Circular on Delegating to Lower-level Authorities the Authority to Examine and Approve the Investment in, and Establishment of, Companies with an Investment Nature by Foreign Investors
关于下放外商投资举办投资性公司审批权限的通知
Mofcom delegates the authority to approve foreign-invested companies with an investment nature with registered capital of US$100 million or less to provincial-level and sub-provincial-level local authorities.
(Issued by the Ministry of Commerce on, and effective as of, March 6 2009.)
(商务部於二零零九年三月六日发布执行。)
Competent commerce departments of provinces, autonomous regions, municipalities directly under the central government, cities with independent development plans, Harbin, Changchun, Shenyang, Jinan, Nanjing, Hangzhou, Guangzhou, Wuhan, Chengdu, Xi'an and the Xinjiang Production and Construction Corp:
With a view to thoroughly implementing a scientific development outlook and the spirit of the Second Plenary Session of the 17th Central Committee of the Communist Party of China, further intensifying reform of the administrative system, transforming government work functions, improving the examination and approval of foreign investment and facilitating investment, we hereby notify you of the revisions made to the authority for the examination and approval of companies with an investment nature invested in and established by foreign investors as follows:
各省、自治区、直辖市、计划单列市，哈尔滨、长春、沈阳、济南、南京、杭州、广州、武汉、成都、西安、新疆建设兵团商务主管部门：
1. When a foreign investor wishes to invest in and establish a company with an investment nature with registered capital of US$100 million or less or change particulars thereof (with the exception of single capital increases exceeding US$100 million), the competent commerce department of the province, autonomous region, municipality directly under the central government, city with independent development plans, the Xinjiang Production and Construction Corp or sub-provincial municipality (including Harbin, Changchun, Shenyang, Jinan, Nanjing, Hangzhou, Guangzhou, Wuhan, Chengdu and Xi'an) where the investment company is to be registered (the Provincial-level Competent Commerce Department) shall be responsible for examination and approval. The Provincial-level Competent Commerce Department may not further delegate the examination and approval authority to a lower-level department or appoint another department to carry out such examination and approval.
2. Subsequent changes in the particulars (with the exception of single capital increases exceeding US$100 million and changes in the investors) of a company with an investment nature whose establishment was approved by the Ministry of Commerce shall be subject to the examination and approval of the Provincial-level Competent Commerce Department.
为全面贯彻落实科学发展观和党的十七届二中全会精神，进一步深化行政体制改革，转变政府工作职能，改进外商投资审批工作，促进投资便利化，现就调整外商投资举办投资性公司审批权限通知如下：
3. When a Provincial-level Competent Commerce Department accepts and examines the application of a foreign investor, it shall strictly abide by the relevant provisions of the Provisions for the Establishment of Companies with an Investment Nature by Foreign Investors (Order of MOFCOM [2004] No.22) and the Supplementary Provisions for the Establishment of Companies with an Investment Nature by Foreign Investors (Order of MOFCOM [2006] No.3) on the requirements in respect of the qualifying conditions of investors, registered capital, method of capital contribution, business operations and application documents, and, in respect of whether the foreign investor and its domestic investee enterprises have committed any violations of the law, seek in writing the opinions of the provincial-level tax, industry and commerce and foreign exchange administrative departments of the provinces where the enterprises are located and those of its own province. If violations of regulations have been committed, approval for the establishment of a company with an investment nature may not be granted.
4. The foreign investor (legal representative) shall issue a written undertaking (the format of which is attached hereto) to the effect that the submitted application complies with the requirements of relevant laws and regulations and that the relevant materials and the signature of the legal representative or his agent are true, accurate, complete and valid.
一、外国投资者投资设立注册资本1亿美元及以下投资性公司及其变更事项（单次增资超过1亿美元的除外），由投资性公司注册地省、自治区、直辖市、计划单列市、新疆生产建设兵团、副省级城市（包括哈尔滨、长春、沈阳、济南、南京、杭州、广州、武汉、成都、西安）商务主管部门（下称省级商务主管部门）负责审批，省级商务主管部门不得再行下放或委托其他部门审批。
5. The scope of investment of a company with an investment nature may not involve sectors in which foreign investment is restricted or prohibited or industries subject to macro-economic control. If the scope of investment involves a permitted industry as provided in special foreign investment provisions, the Provincial-level Competent Commerce Department shall, in accordance with the prescribed procedure, seek the consent of the state department in charge of the industry.
6. The projects invested in by a company with an investment nature must comply with relevant laws, regulations and industrial policy, and applications for approval of specific investment projects shall be made separately in accordance with the relevant procedures prescribed by the state. If the investment made in the form of foreign exchange by a foreign party (namely, the investment company or other overseas investor) in an enterprise invested in by a company with an investment nature or in an enterprise invested in jointly with other investors accounts for not less than 25% of the registered capital of the investee enterprise, it shall be eligible for treatment as a foreign-invested enterprise.
二、商务部批准设立的投资性公司后续变更事项（单次增资超过1亿美元、投资者变更的除外），由省级商务主管部门审批。
7. Once a Provincial-level Competent Commerce Department has approved a foreign investor's application, it shall complete an information record-filing form concerning a company with an investment nature (divided into three forms, one for new establishment, one for changes and one for investee enterprises, the formats of which are attached hereto) in a timely manner through the System for Administration of Foreign-invested Enterprises through Examination and Approval and forward the completed and printed record-filing form (bearing the official seal of the local commerce department), approval document (the format of which is attached hereto) and (a photocopy of) the approval certificate to the (Department of Foreign Investment Administration of the) Ministry of Commerce for the record.
8. Following approval by the Provincial-level Competent Commerce Department, a company with an investment nature must additionally report its business position and details of its investee enterprises in a timely manner through the Foreign-Invested Enterprise Administration Network (http://fic.wzs.mofcom.gov.cn) of the Ministry of Commerce and, at the time it collects its approval certificate, carry out the procedures for network access. Companies with an investment nature are encouraged to join the Working Committee of Companies with an Investment Nature of the China Association of Enterprises with Foreign Investment.
三、省级商务主管部门受理审核外国投资者申请时，应严格遵循《关于外商投资举办投资性公司的规定》（商务部令[2004]第22号）和《关于外商投资举办投资性公司的补充规定》（商务部令[2006]第3号）有关投资者资格条件、注册资本、出资方式、业务经营和申请文件要求的相关规定，并就外国投资者及其境内所投资企业是否存在违规行为书面征求企业所在地省级及本省税务、工商和外汇管理部门意见。对于存在违规行为的，不得批准设立投资性公司。
9. This Circular shall be effective as of the date of issuance.
Annex
四、外国投资者（法定代表人）应出具书面承诺（格式附后），所提交的申请符合相关法律法规要求，相关材料及法定代表人或其委托人签字真实、准确、完整、有效。
1. Format of the approval document for a company with an investment nature (omitted)
2. Written undertaking of a foreign investor (legal representative) (form) (omitted)
五、投资性公司的投资范围不得涉及限制和禁止外商投资领域及宏观调控行业。投资范围如涉及外商投资专项规定的允许类行业，省级商务主管部门应按有关规定程序征得国家行业主管部门同意。
3. Record-filing form for the establishment of a company with an investment nature, record-filing form for changes and record-filing form for investee enterprises (omitted)
clp reference:2300/09.03.06prc reference:商资函 [2009] 8号promulgated:2009-03-06effective:2009-03-06This premium content is reserved for
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