RESTRICTEDWORLD TRADE
ORGANIZATIONWT/ACC/LTU/51
26 October 2000
(00-4459)
Working Party on the
Accession of LithuaniaOriginal:  English
ACCESSION OF LITHUANIA
Questions and Answers
The Permanent Mission of the Republic of Lithuania has submitted the following replies to
additional questions raised by Members reproduced hereunder.
_______________
Customs Valuation
Question 1.  
We have reviewed our previous comments on Lithuania's Customs Valuation regime in light of
additional responses to specific questions, contained in WT/ACC/LTU/48, i.e., responses 16 and
17 and comments 1-9, and Table 8 of WT/ACC/SPEC/LTU/8/Rev.7.  We have also reviewed the
Customs Code of the Republic of Lithuania (1996), and Resolution No. 748 on the Approval ofthe Procedure of the Customs Valuation of Goods, 9 June 1999.
Even after this review, there are certain prov isions of the WTO Valuation Agreement which we
cannot find addressed in Lithuania's legislation.  In this regard, reviewing Lithuania's law and
regulations has been very difficult, becaus e the provisions of the WTO Valuation Agreement
have been implemented in pieces, and in many laws and regulations, over time.  While helpful,
Table 8 is not explicit in all cases, and could be improved as a tool to tracking these provisions.
If in the comments below we have missed referen ces in the Customs Code or Resolution No. 748
that address these issues, we would appreciate Lithuania's assistance in directing us to the
provisions in law or regulation that implement these provisions.
Resolution No. 748, particularly in paragraphs 2.2, 2.3, 2.4, 2.5 and 55,  describes the use of
price lists, a database and disclosure of information contained in the database.  The use of
values contained in databases or price lists to actually establish customs value is strictlyprohibited as set forth in Article 7 of the WTO Valuation Agreement.   The text of Resolution
No.748 does not support Lithuania's statement that the databases will only be a source of
information for valuation specialists to determine whether Customs should conduct a more
detailed examination of the imported goods.
Answer:
This particular question was answered in the reply to Question 17 (document
WT/ACC/LTU/48).  However, the same question is raised again.  Maybe the misunderstanding
permanently arises due to inaccurate translation of the Government Resolution No. 748 of
9 June 1999, where "comparative prices" were translated as "reference prices". We would like to
stress again, that the comparative prices by their content and application purpose are not the same asreference prices, therefore, the use of the term "reference prices" (instead of "comparative prices") in
the English translation was not appropriate perhaps.  Hopefully, such correction may be could clarifyWT/ACC/LTU/51
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the outstanding doubts, that customs valuation database in Lithuania does not contradict to WTO
Agreement on Customs Valuation.  Also, we are providing additional explanations on use of
comparative prices and relevant databases.
The Lithuanian Customs uses comparative prices for the purpose of the control of customs
valuation of the imported goods.  For valuation specialists, comparative prices can be used as a sourceof information as well as one of the indicators of possible commercial frauds; they indicate a need for
the conduct of a more detailed examination of the imported goods or the goods to be imported.
Comparative prices of the imported goods are one of the parameters of the goods customs valuation
database.  These prices are established on the basis of the transaction value data of identical or similar
goods, imported and declared by the importers within  the period of three previous months, which are
classified under the same HS sub-heading.  Such  comparative prices are then calculated as the
arithmetic mean of the transaction value data of the declared goods.  Comparative prices are used onlyfor the verification and control of the customs value of the imported goods, the verification of the
actuality of the declared transaction value, and, therefore, such prices are not applied for the
assessment of import duties and taxes, i.e. such prices are not applied to "actually establish customs
value".  The above does not contradict the provisions on application of GATT Article VII and
conforms to the provisions of the recommendations of the World Customs  Organizations (WCO).
The Handbook of the Customs Valuation Control, issued in 1999 by the WCO, states that during
customs clearance Customs has to verify whether the declared value is realistic in the light of the
commercial practice and identical or similar g oods.  Another WCO Handbook for commercial fraud
investigators states that a low or high price of goods transaction, declared by an importer, is one of the
indicators of possible customs valuation frauds.  Pursuant to the provisions of those WCOrecommendations, the special Methodics for the Control of Customs Valuation, which provide for the
application of comparative prices for the verification and control of customs value, has been approved
by the Customs Department. According to this Methodics, a declared low price of imported goods in
comparison to comparative prices is not a basis fo r the refusal to acknowledge the transaction value;
however, it is just one of the indicators of possible commercial frauds among others when the customsvalue of the imported goods needs an additional examination, and in such cases importer must provide
supplementary information and documents for the determination of customs value or its components.
By its contents the data of customs valuation database are statistics on imported goods and do
not reveal the data of a specific importer or exporter.  In addition, this information is used by the
Customs for the purposes of customs valuation control.  However, Customs authorities have no right
to disclose the information that by its nature is confidential as provided by Article 8 of the Customs
Code.
Comparative prices of the goods are also used to calculate the amount of the guarantee, when
the declarer needs more time in order to provide some additional information and relevant documents
for determining the customs value of the declared goods.
Question 2.  
The provisions in Resolution No. 748 make it clea r that the databases will be used to supply the
customs value of imports, not just indicate a n eed for further investigat ion.  In addition, as
structured, reliance on this database places an  incorrect presumption of doubt on every import
transaction for those limited products which are the subject of the database, i.e., that the goods
are presumed to be undervalued unless they match the data base values.  It is a presumption
that creates an unwarranted burden on importer s and exporters, which can be viewed by other
Members as an unacceptable market access barrier.WT/ACC/LTU/51
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Answer:
Additionally to information provided in reply to Question 4 above, that comparative prices
can not be used "to actually establish customs value", the Lithuanian delegation would like to
emphasize, that comparative price of the goods is the calculated average of the declared transaction
values of the imported goods; therefore, even theoretically Customs could not have any doubts withreference to the transaction of every single import case for as much as statistically half of the
transaction values will be higher than a comparative price.  Once again (as in the previous answer) we
would like to stress, that a declared transaction value which is evidently low is just one of the
indicators of possible commercial frauds to conduct a further verification.  It is not a burden on the
importers, on the contrary, the disclosing of frauds related to customs valuation just provides equal
import conditions for importers and fair competition.
Question 3.  
These sections, i.e. paragraphs 2.2, 2.3, 2.4, and 55 of Resolution No. 748, should be amended
prior to Lithuania's accession to ensure that this situation does not occur.
Answer:
Taking into account the information provided in this document, Lithuanian delegation is
convinced that there is no need for requested amendments of the aforementioned provisions ofGovernment Resolution No. 748 (namely paragraph 2.2, paragraph 2.3, paragraph 2.4, and
paragraph 55), because, in Lithuania's delegation view, they do not contradict with the WTO
requirements (the detailed reasons on that are provided below).  However, Lithuanian side agrees that
paragraph 2.5, in which the reference to "used" cars was omitted, should be supplemented by this
reference. Currently missing word "used" in paragraph 2.5 has been included into the Draft Resolution(expected time of adoption - October 2000), the translation of which is attached to this document for
your review (Attachment 1).
As you also may see from the attachment, the paragraph 2.2 of Resolution No. 748 also has
been included into the draft amendment with the ai m of simplification of this paragraph, particularly
that only "essential grounds" (that declared value of goods has been fraudulently reduced, what couldbe considered as a base to decide that customs value should be additionally examined) have been
indicated (i.e. their number has been reduced).
Lithuanian delegation would like to draw your attention, that with the aim to improve its
customs valuation system some changes of Reso lution No. 748 (not related to the databases or
comparative prices) are carried out.  These changes are provided as a separate attachment to this
document.
Additional explanations on paragraphs 2.3, 2.4, and 55 of Resolution No. 748 content (i.e. that there is
no contradiction to WTO provisions).
The paragraph 55 and paragraph 2.5 are related. The essence of paragraph 55 is that the
special price lists (catalogues) of the used cars approved by the Ministry of Transport can be used for
the customs valuation of the used cars (only in this case), if the transaction value cannot be applied.
Presently in accordance with paragraph 2.5, pending the approval of those catalogues specified inparagraph 55, for determining the customs value of the used cars, if transaction value cannot be
applied, the average import prices of the used cars, established by the Competition Council, are
applied.  They are set taking into consideration the depreciation of the vehicles and deducting from
the market price of cars the import duties and taxes paid and average general expenses and profit of
the enterprises trading in used cars.  This complies with the treatment of used motor vehicles by theWT/ACC/LTU/51
Page 4
World Customs Organisation.  Therefore, in Lithuanian delegation opinion, the special price lists
(catalogues) of used cars in any way do not co ntradict to WTO Agreement on Customs Valuation.
As regards paragraph 2.3, it provides only, that the Customs Department shall notify the State
Tax Inspectorate under the Ministry of Finance and the Tax Police Department under the Ministry of
the Interior, when the further investigation by those institutions is needed, e.g. in the case ofrepayment of export VAT, when unreal transaction values of export goods have been declared or in
the cases related to investigation of money laundering, etc.
The current provisions of paragraph 2.4 have two purposes.  Firstly, when the transaction
value of goods cannot be applied, for the application of other customs valuation methods, the data of
the previously imported goods and the declared transaction values must be selected from the relevant
Customs database.  On the base of selected data the import cases, which comply with the
requirements for the application of other customs valuation methods set by the Customs Code and theOrder of Customs Valuation of Goods (Resolution No. 748), are determined.  Secondly, when other
customs valuation methods are applied for determining the customs value of imported goods, in the
Customs decision should be indicated what import data have been used.  This is necessary as the
evidence for an importer and for the possible investiga tion of an appeal in the court.  Such Customs
decision indicates only the number of customs declaration, HS code and description of goods,exporting country, origin, quantity and unit price.  This information does not reveal the data of
concrete importer or exporter.
Thus, recalling the reply to Question 17 of document WT/ACC/LTU/48 and the additional
information provided here, it should be emphasized once again, that in Lithuanian delegation view,
there is no need to amend the paragraphs 2.2, 2.3, 2.4 and 55 of the Resolution No. 748 taking intoaccount that the Customs valuation database is used only as a tool to find the necessary information,
not "to actually establish customs value".  In fact, that does not create any unacceptable market access
barriers and, in our view, does not contradict to Article 7 of the WTO Valuation Agreement.
Question 4.  
Please clarify the actual method of valuation contemplated by Article 37 of the Customs Code of
1996.  It contains a provision on the valuation of perishable goods shipped on consignment
which allows the importer to request valuation under a "simplified procedure."  We are
concerned that this method may not be consiste nt with the WTO Valuation Agreement.  What is
the origin of this type of valuation?
Answer:
To this particular question the answer was alr eady provided in reply to Comment 8 (document
WT/ACC/LTU/48), in which the origin of this type of valuation is clearly formulated.  Moreover, itshould be stressed once again, that the WTO Valuation Agreement does not restrict the usage of
simplified procedure for customs valuation of perishable goods.
Question 5.  
We are dismayed by Lithuania's statement in response to Question 16 of WT/ACC/LTU/48 that
the "examples of customs valuation methods" included in draft "Methodics of CustomsValuation" to be approved by the Customs Department and enacted "in the near future" are
"only examples and not essential."  Article 14 of the WTO Customs Valuation Agreement
makes it clear that the Interpretative Notes to  the Agreement form an integral part of the
Agreement and the Articles are to be read in connection with the Interpretative Notes.
Therefore, the text of the Interpretative notes must form part of the implementing legislationand/or regulations.   We agree that when the ne w legislation is enacted, many of our concernsWT/ACC/LTU/51
Page 5
articulated at the April 14 meeting should be remedied.  We request that Lithuania provide us
with a copy of the "Methodics of Customs Valuation" at the earliest convenience.
Answer:
As it was indicated in Reply to Question 16 of WT/ACC/LTU/48, all the missing examples of
customs valuation methods will be incorporated in  the Methodics of Customs Valuation, which draft
is expected to be presented to the Government for its consideration by 1 December 2000.  More
detailed information concerning the inclusion of missing examples is provided below in our replies.
Question 6.  
Annex 1 Interpretative Notes 5.2, 5.3, 5.4, and 5.10 still appear not to be covered.
Answer:
Paragraphs 2, 3, and 4 of Notes to Article 5 are of an interpretative/example nature.
Nevertheless, they will be included into the Methodics of Customs Valuation.
Paragraph 10 of Notes to Article 5 is already included into the item 21.2 of the draft
amendment of the Government Resolution No. 748, attached hereto (expected time of adoption -
October 2000).
Question 7.  
Please clarify that paragraph 21.1 fully accepts that the term "profit and selling expenses" in
the first sentence of Note 5.6 is taken as a whole.
Answer:
Paragraph 6 of Notes to Article 5 is already reflected in item 21.1 of the Government
Resolution No. 748 in the following sentence:  "The term "profit and general selling expenses" shall
mean one of the amounts deducted from the value of goods".  Following this, Lithuanian delegationcannot understand what is still unclear.
Question 8.  
We could not find a provision within paragraph 21.1 of Resolution No. 748 that provides that
"the 'general expense' includes the direct and indirect costs of marketing the goods in
question".  Can you point out where it is?
Answer:
The first sentence in item 21.1 of the Resolu tion No. 748 already indicates the following:
"…general selling expenses (including direct and indirect marketing costs) related to ....".
Question 9.  
Lithuania states that Note 5.8 is implemented in paragraph 21.3 of Resolution No. 748, which
provides that a deduction be made for "import duties and other charges paid when goods of the
same class or kind are imported into or sold  in the customs territory of the Republic of
Lithuania."  This does not, however, appear to implement the  deduction for local taxes payable
by reason of the sale of the goods.  Could Lithuania clarify this issue?WT/ACC/LTU/51
Page 6
Answer:
In paragraph 21.3 of the Resolution No. 748 the wording "other charges" includes local taxes
(VAT, excise tax), too. Nevertheless, paragraph 8 of Notes to Article 5 which reads "local taxes
payable by reason of sale of goods for which a deduction is not made under the provisions of
paragraph 1(a)(iv) of Article 5 shall be deducted under the provisions of paragraph 1(a)(i) of Article5" has been included into draft of Methodics of Customs Valuation.
Question 10.  
Table 8 states that a draft amendment of paragraph 21 of Resolution No. 748 corresponding to
Article 5 of the WTO Agreement has been prepared and should be approved within the next
couple of months.  We would very much like to see a draft of the proposed amendment.
Answer:
The draft amendment of paragraph 21 is provided for your review in the attached draft of
Government Resolution No. 748.
Question 11.  
Article 8 of the WTO Valuation Agreement, concer ning the additions to the price actually paid
or payable in determining transaction value is not fully implemented.   Annex I, Note to Article
8, paragraph 1(b)(ii), point No. 4 and Annex I, Note to Article 8, paragraph 1(b)(iii) are notimplemented.
Answer:
Paragraph 1 (b)(ii) point 4 of Notes to Article 8 is of an interpretative/example nature.
Nevertheless, it will be included into the Methodics of Customs Valuation.
Paragraph 1 (b)(iii) of Notes to Article 8 is not promulgated nor in the publication of World
Customs Organization "Customs Valuation.  WTO Agreement.  Texts of the Technical Committee on
Customs Valuation, July 1998", nor in the Agreement on Implementation of Article VII of the GATT
1994.
Question 12.  
The references to "xiii" "xvi" and "xvii" with reference to Articles 8, 10 and 11 in Table 8 are
not clear.  What does Lithuania mean by these references?   (Note: It would be helpful if Table 8
could be made clearer, in terms of the precise citations of paragraphs, etc., of the Customs Code
and Resolution)
Answer:
The new version of Table 8, in which references to Article 8 and 11 and some other changes
were made, is provided below. Also we would like to draw your attention concerning Article 10 of the
Valuation Agreement: only Customs Code covers provisions of Article 10, therefore no reference ismade here to the Resolution No. 748.WT/ACC/LTU/51
Page 7
Table 8:  Conformity of Lithuania's current provisions with the WTO Agreement
on Customs Valuation on an article by article basis
Agreement on
Implementation of
Article VII of the
GATT 1994The Order of Customs Valuation of Goods
approved by Government Resolution No.
748 of 9 June 1999 of Lithuania (which
entered into force on 1 April 2000)The Customs Code of Lithuania
(entered into force 1 January 1998)
Article 1 Section II
Application of transaction valueParagraphs 4-9 conform to theparagraphs 1(a)-1(d), 2(a)-2(c) of the
Article 1 of WTO AgreementChapter VI
Value of goods for customs purposesArticle 30 paragraphs 1-5 conform to therespective Article of WTO Agreement.
Article 2 Section III
Application of other methods of customs
valuation paragraphs 18.1-18.5 conformto paragraphs 1(b), 2 and 3 of therespective Article of WTO Agreement.Chapter VI
Value of goods for customs purposes
Article 31 paragraphs 1 and 2(1)conform to paragraph 1(a) of therespective Article of WTO Agreement.
Article 3 Section III
Application of other methods of customsvaluation paragraphs 19.1-19.5 conform
to paragraphs 1(b), 2 and 3 of the
respective Article of WTO Agreement.Chapter VI
Value of goods for customs purposesArticle 31 paragraphs 1 and 2(2)
conform to paragraph 1(a) of the
respective Article of WTO Agreement.
Article 4 Chapter VI
Value of goods for customs purposesArticle 31 paragraph 1 conforms to therespective Article of WTO Agreement.
Article 5 Section III.
Application of other methods of customs
valuation paragraphs 21-22 conform the
respective Article of WTO Agreement.Note:  Draft amendment of paragraph 21of Government Resolution No. 748 hasbeen prepared in order to make it fullyconform with paragraphs 1(a) and 1(b)
of the Article 5 of the WTOChapter VI
Value of goods for customs purposes
Article 31 paragraph 2(3) conforms to
paragraph 1(a) of the respective Articleof WTO Agreement.  Paragraph 3provides reference to the implementingprovisions.
Article 6 Section III
Application of other methods of customs
valuation paragraph 24.1 conforms toparagraph 2 of the Article 6 of WTOAgreement.Chapter VI
Value of goods for customs purposes
Article 31 paragraph 2(4) conforms toparagraph 1 of the respective Article ofWTO Agreement.
Article 7  Section III
Application of other methods of customsvaluation paragraph 25 conforms to
paragraph 1 of  the Article 7 of WTO
Agreement.
Section V
Final provisions paragraph 59 conforms
to paragraph 3 of the respective Article
of the WTO Agreement.Chapter VI
Value of goods for customs purposesArticle 32 paragraphs 1-2 conform to
paragraphs 1-2 of the respective Article
of the WTO Agreement.WT/ACC/LTU/51
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Agreement on
Implementation of
Article VII of the
GATT 1994The Order of Customs Valuation of Goods
approved by Government Resolution No.
748 of 9 June 1999 of Lithuania (which
entered into force on 1 April 2000)The Customs Code of Lithuania
(entered into force 1 January 1998)
Article 8 Section IV
Calculation of the costs and chargeswhich, in accordance with the
transaction value method, shall be added
to the price actually paid or payable forthe imported goods paragraph 27conforms to paragraph 1 (b)(ii) of theArticle 8 of the WTO Agreementparagraph 28 conforms to paragraph 1
(b)(iv) of the  Article 8 of the WTO
Agreement paragraphs 29-37 conform toparagraph 1 (c) of the Article 8 of theWTO Agreement paragraphs 38-43conform to paragraph 2 of the Article 8
of the WTO AgreementChapter VI
Value of goods for customs purposesArticle 33 paragraphs 1-3 conform to the
respective Article of the WTO
Agreement.
Article 9 Section V
Final provisions
Paragraphs 48-50 conform to therespective Article of the WTOAgreement.Chapter VI
Value of goods for customs purposes.
The Article 36  conforms to therespective Article of WTO Agreement.
Article 10 Chapter II
The rights and obligations of personswith regard to the implementation of the
provisions of the Code.  The Article 8
conforms to the respective Article ofWTO Agreement.
Article 11 Draft amendment of paragraph 60 of the
Government Resolution No. 748 (theamendment has been submitted to theGovernment for its consideration,
expected time of approval - October
2000)Chapter XXII
AppealsRight to appeal against decisions takenby the customs authorities is provided in
this Chapter.  The provisions of this
Chapter conform to the respectiveArticle of the WTO Agreement.
Article 13 Government Resolution No. 748 of
9 June 1999 paragraph 2.2 conforms tothe respective Article of the WTOAgreement.Chapter XI
Customs procedures Article 73paragraph 1 conforms to the respectiveArticle of WTO Agreement.  Article 199
paragraph 2 provides reference to the
implementing provisions.WT/ACC/LTU/51
Page 9
Agreement on
Implementation of
Article VII of the
GATT 1994The Order of Customs Valuation of Goods
approved by Government Resolution No.
748 of 9 June 1999 of Lithuania (which
entered into force on 1 April 2000)The Customs Code of Lithuania
(entered into force 1 January 1998)
Article 15 Section I
General provisions paragraph 2conforms to sub-paragraphs 1(c), 2(a),
2(b), 2(d), and paragraph 3 of the Article
15 of the WTO Agreement.  Paragraph 3conforms to sub-paragraph 2(c) of theArticle 15 of the WTO Agreement.
Section II
Application of transaction value method
paragraph 9 conforms to paragraph 5 ofthe Article 15 of the WTO Agreement.
Section III
Application of other methods of customs
valuation.  Paragraphs 18.4 and 19.4conform to sub-paragraph 2(e) of theArticle 15 of the WTO Agreement.Chapter VI
Value of goods for customs purposesArticle 29.  This Article conforms to
sub-paragraph 1(a) of the respective
Article of the WTO Agreement.  Article30 paragraph 8 includes provisions ofparagraph 4 of the respective Article ofWTO Agreement.
 Article 16 Section V
Final provisions paragraph 59 conformsto the respective Article of the WTOAgreement.Chapter II
The rights and obligations of personswith regard to the implementation of theprovisions of the Code Article 4
paragraph 3 conforms to the respective
Article of WTO Agreement.
Question 13.  
Article 7.3 of the WTO Valuation Agreement:  if  the "fall back method" or valuation using
reasonable means is used as a final resort, provision for written notice of the final decision at the
importer's request does not appear to have been implemented in paragraph 59 of Government
Resolution No. 748.
Answer:
As it was already answered in Reply to Comment 2 of document WT/ACC/LTU/48, the
provisions concerning written notice at the importer's request under Article 7.3 are already
incorporated into paragraph 59 of the Resolution No. 748, namely in the sentence "The results of the
final decision and grounds shall be communicated to the declarant in writing".  Following, Lithuanian
delegation cannot understand, what is still unclear.
Question 14.  
Article 11 of the WTO Valuation Agreement, con cerning the right of appeal.  Lithuania should
provide a citation of the laws that provide the right of appeal and ensure, as required by the
Customs Valuation Agreement, that it is without penalty.
Answer:
Please, see Reply to Comment 4 of the document WT/ACC/LTU/48.WT/ACC/LTU/51
Page 10
Moreover, draft amendment of the Resolution No. 748, attached hereto, has been
supplemented also by paragraph 60, which reads "The Customs decisions made by applying this
procedure shall be appealed against pursuant to the procedure set by the Customs Code".
Question 15.  
Article 12 of the WTO Valuation Agreement, con cerning transparency.  Does the Law on the
Order of Publishing and Entry into Force of Legal Acts, 6 April 1993 , provide for the
transparency required by this Article?  Can we have a translation of the provisions?
Answer:
The Law on the Order of Publishing and Entry into Force of Legal Acts of 6 April 1993 was
submitted to WTO Secretariat in July 1999.  Also see Reply to Comment 5 of the document
WT/ACC/LTU/48.
Anti-dumping, Countervailing Duties and Safeguard Regimes
Question 16.  
Please clarify whether “13 months” listed in Article 13 of the Law should be listed as “18
months”.
Answer:
Under the Article 11.11 of the WTO Agreement on Subsidies and Countervailing Duties
“Investigations shall, except in special circumstances, be concluded within one year, and in no case
more than 18 months, after their initiation”.  The Article 13 of the Lithuanian Law on Countervailing
Duties states that “the investigation of countervailing subsidy shall be concluded within one year.  In
any case the duration of investigation may not exceed 13 months”, which in Lithuanian delegation
view is consistent with WTO provisions.  Further, it should be emphasized, that the wording “theduration of investigation may not exceed 13 months ” does not contradict with the wording of WTO
Agreement “in no case more than 18 months”, taking into account that the “13 months” falls within
the limits of one year and 18 months.  Moreover, in Lithuanian delegation opinion, the fact that the
investigation is concluded sooner than 18 months should be considered as a positive factor.
Question 17.  
Please explain whether Article 14.4 provides  for consultations between petitioners and
respondents. If so, please explain what type of outcome is anticipated by these consultations.
Answer:
Paragraphs 13-14 of Article 14 of the Law on Countervailing Duties provide for arrangement
of consultations among the interested parties during which they expect to clarify the actual situation
regarding the evidences of the event of a subsidy provided by an application as well as a causal
relation between subsidised import and supposed injury  and also seeking to find a solution acceptable
to the both parties.
Question 18.  
It is not clear whether Lithuania intends to use “f acts available”.  Article 14.8 is not clear on this
point. We would appreciate clarification on this point.WT/ACC/LTU/51
Page 11
Answer:
Yes, Lithuania intends to use “facts available”, particularly the following wording of Article
14.8 of the Law on Countervailing Duties “...findings shall be based on the information and evidence
received from other sources” means, in fact, “facts available”.
Question 19.  
Article 45 provides that if an international agreement to which Lithuania is a party contains
provisions other than those set forth in the CVD law, the provisions of the international
agreement shall apply.  Please clarify whether, if there is a particular conflict, the provision of
the international agreement shall apply, or whet her the international agreement apply to the
extent that they supplement and are not in conflict with the CVD law.
Answer:
As you may see, in paragraph 26 of the Working Party Report
(WT/ACC/SPEC/LTU/8/Rev.8) a hierarchy of legislative acts in Lithuania is enumerated. This clearly
demonstrates, that the international agreements ratified by the Seimas (Parliament) of the Republic of
Lithuania prevail over the national laws.  This certainly also concerns the provisions of the Law on
Countervailing Duties. Moreover, the same paragraph states “the WTO Agreement would have the
status of an international treaty”.  Following this, once again we would like to reiterate, that in thecase when the national Law (in this particular case the Law on Countervailing Duties) will be in
conflict with WTO Agreement, the provisions of the latter will be applied.
Question 20.  
Article 46 suggests that Lithuania has not yet promulgated any CVD regulations. The WTO
Agreement on Subsidies and Countervailing Measures requires that certain methologies
measuring the subsidy benefit are to be set fo rth in the Member’s countervailing duty law or
regulations.  Since these methologies are not set out in the law, could Lithuania describe its
plans for issuing countervailing duty regulations?
Answer:
The secondary legislation of the Law on Countervailing Duties currently is under preparation
(expected time of adoption November 2000/February  2001 ).  Moreover, Lithuanian delegation would
like to assure that the Law on Countervailing Duties shall not be applied before the adoption of
aforementioned secondary legislation.
Trade-Related Intellectual Property Regime
Question 21.  
Lithuania describes the provisions in Article 72 of their Copyright Law governing the
transitional period that provides retroactive protection for preexisting works.  Paragraph 2 ofthat provisions, however, specifies that "Any ac ts done before the entry into force of this Law
and not infringing the provisions of the relevan t legislation in force at that time shall not
constitute an infringement of rights and shall no t give rise to the right to obtain remuneration
granted under this Law."
As noted in our earlier comments, the right of ret roactive copyright protection is a major issue
for this delegation.  To be consistent with th e WTO Agreement on TRIPS in this matter, Article
72(2) of Lithuania’s law can excuse past conduct (i.e., as a “grandfathering” provision),  butWT/ACC/LTU/51
Page 12
cannot excuse similar future conduct.  It should be clear in the text of such provisions that while
infringements that occurred prio r to the entry into force of the new law will not subject a user
to liability, new acts of conduct after the entry into force do incur liability, even if they are the
same acts as those that were previously non-ac tionable and on the same works, or related to
unauthorized copies that have already been produced.
For example, while Article 72(2) might excuse past reproduction of a phonogram which would
have otherwise been in violation of the perfor mers' right to control reproduction under Article
44(1)(3), it does not excuse future  distribution of the unauthorized copies after the Law and
Lithuania’s WTO obligations come into effect, as this would violate Article 44(1)(5).
Lithuania’s law does not appear to make that clear.
We seek clarification of this point in the Worki ng Party report text, i.e., to confirm that the
protection against infringement in future ac ts provided by the WTO Agreement on TRIPS is
conferred, and to confirm that Article 72(2) does  not excuse conduct that, while not in conflict
with Lithuania’s obligations prior to passage to the law, would now conflict with the Law and
Lithuania’s WTO obligations.
Answer:
The aim of Article 72.2 of the Law on Copyright and Related Rights is to excuse past conduct
only, not the future conduct done after the entry into force of the new Copyright Law.  All actions
which are done after the new Copyright Law takes effect are subject to its regulation.  Thus, in
Lithuanian delegation view, Article 72.2 of the Law on Copyright and Related rights is in compliance
with the WTO Agreement on TRIPS since only past actions which were not in conflict with the
Copyright Law in force at that time (i.e. Law on Copyright and related rights of 17 May 1994 as anAmendment and Supplement to the Civil Code) do not subject a user to liability.
Question 22.  
Lithuania has stated that ex parte searches are provided for in the Copyright Law, but neither
Article 69, nor any other part of the Lithuanian Copyright Law that we can identify, expressly
provides for ex parte searches.  In addition, no mention is made in that law of ex parte orders.Rather, Lithuania states that Article 160 of the Civil Code provides this protection.
Please provide the text of Article 160 of the Civil Code, which Lithuania indicates provides this
mechanism.  Please elaborate on the requirements and evidentiary showing required to get such
relief under their Civil Code.   We seek appropriate legal amendment of Article 69 to make
express reference to these provisions of the Civil Code, e.g., under Article 69(2), a new
subsection (4) could be added as follows:
"any provisional measures permitted by the Civil Code,
including but not limited to, Article 160 thereof. "
We seek clarification in the Working Party report language that it is Lithuania’s intent to make
this legal amendment prior to its WTO accession.
Answer:
After examination of your comment (above), Lithuanian delegation realized, that your
previous question concerning ex parte  actions was most probably misunderstood. Therefore,
Lithuanian delegation is providing revised answer to your question 8: "Article 69 of the Copyright
Law does not appear to expressly provide for ex parte  actions.  Could Lithuania clarify this apparent
oversight".WT/ACC/LTU/51
Page 13
In Lithuania’s opinion, the Article 69 of the Copyright Law expressly provides for ex parte
actions, namely Article 69.1 foresees the provisional measures, which can be applied by the court in
urgent cases with the presence of sufficient evidence about the infringement of copyright or related
rights upon receiving a claim application of an owner of copyright or related rights; and the Article
69.2 states, that e x parte  actions may be taken where essential irreparable damage may be caused to
the owner of copyright or related rights, or where the evidence may be destroyed as it is provided in
Article 50.2. of the TRIPS Agreement.
Additionally Lithuanian delegation would like to emphasize, that the Article 160 of the Code
of Civil Procedure (not the Civil Code) stating th at “the application concerning the claim should be
settled by judge or court not later than the next day after receiving the application without informing
defendant or other parties participating in the case” does not provide for the types of court injunctions
(or provisional measures).  It stipulates only th e order how the claim concerning the application of
court injunctions (we call them “claim safeguarding measures”) must be judged (i.e. it must be judged
without the defendant being heard).
Therefore, taking into account aforementioned information, in Lithuania’s view, it is evident,
that there is no necessity to amend the Article 69 of the Copyright Law with the aim to make
reference to the provisions of the Civil Procedure Code.
Further, as you may see, the Article 69 of the Law on Copyright and Related Rights provides
for a non-exclusive list of ex-parte provisional measures, i.e. the judiciary has a possibility to apply
other measures not included in the list as the Article 69.4 provides that other similar measures could
be applied.  Moreover, the Article 69.3 provides for the seizure of infringing copies of works,
fixations of audiovisual works or phonograms, as well as technical devices and equipment used forreproduction thereof, and appropriate documents.  The seizure action should be interpreted more
broadly, i.e. including also a search action, taking into account that such term as “search” is not used
in any civil proceedings in Lithuania.  In general, under our legislation the seizure action is conducted
together with a search action, e.g. having the court order of seizure a bailiff has the right to enter into
and search the premises, and seize the infringing copies of works or objects of related rights.
Question 23.  
We remain concerned that the exception pr ovided for in Lithuania’s Copyright Law for
exploitations "solely for the purposes of education, teaching and scientific research" is much
broader than that provided for in Arti cle 13 of the WTO Agreement on TRIPS.
Even though the language of Lithuania’s Law is in the Rome Convention, that provision (i.e., in
the Convention) applies to a small subset of th e works covered by TRIPS obligations.  Article
49(1)(3) of the Lithuanian law applies to all related rights, so while it is technically consistentwith Article 15 of the Rome Convention, that is not the relevant point.  Exceptions for all
copyrighted works, as provided  for in Article 49(1)(3) of Lithuania’s Law, must conform to
TRIPS Art 13, which is far narrower than the Lithuanian provision.  Article 49(2) of the
Lithuanian law tracks TRIPS Article 13 in saying that the 49(1) exceptions "must not conflict
with a normal exploitation of the objects of th ese rights and must not unreasonably prejudice . .
. ", but there is no explicit limitation.
For example, under Article 49(1) (3), Lithuania’s law could be interpreted to permit "distance
learning" video tapes prepared to teach English as a second language to be freely copied and
played in Lithuanian schools and community centers without authorization and without
remuneration because it would be exploitation "sol ely for the purposes of education . . . " .   As
this activity would badly damage the Lithuanian  market for these videotapes, it would be an
Article 13 violation.WT/ACC/LTU/51
Page 14
We seek appropriate legal amendment or clarification of Lithuania’s Copyright Law to ensure
the full implementation of Article 13 of the WTO Agreement on TRIPS.   We also seek
additional language in the Working Party report confirming that Article 49(2) of the Lithuanian
law is intended to implement TRIPS Article 13 in saying that the 49(1) exceptions "must not
conflict with a normal exploitation of the objects of these rights and must not unreasonablyprejudice . . . " .
Answer:
In Lithuanian delegation opinion, the Article 49 of the Copyright Law does not contradict
with Article 13 of the WTO TRIPS Agreement.  The exceptions provided for in Article 49.1.3 of the
Law must be interpreted in the light of Article 49.2.  The exceptions cannot be broadly interpreted as
Article 49.2. stipulates for its limits, i.e. it shall be permitted, without the authorization of the owner
of related rights and without the payment of remuneration, to use a performance, phonogram, fixationof an audiovisual work (film) and a broadcast or programme of a broadcasting organisation, or the
fixations thereof, for exploitation solely for the purpose of education, teaching and scientific research,
but only if said limitations is not in conflict with a normal exploitation of the objects of these rights
and must not unreasonably prejudice the legitimate interests of performers, producers of phonograms,
producers of the first fixation of an audiovisual work or broadcasting organisations.
Thus, Lithuanian delegation is convinced, that Article 49.2 of the Copyright Law implements
Article 13 of the WTO Agreement on TRIPS.WT/ACC/LTU/51
Page 15
Attachment 1
Draft
GOVERNMENT OF THE REPUBLIC OF LITHUANIA
RESOLUTION
No.……………………2000
Vilnius
ON PARTIAL AMENDMENT TO RESOLUTION No.748 “ON THE APPROVAL OF THE
PROCEDURE FOR THE CUSTOMS VALUATION OF GOODS” ADOPTED BY THE
GOVERNMENT OF THE REPUBLIC OF LITHUANIA ON 9 JUNE  1999
The Government of the Repub lic of Lithuania resolves:
Partly amending the Resolution No. 748 “On the Approval of the Procedure for the Customs
Valuation of Goods” adopted by the Gove rnment of the Republic of Lithuania on
9 June 1999 (Records, 1999, No. 52-1686):
1. to outline paragraph 2.1. as follows:
“2.1. in determining the customs value of goods, the transaction value of identical or similar goods,
the customs value of which is additionally verified, shall not be taken into consideration (including
the cases when these values are verified on fu lfilling the controls of importer’s economic and
commercial activity, his accounting, financial accountability with respect to the customs procedures
carried out by him);”
2. to outline par. 2.2 as follows:
“2.2. if there are grounds to doubt that the declared customs value of goods has been fraudulently
reduced (the declared transaction value is low in comparison with the comparative prices of import
goods fixed by the Customs Department under the Mi nistry of Finance and (or) transaction values of
identical or similar goods, the buyers and (or) sellers of the goods are natural persons, the goods have
been purchased from an off-shore company, no transport or insurance costs or other necessaryparticulars have been indicated in the documents, the particulars of the different documents are not
consistent, the documents bear corrections) and the declarant does not submit information grounding
the correctness of the declared transaction value, the customs authorities shall decide that the customs
value should be additionally examined or, following par. 59 of the Procedure for the Customs
Valuation of Goods, approved by this Resolution, shall determine the customs value of goods withoutadditional examination. When the customs value of goods have to be examined additionally, the
goods are released for free circulation only after the declarant provides a guarantee equivalent to the
biggest amount, fixed by the customs, of the customs debt which may occur;”,
3. to outline paragraph 2.5 as follows:
“2.5. pending the approval of the catalogues of the prices of used cars specified in paragraph 55 of theOrder of the Customs Valuation of Goods and introduction of instructions on their use for the purposeWT/ACC/LTU/51
Page 16
of customs valuation, the average import prices on imported used cars established by the Competition
Council shall be used instead, taking into consideration the depreciation of the vehicles;”
4. to outline paragraph 3 as follows:
“3. To instruct:
3.1. the Department of Statistics under the Government of the Republic of Lithuania in
accordance with a procedure approved by the Customs Department under the Ministry of Finance to
provide data to the aforesaid Department on the gross profit margin of economic entities according tothe types of the Register of Types of Economic activities;
3.2. the Ministry of Transport in accordance with a procedure approved by the Customs
Department under the Ministry of Finance to provide data to the aforesaid Department on the
transport tariffs of carriage of cargoes by land, air and sea transport.”
5. Partly amending the Procedure for the Customs Valuation of Goods approved by
the said Resolution:
5.1. to outline paragraph 21 as follows:
“21. If the imported identical or similar goods are sold in the customs territory of the Republic
of Lithuania in an unaltered state, on applicat ion of Article 31 (2)(3) (deductive method), the
following values referred to in this sub-paragraph shall serve as a basis:
21.1. the unit value of the goods, sold at or about the same time when the goods being valued
were imported, from which the following costs shall be deducted:
21.1.1. the commission usually paid or due according to the agreement, or the profit and
general expenses (including direct and indirect marketing costs) related to sales of goods of the same
class and kind in the customs territory of the Republic of Lithuania. The term “profit and generalexpenses” shall mean one of the amounts deducted from the value of goods. Such deducted costs are
to be determined on the basis of information supplied by the declarant unless his figures are
inconsistent with those obtained in sales in the Republic of Lithuania of goods of the same class or
kind as the goods being valued. If the figures supp lied by the declarant do not comply with those
obtained, the amount for profit and general expenses shall be based upon the relevant information(statistical data or other data possessed by the customs) supplied not by the declarant. When the
amount of the commission or the usual profit or general expenses is determined in accordance with
the provisions of this subparagraph, the decision whether certain goods are of the same class or kind
as other goods must be taken on a case-by-case basis taking into account the circumstances involved.
Sales of the narrowest range of goods, which includes the goods being valued and certain other goods,for which the necessary information can be provided should be examined. For the purpose of this
subparagraph, goods of the same class or kind must be imported from the same country as the goods
being valued, or from any other country;
21.1.2.  the usual costs of transport and insurance, loading costs and costs related to them which have
been incurred in the customs territory of the Republic of Lithuania if they have not been included inthe general selling expenses;
21.1.3. import duties and other charges paid wh en goods of the same class or kind are
imported into or sold in the customs territory of the Re public of Lithuania.
21.2. the  unit value of the goods, sold at the earliest date after the importation of goods being
valued (not exceeding the fixed period of 90 days), if neither imported, nor identical or similar goods
were sold at or about the same time when the goods being valued were imported. The „earliest day“
mentioned in this paragraph shall be considered the day by which sales of imported goods or identicalor similar goods are made in sufficient  quantity to establish the unit price.
On application of this paragraph, the costs indicated in subparagraphs 21.1.1.-21.1.3 shall also be
deducted from the unit price of the goods.”,
5.2. to outline paragraph 51 as follows:
“51. The customs value of goods and its elements shall be declared by producing the
declaration of customs value of goods. The form and manner of completion of this declaration shall beWT/ACC/LTU/51
Page 17
determined by the Customs Department under the Ministry of Finance. The declaration of the customs
value of goods shall be furnished together with the customs declaration (Single Administrative
Document) upon placing the goods under the release for free circulation customs procedure, including
release for free circulation (re-import) of compensating products produced from the goods temporarily
exported for processing. It shall not be mandatory to lodge the declaration on the customs value if:
51.1. the customs value of the consignment of goods does not exceed 3000 litas, unless
several consignments of goods are imported under the same contract;
51.2. where the goods are imported which are not used for commercial or production purposes (for
example, charity or humanitarian aid consignments, the property of the persons who change the place
of residence or the inherited property etc);
51.3. the goods are imported which are not subject to any import duties and taxes;
51.4. in cases provided for in paragraph 2 of Article 37 of the Customs Code, the customs
value of goods shall be determined in a simp lified way laid down by the Government of the
Republic of Lithuania or any institution authorised by it.
5.3. to supplement the procedure by paragraph 60:
“60. The Customs decisions made by appl ying this procedure shall be appealed
against pursuant to the procedure set by the Customs Code”.
Prime Minister
Minister of Finance
__________