RESTRICTED  WORLD TRADE  
ORGANIZATION  WT/ACC/CGR/16 
30 May 2006 
 (06-2588) 
Working Party on the 
Accession of Montenegro Original:   English 
 
 
 
ACCESSION OF MONTENEGRO 
 
Additional Questions and Replies  
 
 
 The following submission, dated 12 May 2006, is  being circulated at the request of the 
Delegation of the Republic of Montenegro.   
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  WT/ACC/CGR/16 
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 TABLE OF CONTENTS 
- The Law on Customs (RM OG Nos. 7/02, 38/02, 72/02, 21/03, 31/03)..................................1  
- The Decree  "On Implementation of th e Customs Law, Rules of Origin and 
Customs  Valuation" (RM OG No. 51/03) ...............................................................................3  
- The Law on Copyright and Related Rights of 1 January 2005 (Official Gazette 
No. 61 of Serbia and Montenegro of 24 December 2004) ......................................................5  
- Law on Legal Protection of Design of 1 January 2005 (Official Gazette of Serbia 
and Montenegro of 24 December 2004) ..................................................................................7  
- Law on Patents of 10 July 2004 (Official Gazette of Serbia and Montenegro of 2 July 2004)................................................................................................................... .............8
 
- Undisclosed In formation ........................................................................................................ ..9  WT/ACC/CGR/16 
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 - The Law on Customs (RM OG Nos. 7/02, 38/02, 72/02, 21/03, 31/03) 
Question 1 Article 25 of the Customs Law provides that goods whose production involved more than one 
country shall be deemed to originate in the country where they underwent their last 
"substantial, economically justifiable processing  resulting in new products or representing a 
crucial stage of manufacture."  Please explain how Montenegro will determine whether a 
processing operation is "economically justifiable."   
Answer:
 
In addition to Article 9, 1 (b) of the Customs Valu ation Agreement, Article 25 reflects the provision 
of Article 24 of the EU Custom Code, under whic h "goods whose production involved more than one 
country shall be deemed to originate in the count ry where they underwent their last, substantial, 
economically justified processing...". 
Montenegro will consider any such processing to be economically justified in the absence of 
convincing evidence to the contrary. 
Question 2 
Articles 114 and 115 of the Customs Law mention that handling and special time periods for 
warehousing are subject "to protective measures of agricultural policy".  What "protective 
measures" are used? 
Answer:  
The Decree for Implementation of the Customs Law (RM OG No. 15/03) defines in Article 1 
"measures of agriculture policy" as "non-tariff and ta riff measures that are part of state agriculture 
policy which regulate import or export of agriculture products and food products".  
There are no special regulations or exceptions cu rrently applied regardin g protective agriculture 
measures.  
Question 3 
In response to Question 1 of WT/ACC/CGR/8, Montenegro states that the right to appeal to a 
judicial authority without penalty (WTO Custom s Valuation Code:  Article 11) is granted by 
the Law on Administrative Dispute (RM OG No. 60/ 03).  Please provide a translation of this law 
to the Working Party. 
Answer:  
Please see document WT/ACC/CGR/11. 
Question 4 
In response to Question 1 of WT/ACC/CGR/8, Montenegro further states that the publication of 
laws, regulation, judicial decisions and admini strative rulings is addressed by Article 108, 
Paragraph 1 of the Montenegro's Constitution .  Please provide a copy of the Montenegrin 
Constitution to the Working Party. WT/ACC/CGR/16 
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 Answer:
 
Please see document WT/ACC/CGR/11. 
Question 5 
In response to Question 5 of WT/ACC/CGR/8, Mo ntenegro states there is no specific legal act 
that regulates the matter of confidentiality.  Please explain how Montenegro will ensure the 
protection of confidential information as required by Article 10 of the WTO Customs Valuation 
Agreement?  Has Montenegro considered modifyin g the language of the Customs Law to meet 
the requirements of the CVA? 
Answer:  
The draft Amendments of the Customs Law will incl ude all currently missing terms from the CVA.  
Please see document WT/ACC/CGR/11. 
Question 6 
Regarding the response to Question 8 of WT/ ACC/CGR/8, paragraph 2 of Article 21 of the 
Customs Law seems to impose an unnecessary bur den on importers to prove eligibility for rates 
under a free trade agreement.  Would Montenegro  consider using tariff codes to track these 
products to make the FTA rates automatic? 
Answer:  
Montenegro is of the opinion that there is no unn ecessary burden on importers to prove eligibility for 
rates under a free trade agreement. 
Under paragraph 1 of Article 21, rates under a free trade agreement are automa tically applicable to 
goods imported from a country with which M ontenegro has a free trade agreement.  
As it was pointed out in response to Question 8 of  WT/ACC/CGR/8, paragraph 2 merely provides the 
importer whose goods were imported under normal impor t rates (for whatever reason) the right to 
request the application of rates under an applicable free trade agreement, subsequent to the release of 
goods for free circulation. 
Question 7 
In response to Question 9 of WT/ACC/CGR/8, Montenegro states that the Law on General 
Administrative Procedures sets the general rule th at all administrative decisions are appealable 
and/or subject to court review.  Is this the same law as the Law on Administrative Dispute 
(RM OG No. 60/03) mentioned above in item 3?  If not, please provide to the Working Party a copy of the Law on General Administrative Procedures. 
Answer:
 
The Law on Administrative Dispute and the La w on General Administrative Procedure are two 
different laws.  Please see document WT/ACC/CGR/11.  WT/ACC/CGR/16 
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 Question 8 
Regarding the response to Question 10 of WT/ACC/CGR/8, we look forward to reviewing 
Addendum 7b to the Implementing Regulation s for clarification of country of origin 
determinations. 
In response to Question 13 of WT/ACC/CGR/8, re garding the treatment of royalties and licence 
fees, Montenegro states that from the date of accession it will not use any customs measures 
and/or procedures unless they are based on laws and regulations that are fully WTO consistent.  
Please explain how Article 89 of the Decree on th e Implementation of the Customs Law will be 
revised to conform to the requirements of Arti cle 8 of the Customs Valuation Agreement and 
the Interpretative Note to Article 8 prior to accession. 
Answer:  
Question 13 of WT/ACC/CGR/8 doesn't refer to roya lties and licence fees than rather to mistaken 
cross reference.  Please explain what question you have on your mind.   
Question 9 
In Question 29 of WT/ACC/CGR/8, we raised concern about Article 74 of the Montenegrin 
Customs Regulations.  In response Montenegro states that when the two persons are related 
parties and the price of imported goods is s ubject to condition for which a value can be 
determined, Montenegro will deem such a condition  to be an indirect payment and as such shall 
be included in the transaction value of the good.  As noted in the Interpretative Note to Paragraph 1(b) of Article 1 of the WTO Valuation Agreement, "If the sale or price is subject to some condition or consideration for which a val ue cannot be determined with respect to the 
goods being valued, the transaction value shall not be acceptable for customs purposes."  We 
recommend that the Customs Regulations be amended to disallow the use of transaction value when there is a condition or consideration for which a value cannot be determined.   
Answer:
 
Article 74 of the Regulation refers to the speci fic situation in which two business partners are 
considered to be related.  In such a case, a c ondition or consideration for which the value can be 
determined shall be deemed indirect payment a nd included in the price paid or payable.  
Consequently, a condition or consideration for wh ich the value can not be determined cannot be 
included in the in value of goods for customs purposes.   Montenegro believes this is consistent with 
the Interpretative Note to Paragraph 1(b) of Article 1 of the WTO Valuation Agreement.  
- The Decree "On Implementation of the Customs Law, Rules of Origin and Customs 
Valuation" (RM OG No. 51/03) 
 Regarding Article 15(2) of this Decree:  
Question 10 
Could Montenegro please provide an example of a "complete processing procedure"?   
Answer:  
Article 15 of the Decree refers to the origin of sp ecific products –textile products from Chapter XI of 
the Custom Tariff.  Under paragraph 1, textile produc ts shall be deemed to originate from the country WT/ACC/CGR/16 
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 where the complete processing procedure took place.  Paragraph 2 defines "complete processing 
procedure" as the process where the obtained prod uct falls under tariff classification different than 
that of any constituents used in the processing.  
The example of complete processing procedure could be making thread from natural fibres, than 
making fabric from such treads and fi nally making bed linen from the fabric. 
Question 11 Could Montenegro please define "obtained ma terial" for the purposes of this Decree? 
Answer:
 
The meaning of the phrase "obtained product" (this is the correct translation of the phrase as used in 
the original language of the legislation) is a product that is produced through some form of 
manufacturing process. 
Question 12 
Article 18 of this Decree generally provides that accessories, spare parts, and tools, that are 
procured together with the equipment, machine, a ppliance or vehicle, and that are an integral 
part of the standard equipment, shall be deemed  to be of the same origin as the equipment, 
machine, appliance, or vehicle.  Article 18(2), Article 19 and Article 20 of the Decree provide 
some clarification as to this matter.  Howev er, could Montenegro clarify further and provide 
examples?   What exactly is an "integral part of the standard equipment"? 
Answer:  
"Integral part of the standard equipment" as used in Article 18, paragraph 1 refers to equipment that is 
always delivered with equipment, machine, applian ce or a vehicle and that is to be used with the 
equipment, machine, appliance or a vehicle.  For ex ample:  spare tire and jack delivered with a motor 
vehicle.  
Question 13 
Under what circumstances are items considered "p rocured together"? (e.g., at the same time? 
For the same supplier?) 
Answer:  
Items (accessories, spare parts and tools) are cons idered "procured together" when they procured 
simultaneously with the equipment, machine, applian ce or a vehicle, i.e. at the same time from the 
same supplier.   
Question 14 
What is an "essential spare part" as discussed in Article 18(2)? 
Answer:  
The list of "essential spare parts" is provid ed in Article 19, paragraphs 2 and 3.  WT/ACC/CGR/16 
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 Question 15 
Article 37 establishes the circumstances under which a product is considered "produced in a 
beneficiary country".  Are such products required to be "wholly obtained or produced" in that 
country in order to qualify for beneficiary treatment? 
Answer:  
Yes. 
- The Law on Copyright and Related Rights of  1 January 2005 (Official Gazette No. 61 of 
Serbia and Montenegro of 24 December 2004)  
Question 16 In response to Question 102 of WT/ACC/CGR /8, Montenegro explains that the Berne 
Convention is directly enforceable in Monteneg ro.  In light of the importance of Berne 
Article 18, please explain how Montenegro will codi fy this principle into the Law on Copyrights 
and Related Acts, and, in particular, the principle th at it is applicable to all works, which at the 
moment of its coming into force, have not yet fallen into the public domain in the country of 
origin through the expiry of the term of protection. 
Answer:
 
As previously indicated, the Berne Convention is di rectly enforceable in Montenegro.  The act of 
ratification enacted the full text of the Berne Conve ntion in the same manner as domestic legislation is 
enacted.  After ratification, the complete text of the Convention was published in the Official Gazette, 
like any other domestic legislation, and became an in tegral part of the domestic legislation.  Under 
Article 16 of the Constitutional Charter of Serbia an d Montenegro, in case of the conflict between the 
Convention (as a ratified internati onal agreement) and any domestic law or regulation, the convention 
takes precedence,  always and without any exception. 
In addition, under Article 195 of the Law on Copyri ght and Related Rights the new term of copyright 
protection shall not apply to any copyrighted works whose term of protection has lapsed on the day of 
entering into force of this Law – as provided fo r in Article 18(2) of the Berne Convention. 
Therefore, Article 18 of the Berne Convention, in its entirety, is incorporated in the legal system of 
Montenegro, and there is no need to further codi fy the principle it in an y Montenegrin or Union 
law(s).  
Question 17 
Do we correctly understand the response to Questi on 106 of WT/ACC/CGR/8 to indicate that 
Article 38 of the Copyright Law imposes a levy on imports or sales of technical devices that may 
be used for copying of any copyrighted work s without imposing a statutory licence to use 
covered technical devices for unauthorized co pying for personal use upon payment of the 
Article 38 levy? 
Answer:  
Yes.  As explained in the response to Question 106  of WT/ACC/CGR/8, the purpose of this levy is 
neither to impose a statutory licence nor to establis h a personal use exception.  This provision 
provides for the right of copyright holders to comp ensation for economic losses  caused by the use of WT/ACC/CGR/16 
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 technical devices and blank media that are known to be used for (unlawful) copying of copyrighted 
materials.  This provision corresponds to Artic le5(2)b of the EU "Information Directive". 
Question 18 
Regarding the response to Question 107 of WT /ACC/CGR/8, why do for-profit educational 
institutions require a statutory licence and how is such a requirement for a licence consistent 
with the principle that statutory licenses are disfavoured and must be limited in scope? 
Answer:
 
The concept of statutory licence under the Berne Convention does not necessar ily exclude commercial 
entities from being the beneficiaries of such a licence.   Montenegro believes that the primary criterion 
should be the purpose of the licence,  rather that th e organizational form of the licensee.  Therefore, 
Montenegro believes that Article 53 of the Law on Copyright and Related Rights is consistent with 
Article 9(2) of the Berne Convention. 
Question 19 
Regarding the response to Question 108 of WT/ACC/CGR/8, the requirement of express 
prohibition would appear to create a compulsory  licence as to any literary work published in 
any "mass media" in the United States unless the publisher and/or author were aware of the 
need to prohibit reproduction, marketing, or further communication by other mass media in 
order to avoid the compulsory licence under the law of Montenegro.  As such, this article is an 
unacceptable compulsory licence.  Please describe how Mo ntenegro will bring this article into 
conformity with Section 4.2 of this law and the provisions of TRIPS. 
Answer:  
Article 54 of the Law on Copyright and Rela ted Rights merely reflects the provision of 
Article 10 bis(1) of the Berne Convention, which allows na tional legislation to provide either for free 
use or for statutory (compulsory) licence for the use of pertinent works.  Within the scope of the 
meaning of Article 10 bis(1) of the Berne Convention, Article 54(1) provides for a statutory licence, 
and Article 54(2) provides for free use of published articles on current economic, political or religious 
topics, unless the right holder has expressly prohi bited such a use.  Consequently, Montenegro 
believes that Article 54 is consistent with the Berne Convention and TRIPS, Article 9. 
Question 20 
Regarding the response to Question 110 of WT/ACC/ CGR/8, we are pleased that Montenegro 
shares the opinion that private parties and th e market are the best regulators of private 
contracts.  Please explain, however, how pri vate licensing contracts can alter or limit the 
potential restraints on contracts imposed by Articles 68, 70, 85, 90, and 118, and why these 
potential restraints should not be made subject to waiver by contract if th ey are rarely, if ever, 
used? 
Answer:  
The equality of contracting parties and the autonomy  of their will are general principles of contract 
law.  However, in practice there is often a problem of factual inequality of authors and users of 
copyrighted works, as well as the tendency of users to abuse their prevailing negotiation power to the 
detriment of the authors' interests.  The restrain ts on contracts imposed by the Law on Copyright and 
Related Rights are intended to compensate for the lack of negotiating power of authors.  If these  WT/ACC/CGR/16 
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 restraints were made subject to waiver by contr act, their purpose would be defeated.  As pointed out 
in the response to Question 110 of WT/ACC/CGR/ 8, such provisions are the consequence of 
European and local legal traditions. 
Question 21 
The after-the-fact judicial analysis described in the response to question 115 of 
WT/ACC/CGR/8 appears to impo se a severe and unpredictable disincentive to contract for the 
right to exploit an author's work.  Can Monten egro identify the cases in which judges exercised 
the power to order a modification and descri be whether or how the Copyright Law or any 
existing cases limit the authority of a judge to order modification? 
Answer:  
There appear to have been no such  cases in Serbia and Montenegro. 
Question 22 
Regarding the response to Question 122 of WT/ACC/CGR/8, in light of the fact that 
Montenegro recognizes that the principle of nati onal treatment is a core principle of both the 
Berne Convention and TRIPS that would superced e any domestic legislation incorporating that 
principle, can Montenegro commit to amend the Copyright Law to incorporate explicitly this 
principle? 
Answer:  
As has been explained in response to Question 12, the Berne Convention is directly enforceable in 
Montenegro and takes precedence over any contrary  domestic law or regulation.  Consequently, 
foreign persons in Montenegro enjoy all the right s granted under the Berne Convention, including the 
right to national treatment.  Montenegro does not be lieve that any amendment to the Copyright Law is 
either necessary or useful w ith respect to this issue. 
Question 23 
Regarding the response to Question 124 of WT/ACC/CGR/8, please explain whether or how 
Article 125 and other provisions of the Copyright Law relating to phonograms would 
implement the requirements of Article 15 of the WIPO Performances and Phonograms Treaty? 
Answer:  
In principle, Article 125, in conjunction with  Article 115 of the Law on Copyrights and Related 
Rights corresponds to WPPT, Article 15.  However, an explicit provision that would correspond to 
paragraph 4 of Article 15 is missing.  Montenegro  amend the Law to include such a provision.  
- Law on Legal Protection of Design of 1 January 2005 (Official Gazette of Serbia and 
Montenegro of 24 December 2004) 
Question 24 What is the difference between "individual character," "immaterial differences," and "new" as 
defined in Articles 4 and 5 of the Law on Legal Protection of Design? WT/ACC/CGR/16 
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 Answer:
 
Article 5 defines "individual character" as the overall impression produced on an informed user that 
differs from the overall impression produced on such a user by any other design. 
"Immaterial" means irrelevant, unimportant, negligib le, of no importance, so the phrase "immaterial 
differences" means irrelevant, unimportant or negligib le differences.  Such differences are defined in 
Article 4, paragraph 3 as those that cannot be dis tinguished by an informed person at first sight. 
"New", means different or distinguished from any other thing of the same kind that has previously 
existed.  Article 4 defines novelty as the situa tion in which no identical design has been made 
available to the public before the date of filing of th e application for registration, or in which there is 
no application previously filed, requesting the registration of an identical design. 
All three elements must be met in order to register a design.   
Question 25 
In Article 42(2) of the Law on Legal Protection of  Designs, what is meant by "for the purpose of 
coaching or citing"? 
Answer:  
The phrase "for the purpose of coaching or citing" should be understood to mean:  for educational 
purposes or for the purposes of quoting and making reference. 
- Law on Patents of 10 July 2004 (Official  Gazette of Serbia and Montenegro of 
2 July 2004) 
Question 26 Article 7(2) of the Patent Law prohibits patents for surgical, therapeutic or diagnostic methods.  
The caveat in Article 8, however, appears to a llow for patents on new surgical, therapeutic or 
diagnostic methods of using a known substance.  Please clarify what inventions are patentable 
under these provisions. 
Answer:
 
Article 7(2) of the Patent Law prohibits patents for inventions concerning surgical, therapeutic or 
diagnostic methods practiced directly on humans or animals.  However, it allows patents for products 
or substances and compositions used in any of these methods. 
Article 8 of the Patent Law defines novelty as a re quirement for patent protection.  Paragraph 3 
provides that substances or compositions used for tr eatment by surgical or diagnostic or therapeutic 
methods are patentable where their use in such methods  is not comprised in the state of the art, i.e. 
where such substances or compositions we re not used in such a way before.  
Therefore, surgical, therapeutic or diagnostic me thods are not patentable, whereas substances or 
compositions used in such methods are patentable.  WT/ACC/CGR/16 
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 Question 27 
Please explain in detail how each of the compulso ry licensing provisions listed in Articles 63-67 
of the Law on Patents comply with each of the requirements of TRIPS Article 31. 
 Answer:  
This question is the same as Question 213 on page  76 of WT/ACC/CGR7, and was answered in the 
table that follows on pages 76-79 of that documen t.  Montenegro would be pleased to provide 
additional detail on these issues if required. 
Question 28 
What is the scope of "research and development acti vities" that may give rise to an exception to 
patent rights under Article 59(2) of the Patent Law? 
Answer:  
Under Article 59, item 2 of the Patent Law, the excl usive rights of a patent owner shall not apply to 
research and development related to the object of th e protected invention, including activities that are 
necessary for obtaining authorization to place on the market a drug intended for use on humans or animals, or a medicinal product.  
In practice, this provision allows experiments with the object of protected invention. 
Question 29 
Although the Patent Law contains certain provisions dealing with plant varieties, Article 7(3) of 
that law and the accompanying definition of "plant variety" refer to another law on plant varieties.  Please explain whether the Patent Law protects plant varieties, and if not, please indicate how plant varieties are protected in accordance with TRIPS Article 27(3) and kindly 
provide a copy of the applicable law. 
Answer:
 
The Patent Law does not protect plant varieties.  The protection of plant varieties is currently 
regulated by the Law on Protection of Varieties of Agricultural and Forrest Plants (FRY OG 28/2000).  A new, UPOV compliant, law on plant variety protection is being prepared.  It 
will be submitted to the Working Party as soon as it is passed. 
- Undisclosed Information  
Question 30 How does Serbia and Monteneg ro's law comply with TRIPS Article 39(3) in regard to 
protecting undisclosed test or other data for pha rmaceuticals and agricultural chemicals against 
unfair commercial use?  Specifically, does Serb ia and Montenegro provide for a period of 
exclusivity for such data, similar to that provide d by the European Union, the United States and 
other countries?  Does Serbia and Monteneg ro prohibit direct or indirect reliance by 
unauthorized third parties on such data in their own submissions for pharmaceutical or 
agricultural chemical marketing approval?  If so , we would request the relevant legislation or 
regulation stipulating this. WT/ACC/CGR/16 
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 Answer:
 
Protection of undisclosed secrets, as a specific intell ectual property rights within the context of TRIPS 
Article 39(3), is not regulated in Serbia and Montenegro by a specific piece of legislation.  A number 
of laws regulate protection of trade secrets or test data in the specific areas on the level of the member states, but none of them completely. 
Montenegro is aware that such co mbination of provisions in different legal acts is not sufficiently 
transparent.  Therefore, Montenegro will take step s to adopt specific legislation for the protection of 
undisclosed information.  The new legislation w ill be provided to the Working Party as soon as it 
becomes available. 
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