Anti-Dumping and Countervailing Duties Act 2018 · As enacted · Part II · Countervailing Duties
66. Specificity and contingency of subsidy
Official English translation. Where it differs from the Sinhala or Tamil text, the Act itself says which text prevails.
Official translationFrom Department of Government Printing, unchanged
In order to determine whether for the purpose of subsection (1) of section 65 of this Act, a subsidy is specific to an enterprise or industry or group of enterprises or industries (referred to in this section as “certain enterprises”)
within the jurisdiction of authority granting it, the following principles shall apply:—
where the granting authority or the legislation pursuant to which the granting authority operates,explicitly limits access to a subsidy to certain enterprises, such subsidy shall be specific;
where the granting authority or the legislation pursuant to which the granting authority operates, establishes objective criteria or conditions governing the eligibility for and the amount of a subsidy, specificity shall not exist, provided that the eligibility is automatic and that such criteria and conditions are strictly adhered to and are clearly spelt out in that legislation or other official document, so as to be capable of verification;
and
if, notwithstanding any appearance of non-specificity resulting from the application of the
Anti-Dumping and Countervailing Duties principles laid down in sub-paragraphs (a) and (b)
of this subsection, there are reasons to believe that the subsidy may in fact be specific, the following factors may be considered:—
use of a subsidy programme by a limited number of certain enterprises, predominant use by certain enterprises, the granting of disproportionately large amounts of subsidy to certain enterprises, and the manner in which discretion has been exercised by the granting authority in the decision to grant a subsidy;
and
account shall be taken of the extent of diversification of economic activities within the jurisdiction of the granting authority, as well as of the length of time during which the subsidy programme has been in operation.
For the purposes of paragraph (b) of subsection (1), objective criteria or conditions means, criteria or conditions which are neutral, which do not favour certain enterprises over others, and which are economic in nature and horizontal in application, such as the number of employees or the size of the enterprise.
The setting or change of generally applicable tax rates, shall not be deemed to be a specific subsidy.
A subsidy which is limited to certain enterprises located within a designated geographical region within the jurisdiction of the authority granting the subsidy shall be deemed to be a specific subsidy.
Any determination of specificity under this section shall be established on the basis of positive evidence.
Part III