FEDERATION TO THE WORLD TRADE ORGANIZATION 10 страница

262. The representative of the Russian Federation confirmed that activity licenses were made available to all companies registered in the Russian Federation as legal entities (including those with foreign participation and those entirely owned by foreigners), which satisfied government regulatory criteria. He further noted that the Rules of Import and Export of Medicines Registered in the Russian Federation (approved by Government Resolution No. 438 of 16 July 2005 "On the Procedure for Importation and Exportation of Medicines for Medical Purposes"), Federal Law No. 61-FZ of 12 April 2010 "On the Circulation of Medicines", as well as the CU Agreements listed in paragraph 217, CU Commission Decision No. 132, and, more specifically, by the Regulations on the Order of Entry into the Customs Territory of the Customs Union of Medicines and Pharmaceutical Ingredients, defined the procedure for importation/exportation of medicines and pharmaceutical substances registered in the Russian Federation. The representative of the Russian Federation also recalled the information contained in the Section on "Quantitative Import Restrictions, including Prohibitions and Quotas and Import Licensing Systems" regarding acquisition of licenses for the importation of pharmaceuticals.

(c) Goods with Encryption Technology

263. Some Members noted that the Russian Federation also required an activity licence to engage in production or distribution of certain goods with encryption technology. Moreover, the Russian Federation required that applicants for a licence to import certain goods with encryption technology also had an activity licence to distribute or produce goods with encryption technology (see paragraphs 471 to 487 of the Section "Quantitative Import Restrictions, Including Prohibitions and Quotas, and Import Licensing Systems"). These Members expressed their continued concern that the requirement to have an activity licence as a condition for obtaining an import licence was an unjustifiable restriction on imports.

264. In response, the representative of the Russian Federation recalled the sensitivity of the goods that were subject to the import licensing requirement and noted that many WTO Members regulated trade in goods with encryption technology. He noted, however, that pursuant to Government Resolution No. 957 "Approving Regulations on Licensing of Specific Types of Activities Related to Encryption (Cryptographic) Products" of 29 December 2007, certain goods containing encryption technology were exempt from the activity licensing requirements contained in those regulations. He further noted that, pursuant to the CU Regulations on the Order of Entry into the Customs Territory of the Customs Union and removal of the Customs Territory of the Customs Union of Encryption (Cryptographic) Means, of 1 December 2009, and as described in paragraphs 471 to 487 of the Section "Quantitative Import Restrictions, Including Prohibitions and Quotas, and Import Licensing Systems" of this Report, many goods containing encryption technology no longer required an import licence.

(d) Precious stones and metals

265. The representative of the Russian Federation noted that, as of 1 January 2010, the procedures for the import and export of precious stones and metals were set-forth in the CU Regulations "On the Order of Entry into the Customs Territory of the Customs Union within the Eurasian Economic Community and the Export from the Customs Territory of the Customs Union within the Eurasian Economic Community Precious Metals, Precious Stones and Commodities Containing Precious Metals" ("Precious Stones and Metals Regulations"), adopted by the CU Commission Decision No. 132 on 27 November 2009. Pursuant to these Regulations, those products listed in sections 2.9 and 2.10 of the Common List attached to Decision No. 132 (see Table 28) were subject to licensing requirements. Pursuant to paragraph 14 of the Precious Stones and Metals Regulations, an activity licence to carry out operations with precious metals or stones was required in order to export precious metals and stones (excluding diamonds) from the CU; similarly, under paragraph 24 of the Precious Stones and Metals Regulations, the export for processing of precious metals and gemstones could be carried out only by legal persons or individual entrepreneurs who hold an activity licence. The representative of the Russian Federation further noted, however, that Federal Law No. 128-FZ of 8 August 2001 "On Licensing of Specific Types of Activities" (as last amended on 28 September 2010) had abolished the activity licensing requirement for trade of precious metals, precious stones, and jewellery containing precious metals and precious stones, although an activity licence was required to obtain a licence to export.

266. Further the representative of the Russian Federation noted that according to Presidential Decree No. 742 of 21 June 2001 "On the Procedure of Importation into and Exportation from the Russian Federation of Precious Metals and Precious Stones" (as amended on 11 January 2007), there were no statutory licensing or quantitative requirements for imports of precious stones and metals to the territory of the Russian Federation. Moreover, precious stones and metals had been removed from the list of currency valuables, pursuant to Federal Law No. 173-FZ of 10 December 2003 "On Currency Regulation and Currency Control" (as last amended on 22 July 2008), excluding data on extraction, transfer, and consumption of precious stones and metals from the list of State Secret Data, in accordance with Federal Law No. 153-FZ of 11 November 2003 "On Amending Article 5 of the Federal Law of the Russian Federation On State Secrets" and Presidential Decree No. 243 of 3 March 2005 "On Amendments to the List of State Secret Data, Approved by Decree of the President of the Russian Federation No. 1203 of 30 November 1995". These amendments simplified the procedure for performing transactions with precious stones and metals, made these transactions more transparent and removed a number of restrictions in the turnover of precious metals and precious stones, such as restricted rights of legal entities with respect to ownership and disposal of this category of goods. In addition, Presidential Decree No. 1137 of 20 September 2010 "On the Adoption of the Regulation on Import to the Russian Federation from the Countries not party to the Customs Union of the EurAsEC and Export from the Russian Federation to such Countries of Precious Metals, Stones, and Raw Materials Containing Precious Metals" abolished quantitative export restrictions for platinum and platinum group metals and raw diamonds; allowed exports of ferrous metals materials containing precious metals and removed the ban for export of scrap and wastes; and permitted the future liberalization of international trade involving these goods, waste of precious metals, ores and concentrates of precious metals, and unprocessed precious metals. These amendments were also aimed at abolishing quantitative restrictions for export of natural diamonds for mining subjects and diamonds of 10.8 carats and more, if these natural diamonds were obtained by foreign persons from mining subjects at the auctions carried out in accordance with the legislation of the Russian Federation. Decree No. 1137 of 20 September 2010 also provided that the exportation from the Russian Federation under the customs regime of export of natural diamonds (except for unique natural diamonds and the natural diamonds of the form "board" and "drilling" regardless of their sizes and degrees of processing, sieve diamonds of "- 3 + 2" classes and lower classes), refined platinum and metals of platinum group in the form of bullions, plates, powder and granules, and also nuggets of the precious metals, the raw precious metals, ores and concentrates of precious metals, the raw goods containing precious metals, scrap and waste products of precious metals could be carried out without quantitative restrictions on the basis of export licences, as provided for in the sections 2.9 and 2.10 of the Common List attached to Decision No. 132 (see Table 28) which were issued by the Ministry of Industry and Trade of the Russian Federation.

267. Some Members requested further clarification on whether the Russian Federation maintained any restrictions or requirements other than tariffs on the importation of precious metals and stones, notably whether imports of these products were also restricted by import licensing, or whether it was necessary to import them through customs checkpoints designated for declaration of such goods as was the case with diamond exports. These Members also expressed concerns in relation to export requirements for precious stones and metals.

268. In response, the representative of the Russian Federation stated that imports of precious stones and precious metals and products containing precious stones and precious metals were subject to customs tariff only. He added that imports of precious metals, precious stones and jewellery must be carried out through custom checkpoints designated for declaration of such goods (Presidential Decree No. 1137). These designated customs checkpoints were properly equipped with specialists qualified in the area of precious metals and precious stones. These checkpoints were part of the customs system of the Russian Federation. He also added that mentioned procedures were in accordance with the International Convention on the Simplification and Harmonization of Customs Procedures (Kyoto 2000), in particular, with its Specific Annex A, Chapter 1, according to which national legislation specified the places at which such goods might be introduced into the Customs territory.

(e) Other licensing requirements

269. Some Members expressed concerns in relation to licensing requirements governing access to oil and gas pipelines or other distribution networks for export products which could operate in a manner so as to restrict the volume of oil and gas exported from the Russian Federation, and could be inconsistent with the requirements of Article XI of the GATT 1994. They requested the Russian Federation to provide further information on the operation of these regimes, including on the regime for export licensing of energy products.

270. Concerning questions on licensing related to import or export of electricity and import of natural gas, the representative of the Russian Federation stated that there were no export/import licenses requirements for these products.

271. He added that Federal Law No. 117-FZ of 18 July 2006 "On Export of Gas" had established the exclusive right to export natural gas from the Russian Federation to the organization being the owner of the unified gas supply system and its branch companies. He noted that the information of the gas export licensing regime was contained in the Section "Export Licensing Procedures" of this Report.

272. He added that according to Federal Law No. 128-FZ of 8 August 2001 "On Licensing of Specific Types of Activity" (as last amended on 28 September 2010), there were no licensing requirements for the following types of activity:

- the operation of oil and gas production facilities;

- the sale of oil, gas and oil/gas processing products;

- the processing of oil, gas and oil/gas processing products thereof;

- the transportation of oil, gas and oil/gas processing products;

- the storage of oil, gas and oil/gas processing products; and

- the activity of operating gas networks.

273. The representative of the Russian Federation recalled his earlier statements on registration requirements, and further stated that such requirements for export contracts had been originally introduced by Government Resolution No. 758 of 1 July 1994 "On Measures to Improve the State Regulation of Export of Goods and Services" (as last amended on 8 December 2010), and had been repealed by Government Resolution No. 300 of 21 March 1996 "On Recognizing as Invalidated Certain Decisions of the Government of the Russian Federation on the Issue of Registering Contracts in the Export of Commodities". Registration of import contracts had never been required in the Russian Federation, and the Russian Federation did not maintain any special mandatory registry of import or export contracts. He also confirmed that his authorities had no plans to introduce such registration in any form in future. He further stated that the subjects of the Russian Federation were not permitted to impose requirements on legal or natural persons that might affect their rights to engage in importation or exportation of goods.

274. Some Members of the Working Party stated that the Russian Federation should undertake the following commitments in this area: the Russian Federation would guarantee that no restrictions would be maintained on the right to trade in goods except as would be consistent with WTO provisions and that all laws and regulations relating to trading rights in the Russian Federation, whether adopted by the Russian Federation or the competent bodies of the CU, and would be applied in a manner consistent with relevant WTO obligations. Specifically, the Russian Federation should confirm that no restrictions would be maintained on the rights of individuals and enterprises, including those with foreign participation, to import and export goods into the customs territory of the Russian Federation except as would be consistent with provisions of the WTO Agreement. Nor would individuals and firms be restricted in their ability to import and export based on their registered scope of business. The criteria for registration and enrolment in the State Register of legal persons would be generally applicable and published in the Official Gazette, along with any further changes. Without prejudice to other relevant provisions of the WTO Agreement, the Russian Federation should ensure that any laws and regulations relating to the right to trade in goods would not restrict imports of goods 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. Any associated fees, taxes and charges should also be limited to the approximate cost of services rendered and their application should not lead to discrimination in favour of like domestic products. In particular, Members requested that in respect of imports of alcohol, pharmaceuticals, and goods with encryption capability, the Russian Federation eliminate the requirement to obtain an import licence and/or an activity licence as a pre-condition for import or export.

275. The representative of the Russian Federation confirmed that, from the date of accession, the application of all laws, regulations and other measures affecting importation or exportation of goods, whether by the Russian Federation or the competent bodies of the CU, would be in conformity with relevant provisions of the WTO Agreement, including the Agreement on Import Licensing Procedures and Articles I, III, VIII, and XI of the GATT 1994. Addressing the concerns of some Members about the current regulation of importation of alcohol, pharmaceuticals and products with encryption technology, which required issuance of an import licence and/or activity licence as a pre-condition for importation, as set-out in paragraphs 473, 476 to 481, he confirmed that, upon its accession to the WTO, the Russian Federation would ensure that the person who had the right, according to CU Agreements, CU Commission Decisions or Russian legislation, to declare the imported goods would be permitted to pay relevant customs duties, fees and charges in connection with importation of alcohol, pharmaceuticals or products with encryption technology without presenting an import and/or activity license(s) to the customs authorities, and that these goods would be permitted to be withdrawn from the territory of the customs checkpoint for the purpose of free circulation in the territory of the Russian Federation by the holder of the respective import and/or activity licenses. The Working Party took note of these commitments.

1. IMPORT REGULATIONS

Customs Regulations and Procedures

276. The representative of the Russian Federation recalled that the Russian Federation had been an active participant at the World Customs Organization (WCO), even before gaining full Membership on 8 July 1993. The Russian Federation had also joined the International Convention on the Harmonized Commodity Description and Coding System on 1 January 1997, as well as the Customs Cooperation Council, the ATA Carnet, and the Nairobi and Istanbul Conventions. His Government had also joined the International Convention on the Simplification and Harmonization of Customs Procedures (Revised Kyoto Convention, 1999).

277. Members asked the Russian Federation to provide a description of the customs regime in effect in the Russian Federation, including Customs Union legal acts, together with copies of all relevant implementing instruments in a WTO working language.

278. The Representative of the Russian Federation noted that, as of 1 July 2010, CU Agreements, CU Decisions and other CU legal documents, in particular the CU Customs Code, as amended by the Protocol on the Amendment, and Addition of the Treaty on the Customs Code of the Customs Union of 27 November 2009, signed on 16 April 2010, had provided the legal framework for the customs regime of the Russian Federation and other CU Parties. Pursuant to these CU legal acts, customs regulation was also provided by the domestic legislation of CU Parties. In the Russian Federation, this domestic legislation was Federal Law No. 311-FZ of 27 November 2010 "On Customs Regulation". These legal acts had replaced the Law of the Russian Federation No. 5003-1 of 21 May 1993 "On Customs Tariff" (as last amended on 3 December 2007) and Federal Law No. 61-FZ of 28 May 2003 "Customs Code of the Russian Federation", which had entered into force on 1 January 2004, as the legal basis for the customs regime of the Russian Federation. He further explained that Article 357.10 of the Customs Code of the Russian Federation and provisions of the Law on Customs Tariff continued to be in effect to the extent that they did not conflict with the CU Customs Code or Federal Law No. 311-FZ. The representative of the Russian Federation explained that the CU Customs Code was based on generally accepted international rules, including the Revised Kyoto Convention. The CU Customs Code was the principal legal document that governed customs administration and customs procedures, including the rights and responsibilities of national customs authorities, importers, and exporters. It contained detailed provisions related to customs control, operations, payments, and various types of customs "procedures" (e.g., release for domestic use, export, re-importation and re-exportation, inward and outward processing, temporary importation or exportation, use of customs warehouses, duty free trade/shops, destruction of goods and rejection in favour of the State). The CU Customs Code also established the right of appeal against customs decisions and addressed WTO rules and disciplines on the protection of intellectual property rights at the border, customs valuation, customs fees, special economic zones, trade in transit, and rules of origin. He noted that additional provisions on these issues were found in other CU Agreements and Decisions (as outlined in the specific Sections of this Report covering these issues). Further details relating to customs issues were set-out in Federal Law No. 311-FZ, notably concerning specific rules for the application of customs procedures in the Russian Federation which were not fully covered in the CU Customs Code.

279. In response to a question from some Members, the representative of the Russian Federation noted that the customs bodies in the Russian Federation constituted a single Federal system and that their functions were established and authorised by the provisions of the CU Customs Code, Federal Law No. 311-FZ and provisions of previous domestic laws that remained in effect. He noted that, in accordance with Government Decision No. 459 of 26 July 2006 "On the Federal Customs Service" (as last amended on 15 June 2010), the Federal Customs Service (FCS) was the authorised Federal executive body, which carried out the functions of: elaboration of State policy and the implementation of legal regulation (including CU Decisions); control and supervision in the sphere of the customs system; as well as the functions of a currency control agent and special functions of fighting smuggling and other crimes and administrative offences. The activity of the FCS was directly subordinated to the Government of the Russian Federation.

280. He added that pursuant to Article 4 of Federal Law No. 311-FZ, the Government of the Russian Federation and its executive bodies (e.g., the FCS) could issue, within the limits of their respective competence and in cases clearly defined by the CU Customs Code and related legal acts as well as legal acts of the Russian Federation, normative legal acts pertaining to customs matters. The President could also issue a decree on these matters. The representative of the Russian Federation explained that FCS orders covered procedural issues concerning the activities of customs authorities and the majority of these orders were of an administrative or procedural nature. Other CU legal acts and national laws and measures that directly regulated foreign trade in goods were referred to in other relevant Sections of this Report, including "Registration Requirements for Import/Export Operations", "Other Customs Formalities", and "Customs Valuation". The main functions of the FCS were set-out in the Regulation "On the Federal Customs Service", which had been approved by Government Decision No. 459 of 26 July 2006 "On the Federal Customs Service" (as last amended on 15 June 2010).

281. The CU Customs Code and Federal Law No. 311-FZ also contained a number of provisions giving the Customs authorities of the Russian Federation the power to issue normative legal acts pertaining to the form of documents to be used in customs affairs, procedures for inter-departmental co-operation, co-operation with foreign customs authorities, customs statistics, as well as other matters not related to the imposition of any obligation on participants in foreign trade activities or the definition of their rights. The Customs authorities did not have any power to establish customs administration principles, conditions of customs control or any regulation regarding a question of principle. He added that the vast majority of provisions of the CU Customs Code and other CU Agreements and Decisions relating to customs issues were of direct application, removing the element of FCS discretion from many customs operations.

282. The CU Customs Code established the right of appeal with regard to customs issues in Article 9. Articles 36 - 49 of Federal Law No. 311-FZ, contained detailed provisions on the right of appeal, so as to ensure compliance of national customs administrations and their officers with requirements in their decision-making, including action or inaction. Right of appeal could be exercised through lodging a complaint with the hierarchal superior customs administrations and/or through judicial procedures (for further details, see the Section "Framework for Making and Enforcing Policies" of this Report). To ensure transparency, Article 51 of Federal Law No. 311-FZ also required relevant authorities to publish legal acts of customs regulations in the official publications.

283. Pursuant to Article 181 of the CU Customs Code, a customs declaration had to be presented at the time of presentation of the goods to Customs authorities at the point of destination in the customs territory of the Russian Federation, i.e., when placed under one of the customs procedures, other than the customs procedure of customs transit, specified in Article 202, or at the day of completion of customs transit procedure, if imported goods were not declared at the point of destination. According to Article 193 of the CU Customs Code, if the goods were not produced to the customs authority, which had registered the customs declaration, or to the other customs authority specified by the customs legislation of the member state within 30 calendar days from the day following the day of its registration or if the prohibitions and restrictions were introduced since then, the customs authority shall refuse to release such goods. Goods placed under the transit procedure were declared in accordance with Article 182 of the CU Customs Code. The representative of the Russian Federation added that Articles 38 to 41 of the CU Customs Code and Articles 85 to 96 of Federal Law No. 311-FZ provided for special simplified customs formalities for "Authorised Economic Operators," i.e., persons who met the requirements listed in Article 39 and Article 87, respectively, including:

- provision of guarantee for the payment of customs duties and taxes (amount varies);

- performance of foreign economic activities for at least one year;

- absence of tax arrears or unfulfilled obligation to pay customs payments, interest, or penalties; absence of repeated (two or more) customs administrative offences during the previous year;

- absence of a record of conviction for economic criminal offenses by the chief officers and employees conducting customs operations under the simplified procedures;

- use of an accounting system in their commercial documents for the foreign trade activity that enabled customs authorities to compare the information contained in such documents with the information presented to customs authorities in the process of customs clearance; and

- if the authorised economic operator exercises temporary storage of goods, compliance with the requirements for this status found in Article 89 of Federal Law No. 311-FZ.

284. A Member expressed concern that the procedures for registration of importers for the special simplified customs formalities referred to in paragraph 283 were quite cumbersome and that it would take several months to obtain authorization for such registration. The Member requested the Russian Federation to make a commitment to simplify the above procedures and to shorten the period required for issuing the above authorization. In response, the representative of the Russian Federation noted that the Russian Federation would continue its policy for the development of the procedures of special simplified customs formalities with respect to bona fide participants of foreign economic trade in the framework of the requirements established by Article 39 of the CU Customs Code and Article 88 of Federal Law No. 311-FZ with a view to increasing the effectiveness of the procedures of special simplified customs formalities.

285. The representative of the Russian Federation further explained that the CU Customs Code also provided for the maximum period that goods could be kept in temporary (bonded) storage. According to Chapter 25 of the CU Customs Code and Section 23 of Federal Law No. 311-FZ, goods under customs registration could be placed in temporary storage warehouses, prior to their release by the customs authorities. Temporary storage warehouses were owned by Russian legal persons, possessing operable storage facilities that could be used for ensuring the safety of goods, provided that the warehouse owner could present financial guarantees, and was ready to assume responsibility for the goods in favour of the owner. Customs authorities could also operate such storage facilities. In some cases, goods could also be temporarily stored in the warehouse of the importer (Articles 200 and 201 of Federal Law No. 311-FZ). Temporary storage of goods was limited to two months from the date following the date of registration by the customs authorities, a period that could be extended for a maximum of two more months, if customs clearance had not been concluded. According to Article 170 of the CU Customs Code, the CU Commission was authorised to determine a shorter term of storage for particular categories of goods. Items in the process of international postal exchange and luggage from passenger aircrafts that had not been collected could be held in temporary storage for up to six months. Upon expiration of the temporary storage period, the goods, that had not been placed under the customs procedure, were detained and subject to seizure for sale or destruction, as provided for in Chapter 2 of the CU Customs Code. Nevertheless, the sum resulting from the sale of the goods would be kept for three months after the sale, during which it could be returned to the owner, upon request and after deduction of the customs charges, taxes and other expenses pertaining to the storage and sale of the goods. The representative of the Russian Federation referred Members to the Section "Regulation of Trade in Transit" of this Report for information on customs escort.