Circular on Issues Relevant to Delegation of the Examination and Approval Authority over Foreign Investments to Lower Levels
关于下放外商投资审批权限有关问题的通知
Mofcom delegates approval power over foreign-invested holding companies and venture capital companies to lower-level authorities.
(Issued by the Ministry of Commerce on June 10 2010.)
Shang Zi Fa [2010] No.209
With a view to thoroughly implementing the Several Opinions on Further Improving the Work on the Use of Foreign Investment (Guo Fa [2010] No.9) and intensifying reform of the system for the administration of foreign investment, we hereby notify you on issues relevant to the delegation of authority for the examination, approval and administration of foreign-invested enterprises to lower levels as follows:
(商务部于二零一零年六月十日发布。)
商资发 [2010] 209号
为贯彻落实《国务院关于进一步做好利用外资工作的若干意见》（国发[2010]9号），深化外商投资管理体制改革，现就外商投资企业审批和管理权限下放有关问题通知如下：
一、《外商投资产业指导目录》鼓励类、允许类总投资3亿美元和限制类总投资5000万美元（以下简称限额）以下的外商投资企业的设立及其变更事项，由省、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）商务主管部门及国家级经济技术开发区（以下简称地方审批机关）负责审批和管理。其中，外商投资股份有限公司的限额按注册资本计，改制为外商投资股份有限公司的限额按评估后的净资产值计，外国投资者并购境内企业的限额按并购交易额计。
二、单次增资额在限额以下的增资事项由地方审批机关负责审批和管理。
三、限额以上鼓励类且不需要国家综合平衡的外商投资企业的设立及其变更事项，由地方审批机关负责审批和管理。
四、注册资本3亿美元以下外商投资性公司和资本总额3亿美元以下外商投资创业投资企业、外商投资创业投资管理企业的设立及其变更事项，由地方审批机关负责审批和管理。
五、除法律法规明确规定由商务部审批外，服务业领域外商投资企业的设立及其变更事项（包括限额以上及增资）由地方审批机关按照国家有关规定进行审批和管理。根据相关规定需取得国家行业主管部门前置许可或向其征求意见的，应取得书面文件或同意意见。金融、电信领域外商投资企业的设立和变更事项仍按现行法律法规办理。
六、由商务部、原外经贸部以及国务院有关部门批准设立的外商投资企业的变更事项（除单次增资达到或超过限额以及涉及本通知第五条规定的情况外）由地方审批机关负责审批和管理。
七、各级商务主管部门应严格执行国家外商投资产业政策，对外商投资涉及宏观调控、产能过剩等行业的，按照国家有关规定严格审核、备案。
八、各级商务主管部门应按《商务部关于进一步改进外商投资审批工作的通知》（商资函[2009]7号）以及关于外商投资性公司、创业投资、融资租赁、商业、直销等专项规定的要求，做好备案管理工作。
九、各省、自治区、直辖市、计划单列市、新疆生产建设兵团商务主管部门应严格按有关规定审核出具《国家鼓励发展的内外资项目确认书》和《外商投资企业进口设备、技术及配备件证明》，并通过“外商投资审批管理系统”及时向商务部备案。
十、此前商务部发布的有关文件内容与本通知不一致的，以本通知为准。
十一、各级商务主管部门要寓管理于服务，大力推进政府职能转变，创新服务方式，不断提高服务水平。同时要合理引导外资投向，加强对投资者履行合同章程义务、外商投资企业遵守法律法规及运营情况的监管，为外商投资企业设立及运营创造良好的投资环境。执行中有何情况及问题，请及时向商务部（外资司）反映。
1. The establishment and change in the particulars of foreign-invested enterprises in the encouraged and permitted categories of the Foreign Investment Industrial Guidance Catalogue with a total investment under US$300 million and in the restricted category with a total investment under US$50 million (the Limits) shall be subject to the examination, approval and administration of the competent commerce departments of the provinces, autonomous regions, municipalities directly under the central government, cities with independent development plans, the Xinjiang Production and Construction Corp and sub-provincial municipalities (including Harbin, Changchun, Shenyang, Jinan, Nanjing, Hangzhou, Guangzhou, Wuhan, Chengdu and Xi'an), and state-level economic and technology development zones (Local Examination and Approval Authorities). The Limit for foreign-invested companies limited by shares shall be calculated based on their registered capital, the Limit for entities converted into foreign-invested companies limited by shares shall be calculated based on their appraised net assets and the Limit for domestic enterprises acquired by foreign investors shall be calculated based on the acquisition transaction amount.
2. Local Examination and Approval Authorities shall be responsible for the examination, approval and administration of single capital increases the amount of which falls below the Limit.
3. Local Examination and Approval Authorities shall be responsible for the examination, approval and administration of the establishment and changes in the particulars of foreign-invested enterprises in the encouraged category above the Limit provided that comprehensive balancing by the state in connection therewith is not required.
4. Local Examination and Approval Authorities shall be responsible for the examination, approval and administration of the establishment and changes in the particulars of foreign-invested companies with an investment nature with registered capital under US$300 million and of foreign-invested venture capital enterprises and foreign-invested venture capital management enterprises with total capital under US$300 million.
5. Local Examination and Approval Authorities shall conduct, in accordance with relevant state provisions, the examination, approval and administration of the establishment and changes in the particulars (including those at or above the Limit and capital increases) of foreign-invested enterprises in the service sector, with the exception of those subject to the examination and approval of the Ministry of Commerce as expressly provided in laws and regulations. If, pursuant to relevant provisions, the prior permission of the state department in charge of the relevant industry needs to be secured or its opinion sought, a written document or its consenting opinion shall be secured. The establishment and change in the particulars of foreign-invested enterprises in the financial and telecommunications sectors shall continue to be handled in accordance with current laws and regulations.
6. Local Examination and Approval Authorities shall be responsible for the examination, approval and administration of changes in the particulars (with the exception of single capital increases that are equal to or above the Limit and the circumstances specified in Article 5 hereof) of foreign-invested enterprises, the establishment of which was approved by the Ministry of Commerce, the former Ministry of Foreign Trade and Economic Co-operation and relevant departments of the State Council.
7. Competent commerce departments at every level shall act in strict accordance with state policy on foreign investment in industries, and shall stringently examine and effect record filing of foreign investments involved in industries subject to macroeconomic control, industries in which there is overcapacity, etc. in accordance with relevant state provisions.
8. Competent commerce departments at every level shall duly carry out work for administration through record filing in accordance with the Ministry of Commerce, Circular on Further Improving the Examination and Approval of Foreign Investment (Shang Zi Han [2009] No.7) and the requirements of provisions specifically addressing foreign-invested companies with an investment nature, venture capital, lease financing, commerce, direct selling, etc.
9. The competent commerce departments of the provinces, autonomous regions, municipalities directly under the central government, cities with independent development plans and the Xinjiang Production and Construction Corp shall conduct their examinations and issue Confirmations of a Domestic or Foreign-invested Project the Development of Which is Encouraged by the State and Certificates of the Equipment, Technology and Components Imported by a Foreign-invested Enterprise in strict accordance with relevant provisions, and submit them to the Ministry of Commerce via the System for Examination, Approval and Administration of Foreign Investment for the record in a timely manner.
10. In the event of a discrepancy between this Circular and relevant documents previously issued by the Ministry of Commerce, this Circular shall prevail.
11. Competent commerce departments at every level shall integrate administration into service, vigorously promote the transformation of governmental functions, innovate service methods and continuously enhance their standards of service. Additionally they shall rationally guide the orientation of foreign investment, strengthen oversight over the performance by investors of their obligations under contracts and articles of association and the compliance with laws and regulations by, and the operation of, foreign-invested enterprises and create a good investment environment for the establishment and operation of foreign-invested enterprises. If you should encounter any problems or questions in the course of implementation, you are asked to report the same to the (Department of Foreign Investment Administration of the) Ministry of Commerce in a timely manner.
clp reference:2300/10.06.10prc reference:商资发 [2010] 209号promulgated:2010-06-10This premium content is reserved for
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