FEDERATION TO THE WORLD TRADE ORGANIZATION 12 страница

314. According to Article 1 of the Agreement on Customs Regulation, the main objectives and purposes of the CET were: (i) to rationalise the structure of the import of goods to the common customs area of the Parties; (ii) to maintain a rational proportion of imported and exported goods on the territory of the common customs area of the Parties; (iii) to create conditions for progressive changes in the structure of manufacturing and consumption of goods in the CU; (iv) to protect the economy of the CU from unfavourable influence from foreign competition; and (v) to provide conditions for effective integration of the CU into the world economy.

315. Some Members expressed concerns that the aforementioned objectives (ii), (iii) and (iv) could be used to introduce WTO incompatible import or export tariff restrictions which could discriminate against foreign goods and asked for an explanation. The representative of the Russian Federation explained that, in his view, most countries used tariffs to secure favourable conditions for the development of their domestic industry and agriculture by establishing higher duty rates on goods that were sensitive to competition with imported goods and that duties could be used to maintain a positive trade balance as well as a balanced trade structure, meaning that a positive trade balance could be secured not only through export of raw materials and semi-finished products. He confirmed that only WTO compatible tariff measures would be used by the Russian Federation and the competent CU bodies from the date of the accession of the Russian Federation to the WTO.

316. Some Members expressed concerns that paragraphs 2 and 7 of CU Commission Decision No. 130 could allow the application of import duties in a discriminatory manner, either {vis-a-vis} third countries or in relation to certain imports exempted from duties for investment projects. The representative of the Russian Federation confirmed that all import tariffs were applied by the Russian Federation in a non-discriminatory manner {vis-a-vis} third countries on the basis of trade and cooperation agreements, except if otherwise provided for under regional trade agreements or the CU Generalised System of Trade Preferences. Exemptions from the CET within the framework of investment projects were described in Sections "Tariff Exemptions" and "Trade-related Investment Measures (TRIMs)" of this Report, as appropriate.

317. The representative of the Russian Federation informed Members that in accordance with the Agreement on Customs Regulation and the Protocol on Tariff Preferences, the Russian Federation applied the common CU Scheme of Tariff Preferences for developing and least-developed countries (CU GSP Scheme), which was based on the GSP scheme in force in the Russian Federation before 1 January 2010. Lists of developing countries beneficiaries of the CU GSP Scheme (Table 16), least-developed countries beneficiaries of the CU GSP Scheme (Table 17) and goods originating and imported from developing and least-developed countries subject to the CU GSP Scheme (Table 18) were established by Decision No. 18 and adopted by Decision No. 130. Under the CU GSP Scheme, the import duties applicable to products eligible for tariff preferences and originating from developing countries were at the level of 75 per cent of the MFN duty rates and from least-developed countries at the level of zero per cent.

318. In response to a question by one Member, the representative of the Russian Federation explained that tariff preferences for goods originating from developing or least-developed countries that were subject to the CU GSP Scheme would be granted if the goods were purchased in that country from a resident of the country. Such goods had to be delivered directly or in transit through third countries to the territory of the CU, without them being put into free circulation in those third countries in case of transit. As provided for in the Annex to the CU Agreement on Rules for Determining the Origin of Goods from Developing and Least Developed Countries of 12 December 2008, goods were also considered purchased in the country of origin if they were purchased at an exhibition or fair.

319. In response to requests from Members, the representative of the Russian Federation confirmed that, upon its accession to the WTO, the GSP Scheme for developing and least-developed countries would be applied, whether by the Russian Federation or by the competent bodies of the CU, in conformity with the relevant provisions of the WTO Agreement. The Working Party took note of this commitment.

320. In response to a question of a Member regarding extension of "Duty-free and Quota-free" provisions as a part of the commitment made to Least-developed countries at the WTO 6th Ministerial Conference, that took place in Hong Kong in 2005, the representative of the Russian Federation stated that this Declaration would be implemented, whether by the Russian Federation or by the competent bodies of the CU, from the date of the accession of the Russian Federation to the WTO.

321. In response to questions concerning the functioning of world-price contingent tariffs for imported raw cane sugar, a system that had been introduced by Resolution No. 720 of 29 November 2003 "Regarding Tariff Regulation of Import of Raw Sugar and White Sugar in 2004" and that had entered into force on 1 January 2004 and that was now applied pursuant to CU Commission Decision No. 131 of 27 November 2009 "Concerning Tariff Regulation of Sugar Import to the Territory of the Customs Union within the Eurasian Economic Community", the representative of the Russian Federation said that the Russian Federation was both a sugar-producing and a sugar-importing country. Beet sugar production was important from an agricultural and social point of view. The world-price contingent tariff system aimed at maintaining the profitability of the beet sugar industry of the Russian Federation. A minimum profitability of 10 to 12 per cent was considered necessary to ensure the development of this sector. Taking into account the average cost of production of white beet sugar in the Russian Federation (420 USD per tonne), the variations of cane sugar world prices (between 100 USD and 300 USD per tonne), the customs duty applied to imported cane sugar was set at between 140 USD and 270 USD per tonne. Every month, the Ministry of Economic Development of the Russian Federation monitored the evolution of the raw cane sugar world prices and calculated the average price for the two previous months. The customs duty was established on the basis of the data presented to the Ministry as of the first day of the month following the receipt of the data. This procedure was transparent, predictable and automatic.

322. Some Members noted that the system of world price-contingent rates of import duty for raw cane sugar of HS sub-heading 1701.11 that had replaced the tariff rate quota on 1 January 2004 was a measure of a kind required to be eliminated in the Uruguay Round and was prohibited under Article 4 of the WTO Agreement on Agriculture. These Members called for its elimination prior to the date of accession. These Members also noted that, from 1 January 2004, the Russian Federation specified in its customs tariff schedule a series of tariff lines at the 10-digit level for raw cane sugar. The 10-digit tariff lines established different import duties according to the average monthly price in US dollars on the New York Commodity and Raw Materials Exchange. The Members noted that such a system would provide the means for the continuous and automatic adjustment of the import tariff on raw cane sugar of the Russian Federation, thereby impeding the transmission of world prices to the domestic market and preventing opportunities for competition in the market of the Russian Federation. Certain Members reserved their position in relation to this system of tariffs which they considered incompatible with Russia's WTO obligations. These Members expressly reserved the right to pursue this issue pursuant to the WTO Agreement including the General Agreement on Tariffs and Trade and the Understanding on Rules and Procedures Governing the Settlement of Disputes.

323. The representative of the Russian Federation stated that, in his view, the Russian Federation's sugar regime was in compliance with the WTO Agreement and noted that price-based duty rates were widely used by WTO Members. He also informed Members that the Russian Federation confirmed its intention to consider the reform of its tariff regime for sugar in 2012, with a view to its further liberalisation in conformity with the WTO Agreement. The Working Party took note of this commitment.

324. In response to requests from Members, the representative of the Russian Federation confirmed that the Russian Federation would submit its Information Technology Agreement (ITA) Schedule to the ITA Committee for verification, in accordance with ITA procedures, in order to enable the Russian Federation to join the ITA when it became a WTO Member. The Working Party took note of this commitment.

325. The Russian Federation undertook bilateral market access negotiations on goods with Members of the Working Party. The results of these negotiations were contained in the Schedule of Concessions and Commitments on Goods and form Annex I to the Protocol of Accession.

Tariff Exemptions

326. The representative of the Russian Federation noted that from 1 January 2010, the legal basis for granting tariff exemptions on goods imported into the CU could be found in the Agreement on Common Customs and Tariff Regulation of 25 January 2008 between the Governments of the Republic of Belarus, the Republic of Kazakhstan and the Russian Federation (hereafter: Agreement on Customs Regulation). Articles 5 and 6 of this Agreement provided a framework for a unified CU list of tariff exemptions. Article 8 authorised the CU Commission to establish the unified lists. More specific provisions regarding the CU unified list of tariff exempted goods and the implementation of the Agreement on Customs Regulation in this area were elaborated in the Inter-governmental Council Decision No. 18 of 27 November 2009 "On Common Customs Tariff Regulation of the Customs Union of the Republic of Belarus, Republic of Kazakhstan and the Russian Federation" (hereafter: Decision No. 18) and the CU Commission Decision No. 130 of 27 November 2009 "On Common Customs and Tariff Regulation of the Customs Union between the Republic of Belarus, Republic of Kazakhstan and the Russian Federation" (hereafter: Decision No. 130). The Agreement and Decisions also provided for other exemptions or reductions from the Common External Tariff (CET) rates, e.g., tariff concessions for investment purposes (further described in Section "Trade-related Investment Measures (TRIMs)" of this Report), tariff preferences for developing and least-developed countries (further described in Section "Ordinary Customs Duties"), tariff rate quotas (further described in Section "Tariff Quotas"), and special limited derogations for individual CU Parties from the CET as elaborated in the Protocol on Conditions and Procedure for Use in Exceptional Cases of the Rates of Import Customs Duties other than Common Customs Tariff Rates of 12 December 2008 (hereafter: Protocol on Exceptions from the CET).

327. The representative of the Russian Federation said that prior to 1 January 2010, Articles 34 and 35 of the Law of the Russian Federation No. 5003-1 of 21 May 1993 "On Customs Tariff" (as last amended on 28 June 2009) provided the Government the authority to grant tariff exemptions and established the list of categories of goods which were not subject to customs tariffs. These authorities were transferred to the CU Commission on 1 January 2010. He added that appropriate amendments to the Customs Tariff Law and the Federal Law "On Foreign Trade Regulation" of the Russian Federation to confirm these were being developed. Resolutions of the Government formerly issued in accordance with the provisions of the Customs Tariff Law also had provided for some tariff exemptions. These legal instruments either were in the process of being terminated or amended in accordance with CU Decisions. The corresponding draft legislation was being developed by the Federal Customs Service of the Russian Federation.

328. The representative of the Russian Federation added that Article 6 of the Agreement on Customs Regulation provided for the unified list of CU-wide exemptions from the customs tariff rates for the following categories of goods: (i) means of transport of international shipments of freight, baggage and passengers, and goods that maintain them; (ii) products of fishing operations owned or leased by entities and individuals of the CU Parties; (iii) goods imported for official or personal use by third countries' diplomats; (iv) currency and securities in accordance with the Parties' national legislation; (v) goods imported as humanitarian or disaster aid; (vi) goods imported as assistance (including technical assistance) and charity from third countries and international organizations; (vii) goods covered by import customs regimes which call for such duty exemption; (viii) goods imported by individuals for their own use, in accordance with customs regulation legislation; and (ix) goods subject to government expropriation by the CU Parties as provided for in their legislation.

329. In response to concerns from Members regarding MFN treatment in respect of space equipment, the representative of the Russian Federation stated that Federal Law No. 191-FZ of 10 November 2006 "On Amending Article 35 of the Law of the Russian Federation on the Customs Tariff and Article 150 of Part Two of the Tax Code of the Russian Federation" had introduced duty free access for space equipment on an MFN basis. He further noted that, after 1 January 2010, Article 5 of the Agreement on Customs Regulation provided that goods imported within the framework of international cooperation of the CU Parties, including the Russian Federation, in the field of research and exploration of space, and also within the agreements regarding services in spacecraft launch and the goods imported for research and use in the exploration of space and spacecraft launch could be exempted from tariffs. The specific list of above-mentioned goods to be exempted was approved by CU Commission Decision No. 727 of 22 June 2011.

330. Responding to questions from Members, the representative of the Russian Federation stated that, in accordance with Article 5 of the Agreement Customs Regulation, tariff exemptions (or lower duties) also could be established for goods imported as a contribution to the charter capital of an investment approved by national legislation.

331. The representative of the Russian Federation informed Members that the CU Parties could amend the provisions of the Agreement on Customs Regulation through separate Protocols to the Agreement. The CU Commission was authorised by this Agreement and Decision No. 18 to operate the CET, including the authority to add or remove goods from this list of exemptions by a two thirds vote upon request of a CU Party or on its own initiative. A consensus vote was required, if a CU Commission Decision would modify the unified list of exemptions concerning "sensitive products" defined by the CU Parties, or where consensus was specifically required in accordance with provisions of a separate CU legal act.

332. The representative of the Russian Federation noted that Article 6 of the Agreement on Customs Regulation also provided that goods could be exempted from the customs duty within the framework of customs regimes provided for in relevant customs legislation e.g., the CU Customs Code. Article 80 of the CU Customs Code listed the situations when customs duties need not be paid, which reflected circumstances faced by customs officials in the course of customs processing. These circumstances included: (i) when it was provided for in accordance with the legislation of the CU Parties (e.g., CU Commission Decision No. 130 or the Federal Law "On Customs Regulation") or the provisions of the CU Customs Code; (ii) when customs duties had already been paid or when the amount owed was less than 2 EUR; (iii) when goods were exempted from customs duties during the period of validity of such an exemption and when fulfilling the conditions, under which such exemption was granted; (iv) when goods were placed under customs procedures (regimes) not providing for such payment; (v) when the total customs value of goods, imported by one person on one invoice did not exceed 200 EUR; (vi) when goods had been destroyed or irretrievably lost as a consequence of an accident, force majeure, or as the result of natural deterioration under normal transportation and storage prior to their release; (vii) when goods had been converted into property of a CU Party in accordance with its national legislation; and (viii) when goods were not released.

333. In response to a question from a Member, the representative of the Russian Federation informed Members that in accordance with Article 2 of the Protocol on Exceptions from the CET, the CU Commission could decide that a lower or higher duty rate than the CET would be applied by one of the CU Parties, if one of the following exceptional circumstances existed: (i) such a measure was a necessary condition for the development of industries of that CU Party; (ii) the CU Party concerned faced an acute shortage of goods; (iii) such a measure was necessary to address the socially relevant needs of the population of the concerned CU Party; or (iv) to address the needs of production, which depended largely on traditional imports from third countries and could not be implemented through the production of this or similar goods in the CU. Article 4 of this Protocol provided that the CU Commission Decisions, in these cases, were adopted by consensus and that a different tariff rate by one CU Party could be applied for no longer than six months, unless extended, following the relevant procedures foreseen in the Protocol. The list of all tariff exemptions granted under the Protocol on Exceptions from the CET and currently applied by the individual CU Parties was included in Table 19.

334. Some Members noted that certain tariff exemptions granted currently or in the past for investment purposes (automobiles and Production Sharing Agreements (PSA) projects) or to promote domestic industry (aircraft) continued to be of concern. These Members sought a commitment from the Russian Federation to use its authority to grant such exemptions in conformity with WTO provisions. A Member noted, in particular, that the future WTO obligations of the Russian Federation required the Russian Federation to provide MFN treatment and to waive the import duties applied to certain imports of space equipment, and also required the Russian Federation to confirm that discriminatory tariff exemptions for aircrafts had been terminated.

335. The representative of the Russian Federation replied that further information on the tariff exemptions granted currently or in the past by the Russian Federation for investment purposes were discussed in the Sections on "Trade-related Investment Measures (TRIMs)" and "Industrial policy, including subsidy policies" of this Report. Goods imported to be used in work and operations specified in Product Sharing Agreements were exempted from the import tariff, pursuant to Point 9 of Article No. 346.35 of the Tax Code of the Russian Federation which remained in effect until the CU Commission issued a Decision in respect of goods imported under PSAs. Tariff exemptions for aircraft had been terminated in the Russian Federation, but were being considered on a temporary basis in the context of requests by certain CU Parties for imports of certain large commercial aircraft. These tariff exemptions had not yet been approved or implemented.

336. The representative of the Russian Federation informed Members that the Russian Federation, at this time, did not utilize any other tariff exemptions than those described in this and other relevant Sections of this Report.

337. The representative of the Russian Federation confirmed that no later than from the date of accession any tariff exemption for space equipment would be provided on an MFN basis. The Working Party took note of this commitment.

Tariff Quotas

338. Some Members expressed concerns regarding the decision of the Russian Federation, in 2002, to have recourse to tariff rate quotas (TRQs), particularly on products that were previously subject to tariffs only. These Members considered that the introduction of TRQs had been a step backward from the trade liberalization that should be expected by acceding to the WTO and that, in their view, a tariff-only regime would be preferable as it would allow for the market to select suppliers that provided the best combination of price, quality, and stable offer of goods. They requested a description of the current and prospective legal authority for introducing TRQs and determining the rules for allocating quota shares among importers as well as any related licensing procedures in the Russian Federation and in the CU. Members noted that any method of allocating quotas or licenses must be consistent with WTO provisions, notably Articles I, II, VIII, X, XI, and XIII of the GATT 1994, the Agreement on Import Licensing Procedures and Article 4 of the Agreement on Agriculture. Several Members also stressed that the Russian Federation had to ensure that any TRQs would preserve existing levels of trade, provide annual growth and would be limited in time. In any case, full details of tariff quota administration measures should be provided in order to assess their conformity with WTO provisions.

339. The representative of the Russian Federation stated that, pursuant to the provisions of Article 8 of the Agreement on Common System of Customs Regulation of 25 January 2008, the CU Commission was the competent authority to introduce TRQs and to determine the rules for allocation of in-quota volumes. The Agreement on Conditions and Mechanism of Implementation of Tariff Rate Quotas (hereafter: TRQ Agreement) was signed by the CU Parties on 12 December 2008, and entered into force on 1 January 2010.

340. Article 2 of the TRQ Agreement set-out the legal basis for establishing TRQs within the CU. Both the allocation of quotas among the CU Parties and the method of quota allocation among importers within the CU were subject to approval by the CU Commission. The TRQ Agreement specifically provided that the method of allocation of shares in the quota among importers must be non-discriminatory. Article 5 of the TRQ Agreement set-out the general non-discrimination principle in allocation of TRQs amongst importers based on their form of ownership, place of registration or position in the market. In the Russian Federation, TRQ allocations could be distributed amongst foreign-owned as well as Russian-owned firms established as Russian legal entities, as well as natural persons registered as individual entrepreneurs. If the CU Commission decided to establish a TRQ, the Decision would stipulate the period of its implementation. In cases when country-specific TRQs (CSTRQs) were allocated, the Commission would inform all interested countries about the volume of their respective CSTRQs. The CU Commission published information on the global volume of the TRQ and the period of its implementation, in- and out-of-quota rates, and its allocation among exporting countries. The allocation of CSTRQs was based on results of consultations with major suppliers, i.e., those supplying at least 10 per cent of imports, or on trade statistics for a previous representative period, which was normally three years. The Law of the Russian Federation No. 5003-1 of 21 May 1993 "On Customs Tariff" (as last amended on 8 December 2010), which established the general legal framework for the establishment and administration of TRQs at the national level, was in force, but the relevant provisions of the CU agreements prevailed in case of contradiction (according to Article 38 of that Law).

341. The representative of the Russian Federation further explained that each year the CU Commission established the list of goods subject to TRQs, the volume of TRQs, and whether CU Bodies or national bodies acting under national law would be responsible for the administration of TRQs. The respective list of such goods for the year 2011 and TRQ volumes were established by CU Commission Decision No. 505 of 18 November 2010. These TRQs covered pork, poultry and bovine meat (see Table 39). By that Decision, the CU Commission also determined that, in the year 2011, the TRQs in the CU Parties would be administered by the Governments of the CU Parties in accordance with national legislation. In the Russian Federation the rules on administration of TRQs for the year 2011 were set-out in Government Resolution No. 1111 of 24 December 2010, implementing CU Commission Decision No. 505 in the Russian Federation.

342. The representative of the Russian Federation further informed Members that customs clearance of goods subject to TRQs was carried out on the basis of a licence issued by the competent authority in the relevant CU Party. The licence would be issued on the basis of an application submitted by an importer who had been allocated a share of the in-quota volume.

343. In response to a question from a Member, the representative of the Russian Federation explained that necessity to establish TRQs on imports of beef, pork and poultry was caused by the need to create favourable conditions for the development of respective domestic industries which substantially suffered from increased imports. He noted that a two-level (in-quota and out-of quota) tariff had been applied to imports of beef (HS 0201 and HS 0202) and pork (HS 0203) since April 2003. From 1 January 2006, the safeguard quota on poultry was converted into a TRQ. TRQs provided an opportunity to import a certain quantity of frozen, fresh and chilled beef, pork and poultry per year at a lower duty. In response to a question from a Member, the representative of the Russian Federation noted that, currently there was no intention of the CU Parties to establish CU-wide TRQs in place of current national TRQs.

344. Concerning the TRQ for sugar, he noted that this TRQ had been applied in the Russian Federation from 2001 to 2003 to imports of raw sugar originating from GSP beneficiaries. He added that the TRQ on raw sugar had been eliminated pursuant to Government Resolution No. 720 of 29 November 2003. Currently, raw sugar imports were subject to import tariffs only.

345. A Member of the Working Party said that it considered the elimination of the preferential tariff rate quota on raw cane sugar mentioned in paragraph 344 on 31 December 2003 to be a positive step given that this measure had represented an increase in the level of import restriction on previous levels. This Member, however, considered that a backward step had been taken on 1 January 2004 by the replacement of the tariff quota not with a single rate of import duty but a world-price contingent import tariff, which was a measure of a kind required to be eliminated in the Uruguay Round and prohibited under Article 4.2 of the WTO Agreement on Agriculture.

346. In response, the representative of the Russian Federation stated that this kind of duty did not differ from ordinary customs duties, and, thus was subject to bilateral tariff negotiations. He added that such types of rates were widely used by WTO Members. He referred Members to paragraph 321 of the Section "Ordinary Customs Duties" of this Report for further details.

347. Regarding the TRQs on beef, pork and poultry, the representative of the Russian Federation informed Members that the quantities allowed for importation under the TRQ regime in 2011, as established by the CU Commission Decision No. 505, were reproduced in Table 40. Imports in excess of these amounts were subject to a higher duty. The distribution of quotas within TRQs on beef, pork and poultry was based on the historical shares of main suppliers of the Russian Federation. He noted that high-quality beef had been excluded from the TRQ regime pursuant to Government Resolutions.

348. Pursuant to Government Resolution No. 1111 of 24 December 2010, the Ministry of Economic Development of the Russian Federation was the body responsible for the distribution of in-quota volumes within the TRQs. The Ministry of Industry and Trade (the MIT) of the Russian Federation was the body responsible for issuing non-automatic licenses for imports under TRQs.

349. Regarding the previously existing practice of distributing the TRQs by auctioning, some Members requested a clarification of whether the Russian Federation or the CU intended to use auctioning of TRQs in the future. If so, these Members requested a confirmation that there would be no legal requirements to participate in TRQ auctions that could favour local production, such as requirements to enter into contracts to purchase domestic products or requirements to provide domestic producers with inputs. Several Members stated that, to the extent that any auction charges associated with the allocation of TRQs exceeded the tariff bindings of the Russian Federation, they would be inconsistent with the obligations of the Russian Federation under Article II of the GATT 1994. In addition, auctioning fees were inconsistent with Article 4.2 of the Agreement on Agriculture, as they increased the effective price of importation to the equivalent price of imports at the out-of-quota rate and could, therefore, be considered a "similar border measure", as referred to in Article 4.2 of the Agreement. The existence of minimum auction prices would also violate Article 4.2 of the Agreement on Agriculture as they would serve as a minimum import price by placing a floor under the auction price. They also noted that allocation of quotas without regard to Articles XI and XIII of the GATT 1994 would violate WTO provisions. These Members sought a commitment from the Russian Federation that any fees, charges or revenues collected from auctioning TRQ volumes would not exceed the bound rate of duty established for the product concerned. Some Members also maintained that the auctioning method for distributing TRQs was not fully consistent with the GATT 1994 and discriminated against those Members that did not provide export subsidies.