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外商投资项目核准暂行管理办法 Verification and Approval of Foreign-invested Projects Tentative Administrative Procedures

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国家发展和改革委员会令第22号

颁布日期:20041009  实施日期:20041009  颁布单位:国家发展和改革委员会

  (Promulgated by the National Development and Reform Commission on 9 October 2004 and effective as of the date of promulgation.)

  PART ONE GENERAL PROVISIONS

  Article 1 These Procedures are specially formulated in accordance with the PRC, Administrative Licensing Law and the State Council, Reform of the Investment System Decision in order to standardize the administration of verification and approval of foreign-invested projects.

  Article 2 These Procedures shall apply to the verification and approval of various types of foreign-invested projects such as Sino-foreign equity joint ventures, Sino-foreign cooperative joint ventures, wholly foreign-owned enterprises, merger and acquisition of domestic enterprises by foreign investors, and capital increase by foreign-invested enterprises.

  PART TWO VERIFICATION AND APPROVAL AUTHORITIES AND THEIR AUTHORITY

  Article 3 In accordance with the classification of the Foreign Investment Industrial Guidance Catalogue, project application reports for projects in the encouraged category and permitted category with a total investment (here and hereinafter including capital increase) of US$ 100 million or more and projects in the restricted category with a total investment of US$ 50 million or more shall be verified and approved by the National Development and Reform Commission. Project application reports for projects in the encouraged category and permitted category with a total investment of US$ 500 million or more and projects in the restricted category with a total investment of US$ 100 million or more shall be submitted to the State Council for verification and approval after examination and verification by the National Development and Reform Commission.

  Article 4 Projects in the encouraged category and permitted category with a total investment of less than US$ 100 million and projects in the restricted category with a total investment of less than US$ 50 million shall be verified and approved by local development and reform departments. Projects in the restricted category shall be verified and approved by provincial-level development and reform departments. Authority to verify and approve such projects may not be delegated.

  If a local government has other stipulations on the verification and approval of the projects listed in the preceding paragraph according to the relevant regulations, such stipulations shall prevail.

  PART THREE PROJECT APPLICATION REPORTS

  Article 5 Project application reports submitted to the National Development and Reform Commission shall include the following particulars:

  1. the project name, term of operation and basic details of the investors;

  2. the scale of establishment of the project, main establishment particulars and products, principal technology and techniques to be employed, target market(s) for the products, and planned number of employees;

  3. the location of the project, the requirements on resources such as land, water and energy, and the consumption quantity of principal raw materials;

  4. an environmental impact assessment;

  5. prices when public products or services are involved; and

  6. total investment in the project, registered capital of the project, capital contribution of each party, method of capital contribution and financing plan, and equipment that needs to be imported and its costs.

  Article 6 Project application reports submitted to the National Development and Reform Commission shall be accompanied by the following documents:

  1. the Chinese and foreign partners' enterprise registration certificates (business licences), business registration certificates, the most recent enterprise financial statements (including balance sheets, profit and loss statement and cash flow statement) that have been audited, and proof of capital creditworthiness issued by the account opening bank;

  2. a letter of investment intent, and resolution of the company's board of directors on capital increase or merger and acquisition project;

  3. a letter of intent for financing issued by a bank;

  4. an opinion on environmental impact assessment issued by the provincial-level or State administrative department in charge of environmental protection;

  5. an opinion on zoning of the selected site issued by the provincial-level planning department;

  6. an opinion on the preliminary examination of the project land use issued by the provincial-level or State land and resources administrative department; and

  7. a confirmation document issued by the competent department where capital contribution is made in the form of State-owned assets or land use rights.

  PART FOUR VERIFICATION AND APPROVAL PROCEDURE

  Article 7 Where a project is subject to the verification and approval of the National Development and Reform Commission and the State Council according to the verification and approval authority, the project application report shall be submitted by the project applicant to the provincial-level development and reform department of the place in which the project is to be located, which shall then be submitted to the National Development and Reform Commission after examination and approval by the provincial-level development and reform department. Enterprise groups with independent development plans and enterprises administered by the central government may submit project application reports directly to the National Development and Planning Commission.

  Article 8 If the National Development and Reform Commission, when verifying and approving project application reports, needs to seek the opinion of the State Council department in charge of the industry, it shall submit a letter seeking opinions attached with the relevant materials to such department. The State Council department in charge of the industry shall, within seven working days of the date of receipt of the aforementioned materials, issue a written opinion to the National Development and Reform Commission.

  Article 9 The National Development and Reform Commission shall, within five working days of the date of acceptance of a project application report, appoint a qualified consultancy institution to carry out an assessment and discussion of the key issues that need to undergo assessment and discussion. The appointed consultancy institution shall submit an assessment report to the National Development and Reform Commission within the stipulated time period.

  Article 10 The National Development and Reform Commission shall, within 20 working days of the date of acceptance of the project application report, complete verification and approval of the application or submit an examination and verification opinion to the State Council. If it is unable to render a decision on verification and approval or submit an examination and verification opinion to the State Council within 20 working days, an extension of 10 working days shall be approved by the responsible person of the National Development and Reform Commission, and the project applicant shall be notified of the reason for the extension.

  The period for verification and approval specified in the preceding paragraph shall not include the time for the assessment conducted by the appointed consultancy institution.

  Article 11 The National Development and Reform Commission shall issue a written verification and approval document to the project applicant whose project has been verified and approved. Where a project is not verified and approved, the National Development and Reform Commission shall notify the project applicant in writing, explaining the reasons therefor and notifying the project applicant of his right to apply for an administrative review or to institute an administrative action in accordance with the law.

  PART FIVE VERIFICATION AND APPROVAL CRITERIA AND EFFECTIVENESS

  Article 12 The criteria for verification and approval of a project application report by the National Development and Reform Commission shall be:

  1. the project complies with the relevant State laws and regulations, and the provisions of the Foreign Investment Industrial Guidance Catalogue and the Guiding Foreign Investment in the Dominant Industries of the Central and Western Regions Catalogue;

  2. the project complies with the requirements of medium- and long-term plan for national economic and social development, industry plans and policies for the adjustment of industrial structure;

  3. the project complies with the public interest and the relevant State provisions on anti-monopoly;

  4. the project complies with the requirements of land use planning, overall urban planning and environmental protection policies;

  5. the project complies with the requirements of the State standards on technology and techniques; and

  6. the project complies with the State provisions on administration of capital accounts and foreign debt.

  Article 13 The project applicant shall, on the strength of the verification and approval document issued by the National Development and Reform Commission, carry out the procedures in regard to land use, urban planning, quality supervision, safe production, utilization of resources, establishment of (or change to) enterprises, administration of capital accounts, import of equipment and applicable tax policies, etc. in accordance with the law.

  Article 14 The verification and approval document issued by the National Development and Reform Commission shall stipulate the term of validity of the document. Within the term of validity, the verification and approval document shall be the basis for carrying out the procedures listed in Article 13 hereof by the project applicant. After the expiration of the term of validity, the project applicant shall, when carrying out the aforementioned procedures, at the same time present the document issued by the National Development and Reform Commission that grants an extension.

  Article 15 The land, urban planning, quality supervision, regulation of safe production, industry and commerce, customs, tax, foreign exchange control departments, etc. shall not handle the relevant procedures for foreign-invested projects that have not been verified and approved.

  Article 16 If a project applicant has obtained a project verification and approval document through improper means such as splitting up a project into smaller parts or submitting false materials, the National Development and Reform Commission may revoke the verification and approval document for the project.

  Article 17 The National Development and Reform Commission may supervise and inspect the implementation of projects by project applicants and the verification and approval of foreign-invested projects by local development and reform departments, and shall handle verified issues in accordance with the law.

  PART SIX AMENDMENT AND THE VERIFICATION AND APPROVAL THEREOF

  Article 18 In any of the following circumstances, an application for amendment shall be made to the National Development and Reform Commission for projects approved by the National Development and Reform Commission:

  1. there is a change in the place of establishment;

  2. there is a change in an investor or equity;

  3. there is a change in the main establishment particulars or main products;

  4. the total investment exceeds the investment amount originally verified and approved by 20% or more; or

  5. other circumstances in which amendment is required by the relevant laws and regulations or industrial policies.

  Article 19 The procedure for verification and approval of amendment shall, mutatis mutandis, be handled according to the provisions of Part Four hereof.

  PART SEVEN SUPPLEMENTARY PROVISIONS

  Article 20 In order to grasp information on verified and approved projects in a timely manner, provincial-level development and reform departments shall submit duplicates of the project verification and approval document for foreign-invested projects with a total investment of US$ 30 million or above that are verified and approved locally to the National Development and Reform Commission within 20 working days of the date of verification and approval of the project.

  Article 21 All provincial-level development and reform departments shall formulate corresponding administrative procedures in accordance with the provisions of the Guiding the Direction of Foreign Investment Provisions (Order No. 346 of the State Council) and these Procedures.

  Article 22 Investment projects established in the mainland by investors from the Hong Kong Special Administrative Region, the Macao Special Administrative Region and the Taiwan region shall, mutatis mutandis, be handled according to these Procedures.

  Article 23 The National Development and Reform Commission shall be responsible for interpreting these Procedures.

  Article 24 These Procedures shall be effective as of 9 October 2004. In the event of a conflict between previous regulations on examination and approval of foreign-invested projects and these Procedures, these Procedures shall prevail.

  (For Editor's note, please refer to the Editor's note of vol 2 - business vehicles, ref 2300/2004.10.09(1))。

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