Official translation
REPUBLIC OF LITHUANIA
LAW
ON COUNTERVAILING DUTIES
23 May 2000 No. VIII.-1695
Vilnius
CHAPTER ONE
General Provisions
Article 1. Purpose of the Law
The purpose of this Law is to provide legal conditions for the protection of domestic producers against the imports of products subsidised by a foreign country, if such imports cause injury to domestic producers.
Article 2. Main Definitions Used in this Law
1. “Subsidy” means a direct or indirect purposive financial contribution by the government in the country of origin or export for the acquisition of fixed or current assets, production, export or transport of a product, price undercutting of products in the market, support of various programmes, grants to cover enterprise debt repayment or to cover losses sustained by enterprises and for similar purposes.
2. “Countervailable subsidy” means a subsidy, which is specific to a producer or exporter or a group of certain producers or exporters, or a certain industry or a group of industries; or a subsidy contingent upon export performance, or a subsidy contingent upon the use of domestic over imported goods. The above subsidies, if granted in respect of products imported into the customs territory of the Republic of Lithuania, make them eligible for the countervailing duty.
3. “Non-countervailable subsidy” means a subsidy which is not specific or a subsidy which is specific but meets the conditions of Article 6 of this Law. The above subsidies, if granted in respect of products imported into the customs territory of the Republic of Lithuania, shall not make them eligible for the countervailing duty.
4. “Injury to domestic producers” (hereinafter - injury) means a material injury to domestic producers, resulting from import of subsidised products, or threat of material injury or material retardation of the establishment of the production of the like product in Lithuania.
5. “Threat of injury” means material injury which, based on positive evidence, is foreseeably imminent to domestic producers if countervailing duty is not applied or the undertaking accepted under Article 23 of this Law is not complied with.
6. “Retardation of the establishment of industry of the like product in Lithuania” means retardation of the establishment in Lithuanian of the production of the like product, which would not have developed if the imports were not subsidised by foreign states.
7. “Domestic producers” means Lithuanian producers as a whole of the like product or those whose collective output of the product constitutes a major portion (over 50 %) of the total production of such products in the customs territory of the Republic of Lithuania, as provided for in Article 8 of this Law.
8. “Product in question” means the product imported into the customs territory of the Republic of Lithuania, which is suspected of being a subsidised product.
9. “Subsidised product” means the product which is imported into the customs territory of the Republic of Lithuania, which has been granted a subsidy by a foreign state.
10. “Like product” means a product which is identical or alike in all respects to the product in question imported into the customs territory of the Republic of Lithuania. In the absence of identical product, another product which has characteristics closely resembling those of the product in question.
11. “Customs territory of the Republic of Lithuania” means the territory of the Republic of Lithuania, bordered by the customs boundaries of the Republic of Lithuania, unless the international agreements of the Republic of Lithuania provide otherwise. For the purpose of this Law, products located in the free economic zone shall be considered as located outside the boundaries of the customs territory of the Republic of Lithuania.
12. “Customs boundaries of the Republic of Lithuania” means the border of the customs territory of the Republic of Lithuania coinciding with the state border of the Republic of Lithuania, except when otherwise provided for by the international treaties to which the Republic of Lithuania is a party.
13. “Countervailing duty” means the duty which may be applied to imports subsidised with countervailable subsidies, if upon the release of such products for free circulation in the customs territory of the Republic of Lithuania injury is caused to domestic producers.
14. “Provisional countervailing duty” means the duty which is imposed during the period of investigation in respect of subsidised imports (hereinafter - investigation), when its is determined preliminarily that imported products are being subsidised with countervailable subsidies and cause injury to domestic producers.
15. “Interested parties” in respect of the procedures related to the calculation and imposition of countervailing duties means:
1) the Lithuanian producers of the like product (including potential producers) or associations, the majority of the members of which are Lithuanian producers of the like product;
2) importers of the product in question, foreign producers or exporters, or associations the majority of members of which are importers or foreign producers or exporters of the product;
3) the government of the country of origin of the product in question or the country from which the product in question is imported (hereinafter - of the country of origin or the exporting country);
4) enterprises, which use the product in question for the production of their products in the customs territory of the Republic of Lithuania;
16. “Exporter” means an economic operator of the country of origin or export, who is selling the subsidised product (product in question) to the natural or legal person of the Republic of Lithuania or its enterprise without legal personality, or who has concluded any other contract with any of the above operators for the supply of the subsidised product (product in question).
17. “Importer” means an economic operator of the Republic of Lithuania who has purchased the subsidised product (product in question) from a legal or natural person of the country of origin or export or any other economic operator without legal personality of the above countries or has concluded with the enterprise of the country of origin or exporting country any other contract for the supply of the subsidised product (product in question).
Article 3. Government Bodies in Charge of the Implementation of this Law
1. The Law on Countervailing Duties shall be implemented by the Government of the Republic of Lithuania and the body authorised by it.
2. The body authorised by the Government of the Republic of Lithuania (hereinafter referred to as the Body) shall carry out investigation, perform selections, accept undertakings, supervise compliance with the undertakings, carry out reviews of the imposed countervailing duties and accepted undertakings and fulfil other functions laid down in this Law or prescribed by the Government of the Republic of Lithuania, take decisions on whether or not to initiate the investigation, suspend the investigation, limit the scope of investigation or terminate the investigation, accept an undertaking or refuse accepting same, carry out a review of the countervailing duty or an undertaking, submit proposals to the Government of the Republic of Lithuania on the imposition of the provisional countervailing duty, imposition of the countervailing duty, continued imposition of the countervailing duty or revocation of the countervailing duty as a result of a review, the changing of the rate of the countervailing duty and refund of the countervailing duty.
3. The Government of the Republic of Lithuania shall adopt decisions to impose the provisional countervailing duty or the countervailing duty, to extend the imposition of the duty or to repeal it (following a review), to change the rate of the countervailing duty and to refund the countervailing duty.
Article 4. Existence of a Subsidy
1. A subsidy shall be deemed to exist if at least one of the conditions provided for in paragraph 2 of this Article is met and a benefit has thereby been conferred on the recipient foreign producer or exporter.
2. The government of the country of origin or export or any other government body provides a financial contribution by:
1) a direct transfer of funds (for example, grants, loans, equity infusions, etc.) as well as provision of conditions for a potential direct transfer of funds or take-over of liabilities to third parties to the contract (for example, by giving loan guarantees); or
2) not collecting or deferring the collection of government revenue (for example, fiscal incentives such as tax credits). However the exemption of an exported product from duties or taxes, borne by the like product when destined for domestic consumption, or the remission of such duties and taxes in amounts not in excess of those which have accrued shall not be deemed to be a subsidy, if this is established in the explanatory list of export subsidies approved by the Government of the Republic of Lithuania or the body authorised by it; or
4) granting a direct transfer of funds for the implementation of certain programmes or entrusting or directing a private entity to carry out one or more of the type of functions specified in subparagraphs 1, 2, and 3 above which would normally be vested in the government or any other government body of the country of origin or export; or
Article 5. Countervailable Subsidies
1. Save for the exceptions specified in this Article, subsidies granted in the country of origin or export shall be deemed countervailable only if they are specific.
2. It shall be deemed that a subsidy is specific if it has been granted specifically to a certain producer or exporter or a group of certain producers or exporters or to a certain industry or a group of industries (hereinafter - certain enterprises) if the decisions of the government or other government body of the country of origin or export, or the legislation governing the operation of the government or other government body explicitly limits access to a subsidy to certain enterprises.
3. If the government or other government body of the country of origin or export or the legislation pursuant to which the government or other government body operates establishes objective economic criteria or conditions governing the amount of and eligibility for a subsidy and such criteria and conditions are strictly adhered to, specificity shall not exist, provided that the eligibility is automatic. Objective criteria and conditions mean that they do not favour certain enterprises over others and they are horizontal in application (account is taken of the number of employees or size of enterprise, but not the type of production, etc.) Such criteria and conditions must be clearly set out by law, regulation or other legislation of the country of origin or export.
4. If pursuant to paragraphs 2 and 3 of this Article the subsidy is not specific, in order to determine whether it is countervailable the following factors shall be taken into consideration:
4) the manner in which discretion has been exercised by the government or other government body of the country of origin or export in the decision to grant a subsidy and in the selection of eligible enterprises, taking into consideration the frequency with which applications for subsidies are approved or refused and the reasons of such decisions, etc.
5. A subsidy which is limited to certain enterprises located within a designated geographical region within the jurisdiction of the granting government body shall be deemed specific, with the exception of setting and changing of generally applicable tax rates by all levels of government authorities.
6. Notwithstanding the provisions of the paragraphs 2, 3, 4 and 5 of this Article pursuant to which a subsidy is not specific, the following subsidies shall be deemed countervailable:
1) subsidies contingent, in law or in fact, (whether solely or as one of several other conditions) upon export performance, including the subsidies listed in the illustrative list of export subsidies, approved by the Government of the Republic of Lithuania or the competent authority. Subsidies shall be considered to be contingent in fact upon export performance when the facts demonstrate that the granting of a subsidy, without having been made contingent upon export performance in the laws or other legislation of the country of origin or export, is in fact tied to actual or anticipated exportation or export earnings. The mere fact that a subsidy is accorded to enterprises which export shall not for that reason alone be considered to be an export subsidy;
Article 6. Non-countervailable Subsidies
1. Subsidies granted in the country of origin or export shall be deemed non-countervailable if they meet at least one of the following conditions:
2) subsidies which are specific, within the meaning of Article 5 of this Law, but which meet the conditions provided for in paragraphs 2, 3 and 4 of this Article;
2. Subsidies to disadvantaged region (regions) within the territory of the country of origin or export, given pursuant to a general framework of regional development (when regional subsidy programmes are part of an internally consistent and generally applicable regional development policy) may be considered to be non –specific if the criteria laid down in paragraphs 2, 3, 4 and 5 of Article 5 of this Law were applied not to the entire country of origin or export, but to an individual eligible region (regions) concerned. Such subsidies shall be deemed non-countervailable, provided that all of the conditions set forth below are met:
1) a disadvantaged region is a clearly designated geographical area with a definable economic and administrative identity;
2) the region is regarded as disadvantaged on the basis of neutral and objective criteria (which do not favour certain regions beyond what is appropriate for the elimination or reduction of regional disparities), indicating that the region’s difficulties arise out of more than temporary circumstances. Such criteria must be clearly spelled out by law, regulation or any other official document of the country of origin or export in question, so as to be capable of verification;
3) the criteria mentioned in subparagraph 2 of this paragraph must include a measurement of economic development, based on at least one of the following factors, as measured over the period of three years:
a) average income per capita or household income or GDP per capita in the region, which must not be above 85 % of the average for the territory of the country of origin or export concerned;
3. Subsidies intended to promote adaptation of existing facilities which have been in operation for at least two years, to new environmental requirements imposed by laws or regulations of the country of origin or export concerned, which result in greater constraints and financial burden on firms shall not be deemed countervailing, provided that such subsidies:
3) do not cover the cost of replacing and operating the subsidised investment, which must be fully borne by the firms;
4) are directly linked to and proportionate to a firm’s planned reduction of nuisance and pollution, and not cover any manufacturing cost savings which may be achieved; and
4. Subsidies for research activities conducted by firms or by higher education or research establishments on a contract basis with firms (with the exception of civil aircraft) shall not be deemed countervailable subsidies, if the subsidies cover not more than 75 % of the costs of industrial research (planned research or critical investigation aimed at discovery of new knowledge, with the objective that such knowledge may be useful in developing new products, processor services, or in bringing about a significant improvement to products, processes or services) or 50 % of the costs of pre-competitive development activity, provided that such subsidies are limited exclusively to:
1) wages costs of researchers, technicians and other supporting staff employed exclusively in the research activities;
2) costs of acquisition and use of instruments, equipment, land and buildings used exclusively for the research activity , except when disposed of on a commercial basis;
3) costs of consultancy and equivalent services used exclusively for the research activity, including bought-in research, technical knowledge, patents, etc.;
5. Pre-competitive development activity, mentioned in paragraph 4 of this Article, means the translation of industrial research findings into a plan, blueprint or design for new, modified or improved products, processes or services, whether intended for sale or for use. Pre-competitive development activity also includes the creation of a first prototype which would not be capable of commercial use. It may also include the creation of alternative products, processes or services and initial demonstration and pilot projects, provided that they cannot be used for commercial exploitation. It does not include routine or periodic alterations to existing products, production lines, manufacturing processes, services, and other ongoing operations even though those alterations may represent improvements.
6. Allowable levels of non-countervailable subsidy indicated in paragraph 4 of this Article shall be established by reference to the total eligible costs incurred over the duration of an individual project. In the case of programmes which span both industrial research and pre-competitive development activity the allowable level of non-countervailable subsidy must not exceed the simple average of the allowable levels of non-countervailable subsidy applicable to the above two categories, calculated on the basis of all costs indicated in all subparagraphs of paragraph 4 of this Article.
Article 7. Determination of Injury
1. A determination of injury shall be based on positive evidence and on the objective examination of the volume of the imports of the product in question and the effects thereof on the prices of the like products in Lithuanian market and the impact of those imports on domestic producers.
2. With regard to the volume of the imports of the product in question, consideration shall be given to whether there has been a significant increase in such imports, either in absolute terms or relative to production and consumption of the like product in the customs territory of the Republic of Lithuania. With regard to the effect of the imports of the product in question on the prices of the like product, consideration must be given to whether there has been a significant price undercutting by the imports of the product in question as compared with the price of the like product of the domestic producers, or whether the effect of such imports is otherwise to depress prices to a significant degree or prevent price increases (which would otherwise have occurred).
3. Where imports of a product in question from more than one country of origin or export are simultaneously subject to investigation, the effects of such imports shall be cumulatively assessed (without investigating individually the effect of the imports of the product in question from each country of origin or export concerned) only if is determined that:
1) the amount of countervailable subsidies established in relation to the imports from each country of origin or export is more than the minimum set in paragraph 4 of Article 11 of this Law and the volume of imports from each country is not de minimis according to paragraph 5 of Article 11 of this Law;
4. The examination of the impact of the imports of the product in question on domestic producers shall include an evaluation of all relevant economic factors and indices having a bearing on the state of domestic producers (domestic industry), including:
1) the fact that the domestic industry is still in the process of recovering from the effects of past subsidisation or dumping, the amount of countervailable subsidies, actual and potential decline in sales, profits, output, market share, productivity, return on investments, utilisation of capacity of the domestic industry producing a like product;
2) factors affecting prices of the like product in the customs territory of the Republic of Lithuania;
3) actual and potential negative effects on the increase of production of the like product in the customs territory of the Republic of Lithuania, inventories of the like product, cash flow, employment, wages, growth, ability to raise capital or investments and in the case of agriculture – an increased burden on support programmes of the Government of the Republic of Lithuania.
5. All the relevant evidence that proves injury must demonstrate that the import of the product in question, namely the volume of imports and/or price level , determined in accordance with paragraph 2 of this Article are responsible for a negative impact on domestic producers and that this impact exists to a degree which enables it to be classified as injury.
6. In order to ensure that injury caused by these other factors is not attributed to the imports of the product in question, known factors (other than imports of the product in question), which at the same time are causing injury to domestic producers must also be examined in the course of the investigation. Factors which may be considered in this respect include the prices and volume of non-subsidised imports, contraction in demand or changes in the patterns of consumption of the like product, restrictive trade practices, competition between foreign enterprises and domestic producers, developments in technology, the productivity of domestic producers and the decrease in the export performance of the domestic industry of the like product.
7. The effect of the product in question must be assessed in relation to the production of domestic industry of the like product in the customs territory of the Republic of Lithuania when available data permit the separate identification of that production on the basis of such criteria as production volume and costs, producers’ sales and profits.
8. A threat of injury or retardation of the establishment of the production of the like product in the customs territory of the Republic of Lithuania must be based on facts. In making a determination regarding the existence of a threat of material injury, consideration should be given to, inter alia, such factors as:
1) the nature of the subsidy (subsidies) in question and the trade effects likely to arise therefrom;
3) freely disposable capacity of the exporter or an imminent substantial increase in such capacity indicating the likelihood of substantially increased imports of the product in question into the customs territory of the Republic of Lithuania. In this respect the existence and availability to the exporter of other potential export markets to absorb any additional exports must also be taken into account;
4) whether the imports of the product in question are entering at prices that would, to a significant degree, depress, in the Lithuanian market, prices of the like product produced by domestic producers or prevent price increases (which would otherwise have occurred), and would probably increase demand for further import of the product in question;
9. None of the factors listed in paragraphs 2, 4 and 8 of this Article by itself can give a decisive guidance, but the totality of the factors considered must lead to the conclusion that further import of the product in question is imminent and that, unless countervailing duty is imposed, material injury will occur.
Article 8. Definition of Domestic Producers
1. For the purposes of this Law, the term “domestic producers” shall be interpreted as referring to the Lithuanian producers as a whole of the like product or to those of them whose collective output of the product constitutes a major proportion (over 50 %) of the total production of the product in the customs territory of the Republic of Lithuania. When the Lithuanian producers of the like product are related to the exporters or importers or are themselves importers of the product in question, for determining whether the volume of collective output of certain a group of producers constitutes a major portion of the total production of the product in question in the customs territory of the Republic of Lithuania, the volume of output of such group of producers shall be disregarded. In this case the definition of “domestic producers” shall not apply to them.
2. Lithuanian producers shall be considered to be related to exporters or importers if any of the conditions given below is met:
3. One enterprise shall be deemed to control another when, according to the Law of the Republic of Lithuania on Competition, the former is legally or operationally in a position to exercise restraint or direction over the latter.
4. In exceptional circumstances, for the purpose of the examination of the production of the like product, the customs territory of the Republic of Lithuania may be divided into two or more markets. In each of these markets the domestic producers of the like product may be regarded as a separate domestic producer if the conditions stated below are met:
1) the producers within such a market sell in the market at least 80% of their production of the like product;
5. In circumstances referred to in paragraph 4 of this Article, injury may be found to exist (even where major part of the total number of domestic producers in the customs territory of the Republic of Lithuania is not injured), provided that there is a concentration of imports of the product in question in such separate market and causes injury to domestic producers which produce not less that 80 % of the volume of output of the like product in such market.
Article 9. Initiation of Investigation
1. An investigation to determine the existence of imports of the subsidised product, the amount of a countervailable subsidy and its effect upon the domestic producers shall be initiated when the competent authority receives a written application of domestic producers, meeting the requirements set forth in paragraph 1 of Article 10 of this Law.
2. Where an application has been lodged by a producer of the like product whose output constitutes less than 50 % of the total production of the like product in the customs territory of the Republic of Lithuania, written applications of other domestic producers of the like products, expressing support for the applications to initiate the investigation, must also be lodged with the competent authority together with the above applications for investigation. In addition to other information, a description of the volume and value of the like product production accounted for by each of the above producers in the customs territory of the Republic of Lithuania must be indicated in the application for the investigation or in the application expressing support. The application for investigation shall be considered to have been made by domestic producers provided it is supported by domestic producers whose collective output of the like product constitutes a major portion of the total production of such product in the customs territory of the Republic of Lithuania (including the production of the like product by the applicant).
3. If, for objective reasons, the applicant appears to be not in the position to lodge a sufficient number of applications by other domestic producers, expressing support for the application to initiate the investigation, the competent authority may within 30 days from the receipt of the application for the investigation question in writing the domestic producers of the like product whether they support or oppose the application. In this case, the application for investigation shall be considered to have been lodged by domestic producers if it is supported by over 50 % of the questioned domestic producers of the like product, whose collective output of the like product in the customs territory of the Republic of Lithuania (including the production of the like product by the applicant himself) constitutes at least 25 % of total production of the like product in the customs territory of the Republic of Lithuania .
4. In exceptional circumstances, where the investigation may not be initiated on the application of domestic producers, the competent authority may initiate the investigation upon obtaining information from the association representing domestic producers or the ministry within whose sphere of regulation is the production of the like product and the information contains the evidence indicated in Article 10 of this Law which is required to justify the conduct of the investigation.
Article 10. An Application to Conduct the Investigation
1. An application to conduct the investigation must include evidence of the existence of countervailable subsidy granted to the product in question (indicating, if possible, the amount of the subsidy), injury and a causal link between the imports of the product in question and injury. The application must contain such information (as is available to the applicant) on the following:
1) full name and address of the applicant/applicants in case of a natural person (in case of a legal person or enterprise without legal personality - the name and address of its head office) and a description of the volume and value of the production in the customs territory of the Republic of Lithuania of the like product by the applicant and each local producer who expressed support for the application to conduct the investigation, indicating what portion it accounts for in the total output of the like product in the customs territory of the Republic of Lithuania;
2) a complete description of the product in question so as it would be possible to classify it according to the Combined Customs Tariffs and Foreign Trade Statistical Nomenclature of the Republic of Lithuania;
6) evidence proving the subsidisation of the product in question, the amount, nature and countervailability of the subsidy;
7) information on changes in the volume of the import of the product in question, the effect of the import on prices of the like product in the Lithuanian market and the consequent impact on domestic producers (including the economic factors and indices, having a bearing on the state of domestic producers, referred to in paragraphs 2 and 4 of Article 7 of this Law).
2. In addition to the information specified in paragraph 1 of this Article, other information containing sufficient evidence of the reasonableness of the application may be filed alongside with the application to conduct the investigation.
3. The information regarding the received application shall not be publicised until the decision to initiate investigation is adopted. Before initiating the investigation and in the case specified in paragraph 4 of Article 9 of this Law, the competent authority shall notify the governments of the countries of origin or export of the product in question of the received application to conduct the investigation in order to be able to consult them with the aim of clarifying the data and facts referred to in paragraph 1 of this Article and reach a solution mutually agreed by the Republic of Lithuania and the country of origin or export of the product in question. A delay in the consultations shall not preclude the competent authority from initiating the investigation.
Article 11. Consideration of an Application for the Investigation
1. Upon receipt of an application to conduct the investigation, the competent authority shall review the accuracy and adequacy of the evidence provided in the application to determine whether the evidence is sufficient to justify the initiation of an investigation.
2. Having examined the evidence provided in the application, the investigation may be carried out also in order to determine whether an alleged subsidy granted to the product in question is countervailable or non-countervailable.
3. If upon the examination of evidence provided in the application it becomes evident that the lodged application does not meet the requirements set forth in paragraph 1 of Article 10 or that the submitted evidence of countervailable subsidy is no sufficient evidence of countervailable subsidy and injury to justify the investigation, the competent authority shall notify the applicant (applicants) thereof indicating the shortcomings and fixing the time limit for the elimination thereof. In the event of failure by the applicant to eliminate the shortcomings by the time limit fixed by the competent authority , the latter shall adopt a decision not to initiate the investigation.
4. The investigation shall not be carried out if the amount of the countervailable subsidy is de minimis, i.e. when it constitutes less than 1% of the value of the subsidised imports of the products in question. As regards investigations concerning imports from developing countries, the de minimis threshold shall be less than 2% ad valorem of the imported products in question, and for those developing countries which are members of the WTO the de minimis subsidy threshold shall be less than 3% ad valorem.
5. An investigation shall not be carried out concerning imports of the product in question from the country of export, imports of the product in question from which accounts for less than 1% of the Lithuanian market share, with the exception of cases when the total volume of imports from all such exporting countries accounts for 3% or more of the Lithuanian market share. The investigation shall not be carried out if the volume of imports of the product in question from a developing country constitutes less than 4 % of the total volume of the imports of the product in question into the customs territory of the Republic of Lithuania, with the exception of cases when such imports from each developing country separately do not exceed 4% and from all developing countries together constitute more than 9 % of the total volume of the imports of the product in question into the customs territory of the Republic of Lithuania. If the imports of the product in question are not in excess of the volume indicated in this paragraph, it shall be deemed that the injury is negligible.
6. If the application is withdrawn by the applicant (applicants) prior to the adoption of the decision to initiate investigation, it shall be deemed that the application has not been lodged.
Article 12. Adoption of the Decision to Initiate Investigation
1. The competent authority, having examined whether the application received and information furnished is sufficient to initiate investigation, shall not later than within 45 calendar days from the receipt of the application adopt a decision to initiate an investigation or refrain from doing same and notify the applicant (applicants) thereof.
2. If the application to carry out the investigation is lodged by domestic producers and it meets the requirements laid down in paragraph 1 of Article 10 of this Law and not a single condition referred to in paragraphs 3, 4, 5 and 6 of Article 11 of this Law is satisfied, the competent authority shall adopt the decision to initiate investigation. In the opposite case the application shall be refused.
3. The decision of the competent authority to initiate the investigation shall be published in the official gazette “Valstybės žinios”.
4. Upon the adoption of the decision not to initiate the investigation following the receipt of the application for the investigation, the competent authority shall notify the applicant (applicants) thereof.
5. When the competent authority adopts a decision to initiate the investigation, all the interested parties known to be concerned with the results of the investigation must be notified thereof. Without prejudice to the provisions of Article 42 of this Law, the text of the application based whereon the investigation is carried out must be submitted to the known foreign producers or exporters of the product in question and to the governments of the country of origin or export, and must be available upon request to other interested parties involved. Where the number of foreign producers or exporters of the product in question is particularly high, the text of the application to initiate the investigation may be provided only to the governments of the country of origin or export of the product in question and to the trade associations representing the relevant foreign producers or exporters of the product in question.
6. When the competent authority adopts a decision to initiate the investigation the exporters and importers of the product in question, also the governments of the country of origin or export and other interested parties may submit the evidence within the time limit set in the decision of the competent authority .
7. Upon adopting a decision to initiate the investigation the competent authority shall apply to the Customs Department under the Ministry of Finance of the Republic of Lithuania with a request to collect detailed information about the imports of the product in question.
Article 13. Duration of the Investigation
Where possible, the investigation must be concluded within one year. In any case the duration of the investigation may not exceed 13 months from the day of adoption by the competent authority of the decision to conduct the investigation.
Article 14. The Course of the Investigation
1. Following the adoption of the decision to conduct the investigation, questionnaires shall be provided to all known interested parties, indicating what information is required for investigation.
2. The interested parties which have received questionnaires must be given at least 30 calendar days to reply. For the foreign producers and exporters of the product in question this time limit shall be counted from the date of receipt of the questionnaire. A foreign producer or exporter shall be deemed to have received the questionnaire one week from the day on which it was sent or delivered to the diplomatic mission of the appropriate country of origin or export of the product in question in question. The competent authority may extend the time limit for the reply of the questionnaire, having taken due account of the time limits of investigation, provided that the interested party shows due cause for such extension, in terms of its particular circumstances.
3. In the course of investigation, normally information covering the most recent financial accounting period of the foreign producer or exporter of the product in question is examined. Any other period of at least six months prior to the adoption of the decision to initiate the investigation, for which reliable financial and other relevant data is available may also be selected for examination. The time period to be subjected to examination in the course of investigation shall be indicated in the decision of the competent authority to conduct the investigation.
4. During the investigation the evidence of both subsidies and of injury shall be considered simultaneously.
5. The competent authority shall conduct the investigation on the basis of the available and obtained information as well as written information submitted by the interested parties.
6. If the information submitted by the applicant (applicants) and other interested party, as well as information obtained from other sources is contradictory, the competent authority may address the governments of the country of origin or export of the product in question with a request to conduct an investigation in their territory and having received their consent and the consent of enterprises involved in the investigation (foreign producer or exporter of the product in question), carry out such investigation. The investigation in the territory of the country of origin or export shall be carried out in accordance with the procedure established by the Government of the Republic of Lithuania or the competent authority.
7. The competent authority, on the basis of the provisions of paragraph 6 of this Article, may arrange verification visits to the places of business of the enterprises involved in the investigation in order to verify the information (primary data and documents) submitted by the foreign producers, exporters, importers of the product in question, traders (or their representatives), trade associations representing them and information provided on subsidies and injury. Such visits shall be possible only if the replies to the questionnaire were submitted properly and in due time. Prior to such visits, relevant enterprises shall be informed of the nature of the information to be verified and any further information which needs to be provided during such visits. This should not preclude requests made during the verification for further details in the light of information obtained. At the request of the competent authority, in the course of on-site inspections, it may be assisted by the officials of the country of origin or export, in which the inspection is performed.
8.If the interested party refuses access to or otherwise does not provide necessary information, or provides it after the expiry of all time limits or it is established that the interested party has provided false information, false information shall be disregarded and findings shall be based on that part of the submitted information and other available information which is considered as reliable by the competent authority, including the evidence received from other accessible independent sources. The interested parties shall be warned in writing that in case of their failure to submit information or their delayed submission of information or submission of false information, the findings of the investigation may be based on the available information, also evidence and documents submitted by other interested parties.
9. Failure to give a computerised response shall not be considered to constitute non-cooperation, provided that the interested party shows that presenting the response as requested would result in an unreasonable extra burden or additional cost.
10. If the information submitted by the interested party is not ideal in all respects, provided that any deficiencies are not such as to cause undue difficulty in using it and it is verifiable, and that the party has acted to the best of its ability, such information shall not be disregarded.
11. If evidence or information submitted by the interested party is not accepted, the supplying interested party must be informed of the reasons therefore and be granted the opportunity to provide further explanations and revised information within the time limit specified by the competent authority. If the explanations and revised information are considered insufficient, the reasons for rejection of such evidence or information must be given in the decision adopted by the competent authority.
12. Information, supplied by the interested parties, on which investigation findings are based must be checked, taking into consideration the time limits of the investigation and possibilities, by reference to information from other interested parties or information from other independent sources (published price lists, official import statistics and customs returns, etc.) received in the course of the investigation.
13. The competent authority shall have to hear the arguments and explanations of the interested parties, which submitted a written application to the effect within the time limits specified by the competent authority in the decision to initiate the investigation. It must be indicated in the application how the interested party which submitted the application may be affected by investigation result and for what other particular reasons it should be heard.
14. If the interested party so requests, the competent authority shall arrange consultations for the interested parties. There shall be no obligation on any interested party to attend consultations.
15. Without prejudice to the provisions of Article 42 of this Law, the interested party, upon submission of a written request, may familiarise itself with the information relating to the investigation, provided by other interested parties, which is taken into account by the competent authority in the course of the investigation. The interested party may supply its arguments and explanations relative to the information submitted by the other interested party, however regard shall be given only in respect of well substantiated explanations.
16. Throughout the investigation the competent authority must afford the country of origin or export of the product in question a possibility to continue consultations with a view to clarifying the factual situation and arriving at a solution mutually agreed by the Republic of Lithuania and the country of origin or export of the product in question.
Article 15. General Provisions on the Calculation of the Amount of the Countervailable Subsidy
1. The amount of countervailable subsidy shall be calculated in terms of the benefit conferred on the recipient (foreign producer or exporter of the product in question) which is found to exist during the investigation period.
2. The amount of the countervailable subsidies shall be determined per unit of the product in question imported to the customs territory of the Republic of Lithuania. If the interested party requests and submits necessary evidence, in establishing the amount of the countervailable subsidy, the following elements may be deducted from the total subsidy:
3. Where the subsidy is not granted by reference to the quantities manufactured, processed, exported, or transported, the amount of the countervailable subsidy shall be determined by allocating the value of the total subsidy, as appropriate, over the level of production, sales or exports of the product in question during the investigation period.
4. Where the subsidy can be linked to the acquisition or future acquisition of fixed assets, the amount of the countervailable subsidy shall be calculated by spreading the subsidy across a period which reflects the normal depreciation of such assets in the industry concerned. The amount so calculated which is attributable to the investigation period, including that which derives from fixed assets acquired before this period, shall be allocated as described in paragraph 3 of this Article. The subsidy intended for the acquisition of the fixed assets which are non- depreciating, shall be valued as an interest free loan extended by the government, and be calculated in accordance with subparagraph 2 of paragraph 1 of Article 16.
5. Where a subsidy cannot be linked to the acquisition of fixed assets, the amount of the benefit received during the investigation period shall in principle be attributed to this period and allocated as described in paragraph 3 of this Article, unless special circumstances arise justifying attribution of the granted subsidy and the benefit received over a different period.
Article 16. Calculation of Benefit Conferred by the Countervailable Subsidy to the Recipient
The benefit to the recipient (foreign producer and exporter of the product in question) conferred by a countervailable subsidy shall be calculated in accordance with the methodology worked out by the Government of the Republic of Lithuania or the competent authority, and the following rules:
1) government provision of equity capital shall not be considered to confer benefit, unless the investment can be regarded as inconsistent with the usual investment practice (including for the provision of risk capital) of private investors in the territory of the country of origin or export of the product in question;
2) a loan by the government shall not be considered to confer benefit, unless there is a difference between the amount that the enterprise receiving a loan pays on the government loan and the amount that the enterprise would pay for a comparable commercial loan which the enterprise could actually obtain on the market of the country of origin or export of the product in question. In that event the benefit shall be the difference between these two amounts;
3) a loan guaranteed by the government shall not be considered to confer a benefit, unless there is a difference between the amount that the enterprise receiving the guarantee pays on a loan guaranteed by the government and the amount that the enterprise would pay in the absence of the government guarantee. In this case the benefit shall be the difference between these two amounts, adjusted for any differences in loan servicing fees;
4) the provision of goods and services or purchasing of the products in question by a government shall not be considered to confer a benefit, unless the provision is made for less than adequate remuneration or the purchase is made for more than adequate remuneration. The adequacy of remuneration shall be determined in relation to prevailing market conditions for the product or services in question in the country of provision or purchase by a government (the prevailing prices, quality, availability, marketability, also transportation and other conditions of purchase).
Article 17. Sampling
1. In cases where the number of applications to initiate the investigation, the exporters or importers, types of the product in question or transactions relating to the product is large, the investigation may be limited.
2. The investigation may be limited to:
1) a reasonable number of domestic producers of the like product, importers, foreign producers and exporters of the product in question, products and transactions to be assessed during the investigation by using samples;
3. The samples of enterprises, products or transactions indicated in subparagraph 1 of paragraph 2 of this Article must be statistically valid on the basis of information available at the time of the selection. Decision concerning sampling shall be adopted by the competent authority . Preference shall be given to choosing a sample in consultation with and with the consent of, the interested parties, provided that such parties make sufficient information available, within three weeks of initiation of the investigation, to enable a representative sampling to be chosen.
4. In cases where the investigation has been limited in accordance with this Article, an individual amount of countervailable subsidisation shall, nevertheless, be calculated for any foreign producer or exporter of the product in question not initially selected who submits the necessary information within the time limits enabling its examination during the investigation, except where the number of exporters or producers is so large that individual examinations would be unduly burdensome and would prevent completion of the investigation in due time.
5. If after the selection of the samples, there is a degree of non-cooperation or refusal to supply the information necessary for the investigation by some or all of the interested parties selected which is likely to materially affect the outcome of the investigation, a new sample must be selected. However, if a material degree of non-cooperation persists or there is insufficient time to select, the provisions of paragraphs 8, 9, 10, 11, and 12 of Article 14 of this Law shall apply.
Article 18. Conclusion of Investigation
1. The investigation shall be concluded:
1) if the existence of a countervailable subsidy and injury has been affirmed and the resolution of the Government of the Republic of Lithuania has been adopted to impose a countervailing duty and the rate of the duty has been established;
2) if, taking into account the countervailable subsidy, scope of injury and the interest of the Republic of Lithuania it has been decided not to impose a countervailing duty;
3) if in the course of investigation it has been established that there is no countervailable subsidy or injury, or that in accordance with paragraphs 4 and 5 of Article 11 of this Article they are negligible and the competent authority has adopted a decision to terminate the investigation without recommending the Government of the Republic of Lithuania to impose the countervailing duty;
2. The competent authority must publish in the official gazette “Valstybės žinios” a notice of its intention to adopt a decision to terminate the investigation without recommending the Government of the Republic of Lithuania to impose the countervailing duty. Taking into account the provisions of Article 13 of this Law, the notice must be published not later than 45 calendar days prior to the ad(option of the decision to terminate the investigation.
3. The interested parties may request that they be supplied with detailed information about the principal facts and reasons based whereon the competent authority intends to make a decision to terminate the investigation without recommending the Government of the Republic of Lithuania to impose the countervailing duty. Such a request must be submitted to the competent authority in writing within 15 calendar days from the publication of the notice specified in paragraph 2 of this Article. The competent authority must within 30 calendar days from the publication of the above notice reply in writing to the above requests. If the competent authority has no possibility to notify of certain facts and reasons, these must be communicated at the earliest possibility. Communication of the above facts and reasons to the interested parties shall not hinder any further decision which the competent authority may adopt. However, if such a decision is based on any other facts and reasons, the interested parties must be forthwith notified thereof.
4. The representations, opinions and commentaries of the interested parties submitted after the disclosure of the principal facts and reasons shall be taken into consideration only in case these are received within the time period of not be less than 10 calendar days, set by the competent authority for each specific case.
Article 19. Terms and Conditions for the Imposition of Provisional Countervailing Duty
1. A provisional countervailing duty may be imposed on the product in question during the investigation provided that the following conditions are satisfied:
1) the investigation is carried out in accordance with the provisions set forth in Articles 9, 10, 11 and 12 of this Law;
2) a notice has been given to that effect in accordance with the procedure laid down in this Law and the interested parties have been given adequate opportunities to submit information and make comments;
3) a provisional affirmative determination has been made that the imported product benefits from the countervailing subsidy and of consequent injury caused to domestic producers by the imports of the product in question;
2. However, if an anti-dumping duty (including provisional anti-dumping duty) is imposed or already applied in respect of the product in question for the purpose of eliminating injury to domestic producers, the provisional countervailing duty may not be applied even though all the conditions specified in paragraph 1 hereof are met.
Article 20. Taking a Decision to Apply a Provisional Countervailing Duty
1. Where all the requirements set forth in paragraph 1 of Article 19 of this Law have been fulfilled and no anti-dumping duty (including provisional anti-dumping duty) has been imposed on the product in question, the Government of the Republic of Lithuania shall adopt a resolution to impose the provisional countervailing duty. In addition to other information, the resolution must also specify the amount of the provisional countervailing duty and the date from which it is to be applied. As a rule, the date shall be set no earlier than 30 calendar days after the adoption of the resolution by the Government of the Republic of Lithuania.
2. The provisional countervailing duty shall be imposed no earlier than 60 calendar days from and no later than 9 months after the taking of the decision by the competent authority to initiate the investigation. Provisional countervailing duty shall be imposed for a maximum period of 4 months.
Article 21. Imposition of the Provisional Countervailing Duty
1. The provisional countervailing duty shall be applied in respect of the imports of the products in question which are released for free circulation in the customs territory of the Republic of Lithuania from the date set in the resolution of the Government of the Republic of Lithuania to apply the provisional countervailing duty.
2. Where the facts as finally established upon the completion of investigation show, that no injury has been caused or would have been caused even if the provisional countervailing duty had not been imposed, any collected amount of the provisional countervailing duty must be refunded. The collected amount of the provisional countervailing duty shall be refunded in accordance with the procedure established by the Law of the Republic of Lithuania on Customs Tariffs.
Article 22. Securing the Payment of the Provisional Countervailing Duty
The provisional countervailing duty on the imports of the products in question must be paid in accordance with the procedure laid down by the Law of the Republic of Lithuania on Customs Tariffs. Failure to pay the countervailing duty or to pay the duty by the due date shall incur default interest on the unpaid amount. The unpaid amount of the countervailing duty and default interest shall be recovered according to the procedure established by the Law of the Republic of Lithuania on Customs Tariffs.
Article 23. Acceptance of Undertakings
1. During the investigation the government of the country of origin or export or the foreign producer or exporter of the product in question may offer independent undertakings under which:
1) the government of the country of origin or export of the product in question agrees to eliminate or limit the subsidies or take other measures to compensate the effects of the subsidies;
2. Price increases under such undertaking of the foreign producer or exporter must not be higher than is necessary to offset the amount of countervailable subsidy and may be less than the amount of countervailable subsidy if such increases would be adequate to remove the injury to domestic producers.
3. The competent authority may suggest the government of the country of origin or export, or the foreign producer or exporter of the product in question to offer undertakings, but the offering of such undertakings shall not be binding. The fact that the country of origin or export or the foreign producer or exporter of the product in question does not offer such undertakings or does not enter into the undertaking offered by the competent authority shall in no way prejudice consideration of the case.
4. The competent authority may not suggest to offer undertakings or accept the offered undertakings unless a provisional or affirmative determination of subsidisation and injury caused by such subsidisation to domestic producers has been made.
5. The undertaking offered by the government of the county of origin or export or the foreign producer or exporter of the product in question after the announcement of the competent authority ’s suggestion that the Government of the Republic of Lithuania impose the countervailing duty, shall not be accepted except in cases when the competent authority decides to accept the undertaking due to the special circumstances which arise in the Republic Lithuania or the exporting country.
6. The competent authority may refuse to accept the offered undertaking if the number of actual or potential foreign producers or exporters of the product in question is too great, or for other reasons. In such cases, if possible, the foreign producer or exporter of the product in question or the government of the country of origin or export of the product must be provided with the facts and reasons for which it is proposed to reject the offer of an undertaking and be given an opportunity to make comments thereon. The competent authority, however, must not take into consideration the reasons for rejection. The facts and reasons for rejection of the offered undertaking must be set out in the definitive decision of the competent authority.
7. The undertakings accepted from certain foreign producers or exporters shall be deemed to take effect from the date on which the investigation is concluded for all producers or exporters of the country of origin or export of the product in question.
Article 24. Actions Following the Acceptance of Undertaking
1. If, upon accepting the undertaking, the competent authority establishes that the undertaking is adequate to offset the preliminarily or definitively determined countervailable subsidy and remove injury to domestic producers, it shall terminate the investigation by its decision, except in cases specified in paragraph 3 hereof.
2. Upon adoption by the competent authority of the decision to terminate the investigation, the calculation of its duration shall also be terminated.
3. If, having accepted the undertaking, the competent authority, taking into consideration the insufficiency of the available information, makes a determination that the accepted undertaking is inadequate to offset the subsidies and remove the injury or if the country of origin or export or the foreign producer or exporter of the product in question, who offered the undertaking, so desires, the investigation shall be continued.
4. In the cases specified in paragraph 3 hereof, when the undertaking has been accepted upon preliminary determination of the countervailable subsidy and injury, and, after further investigation, a negative determination of subsidisation and injury is made, the undertaking shall lapse as from the day of entry into force of the determination. However, where negative determination of subsidisation and injury is due to the existence of the accepted undertaking, the competent authority may require that the undertaking be maintained.
Article 25. Supervision of Fulfilment of the Undertaking
After the competent authority accepts the undertaking, the government of the country of origin or export or the foreign producer or exporter from whom undertakings have been accepted must periodically within the time limits set by the competent authority provide information relevant to fulfilment of such undertaking and permit verification of pertinent data. Non-compliance with such requirements shall be construed as a breach of the undertaking.
Article 26. Non-fulfilment of Undertaking
1. In case of non-fulfilment of undertaking (breach or withdrawal of undertaking), if the investigation has not been terminated upon acceptance of the undertaking and was continued and concluded with a final determination as to subsidisation and injury, the competent authority shall submit the findings of the investigation to the Government of the Republic of Lithuania together with its recommendations to impose a countervailing duty in respect of subsidised products imported from the country of origin or export or the foreign producer or exporter of the product in question, which committed a breach of or withdrew the undertaking. Having examined the findings of the investigation submitted by the competent authority, the Government of the Republic of Lithuania in accordance with the provisions of Articles 28, 29 and 30 of this Law shall adopt a decision to impose a countervailing duty. Before the submission to the Government of the Republic of Lithuania of the proposal to impose a countervailing duty, the foreign producer or exporter or the government of the country of origin or export must be given an opportunity to comment, except in the case of withdrawal of the undertaking.
2. In the event of non-fulfilment of the undertaking where the investigation has been suspended after the acceptance thereof, the Government of the Republic of Lithuania shall adopt a resolution in accordance with the provisions of Articles 19, 20, 21 and 22 to impose a provisional countervailing duty and shall instruct the competent authority to continue the investigation.
3. In the case specified in paragraph 2 of this Article a provisional countervailing duty may be imposed in respect of the products released for free circulation in the customs territory of the Republic of Lithuania not earlier than 90 calendar days prior to the imposition of the provisional duty, if detailed information on the imports of the product in question has been accumulated in accordance with paragraph 7 of Article 12 of this Law. However, countervailing duty may not be imposed in respect of the products in question imported into the customs territory of the Republic of Lithuania prior to the breach or withdrawal of the undertaking.
Article 27.Duration of Undertakings
The accepted undertaking must remain in force maintained as long as it is necessary to offset the subsidy or remove injury to domestic producers. Having carried out a review, the competent authority shall decide on the need for the continued duration of the undertaking. In any case an accepted undertaking shall be terminated on a date not later than five years from the date of the decision to accept the undertaking or from the date of completion of the most recent review, taking into account the provisions of paragraph 5 of Article 36 of this Law.
Article 28. Adopting a Resolution to Impose a Countervailing Duty
1.The Government of the Republic of Lithuania, having considered the findings of the investigation and the proposals submitted by the competent authority, shall adopt a resolution whether or not to impose a countervailing duty. Where a provisional countervailing duty is in force in respect of the product in question, a proposal for definitive countervailing duty must be submitted by the competent authority to the Government of the Republic of Lithuania not later than one month before the expiry of the provisional countervailing duty.
2. Where the facts as finally established during the investigation show the existence of a countervailable subsidy and injury and Lithuania’s national interest calls for the impositions of countervailing duties, the Government of the Republic of Lithuania shall adopt a resolution to impose a countervailing duty. In addition to other information, the resolution of the Government of the Republic of Lithuania must establish the amount of the countervailing duty and specify the date from which it shall be applied as well as the time limit of imposition of the duty.
3. Where, after the conduct of investigation the facts as finally established show that the countervailing subsidy and/or injury are non-existent, the competent authority shall take a definitive decision to complete the investigation without proposing to the Government of the Republic of Lithuania to apply a countervailing duty.
4. A determination as to whether Lithuania’s national interest calls for the imposition of a countervailing duty should be based on an appraisal of all the various interests taken as a whole, including the interests of domestic producers, the enterprises which use the subsidised product for the manufacture of their products, also the end users and importers as well as traders. In determining whether or not the imposition of the countervailing duty is in Lithuania’s national interest, special consideration must be given to the need to eliminate trade-distorting effects of injurious subsidisation and to restore effective competition.
5. Before the competent authority submits a proposal to the Government of the Republic of Lithuania regarding the imposition of a countervailing duty or makes a decision to complete the investigation without proposing to impose a countervailing duty, the interested parties (economic operators of the Republic of Lithuania) must be given the opportunity to state their opinion and arguments on the issue established in paragraph 4 of this Article. However, the decision shall be taken only based on the information supported by actual evidence.
Article 29. Imposition of a Countervailing Duty
1. A countervailing duty shall be imposed on subsidised imports released for free circulation in the customs territory of the Republic of Lithuania from the date specified in the resolution of the Republic of Lithuania to impose the countervailing duty, except in cases specified in Article 32 of this Law.
2. A countervailing duty shall not be imposed on the subsidised products imported from the country of origin or export of the subsidised product or from the foreign producer or exporter from which an undertaking has been accepted according to the procedure established by this Law.
3. In the event of failure by foreign producer or exporter of the subsidised product or the government of the country of origin or export of the subsidised product to offer an appropriate undertaking by the due date or to fulfil the accepted undertaking, a countervailing duty (provisional countervailing duty) may be imposed under Article 26 of this Law on the subsidised imports (of products in question).
4. A countervailing duty (provisional countervailing duty) shall be imposed regardless of other duties, taxes or levies generally imposed on subsidised imports (of products in question). In case an anti-dumping (provisional anti-dumping duty) has been imposed or is in force with respect to one and the same product in order to remove injury to domestic producers, the imports of the product may not be subject to a countervailing duty.
5. Countervailing duties on imports must be paid in accordance with the procedure laid down by the Law of the Republic of Lithuania on Customs Tariffs. Failure to pay the countervailing duty or to pay the duty by the due date shall incur default interest. The unpaid amount of the countervailing duty and default interest shall be recovered in accordance with the procedure laid down by the Law of the Republic of Lithuania on Customs Tariffs.
Article 30. Amount of Countervailing Duty
1. In its resolution to apply countervailing duty the Government of the Republic of Lithuania must impose a countervailing duty on the subsidised imports from foreign producer or exporter in the appropriate amounts in each case. Where it is impracticable to specify the duty for each supplier, the amount of the countervailing duty shall be established on subsidised imports individually according to the country of origin or export of the product.
2. The amount of the countervailing duty must not exceed the amount of countervailable subsidy from which the foreign producer or exporter has been found to benefit, and may be less than the total amount of countervailable subsidy, if such lesser duty were to be adequate to remove the injury to domestic producers.
3. When the examination has been limited in accordance with Article 17 of this Law, any countervailing duty applied to imports from exporters or producers which were not included in the examination shall not exceed the weighted average amount of countervailable subsidy established for the parties in the sample. In this case any de minimis amounts of countervailable subsidy under paragraph 4 of Article 11 and amounts of countervailable subsidy established in the circumstances referred to in paragraph 8 of Article 14 of this Law must not be taken into account. Individual duties must be imposed on imports from any foreign producer or exporter for which an individual amount of subsidisation has been calculated, except in cases when the amount of duty is established for the country of origin or export.
Article 31. Accelerated Reviews
1. Any foreign producer or exporter whose exports are subject to a definitive countervailing duty but who has not been individually examined during the original investigation for reasons other than a refusal to cooperate with or provide information to the competent authority shall be entitled, upon request, to an accelerated review in order that an individual countervailing duty rate be promptly establish.
2. The accelerated review specified in paragraph 1 hereof shall be initiated after the competent authority makes a decision to carry out the review. Domestic producers must be notified thereof in writing and be given an opportunity to comment within a 20-day period counting from the day of sending of the notice.
3. Accelerated reviews must be carried out on a fast track basis and may not last longer than 12 months.
4. Unless this Article provides otherwise, requirements laid down for the conduct of investigation in Articles 11, 12, 14, 15, 16, 17, 18 and 28 of this Law must be applied to accelerated review procedures and evidence. In addition, paragraphs 4 and 5 of Article 36 shall also be applicable in respect of the reviews.
Article 32. Retroactivity
1. Where a provisional countervailing duty has been applied and the facts, finally established following the investigation show the existence of countervailable subsidies and injury to domestic producers, the Government of the Republic of Lithuania may adopt a resolution to impose the countervailing duty retroactively upon the products imported during the investigation. For this purpose, “injury” shall not include threat of injury to domestic producers, nor material retardation of the establishment of the domestic industry in Lithuania, except where it is found that, in the absence of provisional measures, this would have developed into material injury. In all other cases involving such threat of injury or retardation of the establishment of the domestic industry in Lithuania countervailing duties may not be imposed retroactively on the products imported during the investigation whereas the paid amounts of the countervailing duty must be refunded in accordance with the procedure laid down in the Law of the Republic of Lithuania on Customs Tariffs. The above provisions must not restrict the application of provisions of paragraph 4 hereof.
2. If in the case specified in paragraph 1 hereof the countervailing duty imposed retroactively on the products imported during the investigation is higher than the paid or payable amount of provisional countervailing duty, the difference shall not be collected. If the countervailing duty imposed is lower than the provisional countervailing duty paid or payable on the imported products, the amount of the payable provisional countervailing duty must be recalculated and the overpayment must be refunded in accordance with the procedure laid down in the Law of the Republic of Lithuania on Customs Tariffs.
3. If upon the completion of investigation a definitive determination is made that no injury has been made or would have been made even in the absence of provisional countervailing duty and it has been decided not to impose the countervailing duty, it shall not be imposed retroactively on the products imported during the investigation either. The provisional duty paid for the period must be refunded in accordance with the procedure laid down in the Law of the Republic of Lithuania on Customs Tariffs and any bonds deposited with the customs must be released.
4. A definitive countervailing duty may be levied on subsidised imports which were released for free circulation in the customs territory of the Republic of Lithuania at least 90 calendar days prior to the date of imposition of provisional countervailing duty and not before the adoption of the decision by the competent authority regarding the initiation of investigation, provided that all following conditions are satisfied:
1) detailed information about imports of the product in question has been collected pursuant to paragraph 7 of Article 12 of this Law;;
2) there are critical circumstances where injury which is difficult to repair is caused by massive imports in a relatively short period of the product in question and the competent authority deems it necessary, in order to preclude the recurrence of such injury, to impose a countervailing duty;
1. An importer may request reimbursement of the total amount or part of the countervailing duty collected where it is shown that the countervailable subsidy has been eliminated or that the amount of countervailable subsidies on the basis of which the countervailing duty was imposed and paid has been reduced to a level which is below the level of the countervailing duty in force.
2. In requesting a refund of the countervailing duty or part thereof, which exceeds the amount of countervailable subsidy, the importer must submit to the competent authority a justified application supported by evidence.
3. An application for refund of the countervailing duty or a part thereof which is in excess of the countervailable subsidy may be submitted within one year from the day of payment (recovery) of the duty, but not later than within six months from the day of expiry of time period for which the countervailing duty was imposed by the resolution of the Government of the Republic of Lithuania.
4. Where the countervailing duty was paid on the products imported during the investigation retroactively (in the cases specified in Article 32 of this Law), an application for refund of the countervailing duty or part thereof which is in excess of the countervailable subsidy may be submitted within six months from the day of entry into force of the resolution of the Government of the Republic of Lithuania to impose a countervailing duty on the products retroactively.
5. An application for refund shall be considered to be duly supported by evidence only when it is accompanied by:
2) the customs declaration and other customs documentation relating to the calculation and payment of the claimed amount (specifying the territorial customs which collected the countervailing duty);
3) evidence, for a representative period, of the countervailable subsidies and the amount thereof, granted for the foreign producer or exporter;
4) in cases where the importer is not associated with the foreign producer or exporter on the products imported from which a countervailing duty is imposed and the information specified in subparagraphs 3 hereof is not immediately available, or where the foreign producer or exporter is unwilling to release the information to the importer, the application shall contain a statement from the foreign producer or exporter that the countervailable subsidy has been eliminated or its amount has been reduced and that the relevant supporting evidence will be provided directly to the competent authority.
6. Where, in the cases specified in subparagraph 4 of paragraph 5 hereof, the evidence that the countervailable subsidy has been eliminated or its amount reduced is not forthcoming from the foreign producer or exporter within 2 months of the submission of the application for the refund of the countervailing duty, the importer’s application shall be rejected.
7. Upon examining the submitted evidence, the competent authority must decide whether it is sufficient to justify the refund of the paid countervailing duty or part thereof, or whether it is necessary to initiate a review of the imposed countervailing duty. The review shall be carried out in accordance with the provisions of paragraph 4 of Article 36 of this Law. Upon examining the findings from such review, the Government of the Republic of Lithuania shall adopt a resolution to refund the countervailing duty or part thereof and determine to what extent a refund is justified.
8. The Government of the Republic of Lithuania must adopt a resolution to refund the countervailing duty or part thereof within 2 months after the date of submission of the application and all evidence and documentation specified in paragraphs 2 and 5 hereof. The payment of any refund authorised must be made within 90 calendar days of the entry into force of the above-mentioned decision of the Government of the Republic of Lithuania. Other procedures relating to the refund of countervailing duty shall be carried out in the manner prescribed by the Law of the Republic of Lithuania on Customs Tariffs.
9. The competent authority shall, within 15 calendar days from the entry into force of the resolution of the Government of the Republic of Lithuania to refund the countervailing duty or part thereof, notify the Customs Department under the Ministry of Finance thereof and shall submit information specifying the name, address (registered office address) and identification code of the economic operator to whom the countervailing duty or part thereof is refundable; numbers and dates of customs declarations based whereon the countervailing duty has been collected; the amount of the refund authorised (in figures and in words).
Article 34. Duration of Countervailing Duty
A countervailing duty must remain in force only as long and to the extent necessary to counteract subsidisation which is causing injury to domestic producers. The need for the continued imposition of the countervailing duty shall be determined upon assessing the findings of the review carried out in accordance with the provisions of Chapter eight of this Law. In any case a countervailing duty shall remain in force not longer than five years from the date of the resolution adopted by the Government of the Republic of Lithuania to impose the countervailing duty or, where reviews have been carried out, from the date of completion of the most recent review which confirmed the necessity of continued imposition of the countervailing duty.
Article 35. Initiating a Review of the Imposition of a Countervailing Duty or Maintenance of Undertaking
1. A review of the imposition of a countervailing duty or maintenance of an undertaking shall be carried out:
1) upon the lapse of the 5-year period of duration of the countervailing duty or undertaking as established under Articles 27 and 34 of this Law, on the initiative of the competent authority or upon a duly substantiated request made by domestic producers, where the request is supported by sufficient evidence that the expiry of a countervailing duty or undertaking would be likely to result in a continuation or recurrence of subsidisation or injury. The application may be submitted at least 3 months prior to the expiry of the 5-year period of imposition of a countervailing duty or maintenance of an undertaking;
2) on a request made by domestic producers, supported by evidence that the amount of the imposed countervailing duty or accepted undertaking is not sufficient to offset the countervailable subsidy. The request may be lodged not earlier than 12 months after the date the Government of the Republic of Lithuania adopts a resolution to impose a countervailing duty or the competent authority decides to accept an undertaking, except in the case specified in subparagraph 5 hereof;
3) on a request made by the importers, foreign producers, exporters or the government of the country of origin or export of the product in question, supported by the evidence that the countervailing duty or undertaking is no longer needed to offset the countervailable subsidies and that the expiry of the countervailing duty or release from an undertaking or reduction of the amount thereof is not likely to lead to continuation or recurrence of injury. The request must be lodged at least 12 months after the Government of the Republic of Lithuania adopts a resolution to impose a countervailing duty or the competent authority makes a decision to accept an undertaking;
4) on the initiative of the competent authority justified by the fact that the amount of the imposed countervailing duty or accepted undertaking is not sufficient to offset the countervailable subsidy or that the continued imposition of the measure is no longer necessary to offset the countervailable subsidy and that the injury would be unlikely to continue or recur if the countervailing duty or undertaking were removed or reduced;
5) on a request made by domestic producers, supported by evidence that the imposition of a countervailing duty or acceptance of an undertaking have led to no increase, or to insufficient increase, of resale prices of the imported subsidised product in the customs territory of the Republic of Lithuania. The request may be lodged not earlier than 4 months after the Government of the Republic of Lithuania adopted a resolution to impose a countervailing duty or the competent authority made a decision to accept an undertaking. In this case the review shall be carried out if the amount of the imposed countervailing duty is less than the established amount of the countervailable subsidy.
2. The request for a review of the need for the continued imposition of the countervailing duty or undertaking must be justified and supported by evidence.
3. The following documents may serve as evidence that the expiry of the countervailing duty or undertaking would be likely to result in a continuation or recurrence of subsidisation or injury:
2) documents confirming continued injury caused by imports or that the removal of injury is due to the existence of imposed countervailing duties or accepted undertakings:
4. The decision to review or not to review the need for continued imposition of the countervailing duty or undertaking must be taken by the competent authority not later than within 45 calendar days from the day of receipt of the request for the review of the countervailing duty or the undertaking. The competent authority must make a decision to carry out the review or to refrain from it in the cases specified in subparagraph 1 of paragraph 1 hereof must be made at least 2 months before the lapse of the five-year period of duration of the countervailing duty or undertaking.
5. A notice of impending expiry must be published in the official gazette “Valstybės žinios” no earlier than 12 months and no later than 8 months before the lapse of the five-year period of imposition of the countervailing duty or maintenance of undertaking. If the duration of the countervailing duty or undertaking is not extended, the competent authority must publish a corresponding notice in the official gazette “Valstybės žinios” and notify every known interested party thereof. Where there is a large number of foreign producers or exporters of the subsidised product, a notice shall be given to the governments of the countries of origin or export and the relevant associations representing foreign producers or exporters of the subsidised product.
Article 36. Review Procedures
1. Unless this Chapter establishes otherwise, provisions of Articles 11, 12, 14, 15, 16, 17, 18 and 28 of this Law regarding the conduct of investigation shall apply to the procedures of review of continued imposition of countervailing duties or maintenance of undertakings.
2. A review of the need for the continued imposition of the countervailing duty or maintenance of the undertaking must be concluded within 12 months of the date of initiation of the review. In the case specified in subparagraph 5 of paragraph 1 of Article 35 of this Law the duration of the review must not exceed 6 months.
3. In carrying out a review the interested parties must be provided with the opportunity to comment on the matters set out in the review request or the decision of the competent authority to carry out the review.
4. In carrying out a review the same methodology (valuation methods, criteria, etc.) which was applied in carrying out the investigation the findings whereof led to the adoption of the resolution by the Government of the Republic of Lithuania to impose a countervailing duty or the decision by the competent authority to accept an undertaking must be applied, provided that circumstances have not markedly changed.
5. The amount of the countervailing duty or the undertaking must remain unchanged pending the outcome of the review. Where under Articles 27 or 34 of this Law the imposition of the countervailing duty or undertaking should expire while the review is in progress, the maintenance of the undertaking or the imposition of the countervailing duty must continue until the completion of the review. The above provision shall not limit the possibility of continued imposition of the above measures under Articles 27, 34 and paragraph 4 of Article 37 of this Law.
Article 37. Review Results
1. If, as a result of a review, it is determined that the continued imposition of the countervailing duty or maintenance of the undertaking is no longer necessary to offset the countervailable subsidy and injury would be unlikely to recur, the amount of the countervailing duty shall be reduced to zero and applied until the expiry of duration of the countervailing duty, whereas the accepted undertaking shall be suspended.
2. At the close of the period set in Articles 27 and 34 of this Law or upon completion of the last review carried out under paragraph 1 hereof, if individual countervailing duties have been imposed on the subsidised products imported from foreign producers or exporters or individual undertakings have been accepted, the undertakings shall be suspended and the individual countervailing duty at the rate reduced to zero shall remain in force as long as countervailing duty at any rate (except zero rate) is applied in respect of subsidised imports from the country of origin or export of the product in question (or from any economic operator located in the country) or the accepted undertaking remains in force.
3. If, as a result of a review, it is determined that after the reduction of the rate of the countervailing duty or of the undertaking it would not be necessary to offset the countervailable subsidy and injury would not be likely to continue or recur, the countervailing duty and the undertaking must be reduced accordingly.
4. If, as a result of a review, it is determined that the accepted undertaking is not sufficient to offset the countervailable subsidy and remove injury, an additional undertaking may be accepted or the countervailing duty imposed.
5. Where, as a result of a review, it is determined that the applied countervailing duty is not sufficient to offset the countervailable subsidy and remove injury, the duty may be changed (increased) without prejudice to Articles 29 and 30 of this Law.
Article 39. Cases of Circumvention of the Imposed Countervailing Duty
1. Upon establishing that circumvention of the imposed countervailing duty is taking place, the competent authority shall submit a proposal to the Government of the Republic of Lithuania to extend the countervailing duty to imports from third countries of subsidised products or parts thereof. Circumvention of the countervailing duty in force shall be deemed to be taking place when all the following conditions are met:
1) there is a change in the pattern of trade in the product in question between third countries and Lithuania which stems from the imposition of the countervailing duty on the resolution of Government of the Republic of Lithuania;
2) there is evidence that the remedial effects of the countervailing duty are being undermined in terms of the prices and/or quantities of the like products;
Article 39. Actions in the Cases of Established Circumvention
1. Where the information submitted by the local producers or other interested parties and evidence possessed by the competent authority indicate that circumvention of the imposed countervailing duty is taking place, the competent authority shall initiate investigation of the imposition of the countervailing duty on the like product or parts thereof, manufactured in third countries. In this case detailed information must be collected about the imports from third countries of the like product or parts thereof, as prescribed by paragraph 7 of Article12 of this Law. The decision taken by the competent authority to impose a countervailing duty on the imports from the third countries of the product in question or parts thereof shall be published in the official gazette “Valstybės žinios”.
3. The investigation specified in paragraph 1 hereof shall be conducted in accordance with Articles 11, 12, 14, 15, 16, 17, 18 and 28 of this Law.
4. Upon considering the findings of the investigation and proposals submitted by the competent authority, the Government of the Republic of Lithuania shall adopt a resolution to impose a countervailing duty on the imports from the third countries of the product in question or parts thereof. The countervailing duty shall also be imposed retroactively on products imported from third countries during the investigation, after the date of commencement of collection of detailed information about the imports from the third countries of the product in question or parts thereof.
Article 40. Appealing against the Decisions and Actions of the Competent Authority
1. If the interested party objects to the decisions of the competent authority, it shall have the right to appeal against them to the Higher Administrative Tribunal of the Republic of Lithuania (hereinafter - Higher Administrative Tribunal). The appeal may be lodged with the Higher Administrative Tribunal within 3 months from the day of publication of the decision appealed against or the delivery thereof to the interested party.
2. If the interested party objects to the actions or inaction of the competent authority in implementing this Law, it shall have the right to lodge a complaint about the above acts or inaction with the Higher Administrative Tribunal. The complaint may be lodged with the Higher Administrative Tribunal within one month from the performance of the action which is the subject of complaint or from the day of notification of the interested party of the above action. A complaint about the inaction of the competent authority may be lodged within one month from the next day after the lapse of the time period set in this Law for the performance of a relevant action or settlement of a relevant matter.
Article 41. Publication of Resolutions and Decisions
1. The resolutions adopted by the Government of the Republic of Lithuania in relation to the implementation of this Law shall be published in the official gazette “Valstybės žinios” in accordance with the procedure established in the legal acts of the Republic of Lithuania. .
2. The official gazette “Valstybės žinios” shall publish, in accordance with the procedure established in the legal acts of the Republic of Lithuania, the proposals prescribed by this Law which are submitted to the Government of the Republic of Lithuania by the competent authority, notices specified in paragraph 2 of Article 18 and paragraph 5 of Article 35 of this Law, and the following decisions of the competent authority regarding:
2) acceptance of an undertaking, including the decision to accept an undertaking and discontinue the investigation or to reject the offer of an undertaking;
3. The decision of the competent authority to initiate investigation or review of the countervailing duty or undertaking must contain information on the following:
1) the names of foreign producers or exporters, or, if reasonably not available, the name of the country of origin or export;
2) a complete description of the product in question and its code according to the Combined Customs Tariffs and Foreign Trade Statistical Nomenclature of the Republic of Lithuania;
5) evidence submitted in the application by the interested party regarding the existence of the subsidy in question and injury caused thereby (in the request for review - evidence of the change in the amount of subsidisation), or a non-confidential summary of the evidence;
6) other evidence which gave grounds for suspecting that the imports are being subsidised and injury is being caused thereby or that the amount of subsidisation or injury has changed ;
7) the address to which the information related to the investigation or review in progress must be supplied;
8) time period allotted to the interested parties for submitting evidence and presenting their arguments and explanations;
4. In addition to other information, the decision by the competent authority to accept or reject an undertaking must contain, having regard to the confidentiality requirements, the information specified in paragraph 5 hereof, except for the information specified in subparagraphs 6 and 7, and a reference to a non-confidential document which contains a non-confidential version of the accepted undertaking. The non-confidential document which contains a non-confidential version of the undertaking must be kept with the competent authority.
5. The proposal to impose a provisional countervailing duty, submitted by the competent authority to the Government of the Republic of Lithuania must contain, with due regard being had to the confidentiality requirements, the following information:
1) the names of the foreign producers or exporters, or, if reasonably not available, the country of origin or export;
2) a complete description of the imported product and its code according to the Combined Customs Tariffs and Foreign Trade Statistical Nomenclature of the Republic of Lithuania;
3) factors on the basis of which a positive determination of subsidy has been made and the amount of subsidy has been determined;
5) facts and reasons on the basis of which the arguments presented by the interested parties have been accepted or rejected;
6) the amount of the proposed provisional countervailing duty, calculation method and date from which the imposition of the duty is proposed;
6. The proposal to impose the countervailing duty, including retroactive imposition of the duty on the products imported during the investigation, submitted by the competent authority to the Government of the Republic of Lithuania shall contain the description of the duty calculation method, the amount of the duty proposed on the subsidised products imported from each individual foreign producer or exporter (with the exception of cases where the duty is determined for a country of origin or export), the date from which it is proposed to levy the duty and other required facts. The proposal of the competent authority shall contain, without affecting the confidentiality requirement, all the information specified in paragraph 5 hereof, except for the information referred to in subparagraph 6, and, in cases when an undertaking is offered by the foreign producer or exporter, or the country of origin or export - the reasons for acceptance or rejection of the undertaking. The above-mentioned information shall be presented accompanied by information relating to the submitted proposal to retroactively impose a countervailing duty upon the products imported during the investigation.
7. The decision of the competent authority to terminate the investigation without proposing to the Government of the Republic of Lithuania to impose a countervailing duty must contain, in addition to other information, with due regard had to confidentiality requirement, other material information relating to the facts, legal provisions and reasons based whereon the decision has been taken, also the reasons for acceptance or rejection of undertakings offered by the foreign producer or exporter, or the government of the country of origin or export.
8. The decisions of the competent authority specified in subparagraphs 5 and 6 of paragraph 2 hereof and the proposals submitted to the Government of the Republic of Lithuania to extend the duration of the countervailing duty or to repeal the duty (after a review) or to change the countervailing duty must contain all material information relating to the facts, legal provisions and reasons on the basis of which the decisions have been taken or the proposals have been submitted. The decisions of the competent authority and the submitted proposals must contain, with due consideration being given to confidentiality requirements, information specified in paragraph 5 hereof, except for the information specified in subparagraph 6, as well as justification of the decisions made pursuant to paragraph 4 of Article 17 of this Law.
Article 42. Confidentiality of Information
1. All information received pursuant to this Law shall be used only for the purposes for which it was requested.
2. Any information disclosure of which would be of significant competitive advantage to competitors or would have a significantly adverse effect upon the interested party supplying the information or upon a person from whom the interested party has acquired the information or which is provided on a confidential basis by the interested party supplying the information shall be treated as such by the competent authority implementing this Law. Having been supplied with confidential information, the competent authorities implementing this Law may not disclose it without the consent of the interested party which supplied the information.
3. The interested party providing confidential information shall be required to furnish non-confidential summaries thereof. Those summaries shall be in sufficient detail to permit a reasonable understanding of the substance of the information submitted. If, in exceptional cases, the interested party indicates that such information is not susceptible of summary, it must provide a written statement of the reasons why summarisation is not possible.
4. If it is considered by the competent authorities implementing this Law that a request for confidentiality is not warranted and if the interested party which is the supplier of information is unwilling to authorise disclosure of the information (in generalised or summary form) such information may be disregarded by the competent authority implementing this Law, unless it can be satisfactorily demonstrated from appropriate sources that the information is correct.
Article 43. International Agreements
1. If international agreements of the Republic of Lithuania which have been ratified by the Seimas of the Republic of Lithuania establish provisions other than those laid town in this Law, the provisions of international agreement shall apply.
2. Before initiating the investigation the competent authority, governed by the provisions of free trade agreements to which the Republic of Lithuania is a party, shall notify the Ministry of Foreign Affairs of the Republic of Lithuania of the received application for the initiation of investigation.
Article 44. Implementation of the Law
1. The Government of the Republic of Lithuania shall assign a competent authority to implement this Law.
2. The Government of the Republic of Lithuania or the competent authority shall:
2) approve a list of support measures granted to agriculture by foreign countries which are recognised as non-countervailable subsidies;
3) prepare the methodology of calculating the amount of countervailable subsidies and benefit conferred by them;
4) approve the list of developing countries in respect of whose imports into the customs territory of the Republic of Lithuania privileges provided for in this Law shall apply;