FEDERATION TO THE WORLD TRADE ORGANIZATION 8 страница

197. Article 49 of Law No. 311-FZ provided a simplified procedure for bringing an administrative appeal of decisions or actions (inactions) taken by a customs officer at a customs checkpoint concerning shipment of goods through the border, which did not exceed RUB 1.5 million in value and (or) one vehicle. This involved an oral claim to a superior customs officer. Such appeals were dealt with by immediate ruling. The simplified appeal procedure did not preclude the appellant lodging an appeal via the standard procedure.

198. Administrative appeal procedures were similar to those envisaged by Law No. 311-FZ, except they would be taken under the Code of Administrative Offences. Appeals could be lodged within ten days after receipt of a copy of the decision appealed against and were required to be processed within ten days from the date of lodging the appeal. Pursuant to Article 37 of Law No. 311-FZ, the appeal mechanism provided for in that Law did not apply to decisions in respect of the Code of Administrative Offences No. 195-FZ of 30 December 2001 (as last amended on 14 July 2008). Appeal decisions issued by the customs authority could be appealed against to the superior customs authority or court, or arbitration court.

199. In response to further questions, the representative of the Russian Federation stated that the procedure for appealing against decisions of tax bodies and actions or inaction of their officers was regulated by the Tax Code of the Russian Federation. Decisions issued by tax bodies, as well as actions and inaction by their officers, could be appealed to a supervising officer or a court, either simultaneously or consecutively. An appeal was required to be determined within one month from the date of lodging the appeal. The tax body was required to take a decision within one month, and the decision on the appeal was required to be notified to the person lodging the appeal within three days after the decision was taken.

200. As regards appeals and complaints in the sphere of technical regulations (including SPS issues), the representative of the Russian Federation explained that, under the CU, there was a common system of Technical Regulations, including on SPS matters, and thus the EurAsEC Court had jurisdiction over appeals covered by the relevant CU Agreements, CU Commission Decisions, including those promulgating CU Regulations and other CU measures. With regard to decisions, actions or inaction of the authorised bodies of the Russian Federation related to technical regulation, including SPS issues, he explained that legal measures were in place to allow appeals to be made via the independent judicial system against any decisions of the relevant authorities of the Russian Federation (and non-governmental bodies delegated to take such decisions) and to ensure corrective action was taken, in accordance with decision by the Court, when a complaint was justified. The relevant authorities were authorised to establish their own procedures for filing a complaint or requesting an appeal in the area of certification and conformity assessment. These procedures reflected common principles of dealing with appeals and complaints brought to the authorities of executive power of the Russian Federation by natural or legal persons (e.g., the requirement to address the applicant with a reasoned answer and in written form within a fixed term (normally 30 days); control of addressing the appeal by superior authority and the Government, etc.). He noted that, pursuant to Federal Law No. 184-FZ of 27 December 2002 "On Technical Regulation" (as last amended on 28 September 2010), non-acceptance by the authorities of a voluntary certification could be appealed via judicial procedure. With regard to mandatory conformity certification, an applicant could lodge a complaint with the accreditation authorities against unlawful actions of certification authorities and accredited testing laboratories (centres).

201. Further, regarding appeals and complaints in the field of intellectual property rights, the representative of the Russian Federation stated that the legislation of the Russian Federation provided for the enforcement of intellectual property rights through judicial and administrative procedures. In particular, in accordance with the Civil Code of the Russian Federation, commercial secrets, copyright and related rights were protected by court. As for the other intellectual property rights, the Civil Code of the Russian Federation provided the opportunity to appeal to a court, as well as to the Patent Disputes Chamber of Rospatent. The procedure for lodging objections and applications to the Chamber and the procedure for their consideration were determined by Order of Rospatent No. 56 of 22 April 2003 "On the Rules of Filing Objections and Applications and the Consideration thereof by the Patent Disputes Chamber" (as last amended on 11 December 2003). Decisions of the Patent Dispute Chamber could be appealed in court in accordance with the legislation of the Russian Federation. More detailed information on this issue was contained in the Section "Trade-Related Intellectual Property Regime".

202. In response to questions concerning fees for appeal procedures, the representative of the Russian Federation stated that judicial procedure of appeal was subject to State duties set-out in Chapter 25.3 of the Tax Code of the Russian Federation. Appeal in administrative procedure, generally, was free of charge, with few exceptions. For example, administrative procedure of appeal in the field of intellectual property rights was subject to a duty, in accordance with the Civil Code of the Russian Federation. He further explained that judicial appeal fees were applied in connection with exercise of judicial power by courts. Administrative procedures' fees were applied in connection with exercise of executive power by Governmental bodies.

DIVISION OF AUTHORITY BETWEEN CENTRAL

AND SUB-CENTRAL GOVERNMENTS

203. The representative of the Russian Federation stated that the Constitution of the Russian Federation provided an exhaustive list of matters to which the Russian Federation had an exclusive competence (Article 71) and a list containing matters subject to the joint competence of the Russian Federation and its subjects (Article 72). Those matters not contained in these lists were regarded as the ones to which the subjects had competence. The laws and other normative legal acts by the subjects of the Russian Federation adopted outside the competence of the Russian Federation or of the joint competence of the Russian Federation and the subjects of the Russian Federation must not contradict the Federal laws. Within the joint competence of the Russian Federation and its subjects, in case of a conflict between a Federal law and any normative legal act issued by a subject of the Russian Federation, the Federal law would prevail.

204. Members of the Working Party sought confirmation concerning the uniform application of WTO provisions throughout the territory of the Russian Federation, as well as by sub-central entities. These Members also sought further information on whether there were any areas relating to matters under WTO provisions where sub-federal entities might have exclusive competence. Those Members also requested further clarification on whether the authorities of the Russian Federation would be required to submit the approved Protocol Package to sub-central entities for their approval in the ratification process.

205. The representative of the Russian Federation further noted that, according to Article 3 of Federal Law No. 164-FZ of 8 December 2003 "On the Fundamentals of State Regulation of Foreign Trade Activity" (as last amended on 8 December 2010), foreign trade in the Russian Federation was regulated by the Constitution of the Russian Federation, Federal laws and other legal acts of the Russian Federation and by the international Treaties to which the Russian Federation was a party. He also added that Chapter II of this Law established competence of the Federal and Regional authorities in foreign trade. Article 6 of said Law provided for, inter alia, the competence of the Russian Federation to form the concept and strategy of the development of foreign trade relations and the basic principles of the foreign trade policy; to ensure the economic security and protection of the economic sovereignty and economic interests of the Russian Federation, as well as the economic interests of the subjects of the Russian Federation and of Russian natural and juridical persons; and to conclude international Treaties in the field of foreign economic relations.

206. He further noted that, if an international treaty of the Russian Federation affected issues falling within the competence of the subjects of the Russian Federation, such a treaty was to be elaborated in co-ordination with relevant bodies of the interested subjects of the Russian Federation. This provision was contained in Federal Law No. 101-FZ of 15 July 1995 "On International Treaties of the Russian Federation". As regards international treaties of the Russian Federation affecting issues falling within the joint competence of the Russian Federation and the subjects of the Russian Federation, the Law established that Federal bodies of executive power were to send the main provisions or the draft of a treaty to the State power bodies of the interested subject of the Russian Federation. Proposals received from the subjects were considered in the course of preparation of the draft of the international treaty.

207. The representative of the Russian Federation recalled that Federal Law No. 4-FZ of 4 January 1999 "On Co-ordination of International and Foreign Economic Ties of the Subjects of the Russian Federation" provided the subjects of the Russian Federation, inter alia, with the right to negotiate and conclude Agreements with their partners on international and foreign economic ties. Such Agreements could not contradict the Federal legislation and the international commitments of the Russian Federation. The Law made it compulsory for the subjects to notify the appropriate Federal authorities before entering into negotiations, and set-forth a procedure for prior approval of the draft agreed text of the Agreement by the appropriate Federal authorities. The Agreements concluded by the subjects of the Russian Federation were not considered international treaties.

208. One Member expressed its doubts regarding measures that the Russian Federation had maintained since 2008 with regard to trade with this Member. In this Member's view, these measures were inconsistent with various provisions of the WTO Agreement, including the transparency provisions of Article X of the GATT 1994, the requirement to administer trade "in a uniform, impartial and reasonable manner" set-out in Article X:3 of the GATT 1994, and the requirement for uniform application of measures set-out in Article XXIV:1 of the GATT 1994. Further, this Member noted that Article I of the GATT 1994 required that "any advantage, favour, privilege or immunity granted by" the Russian Federation to any product originating in or destined for that Member's territory be accorded immediately and unconditionally to products imported from or exported to all other WTO Members. In this Member's view, the Russian Federation had maintained measures that were inconsistent with the obligations that Russia would assume as a WTO Member. This Member, therefore, requested that the Russian Federation eliminate these measures and comply with WTO requirements.

209. The representative of the Russian Federation took note of this Member's concerns. He stated that in his view measures in trade with that Member were applied in conformity with the bilateral free trade agreement and were in line with its domestic legislation and with the WTO Agreement. That representative further referred that Member to the obligations that the Russian Federation would comply with from the date of the accession of the Russian Federation to the WTO, including those commitments referred to in paragraphs 1426, 1427 and 1428 relating to transparency and paragraph 214 related to uniform application of the Russian Federation's trade regime. The representative of the Russian Federation confirmed that in the future the Russian Federation would have the WTO Agreement as the legal basis of its trade with this Member in such a manner to ensure full consistency with WTO rules, including Articles I, X, and XXIV of the GATT 1994, and to respect its specific WTO obligations and commitments. The Working Party took note of this commitment.

210. The representative of the Russian Federation further explained that on 9 November 2011 the Russian Federation had concluded an agreement with this Member establishing a mechanism of customs administration and monitoring of all trade in goods that enters or exits specific pre-defined trade corridors. The mechanism consists of (a) an electronic data exchange system; and, (b) an international monitoring system. One Member confirmed that the agreement reached with the Government of the Russian Federation established a satisfactory system to address his concern inter alia through the assistance and participation of the neutral third party to facilitate the operation of the agreement. These statements were noted by the Working Party.

211. Members of the Working Party expressed concerns in relation to non-WTO consistent actions of certain regional governments, often in the face of relevant Federal legislation. In addition, Members of the Working Party requested clarification of the ability of the central government to take the initiative and responsibility for overruling or removing WTO-inconsistent measures taken by subjects of the Russian Federation. Some Members of the Working Party requested a specific commitment from the Russian Federation that international treaties would be strictly observed throughout its territory.

212. In response, the representative of the Russian Federation noted that a special mechanism had been established to monitor and ensure that the legislation and practice of the subjects of the Russian Federation complied with Federal laws. On 6 October 1999, Federal Law No. 184-FZ "On General Principles of the Organization of the Legislative (Representative) and Executive Authorities of State Power of the Subjects of the Russian Federation" (as last amended on 28 December 2010) had been enacted. The Office of the Public Prosecutor administered the Law. Following a complaint regarding the action or policy of a subject of the Russian Federation, the Public Prosecutor could seek an order or declaration from the Supreme Court of the Russian Federation or an appropriate body of the concerned subject invalidating the legislation or practice complained of, on the basis that the legislation or practice was inconsistent with respective Federal legislation or international treaties of the Russian Federation. In accordance with Article 253 of the Civil Procedure Code of the Russian Federation, when the court (including the Supreme Court) determined that the legal act subject to a dispute or part thereof contradicted a Federal law or other legal act that has higher legal force, the disputed legal act was considered invalid in whole or in part from the date of its adoption, unless otherwise specified by the court in its decision. Presidential Decree No. 849 of 13 May 2000 "On the Authorised Representative of the President of the Russian Federation in a Federal District" (as last amended on 7 September 2010) empowered a Presidential representative in a Federal district to propose the suspension of acts of executive authorities of the subjects of the Russian Federation that contravened the Constitution, Federal laws or international commitments of the Russian Federation. Similarly, Presidential Decree No. 1486 of 10 August 2000 "On Supplementary Measures to Provide Integrity of Legal Treatment in the Russian Federation" (as last amended on 18 January 2010) created a Federal registry of the legal acts of the subjects of the Russian Federation. All legal acts enacted by the subjects of the Russian Federation were notified to the Federal Ministry of Justice of the Russian Federation within seven days of enactment for scrutiny and review. If the legislation was found to be inconsistent with Federal laws or with international commitments of the Russian Federation, including the obligations of the Russian Federation under the WTO Agreement and CU Agreements, the Legislative Department of the Ministry of Justice could draft a presidential decree suspending the operation of the legislation, or seek an order from the Constitutional Court of the Russian Federation together with proposals for reconciling or rectifying the conflict. Acts or parts thereof determined by the Court to contravene the Constitution became invalid as from the date of their adoption.

213. He further noted that, in accordance with the Constitution of the Russian Federation, the Constitution itself and Federal laws had supremacy over the whole territory of the Russian Federation. The bodies of State authority, the bodies of local governments, officials, private persons and their associations were required to observe the Constitution of the Russian Federation and its laws. Federal Law No. 101-FZ of 15 July 1995 "On International Treaties of the Russian Federation" contained rules ensuring the execution of the international treaties of the Russian Federation by the President and the Government of the Russian Federation, Federal Executive bodies, and bodies of State authority of the relevant subjects of the Russian Federation.

214. The representative of the Russian Federation confirmed that the provisions of the WTO Agreement would be applied uniformly throughout the territory of the Russian Federation, including in regions engaging in frontier traffic, special economic zones and other areas where special regimes for tariffs, taxes and regulations could be established. He added that, in order to ensure compliance with provisions of the WTO Agreement any individual or entity could bring to the attention of the authorities of the Government of the Russian Federation or competent CU Body cases of non-application or non-uniform application of provisions of the WTO Agreement in the Russian Federation. Such cases would be referred promptly to the responsible authorities without requiring the affected party to petition through the courts, and when non-application or non-uniform application actually existed, the authorities of the Government of the Russian Federation or a competent CU Body would act promptly to address the situation, consistent with the laws and international obligations of the Russian Federation. The individual or entity notifying the authorities of the Government of the Russian Federation or a competent CU Body would be informed promptly in writing of any decision and action taken. The Working Party took note of these commitments.

215. The representative of the Russian Federation also confirmed that with respect to matters subject to the WTO Agreement, his authorities would provide the right for independent review in conformity with WTO obligations, including but not restricted to, Article X:3 (b) of the GATT 1994, and relevant provisions of the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) and the General Agreement on Trade in Services. The Working Party took note of these commitments.

POLICIES AFFECTING TRADE IN GOODS

REGISTRATION REQUIREMENTS FOR IMPORT/EXPORT OPERATIONS

216. The representative of the Russian Federation noted that, generally, neither the CU Agreements, CU Commission Decisions, nor the national legislation of the Russian Federation restricted the right of any Russian enterprise to import goods into or export goods from the Russian Federation, however, exceptions could be provided for in CU Agreements and Decisions and the Federal laws of the Russian Federation. He noted that the State monopoly on foreign trade had been eliminated by Presidential Decree No. 213 of 15 November 1991 "On Liberalization of Foreign Economic Activity on the Territory of the Russian Soviet Federal Socialist Republic" (as amended on 27 October 1992). This principle was further embodied in Article 1 of the Civil Code and Article 8 of the Constitution.

217. The representative of the Russian Federation explained that, from 1 January 2010, the principal requirements for importing goods into and exporting goods from the Russian Federation were found in the Customs Code of the Customs Union of Russia, Belarus and Kazakhstan (hereafter: "CU Customs Code"), the Agreement on Common Measures of Non-tariff Regulation in Respect of Third Countries, signed on 25 January 2008 (hereafter: "CU Agreement on Non-Tariff Regulation"), the Agreement on the Introduction and Application of Measures Concerning Foreign Trade in Goods on the Common Customs Territory in Respect of Third Countries, signed on 9 June 2009 (hereafter: "CU Agreement on Measures Concerning Foreign Trade"), and the Agreement on Licensing in the Area of Foreign Merchandise Trade of 9 July 2009 (hereafter: "CU Licensing Agreement"). The procedure for the importation of specific products, such as products with cryptographic capabilities, precious stones and precious metals, and medicines and pharmaceutical ingredients, were set-out in CU Commission Regulations. Specific Sections in this Working Party Report relating to the import and export regimes of the Russian Federation, provided descriptions of the provisions of these CU Agreements, CU Commission Decisions, and other CU legal documents, including requirements for non-automatic import or export licenses and/or automatic licenses (permits). The representative of the Russian Federation explained that, pursuant to these CU Agreements, Decisions, and Regulations, the authorised body of each CU Party was responsible for issuing non-automatic import and export licenses and/or automatic licenses (permits), as well as activity licenses. The representative of the Russian Federation further explained that Federal Law No. 164-FZ of 8 December 2003 "On the Fundamentals of the State Regulation of the Foreign Trade Activity" (as last amended on 2 February 2006), Federal Law No. 311-FZ of 27 November 2010 "On Customs Regulation" and Federal Law No. 128-FZ of 8 August 2001 "On Licensing of Specific Types of Activity" (as last amended on 28 September 2010) addressed the general requirements for engaging in import/export operations in the Russian Federation.

218. The representative of the Russian Federation explained that, according to Article 10 of Federal Law No. 164-FZ, any Russian or foreign person could be engaged in carrying out foreign trade activity (import and export). The right to carry out foreign trade activity could be restricted only in circumstances specified under international agreements, including CU Agreements, CU Commission Decisions, or Federal legislation. Export and import operations, as such, did not require an activity licence. On the other hand, an activity licence to engage in production or distribution of certain products (such as alcohol, pharmaceuticals, and goods with encryption technology) was required to obtain a licence to import these products. (Detailed information concerning export/import operations for alcoholic beverages, pharmaceuticals, goods with encryption technology, and precious stones and metals was provided in paragraphs 231 through 268 and 275).

219. Several Members noted that laws and regulations relating to the right to trade in goods, "registration requirements" or "activity licensing" must not be more burdensome than necessary and, thus, restrict imports in violation of the general prohibition on quantitative restrictions under Article XI:1 of the GATT 1994, nor should they discriminate against imported goods in violation of the provisions of Article III:4 of the GATT 1994. Furthermore, fees and charges levied on the right to import must be limited to the cost of services rendered as under Article VIII:1 (a) and Article VIII:4 (c) of the GATT 1994, and internal taxes or other internal charges on the right to trade in imported goods must not lead to discrimination in favour of like domestic products as required by Article III:2 of the GATT 1994.

220. In response to requests for further information on registration requirements for engaging in economic activity (that included import and export operations), the representative of the Russian Federation explained that requirements for registration as a legal person/individual entrepreneur were strictly a matter of the national legislation of a CU Party and this situation was not expected to change. In the Russian Federation, registration of legal persons and natural persons, as individual entrepreneurs, was governed by Article 51 of the Civil Code and Federal Law No. 129-FZ of 8 August 2001 "On State Registration of Juridical Persons and Individual Entrepreneurs" (as last amended on 27 July 2010). Registration was carried out by the Federal Tax Service. Refusal of State Registration was governed by Article 23 of Federal Law No. 129-FZ and could be appealed in a Court. He explained that registration enabled legal persons/individual entrepreneurs to engage in economic activity, including foreign trade activity (import and export). The legislation of the Russian Federation did not contain any restrictions or discrimination against foreign founders of legal persons. In response to a specific question of one Member, the representative of the Russian Federation clarified that, even though some specific requirements for registration of legal persons with foreign founders were formally different from requirements for registration of legal persons with founders being Russian persons (e.g., with respect to the type of documents to be provided by an applicant), such requirements did not constitute actual discrimination against such legal persons with foreign founders.

221. To register, legal persons were required to submit the following documents, listed in Article 12 of Federal Law No. 129-FZ:

- an application based on the form established by Government Resolution No. 439 of 19 June 2002 (as last amended on 9 March 2010);

- the decision whereby the legal person had been formed, in the form of minutes, Agreement or any other document in compliance with the legislation of the Russian Federation;

- the constitutive documents of the legal person (originals or notarized copies);

- for foreign legal persons, an extract from the register of legal persons of the country of origin or another equally effective proof of the legal status of a foreign legal entity being a founder; and

- a certificate of payment of State duty in the amount of RUB 4,000.

Under Federal Law No. 129-FZ, registration of a natural person as an individual entrepreneur required the following documents:

- an application based on the form approved by the Government of the Russian Federation;

- for citizens of the Russian Federation, a copy of the identification document of the natural person (i.e. passport - Presidential Decree No. 232 of 13 March 1997);

- for foreign and stateless persons, a copy of the document established by Federal Law or recognised under an international Agreement of the Russian Federation as the identification document (identification documents were listed in Article 10 of Federal Law No. 115-FZ of 25 July 2002 "On the Legal Position of Foreign Citizens in the Russian Federation" (as last amended on 4 December 2007);

- a document confirming the right to reside in the Russian Federation; and

- a document confirming the payment of a RUB 800 registration charge.

Pursuant to Article 9 of the Law, no document, other than those listed in the Law (as indicated above) - could be requested for registration.

222. Some Members expressed concern that the requirement of the Russian Federation for enterprises to have a location in the Russian Federation, established in accordance with the legislation of the Russian Federation, and natural persons to have the right to reside in the Russian Federation in order to register as a Russian enterprise or individual entrepreneur, was overly burdensome in the case where the enterprise or individual entrepreneur sought only the right to declare the import or export of goods and, thus, restricted imports or exports.

223. In response, the representative of the Russian Federation stated that the requirement to be registered in the Russian Federation, in accordance with established conditions, was necessary to ensure proper implementation of customs legislation, including its provisions on conditional release of goods into the territory of the Russian Federation and post-control that permitted accelerated customs procedures at the entry and destination customs checkpoints.

224. The representative of the Russian Federation further added that these documents were to be submitted to the registration body directly or could be sent by mail with a list of enclosures. The application presented to the registering body required the notarized signature of an authorised person (the applicant). The date of submission of the documents for State Registration was considered to be the date when they were received by the registration body. A receipt note was to be issued to the applicant to confirm that the documents had been received from him. The note was to be issued on the day the documents were received by the registration body. In any case, including cases in which the registration body received documents sent by mail, a receipt note was to be sent the next (working) day following the date of receipt of the documents by the registration body, at the postal address indicated by the applicant. The registration body ensured the recording and storing of all documents submitted for registration purposes.