Customs union is performed in such increased quantities (in absolute or relative measures to total production in the states of the Parties of the similar or directly competing goods) and on such conditions that it causes serious damage of industry of economy of the states of the Parties or creates threat of causing such damage.

2. Special protective measure is applied to the goods imported on single customs area Customs союзаиз the exporting foreign state irrespective of the country of its origin, except for the goods coming from developing country - the user of system of tariff preferences of the Customs union if the share of import of these goods from such country does not exceed 3 percent from the total amount of import of these goods on single customs area of the Customs union provided that the total share of import of these goods from developing countries, falls no more than 3 percent from the total amount of import of these goods on single customs area of the Customs union to the share of each of which, does not exceed 9 percent from the total amount of import of these goods on single customs area of the Customs union.

Article 5. Establishment of serious damage of industry of economy of the states of the Parties or threat of causing such damage owing to the increased import

1. For the purpose of establishment of serious damage of industry of economy of the states of the Parties or threat of causing such damage owing to the increased import on single customs area of the Customs union the body making investigations during the investigation estimates objective factors which can be expressed in quantitative indices and make impact on economic situation of industry of economy of the states of the Parties, including:

1) rates and amount of growth of the commodity import which is object of investigation, in absolute measures and relative indicators to total production or consumption in the states of the Parties of the similar or directly competing goods;

2) share of the import goods which are object of investigation, in total sales of these goods and similar or directly competing goods in the market of the states of the Parties;

3) the level of prices for the import goods which are object of investigation, in comparison with the level of prices for the similar or directly competing goods made in the states of the Parties;

4) scope change of sales in the market of the states of the Parties of the similar or directly competing goods made in the states of the Parties;

5) scope change of production of the similar or directly competing goods, productivities, utilization of capacities, the sizes of profit and losses, and also the employment level in industry of economy of the states of the Parties.

2. Serious damage of industry of economy of the states of the Parties or threat of causing such damage owing to the increased import shall be established on the basis of analysis results of all proofs and data, relevant and available the body making investigations.

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