FEDERATION TO THE WORLD TRADE ORGANIZATION 19 страница

529. Members of the Working Party sought to ensure that the CU Agreements and Customs Code and the Federal Law on Customs Regulation provided for rules of origin that complied with the WTO Agreement on Rules of Origin. Several Members requested further information and clarification from the representative of the Russian Federation on how these measures established preferential and non-preferential rules of origin. Members also expressed the view that the requirement of the Russian Federation that imports of non-MFN origin were subject to twice the MFN tariff rate, if MFN origin could not be initially proven, was unduly burdensome, given that after the accession of the Russian Federation to the WTO, goods originating in a only a small number of countries could originate from non-MFN trading partners. These Members sought a commitment from the Russian Federation that it would assess the MFN rate on all goods originating from countries enjoying MFN duty rate from the date of the accession to the WTO of the Russian Federation. They also noted that goods, whose origin had not been clearly established, were cleared through customs only after payment of customs duties at a double MFN rate of the customs tariff. Some Members asked the Russian Federation to clarify whether in such cases it was possible to submit a certificate of origin or other proof subsequent to customs clearance and, if origin was subsequently satisfactorily established, whether excess duties were then refunded. Some Members also expressed concerns about the consistency with the WTO Agreement on Rules of Origin of the provisions of the CU Customs Code and the CU Agreement on Rules of Origin providing that "the country of origin could also be understood to mean a group of countries, region or part of a country, if this was necessary to identify them, with a view to determining the origin of goods." They observed that the WTO Agreement referred to a "country" of origin, not to groups of countries or regions, or part of a country and they requested a clarification of the meaning of these provisions and specific examples of how and under what circumstances the origin of a good could be ascribed to a region or part of a country. These Members requested confirmation from the Russian Federation that these provisions would be applied in full conformity with the WTO Agreement.

530. In response, the representative of the Russian Federation informed Members that the option of specifying a region or part of a country was applied in cases where it was necessary to define the origin of the goods as such. So far it had been applied within the procedure of implementation of trade defence measures.

531. The representative of the Russian Federation explained that, pursuant to Article 58 of the CU Customs Code, goods were recognised as originating from a specific country, if they were wholly made in that country or substantially transformed in accordance with criteria set-forth in the CU Agreement on Rules of Origin and CU Commission decisions. The country of origin of goods could also be a group of countries, a customs union, a region, or a part of a country, if the exact country of origin within the group of countries was difficult or could not be determined. Under those circumstances, the relevant group of countries, customs union, or, if necessary to identify origin, a region or part of a country could be considered as the country of origin of the goods. The basic criterion for substantial transformation for non-preferential goods was the shift in the tariff classification of the good on the level of at least one of the first four digits, as prescribed by paragraph 4 of the Rules of Determination of the Country of Origin annexed to the CU Agreement on Rules of Origin. Paragraph 2 of the Rules of Determination of the Country of Origin supplied an exhaustive list of the kinds of goods which could be produced wholly in a country. Paragraph 5 included an illustrative list of operations which did not satisfy the criteria for production of a good within a country. Other criteria of sufficient transformation could be established exclusively by the CU Commission, as set-out in paragraph 6.

532. The representative of the Russian Federation also explained that, in the event that goods were supplied in a dismantled or unassembled state over several shipments - when it was impossible to deliver the whole lot at one time due to production or transportation problems or when the lot of goods had, by mistake, been divided into parts - paragraphs 8 and 9 of the CU Rules of Determination of the Country of Origin established a number of specific rules to assist in determining the country of origin of goods (e.g., the indicated goods could, at the discretion of the importer, be considered as one shipment).

533. The representative of the Russian Federation further explained that, in accordance with Article 62 of the CU Customs Code, when goods were brought into the customs territory of the Customs Union, a document must be shown to confirm the country of origin of the goods, if the Russian Federation (or other CU Party) granted preferential tariffs to the country of origin of the goods under the Protocol on Common System of Tariff Preferences of Customs Union, signed on 28 January 2008, or other international treaties and agreements of the Russian Federation (or other CU Party) or the legislation of the Russian Federation. The CU Customs Code also established cases where certificates of origin were mandatory or where the customs authorities had the authority to require that a certificate of origin be provided. This authority existed when there was reasonable basis to believe that the information initially provided on the country of origin of the relevant goods was false. Currently, a certificate of origin (either the "A" Document attached to the Annex to the Agreement on Rules of Origin of Goods from Developing and Least-developed Countries or, for CIS preferences, the ST-1 document) was required. Goods were considered as originating from a developing or least-developed country subject to tariff preferential treatment when they were fully produced in such a country. He added that Part III of Annex I of the Agreement on Rules of Origin of Goods from Developing and Least-developed Countries provided that CU Parties could establish a procedure for the application of criteria of substantial transformation for countries eligible for tariff preferences, based on the determination that the value of inputs used in the production process originating from countries not covered by preferential treatment or of unknown origin did not exceed 50 per cent of the total declared value. He also noted that Part VI of Annex I provided the terms for application of the rules of direct purchase and direct shipping for granting preferential tariffs. He further informed Members that the provisions of Article 111 of the Law "On Customs Regulation", which stipulated the procedure for issuance of the assessment of origin of goods, was, in his view, in full conformity with Article 2 (h) of the WTO Agreement on Rules of Origin and Article 3 (d) to (f) of Annex II to the said Agreement, and that the provisions of Article 3 (g) of the Annex were reflected in Articles 8 and 10 of the CU Customs Code.

534. He added that, pursuant to Article 63 of the CU Customs Code, MFN treatment was granted, if the country of origin was declared and accepted as being a country receiving MFN tariff treatment. For MFN treatment no certificate of origin was required. Where MFN treatment existed in respect of the country of origin, customs duties were charged at the MFN rates. The CU Customs Code also provided that customs duties were charged at the double rate only when the customs authorities actually had evidence that the goods at issue had originated from a country in respect of which the Russian Federation did not apply MFN treatment. These goods could enter the Customs Union, but a security would have to be provided for the payment of customs duties at the double MFN rates, until the origin of the goods could be established.

535. He stated that when the certificate of origin or other proof was accepted, MFN treatment would be applied for one year after release of the goods and the importer could recover the difference in the duties paid. Customs duties were reimbursed within one year from the date of over-payment of customs duties upon the submission, by the payer, of a request, as provided for in Chapter 13 of the CU Customs Code. Such a request had to be submitted to the customs office to which duties had been paid.

536. He further noted that, pursuant to Article 63.1 of the CU Customs Code, if the customs authorities had no indication that a good was originating from a country in respect of which the Russian Federation did not apply MFN treatment, customs duties would be charged at the MFN tariff rate irrespective of the availability or absence of a certificate of origin.

537. The representative of the Russian Federation added that, pursuant to Article 61 of the CU Customs Code, the certificate of origin of goods constituted documentary proof of the country of origin of goods issued by the competent body or organization of a given country or of the country of exportation of the said goods, if the country of exportation issued such certificates based on the information obtained from the country of origin of such goods. According to Article 62 of the CU Customs Code the certificate was required only in cases where tariff preferences were claimed. The certificate of origin was to be submitted with the customs declaration and other documents presented for customs clearance. If the certificate of origin of goods was not properly executed (e.g., there were violations of the Customs Union requirements for its design and/or completion, as contained in Annex II to the Agreement on Rules for Determining the Origin of Goods from Developing and Least Developed Countries of 12 December 2008); the customs authorities had the authority to accept or deny the certificate as a basis for granting tariff preferences. Pursuant to Section VIII of the CU Agreement on Rules of Origin of Developing and Least-developed Countries, in case of reasonable doubts in respect of authenticity of the certificate or information contained in it, the customs authorities could lodge a request with the competent bodies or organizations in the country that had issued the certificate of origin to provide additional documentary proofs. The customs authorities could also request additional documentary proofs or clarifications for the purpose of carrying out spot checks. Such spot checks, however, must not impede the process of customs clearance of goods based on the information of their country of origin declared during the customs formalities in respect of these goods. He also stated that, when the certificate of origin or other proof was not accepted, MFN treatment would be applied until the origin of the goods was established. The importer could recover the difference in the duties paid for a period of one year from the date of over-payment upon the submission, by the payer, of a request, as provided for in Chapter 13 of the CU Customs Code. Such a request had to be submitted to the customs office to which duties had been paid.

538. As for the rules of origin for goods traded within the Customs Union and/or goods covered by Free Trade Agreements between the Russian Federation and other CIS Members, the representative of the Russian Federation explained that the Russian Federation applied the "Rules of Origin of Goods" approved by the Council of Heads of CIS Governments on 30 November 2000 (hereafter: Decision of 30 November 2000) and the Agreement of the CIS States of 12 April 1996 "On Rules of Origin of Goods Originating from Developing Countries for the Purposes of Tariff Preferences under the General Preferences System". These rules had been developed pursuant to the international practice for determination of origin. Additional criteria of direct purchase were used, along with requirements that the exporter be established legally in a Party to the CIS Free Trade Agreement (as originally provided for in the Decision of the Heads of Government of other CIS Countries of 18 October 1996). Currently, there were no other arrangements for the determination of the country of origin of goods within the framework of the Customs Union, the Eurasian Economic Community, or the CIS. This situation would change when the Agreement of the CIS States of 20 November 2009 on the Rules of Origin in the CIS entered into force and replaced the rules of origin established earlier by the Decision of 30 November 2000 for all CIS Members.

539. Concerning Free Trade Arrangements of the Russian Federation with Serbia and Montenegro (and in the future, with any other countries not Members of the CIS), he noted that the rules of origin for these preferential arrangements were contained in the Free Trade Agreements themselves.

540. Members sought clarification of the requirement that the exporter be a legally established resident in a Party to a CIS Free Trade Agreement, and asked, if corporate registration would satisfy that requirement, or whether there were other criteria that must be satisfied.

541. In response to the request for additional information, the representative of the Russian Federation stated that, as for the requirement that the exporter be legally established in a Party to the CIS Agreement there were not any other criteria apart from registration.

542. Several Members also requested information on the right to request an origin determination prior to shipment, and requested a commitment that these provisions be applied in line with the requirements of Article 2 (h) and Annex II, paragraph 3 (d) of the WTO Agreement on Rules of Origin. They sought information on where these provisions could be found in the Agreements of the Customs Union that governed the application of the rules of origin and the customs legislation of the Russian Federation. They also indicated that the preferential rules of origin for CIS countries and other preferential trade agreements to which the Russian Federation belonged should fully reflect the interim rules of Annex II of the WTO Agreement on Rules of Origin. In this regard, these Members requested clarification of whether the Decision of the Council of the Governments of the Commonwealth of Independent States on the Rules of Origin of Goods of 30 November 2000 or the provisions of the CU Agreements on Rules of Origin and on Rules of Origin for Developing Countries and LDCs met these requirements, and sought a commitment as to their implementation in accordance with the WTO Agreement on Rules of Origin upon the accession to the WTO of the Russian Federation. Some Members also asked for a clarification of whether customs procedures included any guarantee system which allowed release of goods pending determination of preferential origin and how any associated rectification procedure (subsequent refund or recovery of customs duties) actually operated. These Members further inquired whether provisions existed in the customs laws of the Russian Federation for the protection of confidential information supplied for the purpose of application of the rules of origin.

543. In response, the representative of the Russian Federation stated that, pursuant to Article 111 of the Federal Law "On Customs Regulation" (No. 311-FZ of 27 November 2010), the Federal Customs Service could make a preliminary decision on the country of origin of goods. He informed Members that information on guarantee systems was in the "Customs Valuation" and "Customs Regulations and Procedures" Sections of the Report. As for confidentiality of information, he explained that Article 8 of the CU Customs Code established confidentiality requirements for all information presented by declarants for customs purposes. That Article provided that the customs authorities "...shall not disclose, use for personal purposes or transfer the information containing state, commercial, banking, tax, or other legally protected secrets, and other confidential information to third parties, including public authorities, except in cases stipulated by this Code and/or the laws of the Member States of the Customs Union." Specific provisions on confidentiality of data were contained in Article 13 of Federal Law No. 98-FZ of 29 July 2004 "On Commercial Secrets", which obligated Government authorities and bodies in the Russian Federation to ensure the protection of confidential information presented to them by legal persons or individual entrepreneurs. He stated that, in his view, the CU Customs Code, other international agreements and the national legislation of the Russian Federation described in this Section contained provisions to fully reflect the requirements of the WTO Agreement on Rules of Origin.

544. Members of the Working Party thanked the representative of the Russian Federation for this information, but noted that neither the CU Customs Code nor the CU Agreements and Rules providing for the application of rules of origin appeared to provide for a time period of no later than 150 days after a request for issuing a preliminary decision on the origin of a product had been submitted, provided that all required information had been submitted. They requested that the representative of the Russian Federation identify the requirements implementing Article 2 (h) and Annex II, paragraph 3 (d) of the WTO Agreement on Rules of Origin be identified in CU Agreements or decisions and the customs legislation of the Russian Federation. Those Members also requested information on whether Custom Union and the preferential rules of origin for the FTAs of the Russian Federation with CIS, EAEC, the Single Economic Space, or other such Agreements, reflected the interim rules of the WTO Agreement in Annex II of the Agreement on Rules of Origin.

545. Concerning the requirements of Article 2 (h) and Annex II, paragraph 3 (d) of the WTO Agreement on Rules of Origin, the representative of the Russian Federation explained that, in accordance with Article 58 of the CU Customs Code, customs authorities of a CU Party had the authority to make preliminary decisions in respect of country of origin in the order stipulated by its national legislation. In the Russian Federation, these requirements currently were reflected in FCS Order No. 906 of 23 July 2008 "On the Approval of the Regulations on the Procedure for Provision by the FCS of the State Service of Taking Preliminary Decisions on the Classification of a Commodity in Accordance with Commodity Classification of Foreign Economic Activity and on the Country of Origin of a Commodity". In addition, preliminary decisions on the origin of a product had to be taken within 90 days from the date of receipt of a request by an interested party by the customs body, in accordance with the Article 111 of the Federal Law "On Customs Regulation", No. 311-FZ of 27 November 2010, which became effective on 27 December 2010. The request needed to contain information sufficient to make such a decision. Preliminary decisions were valid for three years unless they were changed, withdrawn or terminated. After the entry into force of the Federal Law on Customs Regulation, a new FCS order for making a preliminary decision in respect of country of origin in line with the provisions of Article 111 would be developed and applied.

546. One Member reiterated that the Orders of the State Customs Committee (SCC) of the Russian Federation No. 961-r of 4 October 2001 and No. 1002 of 19 October 2001 ran counter to the provisions of the Constitution of the Russian Federation, particularly, Article 15 which stated that "if an international treaty to which the Russian Federation is party provides for other rules than those set-forth by Russian Federation domestic law, the rules of the international treaty should apply". That Member was of the view that those Orders of the State Customs Committee violated the provisions of the bilateral agreement between this Member and the Russian Federation on Customs Check Points, and should immediately be eliminated to ensure the consistency with the requirements of that bilateral agreement.

547. In response, the representative of the Russian Federation noted that the Orders of the State Customs Committee of the Russian Federation No. 961-r of 4 October 2001 and No. 1002 of 19 October 2001 had been abolished.

548. The representative of the Russian Federation confirmed that from the date of accession, measures on rules of origin, whether adopted by the Russian Federation or the competent bodies of the CU, would be applied in the Russian Federation in conformity with the provisions of the WTO Agreement on Rules of Origin, and would reflect the interim rules in Annex II to that Agreement, including the provisions for transparency, right of appeal, and notifications to the WTO Committee on Rules of Origin. He further confirmed that, consistent with the requirements of Article 2 (h) and of Annex II, paragraph 3 (d), both for non-preferential and preferential rules of origin, customs authorities would provide an assessment of the origin of goods subject to import upon the request of an exporter, importer or any person with a justifiable cause and issue the assessment no later than 150 days after a request provided that all necessary elements had been submitted. According to the provisions of the WTO Agreement on Rules of Origin, any request for such an assessment would be accepted before trade in the goods concerned had begun, and any such assessment would be valid for three years provided that the facts and conditions, including the rules of origin, under which they had been made remain comparable. He further confirmed that the practice of using "double MFN" rates as the default tariff rates for imports of undeterminable origin had been eliminated. The Working Party took note of these commitments.

Other Customs Formalities

549. Several Members stressed that the simplification of border controls and customs documentation necessary for importation in the Russian Federation would have a favourable impact through reduced costs and improved efficiency for Russian traders.

550. In response, the representative of the Russian Federation stated that the policy of his Government was aimed at creating favourable conditions for trade facilitation, including customs formalities. To that end, customs formalities in the Russian Federation were being brought into compliance with the internationally accepted rules, in particular, with the Revised Kyoto Convention on the Simplification and Harmonization of Customs Procedures. A number of such improvements had been established with the implementation of Federal Law No. 61-FZ of 28 May 2003, i.e., the Customs Code of the Russian Federation, on 1 January 2004. Further efforts to streamline and harmonize customs formalities had occurred with the entry into force of the CU Customs Code, on 1 July 2010, and with additional domestic legislation in the form of Federal Law No. 311-FZ of 27 November 2010 "On Customs Regulation" and Federal Law No. 394-FZ of 28 December 2010 "On the Transfer of Certain Types of Controls to Customs". The maximum clearance period was reduced from 72 to 24 hours. These Laws replaced Federal Law No. 61-FZ, except for Article 357.10 that stipulated the right of the Government to introduce rates of fees for customs clearance and established the current authority of the FCS in the area of customs clearance and customs checkpoints.

551. One Member of the Working Party noted that, under State Customs Committee Order No. 155 of 14 February 2001 "On the Procedure for Coordination of Decisions to Release Goods for Free Circulation" and Order No. 949 of 31 December 1999 "On Amending Order No. 258 of the SCC of 26 April 1996" (in the wording of SCC Order No. 43 of 31 January 1997 and, as amended on 10 March 2000) certain goods that qualified as "high-risk" (e.g., certain foodstuffs) were not released for free circulation without the specific approval of a higher customs authority. The process of obtaining such approval could last from one to two weeks. Under rules introduced in October 2001 by the North Western Customs Authority, shipments of "risk products" (a wide group of products including coffee, furniture, tyres and washing machines) were subject to burdensome documentary requirements, including in relationship to the ownership of the vehicle transporting the goods. The Russian Federation had also imposed restrictions that required customs clearance for certain goods, including textiles, clothing and electrical products, to take place only on borders with certain Asian countries as well as in certain ports and airports. Consequently, such items originating in Asia could no longer be exported to the Russian Federation via the customs territory of that Member. As well as raising concerns in relation to conformity with WTO requirements on trade in transit, these Orders made it impossible for companies, exporting to the Russian Federation, to use raw materials from the Far East for sub-contracting and, subsequently, created a barrier to business cooperation. The cumulative effect was that exporters to the Russian Federation faced unpredictable, non-transparent, lengthy and generally burdensome customs procedures for certain imported goods at the designated customs checkpoints of entry into the territory. Checks on imported goods should not be applied in such a heavy-handed or non-transparent manner. These Members considered that the Russian Federation should enter a commitment to respect standard WTO requirements of transparency, predictability and uniform application in this regard.

552. Another Member said that his authorities had concerns with the practice used by the Russian Federation customs bodies in respect of the transport companies of this Member. He noted that country-specific restrictive customs procedures were incompatible with WTO provisions, notably those in Articles I and VIII of the GATT 1994. This Member requested the Russian Federation to ensure that these and other country-specific measures, relating to customs procedures, would be brought in to full conformity with the WTO requirements, prior to accession.

553. In response to concerns from Members regarding the designated customs entry checkpoints, the representative of the Russian Federation noted that, pursuant to Article 156 of the CU Customs Code and Article 193 of Federal Law No. 311-FZ, the Government of the Russian Federation had the right to designate customs entry checkpoints for certain categories of goods and could establish certain places for entry at the border in compliance with the legislation of the Russian Federation regarding the State border. These measures were necessary and were not intended to complicate import processing. He explained that the measures mentioned by Members, including the designation of customs entry checkpoints for particular goods and at certain border customs checkpoints, were aimed to assure accurate classification and valuation of the goods and to increase predictability and accuracy of customs procedures for traders and transporters. They were not intended to act as a hidden or unnecessary restriction to trade, bearing in mind insufficient resources to equip all border customs checkpoints with the necessary equipment and storage facilities. He also mentioned that respective restrictions and procedures were in accordance with the International Convention on the Simplification and Harmonization of Customs Procedures (Revised Kyoto Convention, 1999), in particular, with its Specific Annex A, Chapter 1, according to which national legislation specified the places at which such goods could enter the territory of the Russian Federation.

554. With regard to the designated customs checkpoints for import declaration, the representative of the Russian Federation stated that his Government paid substantial attention to the implementation of legislative and practical measures aimed at the creation of stable and predictable conditions for implementation of customs formalities. After the entry into force on 1 January 2004 of the Customs Code of the Russian Federation, the number of legislative acts establishing restrictions on places of declaration of goods was reduced by two thirds and amounted to twelve at that time, as compared with 34 in mid-2003. He added that a Plan on Further Phasing out Restrictions in Respect of Specific Customs Points for the Declaration of Specific Types of Goods had been prepared and implemented. By October 2005, another four SCC Orders "On Establishing Specific Customs Checkpoints for the Declaration of Specific Types of Goods" had been abolished by the MEDT Order No. 347 of 23 December 2004, namely: SCC Order Nos. 1049, 1050, and 1051 of 19 September 2003, and SCC Order No. 1540 of 25 December 2003. Also, SCC Order No. 1443 of 11 December 2003 "On Establishing Specific Customs Checkpoints for the Declaration of Specific Types of Goods" had been abolished by MEDT Order No. 128 of 13 June 2005 and MEDT Order No. 68 of 4 April 2005 "On Establishing Specific Customs Checkpoints for the Declaration of Specific Types of Goods" had been abolished by MEDT Order No. 193 of 17 August 2005. The representative of the Russian Federation added that SCC Order No. 155 of 14 February 2001 "On the Procedure for Coordination of Decisions to Release Goods for Free Circulation" mentioned in paragraph 551 had been invalidated by SCC Order No. 28 of 5 August 2002. He explained that the release of goods was now governed by Chapter 28 of the CU Customs Code, as elaborated in Section 25 of Federal Law No. 311-FZ (Articles 218 to 223).