DRAFT

DRAFT 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; 5) the Government of the Republic of Lithuania or other government body; 6) Lithuanian consumer protection organisations (public). 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). 18. “Developing country” for the purpose of this Law means a country included in the appropriate list of countries, approved by the Government of the Republic of Lithuania or the body authorised by it. 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. CHAPTER TWO Subsidies 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 3) providing goods or services other than general infrastructure, or  purchasing goods; 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 5) providing support to income or prices in any form thereby directly or indirectly increasing the export of the product in question or reducing the import of the competitive product into the country of origin or export. 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: 1) use of a subsidy programme by a limited number of certain enterprises; 2) the length of time during which  a subsidy programme has been in operation; 3) the granting of disproportionately large amounts of subsidy to certain enterprises; 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; 2) subsidies contingent solely (or as one of several other conditions) upon the use in the country of origin of the product in question of domestic over imported goods. 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: 1) subsidies which are not specific within the meaning of Article 5 of this Law; 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; 3) subsidies which constitute an element of government support measures to agriculture. The list of support measures granted to agriculture of foreign countries shall be approved by the Government of the Republic of Lithuania or other competent  authority. 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; b) unemployment rate in the region, which must be at least 110 % 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: 1) are a one-off non-recurring measure; 2) are limited to 20 % of the cost of adaptation; 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 5) are available to all firms which can adopt new equipment or production processes. 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.; 4) additional overhead costs incurred directly as a result of the research activity; 5) other running costs (such as those of materials, supplies and the like) incurred directly as a result of the research activity. 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.    CHAPTER THREE Injury to Domestic Producers 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; 2) a cumulative assessment of the effects of the imports is appropriate in light of the conditions of competition between imported products and the like products of domestic producers. 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; 2) a significant rate of increase of imports of the product in question; 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; 5) inventories of the product in question in the customs territory of the Republic of Lithuania. 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: 1) one of them directly or indirectly controls the other; 2) both of them are directly or indirectly controlled by a third person; 3) together they directly or indirectly control a third party, provided that there are grounds to believe that the effect of the relationship is such as to cause the producer related to the exporter or importer of the product in question to behave differently from non-related producers. 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; 2) the producers within the remaining part of the customs territory of the Republic of Lithuania do not sell the like product  in that market or sell less than 20 % of the total volume 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. CHAPTER FOUR EVIDENCE OF A COUNTERVAILABLE SUBSIDY 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; 3) the names of the countries of origin or export of the product in question 4) the names of all known foreign producers and exporters of the product in question; 5) the lists of all known importers of the product in question; 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. 7. The competent  authority  shall take into account the possibilities of the interested parties to present the required information and, without violating the principle of impartiality, provide all assistance possible to facilitate the furnishing of information. 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. 8. The procedure of import of the product in question must not be halted or restricted by reason of the investigation in progress. 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: 1) all fees or other costs necessarily incurred in order to qualify for, or to obtain the subsidy; 2) export taxes, duties and other charges levied on the export of the product in question into the customs territory of the Republic of Lithuania, if they are specifically intended to offset the 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.    6. The methodology of calculating the amount of the countervailable subsidy and the benefit conferred thereby to the recipient shall worked out by the Government of the Republic of Lithuania  or the competent  authority . 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; 2) to the largest representative volume of the production, sales, or imports into the customs territory of the Republic of Lithuania from  the exporting country of the product in question which can reasonably be investigated within the investigation period. 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; 4) upon the withdrawal of the application by the applicant (applicants) and when the competent authority determines that the termination of investigation without imposing countervailing duties is in the interest of the Republic of Lithuania. 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. CHAPTER FIVE IMPOSTITION OF PROVISIONAL COUNTERVAILING DUTY 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 su …