RESTRICTEDWORLD TRADE
ORGANIZATIONG/ADP/Q1/MDA/4
G/SCM/Q1/MDA/4
16 May 2002
(02-2716)
Committee on Anti-Dumping Practices
Committee on Subsidies and Countervailing MeasuresOriginal:  English
NOTIFICATION OF LAWS AND REGULATIONS UNDER
ARTICLES 18.5 AND 32.6 OF THE AGREEMENTS
Replies to Questions posed by CANADA1
Regarding the Notification of MOLDOVA2
The following communication, dated 7 May 2002, has been received from the Permanent
Mission of Moldova.
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Q1. Paragraph 4(9) of Moldova’s notified anti -dumping legislation provides that “[w]here
there is no export price or where the investi gating authority believes in the existence of an
alliance or compensatory arrangement between the exporter and the importer or a third
country, or where the price actually paid for the sold exported product cannot be used as the
reference price for any other reason, the export price may be constructed (…)”.  In that respect:
(a) Would Moldova give examples of reasons that would justify using a constructed export
price, other than the absence of an export price, an association or a compensatory
arrangement?
(b) Would Moldova indicate to what extent paragraph 4(9) is consistent with Article 2.3 of
the Anti-Dumping Agreement, that only provides for the use of a constructed export
price in cases where there is no export pr ice or where the export price is unreliable
because of an association or a compensatory arrangement between the exporter and the
importer or a third party?
Reply
As described below, the prerogatives of IA shall be provisionally exercised by the National
Agency for Competition created under Moldovan Law on protection of competition no. 1103-XIV of
30 June 2000.  The Agency shall draft the mechanism for implementation of the Law ( e.g. drafting
AD questionnaires, guidelines and methodologies for dumping margins and injury calculations) as
well as of the necessary institutional framework. The drafting will cover also the provisions in the
Law having a less specific description.
Q2. Paragraph 4(10) of the notified legislation enumerates a list of factors to be taken into
account in performing a fair comparison of th e export price and the normal value.  However,
paragraph 4(10) does not appear to direct the investigating authority to make due allowance to
                                                     
1 G/ADP/Q1/MDA/2-G/SCM/Q1/MDA/2
2 G/ADP/N/1/MDA/1-G/SCM/N/1/MDA/1-G/SG/N/1/MDA/1G/ADP/Q1/MDA/4
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“any other differences which are also demonstrated to affect price comparability”, as required
by Article 2.4 of the Anti-Dumping Agreemen t.  Would Moldova indicate whether the
investigating authority shall take into acco unt other relevant differences not enumerated in
paragraph 4(10)?
Reply
As it was recognized within WTO, the AD Agr eement is difficult to administer for the
countries with economies in transition and therefore the lack of national institutional capacities and
funding has delayed the creation of national Investigation Authority. Under such circumstances the
prerogatives of IA shall be provisionally exercised by the National Agency for Competition createdunder Moldovan Law on protection of competition no. 1103-XIV of June 30, 2000.  The Agency shall
draft the mechanism for implementation of Law ( e.g. drafting AD questionnaires, guidelines and
methodologies for dumping margins and injury calculations) as well as of the necessary institutional
framework.  In the initial stage, the Agency will carry out investigations for both purposes
establishment of dumping margins and countervailable subsidies and injury determinations.  In itsdrafting process of the IA regulation the National Agency will consider the supremacy of the AD
Agreement where the Law has not reflected precisely the standard prescribed thereof.  In this
particular instance, the IA regulation will contain a provision specifying that the factors listed in
Article 4 (10) in performing a fair comparison of the export price and the normal value shall not be
considered exhaustive where “any other differences which are also demonstrated to affect pricecomparability” exist, as required by Article 2.4 of AD Agreement.
Q3 . The second sentence of paragraph 4(11) provides that: “[a]ccount shall not be taken of
the requests for adjustments with negligible influence upon the price or transaction value under
consideration, such as the influences not ex ceeding 0.5 per cent of the price or transaction
value”.  How does Moldova reconcile this provision with Article 2.4 of the AD Agreement,
which requires that due allowance be made to differences that affect price comparability,
without specifying any restriction?
Reply
In its drafting process of the IA regulation the National Agency referred to in the above
response will consider the supremacy of the AD Agreement where the Law has not reflected precisely
the standard prescribed thereof and shall suggest amendments to domestic legislation where such
inconsistencies will be identified.
Q4. Paragraph 7(6) of the notified legislation provides that “[proceedings] shall not be
initiated against countries whose imports represen t a market share of be low 1 per cent in the
Republic of Moldova, unless such countries collectively account for 3 per cent or more of the
national consumption in Moldova”.  We note th at Article 5.8 of the AD Agreement provides that
imports from a particular country will normally be considered negligible if they are found to
“account for less than 3 per cent of imports of the like product in the importing Member, unless
countries which individually account for less than 3 per cent of the imports of the like product
in the importing Member collectively account fo r more than 7 per cent of imports of the like
product”.  Would Moldova clarify whether it assesses negligibility on the basis of the import
value as well as on the basis of market share?
Reply
The Moldovan standard applicable for de minimis  is more favorable to exporters and an
internal checking procedure of the IA will ensure that in extreme cases of very high importG/ADP/Q1/MDA/4
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penetration from a small number of countries, the AD Agreement provisions are not infringed by
relying on the Moldovan provision alone. Accordin g to Moldovan Law, where the imports form a
Member account for more than 1 per cent market share but for less than 3 per cent of total imports the
proceedings will be terminated on the basis of the relevant threshold of AD Agreement and if the
imports from a certain Member are found to account for less than 1 per cent of market share but the
total imports volume account for more than 3 per cent the proceedings will be also terminated.
Q5. Paragraph 12(4) of Moldova’s legislation prov ides that “[if] the definitive anti-dumping
duty is higher than the provisional duty paid or  payable, or higher than the amount of the
guarantee, the difference shall not be collected.  If the definitive duty is lower than the
provisional duty paid or payable, or higher than  the amount of the guarantee, the duty shall be
recalculated.”  Would Moldova clarify the meaning of this paragraph and indicate to what
extent it is consistent with the requirements of Article 10.3 of the Anti-Dumping Agreement?
Reply
The wording of Article 12(4) of the Law is very close to the wording of Article 10.3 of AD
Agreement.  The question on the extent it is consis tent with AD Agreement was raised in our opinion
due to an imprecise translation of the respective provision in Law.  According to Article 12 (4) the
difference shall not be collected every time the IA applies a definitive antidumping duty which is
higher than the provisional duty paid or payable or the amount estimated for the purpose of thesecurity.  Whereas if the definitive duty is lower than the provisional duty paid or payable, or the
amount estimated for the purpose of the security, the difference shall reimbursed or the duty
recalculated.  The word “higher” in the second sentence of Article 12 (4) is missing in the Moldovan
Law.
Q6. The legislation notified by Moldova does not describe independent tribunals or
procedures that Moldova maintains for the purpose s of the review of administrative actions
relating to final determinations and reviews of determinations.  Could Moldova describe how
independent reviews in accordance with Article 13 of the AD Agreement are provided for?
Reply
The standard for the judicial review prescribed by Article 13 of AD Agreement is set forth in
the Civil procedure Code of Republic of Moldova, specifically in Chapter XXXIII/3, approved by the
Law No. 942 of 18.07.96. Pursuant to Article 278/6 of the Code “ economical courts are specialized
court for the settlement of economical disputes according to the code hereof and other legislative
acts”.  Further, according to Article 278/11 thereof “ economical court of Republic of Moldova shall
hear the requests made by economical agents on examination of some normative and individual acts
of public administrative bodies and other bodies which contravene the legislation in force, as being
null and void .”  The economical agents can prevail themselves of these provision in order to defend
their legitimate rights allegedly infringed by the acts approved by the IA.  The Economical court is
part of judicial power which is separated from executive and legislative powers in Republic ofMoldova according to its Constitution.
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