FEDERATION TO THE WORLD TRADE ORGANIZATION 6 страница

146. Executive power in the Russian Federation was exercised by the Government of the Russian Federation. The Government ensured the implementation, in the Russian Federation, of a single trade, financial, credit and monetary policy, including the implementation of foreign policy, and the implementation of measures required to ensure the rule of law.

147. The Federal Assembly (the Parliament of the Russian Federation) constituted the legislative authority in the Russian Federation. It consisted of two chambers - the Council of the Federation and the State Duma. The Council of the Federation included two representatives from each subject of the Russian Federation: one from the legislative and one from executive body of State power. The composition of the Council of the Federation was also determined by Federal Law No. 113-FZ of 5 August 2000 "On the Order of Formation of the Council of the Federation of Federal Assembly of the Russian Federation" (as last amended on 15 November 2010). The State Duma consisted of 450 deputies elected for a term of four years. The composition of the State Duma was determined by Federal Law No. 51-FZ of 18 May 2005 "On Election of Deputies to the State Duma of Federal Assembly of the Russian Federation" (as last amended on 23 February 2011). Both chambers were involved, inter alia, in the adoption of the Federal laws on Federal budget, Federal taxes and duties, financial, currency, credit, customs regulation and monetary issues, and ratification and denunciation of international treaties and agreements of the Russian Federation.

148. The right of legislative initiative with regard to domestic legislation was vested with the President of the Russian Federation, the Members of the Council of the Federation, the Deputies of the State Duma, the Government of the Russian Federation, and the legislative bodies of the subjects of the Russian Federation. The right of legislative initiative was also vested, in matters under their competence, with the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation, and the High Arbitration Court of the Russian Federation.

149. The representative of the Russian Federation further added that the domestic legal system of the Russian Federation comprised Federal legal acts and legal acts of the subjects of the Russian Federation. The Federal legal system of the Russian Federation consisted of the following hierarchy of normative provisions: (i) the Constitution; (ii) Federal constitutional laws; (iii) Federal laws; (iv) decrees and resolutions of the President of the Russian Federation and resolutions and orders of the Government of the Russian Federation; and (v) acts of Federal executive authorities. <*> Normative legal acts of Federal executive authorities (i.e., acts whose binding effect extended to all of the territory of the Russian Federation) included resolutions, orders, rules, instructions, regulations and decisions. Recommendations, letters, telegrams, and teletype messages sent by authorities were not normative legal acts (Order No. 88 of the Ministry of Justice of 4 May 2007). Such acts had a recommendatory character only and were intended for use within the relevant executive body. The legal system of the subjects of the Russian Federation consisted of their respective constitutions (in the case of Republics), or charters (in the case of other subjects of the Russian Federation); laws and other legal acts. The Constitution of the Russian Federation had overriding power and was applicable throughout the entire territory of the Russian Federation. All Federal legal acts and legal acts of the subjects of the Russian Federation were required to be in conformity with the Constitution. Federal constitutional laws regulated matters directly provided for under the Constitution of the Russian Federation. Federal laws, inter alia, regulated areas of joint competence of the Russian Federation and its subjects.

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<*> As discussed in detail in paragraph 157, CU Commission Decisions, including those promulgating CU regulations and other CU measures had the status in the domestic law of the Russian Federation corresponding to the form of Federal normative legal act that the competent authority of the Russian Federation was authorised to issue before the CU Parties transferred competency to regulate the matter to CU Bodies.

150. He further noted that Presidential decrees and resolutions did not prevent the Federal Assembly from enacting a law covering the same subject matter. If a conflict existed between a law and any other normative legal act, including a Presidential decree or resolution, the law would prevail. Government resolutions and orders (subsidiary legislation) were issued pursuant to and in furtherance of the Constitution, Federal constitutional laws, Federal laws and Presidential decrees and resolutions. The requirement for such resolutions and orders were, as a general rule, provided for in the relevant enabling law, decree or resolution. Those legislative acts were also binding throughout the entire territory of the Russian Federation and might be appealed in court. Acts of Federal Executive Authorities were issued on the basis of and in furtherance of federal laws, presidential decrees and resolutions, and Government resolutions and orders. Those acts needed to be in compliance with the relevant enabling provisions. They had an auxiliary and detailing function.

151. The representative of the Russian Federation further explained that, in accordance with Article 15.4 of the Constitution of the Russian Federation, international treaties of the Russian Federation formed an integral part of the legal system of the Russian Federation. He stated that international treaties contracted by the Russian Federation were concluded on behalf of the Russian Federation (interstate treaties), on behalf of the Government of the Russian Federation (inter-governmental treaties), or on behalf of the federal bodies of executive power (treaties of inter-ministerial nature), in accordance with Articles 12 and 13 of Federal Law No. 101-FZ of 15 July 1995 "On International Treaties of the Russian Federation". Once a treaty entered into force, through ratification or otherwise, it was binding and enforceable throughout the entire territory of the Russian Federation. While an international treaty did not prevail over the Constitution of the Russian Federation or Federal constitutional laws, in accordance with Article 15 of the Constitution, in the event of a conflict, international treaties prevailed over domestic Federal laws adopted prior to or after entry into force of the treaty. He explained that once the Russian Federation ratified its Protocol of Accession, which included the WTO Agreement and other commitments undertaken by the Russian Federation as part of the terms of accession to the WTO, it became an integral part of the legal system of the Russian Federation. The judicial authorities of the Russian Federation would interpret and apply its provisions. Thus, international treaties of the Russian Federation, in respect of which consent of the Russian Federation to be bound by such treaty had been expressed in the form of a Federal law (as would be the case with the Protocol of Accession of the Russian Federation), had priority in application over both prior and subsequent Federal laws, as well as all subordinate regulatory acts (Decrees and Regulations of the President, Resolutions and Regulations of the Government, acts of Federal Executive bodies). If the court of highest resort determined that a domestic provision, other than the Constitution or a Federal constitutional law, was inconsistent with an international treaty of the Russian Federation, such provision was deemed not applicable and enforceable. No further action to nullify the provision was required, and the body responsible for the issuance of such provision would have an obligation to launch procedures to bring it into conformity with that international treaty.

152. According to Article 30 of Federal Law No. 101-FZ of 15 July 1995 "On International Treaties of the Russian Federation" (as last amended on 1 December 2007), such treaties were subject to publication: interstate or inter-governmental treaties were published in "Sobraniye Zakonodatelstva Rossijskoj Federatsii" and treaties of inter-ministerial nature were published in the official editions of the respective government bodies.

153. The representative of the Russian Federation stated that, in accordance with Government Resolutions No. 437 of 5 June 2008 (as last amended on 6 April 2011) and No. 438 of 5 June 2008 (as last amended on 24 March 2011), the Ministry of Economic Development (the MED) of the Russian Federation and the Ministry of Industry and Trade (the MIT) of the Russian Federation were the Federal executive bodies responsible for State regulation of foreign trade.

FRAMEWORK OF THE CUSTOMS UNION

AMONG THE RUSSIAN FEDERATION, THE REPUBLIC

OF KAZAKHSTAN AND THE REPUBLIC OF BELARUS

(a) Legal Framework Establishing the Customs Union

154. The representative of the Russian Federation informed Members that, in 2007, the Russian Federation, the Republic of Belarus (Belarus), and the Republic of Kazakhstan (Kazakhstan) had concluded the Treaty on the Establishment of the Common Customs Territory and the Formation of the Customs Union of 6 October 2007 (hereinafter: Treaty on the Formation of the CU). With the objective of forming a Customs Union, the Russian Federation, Belarus, and Kazakhstan had concluded a number of international treaties and, pursuant to the Protocol on Rules on Entry into Force of International Treaties aimed at the Formation of the Legal Basis of the Customs Union, Withdrawal from them, and Accession to them of 6 October 2007 (hereinafter: Protocol of 6 October 2007), the EurAsEC Interstate Council (the Supreme Body of the Customs Union) determined the list of international agreements constituting the legal basis of the Customs Union within the EurAsEC. This list of international agreements was set-out in Interstate Council Decision No. 14 of 27 November 2009, and these agreements and others subsequently agreed by the Russian Federation, Belarus, and Kazakhstan through the end of 2009, constituted the legal basis for a Customs Union, and formed a single undertaking, i.e., withdrawal from any of these agreements automatically resulted in withdrawal from all of these agreements. The representative of the Russian Federation explained that these Agreements laid out a framework for progressively increasing economic cooperation among entities of the CU Parties, starting with plans for the unification of foreign trade, customs policies, and trade remedies; and initiating cooperation between the financial and banking systems; cooperation in social and humanitarian areas; and cooperation in the field of legal regulation. Additional agreements could be added to the single undertaking upon decision of the Interstate Council (see Table 10 for the current list of agreements constituting a single undertaking). On 27 November 2009, the EurAsEC Interstate Council approved the Common External Tariff (CET) of the Custom Union, as well as the Treaty on the Customs Union Customs Code. On 1 January 2010, a Customs Union (CU) between the Russian Federation, Belarus, and Kazakhstan became operational. The CET and a number of basic agreements and protocols on tariff and non-tariff regulation also came into force on 1 January 2010. The CU Customs Code entered into force in the Russian Federation and Kazakhstan on 1 July 2010 and for Belarus on 6 July 2010. He noted that the CU Parties were still engaged in concluding new treaties and agreements within the framework of the CU (hereinafter: CU Treaties or CU Agreements) and were implementing them through an ongoing process of regional integration.

155. The representative of the Russian Federation explained that the Treaty on the Formation of the CU required CU Parties to establish unified regulation of foreign trade activities in line with their obligations arising from CU Treaties and through harmonization of standards and rules envisaged by bilateral agreements on the unified regulation of foreign trade activities. The Treaty on the Formation of a Customs Union also specified that the CU Parties' unified regulation of foreign trade activity and coordinated decision making on the simultaneous introduction of changes or amendments to such regulation would include the following areas:

- tariffs on foreign trade;

- non-tariff measures for trade with third countries;

- unified customs regulation and customs procedures; and

- establishment of a unified regime for trade with third countries.

This Treaty and other international agreements forming the legal basis for the CU established the principles and timing for achieving the objective of unified regulation of foreign trade activities.

156. Members requested that the Russian Federation provide more information on the hierarchy of legislative acts in the Russian Federation, in particular taking into account CU Agreements, CU Commission Decisions, and other CU legal acts.

157. The representative of the Russian Federation explained that CU Agreements, once they entered into force, were international treaties of the Russian Federation, and, with the exception of the Constitution of the Russian Federation and Federal constitutional laws, would prevail, in the event of a conflict, over the provisions of Federal laws and other normative legal acts in the Russian Federation. With regard to CU Commission Decisions, he explained that the status of such Decisions in the legal system of the Russian Federation corresponded to that which the Decision would have had, if it had been adopted by the Federal Executive Body responsible for regulating the subject matter at the moment when the CU Commission was delegated the relevant authority. Thus, the place of a CU Decision in the domestic legal hierarchy of the Russian Federation could differ, depending on the Federal body previously competent to take the relevant decision. He further explained that CU regulations, rules and other measures were adopted pursuant to a CU Commission Decision and, thus, the same method for determining the status of the measure in the domestic legal hierarchy of the Russian Federation applied. Finally, he explained that the authority of the President, described in paragraph 145, also applied to acts of the subjects of the Russian Federation that were not in compliance with CU Agreements, CU Commission Decisions, and other CU legal acts.

(b) Customs Union Structure and Competency in the Area of Trade

158. The representative of the Russian Federation explained that the following bodies were responsible for the implementation of the CU Agreements and further development of the CU:

- the Interstate Council of EurAsEC, which had two boards: the Board of Heads of States and the Board of Heads of Governments. Sessions of the Board of Heads of States were to be held not less than once a year; sessions of the Board of Heads of Governments were to be held not less than twice a year;

- the EurAsEC Court;

- the CU Commission; and

- the Secretariat of the CU Commission.

(c) The Interstate Council of EurAsEC

159. The representative of the Russian Federation explained that the Interstate Council of EurAsEC was the supreme Body of the CU and performed the following functions:

- defined the strategy and objectives of formation and further development of the CU and took decisions on its realization;

- decided on issues of common interest to the EurAsEC Member States, and CU Parties;

- defined the list of international treaties comprising the legal framework of the CU, i.e., those included in Table 10;

- took decisions on entry into force of the CU agreements forming the legal basis of the CU;

- decided issues related to integration of the customs territories of the EurAsEC Member States into a single customs territory in accordance with Article 2 of the Treaty on the Formation of the CU;

- approved the structure of the CU Commission;

- appointed the Chairman of the CU Commission;

- approved the rules of procedure of the CU Commission;

- approved the budget of the CU Commission and considered the report on its fulfilment;

- reconsidered decisions of the CU Commission where one of the CU Parties objected to the decision, upon request of this Party;

- reconsidered decisions of the CU Commission at the request of one or more CU Parties;

- considered, upon request, proposals to the CU Commission which failed to collect the number of votes necessary to adopt them;

- nominated candidates to the Court of the EurAsEC for the hearing of the cases concerning CU issues to the Inter-Parliamentary Assembly of the EurAsEC; and

- gave recommendations to and requested information from the Inter-Parliamentarian Assembly of the EurAsEC and the Court of the EurAsEC on CU issues.

160. Members welcomed the information regarding the competency of the Interstate Council and noted that the Interstate Council had the authority to define the list of international treaties that might comprise the legal basis of the CU. In that regard, some Members requested information on the criteria used to define which treaties would be included on this list. In response, the representative of the Russian Federation explained that the Interstate Council determined the list of international treaties comprising the legal basis of the CU, which consisted of two parts: Part 1 - those international treaties effective within the framework of the EurAsEC; and Part 2 - those international treaties aimed at the completion of the formation of the legal basis of the CU. The second list constituted the single undertaking of each CU Party. He noted that neither of these lists were exhaustive and that agreements could be added to both of these lists. There were no special criteria for identifying the treaties to be included in these lists.

161. Members also noted that the Interstate Council was authorised to give recommendations to the EurAsEC Court and requested information on the nature of those recommendations. The representative of the Russian Federation explained that, in accordance with Article 5 of the Statute of the Court, the Interstate Council presented the judges nominated to serve on the Court to the Interparliamentary Assembly of the EurAsEC which formally appointed them. This was the only type of recommendation that the Interstate Council was authorised to provide to or regarding the EurAsEC Court.

(d) The EurAsEC Court

162. The representative of the Russian Federation informed Members that, on 5 July 2010, the Interstate Council of EurAsEC adopted Resolution No. 502 adopting the Statute of the Court of the EurAsEC (hereafter: EurAsEC Court). In addition to establishing the EurAsEC Court, the Statute of the Court established the competency of the Court and procedures to be applied in the context of the Customs Union. He explained that pursuant to Article 13 of the Statute, the Court was authorised to:

- ensure uniform application of the EurAsEC Treaty and other treaties in force within the framework of the EurAsEC, including CU Agreements and decisions taken by the EurAsEC bodies, including the CU bodies;

- consider disputes of an economic nature, i.e., non-political, arising between the Parties on the implementation of decisions of the bodies of the EurAsEC, and treaty provisions in force in the framework of the EurAsEC; and

- interpret provisions of international treaties in force within the framework of the EurAsEC, and the decisions of the EurAsEC bodies.

In connection with the formation of the Customs Union, the EurAsEC Court:

(a) considered cases on compliance of acts of the bodies of the CU with the international treaties constituting the legal basis of the CU;

(b) examined cases on challenging the decisions, actions (inaction) of CU bodies;

(c) interpreted the international treaties that made up the legal basis of the CU, and the acts adopted by the CU Interstate Council and CU Commission;

(d) resolved disputes between the CU Commission and CU Parties, as well as between CU Parties on fulfilment of their commitments, taken within the framework of the Customs Union; and

(e) considered other disputes, as provided in international agreements constituting the framework of the EurAsEC and the CU.

The representative of the Russian Federation explained that in the cases specified in sub-paragraphs (a), (b) and (d) above, the Court could not consider the case, unless the matter had been submitted to the CU Commission previously. However, if the CU Commission did not act on the matter within two months, the case could then be referred to the Court. The Court was required to issue its decision within 90 calendar days after receipt of the case. If a case involved a CU Decision, that decision continued to operate during the case.

163. The representative of the Russian Federation underlined that the competence of the EurAsEC Court was defined solely by the provisions of Article 13 of the Statute of the Court. The EurAsEC Court did not have jurisdiction to opine directly on the WTO obligations of a Party and the Court could not rule on compliance with such obligations. He also noted that the competence of the Court could be enlarged or limited only if it was prescribed directly by an international agreement constituting part of the legal framework of the CU (see paragraph 154). The Treaty on the Functioning of the Customs Union in the Framework of the Multilateral Trading System (hereafter: Treaty on the Multilateral System) was such a Treaty. Under this Treaty, from the date of accession of any CU Party to the WTO, the provisions of the WTO Agreement, as set-out in its Protocol of Accession, including the commitments undertaken by that CU Party as part of the terms of its accession to the WTO, which related to matters that the Parties had authorised CU Bodies to regulate in the framework of the CU, as well as to the legal relationships regulated by the international treaties constituting the legal framework of the CU, became an integral part of the legal framework of the CU. As such, these provisions were part of the single undertaking and were CU Agreements that were part of the single undertaking for each CU Party (see paragraph 185). Since, this Treaty was part of the legal framework of the CU, an infringement by a CU Party or a CU Body of such rights and obligations under the Treaty to the extent that they were a part of the legal framework of the CU could be challenged by a CU Party, or the CU Commission before the EurAsEC Court in accordance with the Statute of the Court. In addition, economic operators could assert breaches of the provisions of the above-mentioned Treaty in the EurAsEC Court (see paragraph 186).

164. The representative of the Russian Federation noted that the Statute establishing the EurAsEC Court also authorised the Court to issue advisory opinions on the application of the international treaties of the EurAsEC and the CU, as well as decisions of their respective Bodies. Such opinions were issued at the request of the Parties, or the bodies of EurAsEC or the CU, or the highest judicial authorities of the Parties, and were in the nature of a recommendation.

165. With regard to who could apply to have the Court hear a case, the representative of the Russian Federation explained that with regard to cases involving the CU, cases could be brought before the Court based on an application submitted by:

- a Party to the Customs Union;

- bodies of the Customs Union; and

- economic operators.

Further, on 9 December 2010, EurAsEC Member States signed the Treaty on Judicial Recourse to the EurAsEC Court of the Economic Operators on Disputes within the Framework of the CU and Peculiarities of the Judicial Procedure on Them, approved by the Decision of the Interstate Council of EurAsEC No. 534 of 9 December 2010 (hereinafter: Treaty on Judicial Recourse). This Treaty was being applied provisionally and would formally go into effect once three EurAsEC Members had ratified it. Under the Treaty on Judicial Recourse, economic operators of CU Parties and of third countries were able to bring actions to the EurAsEC Court to:

- challenge the acts of the CU Commission, i.e., decisions of the CU Commission, which were binding and affected the rights and lawful interests of economic operators in the field of entrepreneurial and other economic activities, or the individual provisions of such acts; and

- challenge the actions (inaction) of the CU Commission.

The grounds to challenge acts of the CU Commission, or their individual provisions, or any action (inaction) of the CU Commission were their non-compliance with international treaties concluded within the framework of the CU, which resulted in the violation of the rights and lawful interests of economic operators in the field of entrepreneurial and other economic activities, provided for by those international treaties. He further explained that the EurAsEC Court would not consider applications to bring an action, if the decision of the Court on a previously considered case regarding the same subject and based on the same grounds was in effect. He further explained that a decision of the Court could be reviewed due to newly-discovered circumstances.

166. The representative of the Russian Federation further explained that, in the Treaty on Judicial Recourse the EurAsEC, Member States had created an appeals chamber within the EurAsEC Court. A party to the case had the right to appeal the decision of a panel of judges to the Appeals Chamber of the Court. The Appeals Chamber consisted of judges of the Court from the CU Parties, which had not participated in the panel that had taken the decision that was being appealed. The decision of the Appeals Chamber was the final decision in the case and could not be appealed.

167. The representative of the Russian Federation stated that with regard to disputes of an economic nature arising between the Parties on the implementation of decisions of EurAsEC bodies, treaty provisions in force in the framework of the EurAsEC, and cases in connection with the CU, the decisions of the Court were binding on the Parties to the dispute. The decision of a panel of judges, if not appealed, entered into force 15 days after the date of its pronouncement. Decisions of the Appeals Chamber were effective on the date of pronouncement. In accordance with Article 20.2 of the Statute of the Court, its decisions were to be implemented within the time-frame specified by the Court. If the decision of the Court was not implemented within the time-frame specified by the Court, any CU Party to the case could apply to the Interstate Council of EurAsEC (Heads of State) for a decision on implementation. In cases involving an economic operator where the CU Commission failed to implement the decision of the EurAsEC Court, the economic operator had the right to file an application to the Court on introduction of measures on the execution of said decision. The Court was obliged, within 15 days from receipt of the application from the economic operator, to address the Interstate Council at the level of Heads of Governments with a request to take a decision on the issue.

168. Members thanked the representative of the Russian Federation for the information on the EurAsEC Court and requested additional information on the operation of this Court. Members asked whether the EurAsEC Court had the authority to provide compensation to the economic operators, if the Court found that certain CU acts violated CU or WTO rules. In response, the representative of the Russian Federation explained that, under paragraph 4 of Article 11 of the Treaty on Judicial Recourse, the EurAsEC Court did not consider claims for damages. As to the competence of the EurAsEC Court on the matters relating with the WTO, see paragraph 170.

169. Members noted that the highest judicial authorities of a CU Party had the right to refer certain issues falling under the legal framework of the CU to the EurAsEC Court for interpretation. Members asked whether these interpretations would bind the national legal authorities or would they be recommendations to the national court. These Members also asked if economic operators or WTO Members would have a right to request that the EurAsEC Court issue an interpretation of CU Agreements and CU Commission acts including on their compatibility with the WTO commitments of the Russian Federation. In response, the representative of the Russian Federation noted that Article 20.1 of the Statute of the Court stipulated that rulings on issues covered by paragraphs 2 and 4 of Article 13 of the Statute were binding on the Parties to the dispute. Paragraph 4 covered interpretation of the international treaties comprising the legal basis of the CU and of decisions of its bodies. With regard to the rights of economic operators and WTO Members, he noted that Article 3 of the Treaty on Judicial Recourse established a procedure under which the highest judicial authority of a CU Party could apply to the EurAsEC Court for an opinion regarding the implementation of international treaties concluded within the framework of the CU and the acts of the CU Commission affecting the rights and lawful interests of economic operators, if these issues significantly affected in substance the consideration of the case. The national judicial authorities were required to apply for an opinion, if the decision of the national court could not be appealed, and provided that the issues on which an opinion was requested significantly affected in substance the consideration of the case, and the Court had not previously delivered opinions on similar issues. Under the existing regulation of the CU the economic operators or WTO Members did not have a right to request that the EurAsEC Court issue an interpretation of CU Agreements and CU Commission acts including on their compatibility with the WTO commitments of the Russian Federation. As to the competence of the EurAsEC Court on the matters relating with the WTO, see paragraphs 162 and 163.