Thông tư 39/2012/TT-BCT

CIRCULAR

DETAILING A NUMBER OF ARTICLES OF THE GOVERNMENT'S DECREE NO. 94/2012/NĐ-CP DATED NOVEMBER 12^TH 2012 ON WINE PRODUCTION AND WINE TRADING

Pursuant to Pursuant to the Government's Decree No. 189/2007/NĐ-CP dated December 27^th 2007 on defining the functions, tasks, powers and organizational structure of the Ministry of Industry and Trade; the Government's Decree No. 44/2011/NĐ-CP dated June 14^th 2011 amending and supplementing Article 3 of the Decree No. 189/2007/NĐ-CP dated December 27^th 2007 on defining the functions, tasks, powers and organizational structure of the Ministry of Industry and Trade;

Pursuant to the Government's Decree No. 94/2012/NĐ-CP dated November 12^th 2012 on wine production and wine trading;

The Minister of Industry and Trade details a number of articles of the Government's Decree No. 94/2012/NĐ-CP dated November 12^th 2012 on wine production and wine trading as follows:

Chapter I

GENERAL PROVISIONS

Article 1. Scope of regulation

This Circular deals with the documents and procedures for issuing, reissuing, amending, supplementing, and revoking the Licenses for mass production of wine, the Licenses for small-scale production of commercial wine, the certificates of registration of small-scale production of wine for selling to the enterprises licensed to produce wine for further processing, the Licenses for wine distribution, the Licenses for wine wholesaling, the License for wine retailing as prescribed in the Government's Decree No. 94/2012/NĐ-CP dated November 12^th 2012 on wine production and wine trading (hereinafter referred to as the Decree No. 94/2012/NĐ-CP);

Article 2. Subjects of application

This Circular is applicable to the Vietnamese and foreign organizations and individuals that participate in wine production, wine trading, and other activities related to wine production and wine trading within Vietnam’s territory.

Article 3. Interpretation of terms

1. “Copies” in this Circular are presented in one of the following suitable forms:

a) An authenticated copy as prescribed (applicable to the dossiers sent by post or administrative dispatches);

b) A copy enclosed with an original for comparison (applicable to the dossiers directly submitted);

c) A scanned copy of the original (if the administrative procedures allows online dossier submission).

2. The license is reissued when it is damaged, burned, lost, or revoked, or expired.

Article 4. The wine standards

Wine products must satisfy the current Vietnam’s standards. The applicable standard is the Regulation QCVN 6-3: 2010/BYT enclosed with the Circular No. 45/2010/TT-BYT dated December 22^nd 2010 of the Ministry of Health.

Chapter II

WINE PRODUCTION

Article 5. The dossier of application for the License for mass production of wine

1. The enterprise shall make 02 dossiers of application for the License for mass production of wine. 01 dossier shall be sent to the licensing agency, 01 dossier shall be kept by the enterprise. The dossier of application for the License for mass production of wine includes:

a) The written application for the License for mass production of wine (according to the form in Annex 1 enclosed with this Circular);

b) The copy of the investment license, the Certificate of Enterprise registration, or the Certificate of business registration (that register the provision of wine or alcoholic drinks in accordance with law and consistent with the production process) and the Certificate of Tax code;

c) The description of the production process, the facilities (the workshop), machinery and equipment (the list specifying the powers of specialized machinery and equipment serving the primary stages such as boiling, fermentation, distillation, preparation, extraction, etc. consistent with the stages and production scale of the enterprise; the devices for measuring and testing the quality of wine yeast, sugar content, alcohol concentration, etc.);

d) The statement of the area, plans of the workshop, warehouse, offices, and ancillary constructions;

dd) The copies of the qualifications and certificates of professional proficiency, the labor contracts signed with the technicians in charged of primary stages; the written commitment of the employer that the workers in the factory are sufficiently healthy for food production without suffering from any infectious disease;

e) The copies of the Certificate of reception of Declaration of conformity, and the Certificate of fulfillment of food safety conditions;

g) The list of wine products enclosed with the copies of the wine labels that the enterprise plans to produce;

h) The copies of the decisions on approving the reports on the assessments of environmental impacts, or the certificate of commitment on environment protection issued by competent agencies.

2) For new projects:

Before the wine products are put on the market, the enterprise that applies for the License for wine production shall submit the following documents to the licensing agency: the copy of the Certificate of label registration, the Certificate of reception of Declaration of conformity, the Certificate of fulfillment of food safety conditions.

Article 6. The small-scale production of commercial wine

1. The organizations and individuals engaged in the small-scale production of wine being members of wine villages are exempted from applying for the License for small-scale production of commercial wine. The organizations and individuals that represent a wine village must apply for the License for small-scale wine production of the wine villages, and take responsibility for the wine production conditions applicable to the member of the wine villages.

2. The applicant for the License for small-scale production of commercial wine shall make 02 dossiers of application for the License for small-scale production of commercial wine. 01 dossier shall be sent to the licensing agency, 01 dossier shall be kept by the applicant. The dossier of application for the License for small-scale production of commercial wine includes:

- a) The written application for the License for small-scale production of commercial wine (according to the form in Annex 10 enclosed with this Circular);

- A valid copy of the Certificate of business registration, the Certificate of Tax code, or the Certificate of Enterprise registration ;

- The copy of the Certificate of reception of Declaration of conformity; and the Certificates of fulfillment of food safety conditions;

- The list of wine products enclosed with the copies of the wine labels that the applicant plans to produce;

Article 7. The small-scale production of wine for selling to enterprises licensed to produce wine further processing

1. The applicant for the registration of small-scale production of wine for selling to enterprises licensed to produce wine further processing shall make 02 dossiers of application. 01 dossier is sent to the People’s Committee of the commune or ward where the small-scale wine facility is situated, 01 dossier is kept by the applicant.

The dossier of application for the registration of the small-scale production of wine for selling to enterprises licensed to produce wine further processing includes:

- The written registration of the small-scale production of wine for selling to enterprises licensed to produce wine further processing according to the form in Annex 16;

- The copy of the sale contract between the applicant for the registration of the small-scale production of wine and the enterprise licensed to produced wine.

2. The order and procedure for issuing the Certificate of registration of small-scale production of wine for selling to enterprises licensed to produce wine further processing:

a) Within 07 working days from the date on which the complete and valid dossier is received, the People’s Committee of the commune or ward where the facility is situated shall consider and issue the Certificate of registration of the small-scale production of wine for selling to the enterprises licensed to produced wine for further processing. The refusal to issue the Certificate must be notified and explained in writing.

b) If the dossier is not valid, within 03 working days from the date on which the dossier is received, the agency that issues the Certificate must send a written request for the supplementation.

3. The Certificate of registration of small-scale production of wine for selling to enterprises licensed to produce wine further processing is valid for 05 years.

Article 8. Making and keeping the License for wine production, the Certificate of registration of small-scale production of wine for selling to enterprises licensed to produce wine further processing is valid for 8 years.

1. The License for mass production of wine shall be made in 04 copies: 02 copies are kept at the licensing agency, 01 copy is sent to the licensed enterprise, 01 copy is sent to the Ministry of Industry and Trade (applicable to the Licenses issued by Services of Industry and Trade according to the form in Annex 7 enclosed with this Circular) or the local Service of Industry and Trade (applicable to the Licenses issued by the Ministry of Industry and Trade according to the form in Annex 5 enclosed with this Circular);

2. The License for small-scale production of commercial wine shall be made in 04 copies: 02 copies are kept at the licensing agency, 01 copy is sent to the applicant, 01 copy is sent to the local Service of Industry and Trade. The form of the License is provided in Annex 13 enclosed with this Circular;

3. The Certificate of registration of small-scale production of wine for selling to enterprises licensed to produce wine further processing shall be made in 04 copies: 02 copies are kept at the licensing agency, 01 copy is sent to the applicant, 01 copy is sent to the local superior Department of Industry and Trade. The form of the Certificate is provided in Annex 19 enclosed with this Circular.

Article 9. The wine production

The wine production must not exceed the production and inconsistent with the type of wine licensed by competent agencies.

Chapter III

WINE TRADING

Article 10. The dossier of application for the License for wine distribution

The enterprise that applies for the License for wine distribution shall make 02 dossiers. 01 dossier shall be sent to the licensing agency, 01 dossier shall be kept by the enterprise. The dossier of application for the License for wine distribution includes:

1. The written application for the License for wine distribution (according to the form in Annex 27 enclosed with this Circular);

2. The copy of the Investment certificate, Certificate of Enterprise registration, or Certificate of business registration (that registers the trading of wine or alcoholic drinks) and the Certificate of Tax code;

3. The documents about the business location, including:

a) The address, area, and description of the wine shop;

b) The copies of the documents proving the right to use the business location (the ownership or the co-ownership or the rent for at least 01 year);

c) The list of devices for testing and adjusting the temperature and humidity in the wine shop (in order to ensure that the trading area is always airy and able to avoid wine products being directly exposed to sunlight;

d) The written commitment of the enterprise on the conformity to the requirements of fire prevention and fighting, environment protection as prescribed by laws on business locations.

4. The income statement of the enterprise:

a) The income statements of the previous 03 years, enclosed with the list of the sale contacts and their copies signed with other wine producers, wine traders, and wine distributors, the taxes paid; 

b) The form of trading, the distribution system management method;

5. The list of traders, the copy of the Investment certificate, Certificate of Enterprise registration, or Certificate of business registration (that registers the wholesaling of wine or alcoholic drinks) and the Certificate of Tax code, the License to trade wine (if the wine is being traded) of the enterprises that belong or will belong to the wine distribution system in at least 06 provinces (each province must have at least 03 wine wholesalers);

6. The copies of the introductions and sale contracts of other wine producers or wine distributors (specifying the area and the wine products going to be traded);

7. The copy of the Certificate of business registration, or the standard certificate of the wine products going to be traded;

8. The documents about the means of transport, including: the copies of the papers proving the right to use the means of transport (the ownership, or co-ownership under a join venture contract or contribution contract; or a car rental contract that suit the business scale of the enterprise of which the term is not shorter than 01 year); there must be at least 03 vehicles of which the load capacity is not lower than 500 kg, and able to ensure the quality of wine during the transport;

9. The documents proving the financial capacity: the financial capacity must ensure the normal operation of the entire distribution system of the enterprise (having a written certification of at least 01 billion VND issued by a bank);

10. The documents about the warehouse, including:

a) The documents proving the right to use the warehouse (the ownership, or co-ownership under a join venture contract or contribution contract; or a lease contract with the term not shorter than 01 year); the area must reach at least 300 m² , or the total volume must reach at least 1000 m³  , and able to ensure the quality of the wine in storage;

b) The written commitment of the enterprise on the conformity to the requirements of fire prevention and fighting, environment protection as prescribed by laws on warehouses;

11. The copies of the fee receipts as prescribed by the Ministry of Finance.

Article 11. The dossier of application for the License for wine wholesaling

The enterprise that applies for the License for wine wholesaling shall make 02 dossiers. 01 dossier shall be sent to the licensing agency, 01 dossier shall be kept by the enterprise. The dossier of application for the License for wine wholesaling includes:

1. The written application for the License for wine wholesaling (according to the form in Annex 29 enclosed with this Circular);

2. The copy of the Investment certificate, Certificate of Enterprise registration, or Certificate of business registration (that registers the trading of wine or alcoholic drinks) and the Certificate of Tax code;

3. The documents about the business location, including:

a) The address, area, and description of the wine trading area;

b) The copies of the documents proving the right to use the business location (the ownership or the co-ownership or the rent not shorter than 01 year);

c) The list of devices for testing and adjusting the temperature and humidity in the wine shop (in order to ensure that the trading area is always airy and able to avoid wine products being directly exposed to sunlight;

d) The written commitment of the enterprise on the conformity to the requirements of fire prevention and fighting, environment protection as prescribed by laws on business locations.

4. The report on the income statement and business plan of the enterprise:

a) The income statements of the previous 03 years, enclosed with the list of the sale contacts and their copies signed with other wine producers and wine distributors, the taxes paid;

b) The form of trading, the wholesaling system management method;

5. The list of traders, the copy of the Investment certificate, Certificate of Enterprise registration, or Certificate of business registration (that registers the wholesaling of wine or alcoholic drinks) and the Certificate of Tax code, the License to trade wine (if the wine is being traded) of the enterprises that belong or will belong to the wine wholesale system (there must be at least 03 wine retailers);;

6. The copies of the introductions and sale contracts with wine producers or wine distributors (specifying the area and the wine products going to be traded);

7. The copy of the Certificate of business registration, or the standard certificate of the wine products going to be traded;

8. The documents about the means of transport, including: the copies of the papers proving the right to use the vehicles (the ownership, or co-ownership under a join venture contract or contribution contract; or a car rental contract that suit the business scale of the enterprise with the term not shorter than 01 year); there must be at least 01 vehicles with load capacity of at least 500 kg, and able to ensure the quality of wine during the transport;

9. The documents proving the financial capacity: the financial capacity must ensure the normal operation of the entire wholesaling system of the enterprise (having a written certification of at least 300 million VND issued by a bank);

10. The documents about the warehouse include:

a) The documents proving the right to use the warehouse (the ownership, or co-ownership under a join venture contract or contribution contract; or a lease contract with the term not shorter than 01 year); the area must reach at least 50 m² , or the total volume must reach at least 150 m³ , and able to ensure the quality of the wine in storage;

b) The written commitment of the enterprise on the conformity to the requirements of fire prevention and fighting, environment protection as prescribed by laws on warehouses;

11. The copies of the fee receipts as prescribed by the Ministry of Finance.

Article 12. The dossier of application for the License for wine retailing

The wine retailer that applies for the License for wine retailing shall make 02 dossiers. 01 dossier shall be sent to the licensing agency, 01 dossier shall be kept by the retailer. The dossier of application for License for wine retailing includes:

1. The written application for the License for wine retailing (according to the form in Annex 31 enclosed with this Circular);

2. The copy of the Investment certificate, Certificate of Enterprise registration, or Certificate of business registration (that registers the trading of wine or alcoholic drinks) and the Certificate of Tax code;

3. The documents about the business location, including:

a) The address, area, and description of the wine trading area;

b) The copies of the documents proving the right to use the business location (the ownership or the co-ownership or the rent for at least 01 year);

c) The list of devices for testing and adjusting the temperature and humidity in the wine shop (in order to ensure that the trading area is always airy and able to avoid wine products being directly exposed to sunlight;

d) The written commitment of the retailer on the conformity to the requirements of fire prevention and fighting, environment protection as prescribed by laws on business locations.

4. The copies of the introductions and sale contracts with wine wholesalers (specifying the wine products going to be traded);

5. The copy of the Certificate of Declaration of conformity or the standard certificate of the wine products going to be traded;

6. The documents about the warehouse include:

a) The documents proving the right to use the warehouse (the ownership, or co-ownership under a join venture contract or contribution contract; or a lease term not shorter than 01 year), and the capability to ensure the quality of the wine in storage;

b) The written commitment of the retailer on the conformity to the requirements of fire prevention and fighting, environment protection as prescribed by laws on warehouses.

7. The copies of the fee receipts as prescribed by the Ministry of Finance.

Article 13. Making and keeping the License to trade wine

1. The License for wine distribution:

a) The form of the License for wine distribution is provided in Annex 28 enclosed with this Circular.

b) The License for wine distribution is made into many copies: 02 copies are kept by the licensing agency; 01 copy is kept by the licensed enterprise; 01 copy is sent to the Department of market management; each Service of Industry and Trade listed in the license (within the trading are) and in charge of the locality where the head office of the enterprise is situated shall receive 01 copy; each wine producer or wine distributor listed in the license (that sell wine to the enterprise) shall receive 01 copy.

2. The License for wine wholesaling:

a) The form of the License for wine wholesaling is provided in Annex 30 enclosed with this Circular.

b) The License for wine wholesaling is made into many copies: 02 copies are kept by the licensing agency; 01 copy is kept by the licensed enterprise; 01 copy is sent to the Ministry of Industry and Trade; 01 copy is sent to the Department of market management; each wine producer or wine distributor listed in the license (that sell wine to the enterprise) shall receive 01 copy.

3. The License for wine retailing:

a) The form of the License for wine retailing is provided in Annex 32 enclosed with this Circular.

b) The License for wine retailing is made into many copies: 02 copies are kept by the licensing agency; 01 copy is kept by the licensed trader; 01 copy is sent to the Service of Industry and Trade; 01 copy is sent to the Sub-department of market management; each wine producer or wine wholesaler listed in the license (that sell wine to the trader) shall receive 01 copy.

Chapter IV

AMENDING, SUPPLEMENTING, REISSUING THE LICENSES FOR WINE PRODUCTION,  LICENSES FOR SMALL-SCALE PRODUCTION OF COMMERCIAL WINE, CERTIFICATES OF REGISTRATION OF SMALL-SCALE PRODUCTION OF WINE FOR SELLING TO THE ENTERPRISES LICENSED TO PRODUCE WINE FOR FURTHER PROCESSING, AND LICENSES TO TRADE WINE

Article 14. Issuing the amended and supplemented Licenses for mass production of wine, Licenses for small-scale production of commercial wine, Certificates of registration of small-scale production of wine for selling to the enterprises licensed to produce wine for further processing, and Licenses for wine distribution, wine wholesaling, and wine retailing

1. When wishing to change the License for mass production of wine, the License for small-scale production of commercial wine, the Certificate of registration of small-scale production of wine for selling to the enterprises licensed to produce wine for further processing, or License for wine distribution, wine wholesaling, or wine retailing, the trader shall make 02 dossier. 01 dossier is sent to the competent State management agencies, and 01 dossier is kept by the trader.

2. The dossier includes:

a) The written application for amendment and supplementation (according to the form in Annexes 3, 11, 17 and 33 enclosed with this Circular);

b) The copy of the issued License for mass production of wine, License for small-scale production of commercial wine, Certificate of registration of small-scale production of wine for selling to the enterprises licensed to produce wine for further processing, or License for wine distribution, wine wholesaling, or wine retailing;

c) The documents proving the demand for the amendment and supplementation.

3. The order and procedure for amending and supplementing the License

a) Within 10 working days from the date on which the complete and valid dossier is received, the competent State agency shall consider an issue the amended or supplemented License for mass production of wine, License for small-scale production of commercial wine, Certificate of registration of small-scale production of wine for selling to the enterprises licensed to produce wine for further processing, or License for wine distribution, wine wholesaling, or wine retailing (according to the form in Annexes 6, 9, 15, 21, 35, 36, 37 enclosed with this Circular) The refusal to issue the amended or supplemented License or Certificate must be notified and explained in writing;

b) If the dossier is not valid, within 03 working days from the date on which the dossier is received, the agency in charge of issuing amended and supplemented Licenses and Certificates must send a written request for the supplementation.

Article 15. Reissuing the Licenses for mass production of wine, Licenses for small-scale production of commercial wine, Certificates of registration of small-scale production of wine for selling to the enterprises licensed to produce wine for further processing, and licenses for wine distribution, wine wholesaling, and wine retailing

1. When the License or Certificate expires:

The trader shall submit a dossier of application for the reissuance of the License (including the License for mass production of wine, License for small-scale production of commercial wine,  license for wine distribution, wine wholesaling, and wine retailing), or the Certificate of registration of small-scale production of wine for selling to the enterprises licensed to produce wine for further processing 30 days prior to the date of expiry. The dossier, authority, order, and procedure for the reissuance are similar to the new issuance.

2. When the License or Certificate is lost, partly damaged, or completely damaged:

a) The licensed trader shall make 02 dossiers of application for the reissuance. 01 dossier is sent to a competent State management agency, 01 dossier is kept by the trader. The dossier of application for the reissuance of the lost or damaged License or Certificate includes:

- The written application for reissuance (according to the form in Annexes 2, 12, 18 and 34 enclosed with this Circular);

- The original or the copy of the issued License for mass production of wine, License for small-scale production of commercial wine, Certificate of registration of small-scale production of wine for selling to the enterprises licensed to produce wine for further processing, or license for wine distribution, wine wholesaling, or wine retailing (if available);

b) Depending on the stored dossier and the dossier of application for the reissuance submitted by the trader, the licensing agency shall reissue the License or the Certificate.

c) The term of the new License is the same as that of the old one (in case the old license is lost or damaged).

3. The order and procedure for reissuing the License or Certificate

a) Within 10 working days from the date on which the complete and valid dossier is received, the competent State agency shall consider an reissue the License for mass production of wine, License for small-scale production of commercial wine, Certificate of registration of small-scale production of wine for selling to the enterprises licensed to produce wine for further processing, or License for wine distribution, wine wholesaling, or wine retailing (according to the form in Annexes 5, 8, 14, 20, 38, 39, 40 enclosed with this Circular). The refusal to reissue the License or Certificate must be notified and explained in writing;

b) If the dossier is not valid, within 03 working days from the date on which the dossier is received, the agency in charge of reissuing the License or Certificate must send a written request for the supplementation.

Chapter V

THE REPORTING REGIME

Article 16. The reporting regime

1. Before January 31^st every year, the wine producers and traders must send reports on the statistics of the quantity and types of wine being produced and traded (according to the distribution and wholesaling system) in the last year to the competent agencies that issued the licenses according to the form in Annex 22, 41, 42, and 50 enclosed with this Circular; the People’s Committees of the communes and wards shall send the superior Departments of Industry and Trade on the list of local small-scale wine producers that sell wine to the enterprises licensed to produce wine according to Annex 23 enclosed with this Circular.

2. Before February 31^st every year, the Departments of Industry and Trade shall send reports on the local investment, production, trading, and licensing of the small-scale production of commercial wine, the total registered small-scale production of wine for selling to the enterprises licensed to produce wine for further processing, to their Services of Industry and Trade according to the form in Annex 24a and 24b enclosed with this Circular.

3. Before March 31^st every year, the Services of Industry and Trade shall send reports on the local investment, production, and licensing of the mass production of wine, the small-scale production of wine, the wine trading (wholesaling and retailing) to the Ministry of Industry and Trade according to the form in Annex 25a, 25b, 43, 44 enclosed with this Circular.

4. Before July 15^th and January 15^th every year, the wine distributors shall send report on their business performance over the previous six months and the previous year according to the form in Annex 49 enclosed with this Circular.

5. Before July 15^th and January 15^th every year, the wine wholesalers shall send report on their business performance over the previous six months and the previous year according to the form in Annex 48 enclosed with this Circular.

6. Before July 15^th and January 15^th every year, the wine retailers shall send report on their business performance over the previous six months and the previous year according to the form in Annex 47 enclosed with this Circular.

Chapter VI

THE IMPLEMENTATION

Article 17. The implementation organization

1. The Department of Light Industry and the Market Department shall preside and cooperate with the units affiliated to Ministries in:

a) Receiving the dossiers, inspecting, supervising, appraising, sending the policies on investment in wine production, licensing wine production and wine distribution to the Leaders of Ministries for approval;

b) Guiding and inspecting the implementation of this Circular and the relevant laws on wine production and wine trading of organizations and individuals.

2. The Services of Industry and Trade shall announce the planning for the local wine retailing system; receive dossiers, inspect, supervise, and license the wine production, licensing wine production and wine wholesaling as guided in this Circular.

3. The Departments of Industry and Trade shall receive dossiers, inspect, supervise, and license small-scale production of commercial wine, and the wine retailing.

4. The People’s Committees of communes and wards shall receive the application for the registration of small-scale production of wine for selling to the licensed enterprises for further processing.

5. The enterprises and other organizations and individuals relevant to the wine production and wine trading shall are responsible for complying with this Circular.

Article 18. Effects

1. This Circular takes effect on February 05, 2013;

2. The Circular No. 10/2008/TT-BCT dated July 25^th 2008 of the Ministry of Industry and Trade, guiding the implementation of a number of articles of the Government's Decree No. 40/2008/NĐ-CP dated April 07^th 2008 on the wine production and wine trading;

3. The issued and unexpired Licenses to produce and trade wine may be used until they expire;

4. The traders holding the unexpired Licenses to produce or to trade wine as prescribed in the Decree No. 40/2008/NĐ-CP dated April 07^th 2008 are exempted from applying for the new Licenses, including the import. When such Licenses expire, the new Licenses must be applied for in accordance with the Decree No. 94/2012/NĐ-CP and this Circular.

5. The traders that wish the replace their Licenses shall comply with this Circular;

6. The enterprises that wish to amend or supplement their Licenses shall comply with this Circular;

7. The License shall be revoked in the following cases:

a) The License is issued one year before this Circular take effect but the operation the business is not run when this Circular takes effect.

b) The enterprises issued with the License to produce wine or trade wine have not run their business for consecutive 12 months;

8. Organizations and individuals are recommended to send feedbacks on the difficulties arising during the course of implementation to the Ministry of Industry and Trade prompt settlement./.