FEDERATION TO THE WORLD TRADE ORGANIZATION 4 страница

84. In reply, the representative of the Russian Federation stated that Government Resolution No. 414 of 13 June 2002 "On Approval of the Regulation of Licensing of the Storage of Grain and Products Received as a Result of its Processing" approved the provision on licensing of storage of grain and products received as a result of its processing. Government Resolution No. 414 had also invalidated former Government Resolution No. 43 of 22 January 2001 "On Licensing of Purchase, Remaking, Storage and Realizing of Grain and Products Received as a Result of its Subsequent Processing which is meant for State Needs on Production of Bread, Macaroni, Flour, Groats and Other Grain Foods". He added that statements on the reversion of 150 bankrupt grain facilities to State control were unfounded. Government Resolution No. 414 was abolished on 14 December 2006, and thus, licensing of storage of grain and products received as a result of its processing was abolished as well.

85. With regard to granting an exclusive right to import or export goods, the representative of the Russian Federation explained that, pursuant to Article 4 of the Agreement On Common Measures of Non-Tariff Regulation in Respect of Third Countries of 25 January 2008, the Customs Union Commission (CU Commission), on proposal by a member, decided on the designation of certain goods to be subject to exclusive imports/exports right. Foreign trade in such goods was subject to import or export licensing and customs clearance of such goods was provided on the basis of an exclusive licence, which was issued by the competent authority of the CU Party (in the Russian Federation, the Ministry of Industry and Trade of the Russian Federation (MIT)). Exports of natural gas from the territory of the Russian Federation were subject to an exclusive right enjoyed by Gazprom Group, pursuant to Federal Law No. 117-FZ of 18 July 2006 "On Export of Gas".

86. In response to a question from some Members, the representative of the Russian Federation explained that while the CU Commission designated the goods subject to the measure in question, the national authorities established the specific enterprise that was granted the exclusive right, as well as rules for its operation within its territory. He said that under Article 26 of Federal Law No. 164-FZ of 8 December 2003 "On the Fundamentals of the State Regulation of the Foreign Trade Activity", an exclusive right to export and/or import certain types of goods could be granted to some organizations. The list of organizations (as well as types of goods) to which such rights should be granted should be determined by Federal laws.

87. Pursuant to Article 26 of Federal Law No. 164-FZ of 8 December 2003, enterprises which had been granted exclusive or special rights or privileges to export and/or import certain types of goods were required in their purchases or sales, involving either imports or exports, to act on the basis of the principle of non-discrimination and in accordance with commercial considerations. Non-compliance with the provisions of Article 26 or the Agreement on Common Measures of Non-Tariff Regulation in Respect of Third Countries of 25 January 2008, could be considered as an abuse of dominant position or as act of unfair competition and therefore would be subject to proceedings in accordance with the Code on Administrative Offences of the Russian Federation and Federal Law No. 135-FZ of 26 July 2006 "On Protection of Competition".

88. The representative of the Russian Federation explained that his authorities considered that only the enterprises of the Gazprom Group (natural gas) were enterprises having special or exclusive privileges with respect to export. The mentioned enterprises, while making their purchases and sales involving exports or imports, acted consistently with the principle of non-discrimination and, in particular, they were guided by in these purchases and sales solely by commercial considerations. The representative of the Russian Federation confirmed that Gazprom will be notified as an STE in accordance with Article XVII of the GATT 1994. The exclusive right of Almazyuvelir Export Foreign Trade Association (for operations in raw materials containing platinum and platinum group metals) had been abolished in accordance with the Resolution of the Government of the Russian Federation No. 268 of 30 March 2009. Detailed information on these enterprises was contained in document WT/ACC/RUS/18 and Corr.1.

89. Some Members raised questions concerning "unitary" enterprises and their role in export and/or import of goods. In response the representative of the Russian Federation stated that, by definition, "unitary" enterprises operated as commercial enterprises. Addressing specific concerns of some Members about the way in which enterprises involved in export/import of ethyl spirits might be exercising their exclusive rights, the representative of the Russian Federation explained as follows. According to Article 9 of Federal Law No. 171-FZ of 22 November 1995 "On State Regulation of Producing and Turnover of Ethyl Spirit, Alcoholic and Spirit Containing Production" (as last amended on 5 April 2010), only unitary enterprises or JSCs where the State possessed no less than 51 per cent of the shares were entitled to export and import ethyl spirit if they had appropriate licenses for carrying out such activity. However, this provision of the Federal Law had been abolished by an amendment of 21 July 2005.

90. Some Members were particularly concerned that the pricing practices followed by Gazprom (majority State-owned, with 50.002 per cent share controlled by the State), could not be regarded as being based on commercial considerations. Specifically, sales for export were subject to controls in relation to quantity and price, and the sale of gas for domestic industrial consumption was at a price level considerably below that applied for exports, which were linked to the prevailing world market price. Artificially low domestic energy prices could also lead to indirect subsidization of downstream industries and to exports of value-added intermediate and finished goods at prices below their normal value. In this context, those Members noted that the cost of producing natural gas for Gazprom was significantly higher than the regulated domestic price. In light of these facts, those Members requested an explanation as to how Gazprom was selling on the domestic market "solely in accordance with commercial considerations", as required by Article XVII:1 (b) of the GATT 1994. Those Members noted that Gazprom, or its subsidiaries, also appeared to be a participant in the fertilizer industry.

91. Some Members of the Working Party noted that the implication that the regulated price for gas was determined in accordance with supply and demand or that Gazprom determined the levels of internal calculated prices did not appear to be borne out by the facts. These Members asked for a description of the domestic pricing of Gazprom and delivery of natural gas, based on historical usage and how firms dealt with shortfalls of State-allocated natural gas at the regulated price. In addition to the significant trade distortion which the pricing practices of Gazprom could cause, these Members were concerned that current prices to domestic industrial customers could take place at rates that did not ensure "adequate remuneration", as provided for in Article 14 (d) of the WTO Agreement on Subsidies and Countervailing Measures and thus would confer a benefit to domestic industrial users. Accordingly, in the absence of further information, it was difficult to understand the assertion that Gazprom operated on the basis of commercial considerations. More generally, Members observed that this situation gave rise to questions as regards its compatibility with WTO requirements, not only in relation to Article XVII, but also in relation to Articles XI and XVI of the GATT 1994 and the WTO Agreement on Subsidies and Countervailing Measures. These Members invited the Russian Federation to provide further information on the operation of Gazprom and its subsidiaries, particularly as regards the manner in which prices were set for natural gas, and how those pricing structures were consistent with the suggestion that those enterprises operated under commercial considerations.

92. In response, the representative of the Russian Federation stated that the export price for gas was not regulated by the Government; the prices for deliveries of gas for exports were those negotiated between supplier and buyer. Contrary to the price of exported gas, the price of gas sold to domestic industrial consumers was regulated, except for gas purchased at its source; gas for new industrial customers; any increased quantity of gas supplied by Gazprom to its existing customers, and for gas from producers other than Gazprom which was unregulated. Those producers (other than Gazprom) held a share of around 20 per cent in the volume of gas transported through the pipeline system of Gazprom, which was the only system of pipelines for long-distance transportation of gas in the Russian Federation. Unregulated prices were estimated to be generally 30 per cent higher than the regulated price.

93. Additional relevant information on regulated prices of gas for internal consumption (including methodology of price-setting, principles and statistical data) was provided in the Section "Pricing Policies" of this Report.

94. Some Members requested clarification of the current role of Alrosa in the activities of diamond production and export, its rights to export diamonds to the world market or sell its products domestically, as well as whether other companies enjoyed the same rights as Alrosa, and if so, what rights and on what basis. Members also asked whether Alrosa and other selected companies enjoyed rights to import polished diamonds on favourable terms, on the condition that those diamonds originated from their own production of raw diamonds. In response, the representative of the Russian Federation said that Presidential Decree No. 1373 of 30 November 2002 "On the Endorsement of Regulation on Imports in and Exports from the Russian Federation of Raw Natural Diamonds and Cut Diamonds" (which had entered into force on 6 February 2003 and amended on 10 March 2009) had abolished Presidential Decree No. 740 and thereby all exclusive rights of Alrosa. This Decree was the basic regulation of export and import of raw natural diamonds and cut diamonds. In accordance with the procedure established by said Decree:

- Exportation of natural diamonds (both cut and raw) with the exception of unique natural diamonds, diamonds recovered from multi-crystal diamond coated tools, waste from any type of diamonds processing, diamond concentrate, diamond dust and diamond powders, was carried out by any natural diamonds mining enterprises <*> on the basis of export licenses without quantitative restrictions.

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<*> Mining enterprises were organizations engaging in the mining of natural diamonds in the territory of the Russian Federation under a licence for Subsoil used for the mining of natural diamonds. Issuance of these licenses were regulated by the Russian Subsoil Law (Law of the Russian Federation No. 2395-1 of 21 February 1992 "On the Subsoil" as amended on 27 December 2009).

- Exportation of diamonds recovered from multi-crystal diamond coated tools, waste from any type of diamonds processing, diamonds concentrate, diamonds dust and diamonds powders could be carried out by natural diamonds mining enterprises; the SUE "Almazyuvelirexport" Foreign Trade Association under contracts with the owners of natural diamonds; enterprises producing brilliants; and, enterprises producing products and articles from natural diamonds. No export licence was needed.

- Exportation of brilliants could be carried out by enterprises producing brilliants (with respect to their own products); organizations engaged in the wholesale of precious stones (organizations registered with the bodies of federal assay supervision which engaged, in accordance with the objectives stated in their corporate charters, in purchases of diamonds and their wholesale to other participants in the market); the SUE "Almazyuvelirexport" Foreign Trade Association. No export licence was needed.

95. Consequently, since November 2002, neither the JSC "Almazy Rossii - Sakha" (Alrosa), nor any other exporter of natural diamonds and/or brilliants enjoyed any exclusive rights or privileges with regard to the exportation of brilliants and diamonds. Regarding import of polished diamonds, Decree No. 1373 of 30 November 2002 provided that the conditions of import were equal for all participants in foreign trade activity, i.e., without quantitative restrictions or requirement of a licence.

96. Asked about the State-invested airline Aeroflot, the representative of the Russian Federation informed Members that while the State owned 51 per cent of the shares of Aeroflot, it did not enjoy any special or exclusive rights in the exercise of which Aeroflot might influence through its purchases or sales the level or direction of imports or exports.

97. Some Members of the Working Party requested additional information on the actions of the Russian Federation to restructure and consolidate its domestic aviation industry. These Members noted that the Russian Federation held an 81.75 per cent share in the authorised capital of the United Aircraft-Construction Corporation. In response, the representative of the Russian Federation referred Members to the information set-out in paragraph 1196 of the Section "Trade in Civil Aircraft" of this Report.

98. Members of the Working Party stated that they expected the Russian Federation to ensure that the practices of State-owned, State-controlled enterprises and enterprises enjoying special or exclusive privileges would be brought into line with relevant WTO requirements as from the date of accession. These Members asked for confirmation that, upon accession, purchases and sales by such enterprises, whether State-owned, State-invested or enjoying any special or exclusive privileges, would be based solely on commercial considerations, without any Government influence or application of discriminatory measures.

99. The representative of the Russian Federation confirmed that the Russian Federation had State-owned and State-controlled enterprises that operated in the commercial sphere. The Russian Federation also had enterprises with exclusive or special privileges with regard to conducting commercial activity. He further confirmed that from the date of accession of the Russian Federation to the WTO, such enterprises, when engaged in commercial activity, would make purchases, which were not intended for governmental use, and sales in international trade in a manner consistent with applicable provisions of the WTO Agreement. He confirmed in particular, that such enterprises would make such purchases and sales in accordance with commercial considerations, including price, quality, availability, marketability, and transportation, and would afford enterprises of other WTO Members adequate opportunity in conformity with customary business practice, to compete for participation in such purchases or sales. He also confirmed that within the scope of the services commitments of the Russian Federation, including the limitations, set-out in its Schedule of Specific Commitments on Services, the rights and obligations of the Russian Federation under the GATS, and the regulatory measures of the Russian Federation covered by the WTO Agreement, including pricing regulations, and without prejudice to such commitments, rights, obligations, and measures that are consistent with these commitments, rights and obligations, the Russian Federation would ensure that such enterprises would act in accordance with the provisions set-out in this paragraph. He also confirmed that, upon accession, the Russian Federation would notify enterprises falling within the scope of the Understanding on Article XVII of the GATT 1994. The Working Party took note of these commitments.

PRICING POLICIES

100. The representative of the Russian Federation explained that, although prices in most sectors of the Russian economy were now determined freely by market forces, in certain sectors, prices were regulated by the State. Presidential Decree No. 221 of 28 February 1995 "On Measures to Streamline the State Regulation of Prices (Tariff)" (as last amended on 8 April 2003) and Government Resolution No. 239 of 7 March 1995 "On Measures to Streamline the State Regulation of Prices (Tariffs)" (as last amended on 29 October 2010) established the main principles of State price (tariffs) regulation in the domestic market of the Russian Federation. Price regulation was implemented by the Government of the Russian Federation, Federal authorities and Sub-Federal bodies of executive power for the goods and services listed in Table 7, Table 8 and Table 9. Normative legal acts issued by Federal executive bodies concerning State regulation of prices for goods and services were subject to official publication, and all resolutions by the Government of the Russian Federation, concerning State regulation of prices and tariffs, including with respect to natural monopolies, were published in "Rossiiskaya Gazeta".

101. Members of the Working Party sought clarifications on the mechanisms for determining State-controlled prices and their relation to market and international prices and whether such prices, when charged by State-owned or State-controlled enterprises, were in accordance with commercial considerations. The representative of the Russian Federation replied that the Federal Service for Tariffs, being the main Federal authority empowered to exercise State price regulation, developed detailed principles (methods) for price regulation in different sectors, such as electric power and heat power, oil and gas transportation through main pipelines, etc. All authorities engaged in regulating prices were required to use these principles (methods) for establishing prices. These principles (methods) took into account the following elements in determining prices: (i) the cost effectiveness of the production of the sector, including the production (marketing) expenses; (ii) taxes and other payments; (iii) the cost of fixed production assets; (iv) the demand for investment for reproduction purposes; (v) depreciation charges; (vi) estimated profits; (vii) remoteness of different consumer groups to the production site; and (viii) adequacy of quality. Compliance with decisions of the Federal Service for Tariffs was obligatory for all operators. Regarding State-owned and State-controlled enterprises, the representative of the Russian Federation referred to Presidential Decree No. 221 requiring that prices (tariffs) regulated by the State must be applied in the domestic market of the Russian Federation by all enterprises and organizations, ensuring therefore, that State-owned or State-controlled enterprises were subject to common rules in this regard.

102. A Member requested further clarification of whether the Government of the Russian Federation was fixing the minimum price level of vodka, liquor products and other alcohol, stronger than 28 per cent volume. That Member also asked the Russian Federation to explain how this practice could be in compliance with the Agreement on the Implementation of Article VII of the GATT 1994.

103. In response, the representative of the Russian Federation said that the minimum prices for vodka, liquor products and other alcohol stronger than 28 per cent volume related only to the internal sale at the retail level of domestically-produced and imported products, and had not been applied in a discriminatory manner between domestically-produced and imported products. This measure had been introduced in order to protect Russian consumers from sales of low quality counterfeited alcoholic products at distressed prices. He confirmed that this measure had no bearing on the customs valuation of the imported product. He noted that Order No. 29n of 20 April 2010 "On Establishing and Introducing of the Minimum Price for the Liquor Products and other Alcohol Stronger than 28 per cent volume (excluding Vodka) for Retail Sale since 1 June 2010" had been issued by the Federal Service of the Russian Federation for alcohol market regulation and was the current basis for regulating prices of these goods.

104. In reply to a question from a Member of the Working Party, the representative of the Russian Federation explained that government purchases of agricultural products were undertaken at pre-announced administered prices in order to provide market price support to domestic producers. These purchases were only for rye and milling wheat (in 2001, 2002, 2003 and 2005); for rye, wheat, corn and barley in 2008; and for wheat, rye and barley in 2009. He confirmed that no price regulations were applied that could prevent imports of any like product mentioned in this paragraph from being supplied at a price below that of the domestic product.

105. In response to a question from a Member of the Working Party, the representative of the Russian Federation stated that the reference price for raw cane sugar at the New York Commodity Exchange was used to calculate the rate of import duty and did not represent a reference price for the pricing of raw cane sugar in the market of the Russian Federation.

106. Regarding price controls applied at the sub-regional level, some Members of the Working Party enquired about the legal basis and scope of authority to apply price controls at this level, and whether these measures were actually reviewed by the Federal authorities.

107. In response, the representative of the Russian Federation said that regional governments were authorised to regulate prices (tariff) for some goods and services, upon agreement with the Federal Government. Government Resolution No. 239, referred to above, defined whether price regulation fell within the jurisdiction of regional or Federal Governments. Respective information regarding the jurisdiction of regional governments over price regulation was provided in Table 8 and Table 9. In addition, according to Presidential Decree No. 221, the Government of the Russian Federation was required to coordinate the activity of the regional governmental bodies in State price (tariff) regulation.

108. In response to a question from a Member of the Working Party, the representative of the Russian Federation further clarified that Sub-Federal executive bodies, currently, did not have any powers to regulate prices, including imposing mark-up restrictions, for any agricultural product and, accordingly, did not maintain or apply such regulations.

109. In response to a specific question of one Member of the Working Party concerning the "Programme for Federal Budget Compensation of 30 per cent for Mineral Fertilizer and Chemical Plant Protection Product Costs", the representative of the Russian Federation explained that, according to that Programme, ceiling prices were only in effect during the year 2001 and that the Ministry of Agriculture and Sub-Federal bodies applied mark-up restrictions on, and fixed service charges, relating to the sale of mineral fertilizers and chemical plant protection products supplied to agricultural producers under this programme. No programmes of this kind had been adopted or maintained since then.

110. Some Members sought additional information on the announcement of the Russian Federation of efforts to unify its domestic and foreign operating tariffs for railways, as well as a status report on developments. Noting that the Russian Federation had indicated that discriminatory pricing for transportation on railway freight could be eliminated by 1 March 2002, some Members asked the Russian Federation if this measure had been implemented as planned. These Members expected the Russian Federation to treat all import and export cargoes, as well as cargoes in transit, on the same basis as domestically-produced goods, in line with the national treatment requirements of Article III, as well as the requirements of Articles V and XI of the GATT 1994 and to make a commitment to this effect in the Working Party Report.

111. Some Members of the Working Party also stated that the Russian Federation should specify how and when it proposed to complete the elimination of the current discrimination {vis-a-vis} export, import and transit cargoes. Those Members also expressed concerns that differential rates continued to be charged for rail transportation of cargoes for export by land border crossings.

112. In response, the representative of the Russian Federation explained that his authorities were prepared to introduce the same pricing scheme on tariffs for import cargoes as for domestic products. He added that, in August 2001, the first stage of unification for railway freight tariffs had been implemented with the transition to payment for import and export cargoes shipped through Russian ports, based on tariffs in Price List No. 10-01 by the Federal Energy Commission. These measures eliminated the existing differentiation in pricing for import cargoes shipped through Russian ports and domestically transported cargoes. Competent Federal authorities were preparing the second stage of this tariff unification, which would extend tariffs in Price List No. 10-01 to import cargoes shipped through border land checkpoints of the Russian Federation. He also stated that, in his view, there was no inconsistency between Article XI of the GATT 1994 and the existing system of higher tariffs for railway transportation of exported goods.

113. As far as railway tariffs for cargoes in transit were concerned, he was of the view that the issue of transit was adequately dealt with in Article V of the GATT 1994.

114. He further added that one of the goals of structural reform of the railway sector was a gradual transition to market-based pricing in competitive sectors, economic sectors where several juridical persons competed under equal conditions. Responding to questions from Members of the Working Party regarding the next stage of tariff unification, the representative of the Russian Federation said that, currently, the levelling of tariffs was being implemented through the gradual increase of tariffs fixed in Price List No. 10-01, up to the value of tariffs for transportation of import cargoes shipped through border land checkpoints of the Russian Federation. Two steps of such increase had been undertaken in 2005, by 5.4 and 12.8 per cent. The increase had been 27.9 per cent in 2006; 12.8 per cent in 2007; and, 10.9 per cent in 2008. By the end of 2009, around 87 per cent (by volume) of railway traffic (other than traffic in transit) for all types of cargoes was subject to equalized tariffs. In 2010, the equalization of tariffs continued with respect to goods, such as ferrous metals and ores, chemical industry products, grain, and fertilizers. In response to a question from a Member, the representative of the Russian Federation clarified that the Orders of the Federal Service for Tariffs No. 338-T/3 and No. 386-T/1 of 7 December 2010 "On Amending Price List No. 10-01 Tariffs on Cargo Transportation and Infrastructure Services Provided by the Russian Railways" provided for further equalization of railway tariffs, including tariffs for transportation of chemicals, metals, and energy products.

115. Having considered the discussion in the Working Party, in particular as to the applicability of Articles III and XI of the GATT 1994, the representative of the Russian Federation confirmed that products imported into, and products destined for exportation or sold for export from the territory of the Russian Federation would, no later than 1 July 2013, be accorded treatment no less favourable with regard to the application of all rail transportation charges (including basic charges, surcharges and rebates) than like, directly competing or substitutable products transported between domestic locations, and no less favourable treatment depending on whether the imported or exported products enter or exit the territory of the Russian Federation by land or through a port or depending on their origin or destination. The representative of the Russian Federation further confirmed that, over the period between the accession of the Russian Federation to the WTO and 1 July 2013, the Russian Federation would gradually reduce the existing differences between, on the one hand, rail transportation charges applicable to products imported into, and products destined for exportation or sold for export from, the territory of the Russian Federation and, on the other hand, rail transportation charges applicable to like, directly competing or substitutable products transported between domestic locations, as well as the existing differences in rail transportation charges for imported and exported products depending on whether they enter or exit the territory of the Russian Federation by land or through a port or depending on their origin or destination. These commitments would not prevent the application of differential internal transportation charges, which are based exclusively on the economic operation of the means of transport and not on the national origin of the product. The Working Party took note of these commitments.