G/ADP/Q1/MDG/2  
G/SCM/Q1/MDG/2  
G/SG/Q1/MDG/2  
18 April 2019 
(19-2612) Page: 1/5 
Committee on Anti -Dumping Practices  
Committee on Subsidies and Countervailing Measures  
Committee on Safeguards  Original:  French  
 
  
NOTIFICATION OF LAWS AND REGULATIONS UNDER  
ARTICLES 18.5, 32.6 AND 12.6 OF THE AGREEMENTS  
REPLIES TO QUESTIONS1 POSED BY THE UNITED STATES  
REGARDING  THE NOTIFICATION OF MADAGASCAR2 
The following communication, dated 1 7 April 2019, is being circulated at the request of the 
delegation of Madagascar.  
 
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Question 1  
 
Please clarify what legal authority takes precedence in the event of a conflict between 
Article 7 of Law No. 2018 -020 of 2 3 August  2018 revising the law on competition 
(hereinafter Article 7) and Decree No. 2017 -695 of 1 6 August  2017 establishing 
applicable  trade remedy procedures (hereinafter Decree) and the relevant 
WTO  agreements (i.e., Agreement on Implementa tion of Article VI of the General 
Agreement on Tariffs and Trade 1994, Agreement on Subsidies and Countervailing 
Measures, and Agreement on Safeguards) . 
 
Reply 
 
In principle , all administrative decisi ons may be appealed to the State Council . In the event o f conflict 
between the various texts, and in accordance with the principle of the hierarchy of norms of Malagasy 
positive law , the superior norm – in this case international agreements or treaties  – shall take 
precedence . 
 
Pursuant to  Article 137, paragraph 4, of  the Constitution of Madagascar,  "Duly ratified or approved 
treaties or agreements take precedence over laws once they have been published, subject in each 
case to their application by the other party ". 
 
Question 2  
 
Article 5 of the Decree states that "[i]n all cases where the Competent Authority decides 
to initiate an investigation, it must publish a notice of initiation of investigation in at least 
two newspapers authorized to receive legal notices" . Article 65 states that "all provisional  
measures taken shall be published in the Official Journal of the Republic of Madagascar. " 
Please clarify whether notifications related to anti -dumping, countervailing duty, and 
safeguards proceedings (e.g., initiation, preliminary, and final determination s) are to be 
published in the Official Journal, including notices of initiation of an investigation . 
 
                                                
1 G/ADP/Q1/MDG/1 -G/SCM/Q1/MDG/1 -G/SG/Q1/MDG/1 (dated 3  April 2019).  
2 G/ADP/N/1/MDG/2 -G/SCM/N/1/MDG/1 -G/SG/N/1/MDG/2 (dated 20  November  2018).  G/ADP/Q1/MDG/2 • G/SCM/Q1/MDG/2 • G/SG/Q1/MDG/2  
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  Reply 
 
Pursuant to Articles  65, 67, 116  and 125 of Decree No. 2017-695, provisional and definitive 
measures are published in the Official Journal . Notices of initiation need only to be published in 
newspapers authorized to receive legal notices (Article 5 of the Decree ). 
 
Question 3  
 
Articles 7 and 101 of the Decree state, respectively, "[s]ubject to the duty to protect 
confidential information, evide nce submitted in writing by one party must be made 
available to the other interested parties.", and "[d]uring the investigation process, each 
interested party may submit its evidence and views, which shall be communicated to the 
other interested parties by  the Competent Authority" . Please clarify how the interested 
parties will obtain or receive evidence and views submitted by other interested parties.  
Will the Competent Authority communicate such evidence and views to other interested 
parties or will parti es be required to check a non -confidential case file ? 
 
Reply 
 
Upon initiation of an  investigation , the competent authority shall gather information using  the 
questionnaire that is sent to the interested parties known by the responsible authority at this stage 
of the proceedings . It shall also collect information from the questionnaire sent to any interested 
parties that come forward  at a later time . The ge neral instructions for the questionnaire refer to  the 
procedures for communicating confidential information and the obligation to provide non -confidential 
summaries where necessary . 
 
Only non-confidential information and non -confidential summaries shall be  made available to other 
parties for comment . 
 
A reasonable period of time is granted by the investigating authority for this purpose . 
 
Interested parties may ask to view non-confidential case files, including  records of the parties' 
arguments, but will ne ver have access to confidential file s. 
 
Question  4 
 
With regard to Articles 26 and 106 of the Decree, please clarify the process by which 
interested parties shall "make themselves known" to the Competent Authority following 
initiation of an investigation o r at any time during the investigation . For example, will the 
Competent Authority require interested parties to register ? If so, will procedures and 
applicable deadlines for registering as an interested party be provided in the notice of 
initiation ? 
 
Reply 
 
The notice of initiation of an investigation includes a section covering the procedure for registering 
and making oneself known as an interested party . The deadline established for this purpose is also 
specified in the notice, and is at least 30 days after the date of publication of the notice . 
 
Question 5  
 
Articles 111 and 112 of the Decree discuss what factors the Competent Authority will 
evaluate in determining whether imports have caused or threated to cause serious injury 
to the domestic industry . 
 
a. Please confirm that the Competent Authority will examine all relevant factors of 
an objective and quantifiable nature having a bearing on the situation of that 
industry, including such factors that may not be listed in the Decree . G/ADP/Q1/MDG/2 • G/SCM/Q1/MDG/2 • G/SG/Q1/MDG/2  
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  Reply 
 
The competent au thority shall  analyse all the factors  listed in the Decree that are of an objective 
and quantifiable nature and that have a bearing on the situation of th e sector  concerned . Other 
factors may be taken into account, as the list of the factors set out in Articles 111 and 112 is not 
exhaustive . 
 
b. Please confirm that the Competent Authority will consider whether factors, other 
than increased imports, may be causing injury to the domestic industry and shall 
not attribute such injury to increased imports . 
Reply 
 
A number of factors , other than increased imports , that may cause injury to the domestic industry  
shall be examined by the competent authority in order to  determi ne the existe nce of a causal link . 
The competent authority may refer to practices of other a uthorities or jurisprudence  on the list of 
factors to be examined . 
 
Question  6 
 
In Article 117 of the Decree, Madagascar states that it may impose a safeguard measure 
once it has publicized the investigation to all interested parties and "the latter have had 
the opportunity to comment and submit their views regarding the views of other parties ." 
 
a. Will the Competent Authority hold public hearings or provide other opportunity 
for interested parties in a public setting to make presentations before the 
Compete nt Authority and respond to the views of other participants ? 
Reply 
 
Pursuant to Article  11, paragraph 1, of the Decree in question , the investigating authority may hold 
public hearings, either at the  request of interested parties or on its own initiative, in order to enable  
interested parties to defend their interests and present their views . This Article conforms to the  
general principle , which means that even in an safeguards investigation, the competent authority 
must hold at least one public hearing on its own initiative to meet this objective . Interested parties 
may also request other public hearing sessions . 
 
b. At what point in the investigation will interested parties have the opportunity to  
submit their views, and will those views be made available to other interested 
parties and, if so, in what form – for example, will they be made available in 
electronic form on a publicly accessible website?  
Reply 
 
Interested parties may submit their view s as soon as they have made themselves known and 
registered, and during public hearings . The authority provides a reasonable period of time for parties 
that have submitted views and arguments orally during the public hearing to present their written 
submis sions. 
 
Communication takes place by mail or by email . 
 
Files to be published via the website are mentioned  in the notices or notifications . Interested persons 
are required to complete a registration process if they need to download documents . 
 
c. Will intere sted parties have an opportunity to view and then comment on the 
views of other interested parties ? 
Reply 
 
Yes. Interested parties may view the non-confidential records in the investigation file  at the 
competent authority's headquarters or receive notifications pertaining  thereto . They may then G/ADP/Q1/MDG/2 • G/SCM/Q1/MDG/2 • G/SG/Q1/MDG/2  
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  comment on the views of other interested parties and transmit these comments to the investigating 
authority . 
 
d. Does the Competent Authority plan to publish  procedural rules and/or an official 
notice that sets out the procedures they will follow in investigations and/or in 
specific investigations ? 
Reply 
 
Any investigation initiated within the context of the implementation of the Decree  establishing 
applicable  trade remedy procedures  must be announced in a notice published in at least two  national 
newspapers authorized to receive legal notices and by any appropriate means . A summary of the 
investigation procedure is available on the authority's website . A leaflet describing the main stages 
of the investigation procedure has been produced , and is distributed wherever necessary . 
 
The authority also uses the single window platform "TRADE NET", which is  used by the Madagascar 
customs service, to communicate  with many of the interested parties . 
 
Question 7  
 
Regarding the application of a new safeguard measure under Article 124 of the Decree, 
please confirm that the application of safeguards will be consistent with the time periods 
listed in Articles 7.5 and 7.6 of the  WTO Agreement on Safeguards . 
 
Reply 
 
The implementing regulations for this provision have not yet been drawn up . They shall be 
established, as appropriate, in accordance with the provisions of Article 7.5 and 7.6 of the 
WTO Agreement on Safeguards . 
 
Question 8  
 
Article 125 of the Decree states that the notice of the findings and conclusions of the 
Competent Authority will "indicate the existence of a report setting forth the findings and 
reasoned conclusions on the following points" . Please clarify if  and how interested parties 
can access the underlying report that will be referenced in the notice so that a full 
understanding of the findings and conclusions can be examined . 
 
Reply 
 
Notifications under Article  12.1(b) and (c) shall also be notified to interested parties, including the 
report setting forth the findings and conclusions required under the Agreement . This report may also 
be requested directly from the investigating authority . 
 
Question 9  
 
Regarding the opportunities for parties to appeal tr ade remedy decisions : 
 
a. What is the appropriate court of review for appeals of anti -dumping, 
countervailing duty, or safeguard decisions ? 
Reply 
 
Decree No. 2017-695 does not provide for appeals against the authority's decisions . However, 
pursuant to the leg islation currently in force in Madagascar, any administrative decision may be 
appealed to the State Council, which is the competent court in this regard . No specific provision is 
therefore necessary . 
 G/ADP/Q1/MDG/2 • G/SCM/Q1/MDG/2 • G/SG/Q1/MDG/2  
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  b. Please clarify whether all aspects of an investigation are subject to appeal or 
only certain decisions, such as, for example, the decision to impose provisional 
or final duties or the calculation methodologies used . 
Reply 
 
In principle, decisions by the administrative authorities in Madagascar may be subject t o appeal for 
misuse of authority or for rever sal before the State Council . The administrative judge reviews the 
legality of administrative actions taken . 
 
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