RESTRICTEDWORLD TRADE
ORGANIZATIONG/ADP/Q1/CRI/2
G/SCM/Q1/CRI/2
19 January 1999
(99-0158)
Committee on Anti-Dumping Practices
Committee on Subsidies and Countervailing MeasuresOriginal:  Spanish
NOTIFICATION OF LAWS AND REGULATIONS UNDER
ARTICLES 18.5 AND 32.6 OF THE AGREEMENTS
Replies to Questions Posed by the United States1
Regarding the Notification of Costa Rica2
The following communication, dated 17 December 1998, has been received from the
Permanent Mission of Costa Rica.
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Question 1
How many technical reports will the Office  issue in an investigation, and how many
times will the Commission be called upon to give a recommendation or opinion?
Reply
The Office issues three technical reports.  The purpose of the first technical report is to decide
whether there is sufficient evidence to initiate an investigation.  The second technical report providesa preliminary assessment of the existence of dumping, injury and a causal link, and the third
determines whether it is appropriate to adopt a definitive measure or not.  The Commission is solely
and exclusively called on to make a recommendation or give an opinion on the final report of the
Office concerning whether or not a definitive  anti-dumping measure should be adopted.
3
Question 2
What weight does the recommendation or op inion of the Commission have?  If the
recommendation or opinion of the Commission supports a ruling different from the report of
the Office, is the Minister obligated to follow either one?
Reply
The Commission's recommendation or opinion is in no way binding on the Minister.
                                                     
1 G/ADP/Q1/CRI/1-G/SCM/Q1/CRI/1.
2 G/ADP/N/1/CRI/1/Suppl.1-G/SCM/N/1/CRI/1/Suppl.1.
3 These Joint Commissions were set up solely for the purpose of making recommendations or giving
opinions in anti-dumping investigations.G/ADP/Q1/CRI/2
G/SCM/Q1/CRI/2
Page 2
If the Commission's recommendation or opinion suppor ts a ruling that differs from that in the
Office's report, the Minister is not obliged to gi ve the Commission's recommendation priority over the
Office's final report or vice versa.  The Minister must consider the case, the Office's final technical
report and the Commission's recommendations and then adopt the relevant decision.
The Minister's decision must be duly substantiated and must meet each of the requirements
set out in the Agreement on Implementation of Article VI of GATT 1994, the Central American
Regulations on Unfair Business Practices, and the General Law on Public Administration, Law
No. 6227, of 2 May 1978.
The General Law on Public Administration governs the structure and activities of public
administration bodies and states that under no circumstances may acts contrary to unambiguous rules
of science or technology or to elementary principles of justice, logic or convention be issued;  it also
states that discretionary authority is subject to the limits imposed specifically or implicitly by the
regulations in order to ensure that it is effectively and fairly applied;  that acts must be decided by the
competent official, following completion of all the substantive procedures laid down for this purpose
and that any administrative act shall be considered manifestly unlawful when, inter alia , the
Administration ignores advisory reports or opinions that show it to be illegal.
It should be pointed out that, as the Office's final report must meet each of the requirements
laid down in the Agreement on Implementation of Article VI of the General Agreement on Tariffs andTrade 1994, in practice, the Minister has always abided by the Office's final technical report when
taking a final decision.
Question 3
What form are these recommendations or opinions required to take, and what issues are
they required to cover?  Is there any law, regulatio n, or other authority that affects the form or
content of the Joint Commission's recommendation or opinion?
Reply
Pursuant to the General Law on Public Administration, these recommendations and opinions
constitute an administrative act and as such, in order to be valid, they must be duly substantiated and
comply with the basic precepts applicable to any administrative act according to the General Law on
Public Administration.  These are the following:  (a)  the recommendation or opinion must be given
by the competent body or official;  (b)  it must meet the purpose of the act according to the Law;
(c) the substance of the act must be lawful, feasible, clear and precise;  (d)  the purpose of the act mustbe lawful;  and (e)  grounds for the act must be given.
As Article 8 of the Decree states that the Commission shall receive the Office's technical
report in order to recommend the course of action to be followed, the recommendations or opinions of
the Commission deal solely with the need for adoption of a definitive measure.
Question 4
Would the technical report of the Office fu rnished to the Joint Commission contain
confidential information submitted by the parties to the investigation?  If so, how wouldprovision of such materials to private citizen members of Joint Commission be consistent with
Articles 6.5 of the A-D Agreement and 12.4 of the SCM Agreement, which forbid the disclosure
of confidential information to anyone excep t under specifically prescribed circumstances?G/ADP/Q1/CRI/2
G/SCM/Q1/CRI/2
Page 3
Reply
The Office only transmits the public version of the final technical report to the Commission.
This does not contain any confidential information.4
Question 5
Are the recommendations or opinions, or a public version of such documents, available
for inspection by parties who are entitled to participate in the investigation, as required by
Article 12 of the A-D Agreement and Article 22 of the SCM Agreement?
Reply
Yes, they are available in the file concerning the investigation.
Question 6
Article 3(e) of the Decree describes how the Office shall "conduct the necessary studies
to determine the truthfulness of the complaints of unfair business practices."
Are these studies intended to incorporate the requirements of Article 5.3 of the A-D
Agreement and Article 11.3 of the SCM Agreement that administering authorities shall examine
the accuracy and adequacy of the application for relief?
Reply
Yes.  As indicated in the reply to question 3, in Costa Rica, any act by the public
administration must be duly substantiated.
Question 7
In what circumstances is it anticipated that anti-dumping or countervailing duty
proceedings would be handled by a unit other than the Office of Unfair Business Practices andSafeguard Measures, as suggested by Article 5 of the Decree?
Reply
Article 5 of the Decree states that matters involving unfair business practices shall be heard
exclusively by the Office of Unfair Business Practices and Safeguard Measures, except in cases where
international agreements specifically attribute this responsibility to another unit of the Ministry of the
Economy, Industry and Trade.  To date, no agreement has mentioned a body other than the Office of
Unfair Business Practices and Safeguard Measures for the purpose of anti-dumping or countervailing
duty proceedings.
                                                     
4 Moreover, as noted above, the Office only transmits this report to the Commission in anti-dumping
investigations, which are the only investigations for which the Commission is competent to make
recommendations or give an opinion.G/ADP/Q1/CRI/2
G/SCM/Q1/CRI/2
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Question 8
Article 7 of the Decree states that the Join t Commission shall have seven members, three
of whom shall be private citizens nominated by the Costa Rican Union of Chambers andAssociations of Private Enterprise.
How is this provision consistent with Article 3 and footnote 3 of the A-D Agreement,
which require that injury findings be made by the "authorities" who are "authorities at an
appropriate senior level"?  Similarly, how is this provision consistent with Article 15 of the
SCM Agreement, which also requires that injury findings be made by the "authorities"?
Reply
The Joint Commission does not determine the existence of injury, this is the task of the Office
of Unfair Business Practices and Safeguard Measures.  What the Joint Commission does is to make
recommendations on the action to be taken on the basis of the report by the Office of Unfair BusinessPractices and Safeguard Measures.
Question 9
Article 7 of the Decree requires Joint Commis sion members to act "in strict conformity
with the applicable ethical standards and rules of discretion".
What are these standards and rules, and a re there penalties for behaviour inconsistent
with them?  Do these rules prohibit private citizen members of the Joint Commission from
participating in the rendering of recommendation s or opinions about investigations in which
they have a personal or financial interest?
Reply
Once the representatives of the private sector have been appointed by the Minister as
members of the Commission, they become public se rvants as far as their activities within the
Commission are concerned and, as such, they must abide by the standards of ethics and confidentialityset out in the General Law on Public Administration.  The latter defines a number of obligations
incumbent upon public servants and responsibilities in cases where these are not respected.  The Law
also provides a system for abstention and challenge and refers to liability if the rules are not respected.
For example, the General Law on Public Administration states that:  a public servant who acts
with malice or gross negligence when carrying out his duties or in the course of doing so shall be
personally liable vis-à-vis  third parties, even where he has simply used the means and possibilities
afforded by his functions.  This covers both of ficials who issue manifestly unlawful acts and the
persons who comply with them according to this Law.
5
With regard to disciplinary responsibility, the aforementioned Law states that:  "a public
servant shall be subject to disciplinary responsibility  for his action, acts or undertakings contrary to
the regulations if he has acted with malice or gro ss negligence, without prejudice to the more severe
disciplinary regime provided in other laws.  Superiors shall also be liable to disciplinary responsibility
                                                     
5 Article 199 of the General Law on Public Administration.G/ADP/Q1/CRI/2
G/SCM/Q1/CRI/2
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for acts by their immediate subordinates if the superior and the subordinates have acted with malice or
gross negligence."6
The aforementioned Law also refers to the regime of abstention and challenge in collegiate
bodies and to the liability of public servants who fail to respect these rules.
It is expressly stated in the Law that, in the case of a collegiate body, a member who has
grounds for abstaining from taking part in proceedings shall report this to the body to which he
belongs;  in such cases, the abstention must be endorsed by the other members of the collegiate body
if they are in sufficient number to constitute a quorum, and if not, a higher authority shall decide.  It is
stated that, if the abstention is allowed, the case shall be heard by the same collegiate body, with theparticipation of alternates if these exist, or ad hoc alternates nominated by the appointments body.
In addition, where there are grounds for abstention, the injured party may also challenge the
public servant giving reasons.
Lastly, the Law states that, where there are grounds for abstention, action by public servants
shall lead to nullity of the acts involving these of ficials and in addition shall give rise to liability.
7
Question 10
Article 12 refers to the opening of an "ex of ficio investigation in very specific cases of
unfair business practices through a duly substantiated resolution."
Is this intended to refer to a decision to "self-initiate" an investigation in accordance
with Article 5.6 of the A-D Agreement and article 11.6 of the SCM Agreement?
Reply
Yes.
Question 11
Will investigations of an application for safeguard measures be handled by the same
staff that will conduct anti-dumping and  countervailing duty proceedings?
Reply
The investigations are carried out by one single Office, but the same staff do not necessarily
take part in all the investigations.  Article 5 of the Decree notified states that cases of unfair business
practices and safeguards shall be exclusively dealt with by the Office of Unfair Business Practices and
Safeguard Measures.  The staff of this Office consist of personnel expert in both areas - safeguards
and unfair business practices - consequently the same team of professionals does not always deal withanti-dumping and countervailing duty proceedings.
                                                     
6 Article 211 of the General Law on Public Administration.
7 Articles 234 et seq. of the General Law on Public Administration.G/ADP/Q1/CRI/2
G/SCM/Q1/CRI/2
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Question 12
Will the nature of the recommendation expected from the Joint Commission differ
depending on whether it is reviewing a proposed safeguard measure or relief under a proposedanti-dumping or countervailing duty measure?
Reply
The Joint Commissions are only competent to give an opinion or make a recommendation on
anti-dumping investigations.
Question 13
Has the Office of Unfair Business Practices and Safeguard Measures issued an internal
handbook of procedures within three months of the publication of the Decree, as was
anticipated by Article 12 of the Decree?
Reply
Yes, it has been issued.
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