FEDERATION TO THE WORLD TRADE ORGANIZATION 20 страница

555. The representative of the Russian Federation noted that these measures had resulted in the gradual elimination of product categories of goods from the list of those subject to declaration for import at the designated customs checkpoints. The customs checkpoints designated for the purpose of customs declaration of certain goods for import were established throughout the customs territory of the country in proximity to respective international transport infrastructure or regions of major consumption or processing of imported products. This process of simplification and liberalization would be accelerated under the trade regime of the Customs Union.

556. The representative of the Russian Federation added that, after implementation of the above-mentioned Plan, only a limited number of categories of goods remained subject to customs declaration and/or entry at the designated customs checkpoints. By 1 January 2011, the list of goods subject to such restrictions of the place of declaration and/or entry had been reduced to include only the following goods: (i) poultry meat and poultry offal for food (HS Code 0207), which was permitted only at sea and air checkpoints if, the country of origin was not connected with the Russian Federation by means of land transportation, meat and meat by-products used as food (HS Code 02); (ii) goods subject to excise tax (certain alcohol and tobacco products, certain automotive goods); (iii) alcohol products originating in the Republic of Moldova; (iv) goods transported by pipelines and electric power grids; (v) certain wood products (HS Codes 4401, 4403, 4404, 4406, 4407); (vi) goods transported by international mail; (vii) goods for exhibitions; (viii) goods transported by air; (ix) precious stones and metals (HS Codes 9101, 9102, 9103, 9105, 9111, 9112); (x) banknotes, securities, and coins (HS Codes 4907 00 300 0, 4907 00 900 0, 7118 90 000 0); (xi) fissionable and radio-active materials (HS Codes 2612, 2844 and HS Code 8401 30 000); (xii) goods subject to temporary admission; and (xiii) diplomatic correspondence and goods, conveyed by certain categories of foreign persons. He also noted that a comprehensive list of categories of goods currently subject to measures requiring declaration for import and/or entry at designated customs checkpoints was reflected in Table 13 and Table 14. The Russian Federation expected that, gradually, goods crossing the border could be declared at the majority of customs checkpoints rather than at the designated customs checkpoints, and that the Russian Federation was ready to constructively address, in the meantime, to the extent possible, any specific concerns of Members with a view to facilitating trade flows.

557. Currently, in accordance with Article 190 of the CU Customs Code and Articles 10.4 and 205 of Federal Law No. 311-FZ, the FCS was authorised to designate specific customs checkpoints for the declaration of specific types of goods in order to ensure the effectiveness of control over the observance of the customs legislation, only if it was necessary to use specialised equipment and/or special knowledge to perform customs formalities, in respect of such goods as cultural valuables, goods of precious metals, weaponry, military material and ammunition, radioactive and fission materials, and other certain kinds of goods; or if it was necessary to accelerate the release of goods, such as express cargo, exhibition samples, goods imported to or exported from exclusive economic zones, etc. (Article 205 of Federal Law No. 311-FZ). In case a customs declaration was submitted to a different customs checkpoint than that designated, the customs declaration would be denied.

558. In response to the concern of a Member, the representative of the Russian Federation added that the policy of its customs authorities was to establish such customs checkpoints close to places where goods, such as precious stones and metals destined for exhibitions were mostly sold, exhibited, consumed or used otherwise. For example, designated customs checkpoints for the clearance of goods for exhibitions were functioning directly in the premises of the biggest exhibition centres in Moscow or St. Petersburg.

559. A Member asked whether the public was permitted to comment on the categories of goods designated for special treatment or on the development of such special methods, prior to implementation. The representative of the Russian Federation replied that Article 53 of Federal Law No. 311-FZ provided for the possibility of holding consultations and other procedures with the FCS, aimed at ensuring transparency with regard to matters relating to Customs Union legal acts, and other matters within the competence of national customs authorities.

560. Members of the Working Party also noted that the industry and exporters had regular experience of inconsistencies between administrative decisions taken by the authorities of the Russian Federation and the prevailing legislation of the Russian Federation. Moreover, inconsistencies appeared to exist between the general legislative framework and subsidiary regulations and administrative guidance issued by the Government bodies of the Russian Federation (such as the FCS). They expected the Russian Federation to undertake a commitment that, upon accession, all regulations, formalities and requirements connected with the importation of goods, including in relation to statistical control, customs clearance, documents, documentation and certification, inspection and analysis, and any changes to these regulations, formalities and requirements would be published promptly and, in any case, sufficiently in advance of its entry into force and would be applied in a uniform, impartial and reasonable manner across the customs territory of the Russian Federation, consistent with WTO requirements, including Articles VIII and X of the GATT 1994. Customs regulations, formalities and requirements should also be applied and operated in a fashion consistent with WTO requirements.

561. In response, the representative of the Russian Federation referred to Sections "Customs Regulations and Procedures" and "Transparency" of this Report. He added that the provisions of normative legal acts of the Federal executive body charged with customs affairs were not to conflict with the provisions of customs legislation and other legal acts of the CU or normative legal acts of the Russian Federation and/or should not establish requirements, bans and restrictions not envisaged by customs legislation and other legal acts of the CU and normative legal acts of the Russian Federation.

562. The representative of the Russian Federation confirmed that Table 13 and Table 14 were comprehensive lists of the categories of goods currently subject to measures requiring their declaration and/or entry at designated customs checkpoints. He further confirmed that if any such measures were contrary to the WTO Agreement, they would be eliminated as of the date of accession of the Russian Federation to the WTO and that future measures concerning the declaration and/or entry of specific categories of goods at designated customs checkpoints, whether introduced, re-introduced or applied pursuant to national legislation, CU Agreements, or other CU legal acts, would be consistent with the WTO Agreement. Furthermore, he confirmed that, from the date of accession, all laws, regulations, decrees, decisions, judicial decisions and administrative rulings of general application connected with the importation of goods, including those relating to statistical control, customs clearance, documentation and certification, inspection and analysis, and any changes to these laws, regulations decrees, decisions, judicial decisions and administrative rulings of general application whether introduced, reintroduced, or applied by the Russian Federation or the competent bodies of the CU would be published promptly and posted on the official websites of the responsible governmental bodies in such a manner as to enable governments and traders to become acquainted with them and that the Russian Federation would also publish the names of the governmental bodies responsible for administering them. Further, he confirmed that the Russian Federation would administer these laws, regulations, decrees, decisions, judicial decisions and administrative rulings of general application in a uniform, impartial and reasonable manner throughout its territory, as required by the WTO Agreement. He further confirmed that the Russian Federation would not apply country-specific customs procedures in a manner inconsistent with the WTO Agreement, including Articles I and X of the GATT 1994, and would apply the principles of non-discrimination and transparency within the meaning of these Articles. The Working Party took note of these commitments.

Preshipment Inspection

563. Noting that the authorities of the Russian Federation had stated that the Russian Federation did not currently require any inspection services prior to shipment, but had been considering, at some point, recourse to such measures, Members asked the Russian Federation to explain its laws and regulations authorizing the employment of preshipment inspection and to undertake a commitment indicating that, if such services should be employed in the future, they would conform to WTO provisions in their operations, e.g., in the application of fees for services rendered, observance of other WTO requirements in customs processing, and in providing right of appeal to the Government.

564. In response, the representative of the Russian Federation stated that Article 7 of the Agreement on Common Measures for Non-Tariff Regulation with Regard to Third Counties, signed on 25 January 2008 (hereafter: Agreement on Non-Tariff Regulation), authorised the imposition of non-tariff regulatory measures on the basis of national interests, inter alia, to implement national laws not in conflict with international agreements. The CU Agreement on the Introduction and Application of Measures Concerning Foreign Trade in Goods on a Common Customs Territory in Respect of Third Countries of 25 January 2008 (hereafter: CU Agreement on Measures Concerning Foreign Trade) implemented the CU Agreement on Non-Tariff Regulation and authorised the CU Commission to introduce non-economic measures affecting goods in foreign trade from third countries on the basis of proposals from the CU Parties. Pursuant to Article 6 of the latter Agreement, the Russian Federation could propose to introduce preshipment inspection. If the CU Commission rejected the proposal, such measures could be imposed unilaterally for up to six months, as provided for in Article 8 of the Agreement on Measures Concerning Foreign Trade.

565. He added that, in conformity with the provisions of these CU Agreements, if the Russian Federation decided to introduce preshipment inspection with respect to certain goods, Article 28 of Federal Law No. 164-FZ of 8 December 2003 "On the Fundamentals of the State Regulation of the Foreign Trade Activity" (as amended on 2 February 2006) authorised the creation of such a regime, and laid down the objectives and conditions thereof. Federal Law No. 164-FZ provided that preshipment inspection could be introduced for a period not exceeding three years. He noted that the Russian Federation had no current plans to introduce a preshipment inspection scheme.

566. The representative of the Russian Federation confirmed that, from the date of accession, if a preshipment inspection scheme were to be introduced in the future, whether by the Russian Federation or by the competent bodies of the CU, its operation would be in conformity with the relevant provisions of the WTO Agreement, including the Agreement on Preshipment Inspection, and the Agreement on Implementation of Article VII of the GATT 1994, inter alia, in respect of the due process and transparency requirements of the WTO Agreement, in particular Article X of the GATT 1994 and the Agreement on Implementation of Article VII of the GATT 1994 and confidentiality of data received would be ensured. In addition, it would be ensured by the Russian Federation or by the competent bodies of the CU that charges and fees for preshipment inspection would comply with Article VIII of the GATT 1994, that preshipment entities would establish and maintain appeals procedures as foreseen by Article 2.21 of the WTO Agreement on Preshipment Inspection, and that that scheme would not constitute an undue and additional burden on exporters to or importers of goods into the Russian Federation. Further, he confirmed that the duration of any such scheme would be limited to three years and that importers and exporters would not be precluded from challenging facts found and findings made by preshipment inspection entities as part of administrative appeals against decisions of the Russian Federation or the competent bodies of the CU where such decisions were based on those facts or findings. The Working Party took note of these commitments.

Balance of payments

567. The representative of the Russian Federation noted that, from 1 January 2010, the legal basis for applying non-tariff measures on goods to address the situation of the balance-of-payments (BOP) of the country could be found in the CU Agreement on Common Measures for Non-Tariff Regulation with Regard to Third Countries of 25 January 2008 (hereafter: CU Agreement On Non-Tariff Regulation). More specific provisions regarding the implementation of the CU Agreement on Non-Tariff Regulation in this area were elaborated in the CU Agreement on Introduction and Application of Measures Concerning Foreign Trade in Goods on a Common Customs Territory in Respect of Third Countries (hereafter: CU Agreement on Measures Concerning Foreign Trade) of 9 June 2009. Article 8 of the CU Agreement on Non-Tariff Regulation provided that measures limiting foreign trade in goods may be imposed with a view to protecting the external financial situation and maintaining a steady balance of payments. Article 9 of that Agreement and Articles 7 to 9 of the CU Agreement on Measures Concerning Foreign Trade further provided the conditions for the CU as a whole and, in exceptional circumstances, for individual CU Parties unilaterally to introduce trade restrictive measures to protect the external financial position and maintain the balance of payments. Previously, Article 15 of Federal Law No. 63-FZ of 14 April 1998 "On Measures to Protect the Economic Interests of the Russian Federation with Respect to Foreign Trade in Goods" and, later Federal Law No. 164-FZ of 8 December 2003 "On the Fundamentals of State Regulation of Foreign Trade Activity" had provided such authority. In accordance with Federal Law No. 63-FZ, and due to particular balance-of-payment difficulties, Government Resolution No. 791 of 17 July 1998 "On Introduction of an Additional Import Duty" had introduced a special import surcharge at a rate of 3 per cent ad valorem applied to all tariff items. Government Resolution No. 235 of 27 February 1999 "On Amending Resolution of the Government of the Russian Federation No. 791 of 17 July 1998 "On Introduction of an Additional Import Duty" had eliminated the import surcharge from 1 March 1999.

568. Noting the repeal of the balance-of-payments measure in 1999, some Members asked whether similar import surcharges would be authorised under any CU legislation other than the CU Agreement on Non-Tariff Regulation and the CU Agreement on Measures Concerning Foreign Trade, e.g., the CU Customs Code or 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" of the Interstate Council on Common Customs Tariff Regulations, or under national legislation of the Russian Federation. In this regard, these Members sought a commitment confirming that, as from the date of accession, any such measures for BOP purposes would be applied in full conformity with relevant WTO provisions.

569. In response, the representative of the Russian Federation stated that the CU Agreement on Non-Tariff Regulation and the Agreement on Measures Concerning Foreign Trade, provided for the application of non-tariff measures for BOP purposes with regard to imported goods. One or more CU Parties could propose the adoption of such non-tariff measures to the CU Commission. If the CU Commission rejected the proposal, such measures could be imposed unilaterally for up to six months as provided for in Article 8 of the CU Agreement on Measures Concerning Foreign Trade. With regard to services, Federal Law No. 164-FZ of 8 December 2003 "On Fundamentals of State Regulation of Foreign Trade Activity", provided for restrictions on trade in services for BOP purposes. He confirmed that there were no other provisions in CU Agreements or in the legislation of the Russian Federation that dealt with BOP measures on goods or services.

570. The representative of the Russian Federation noted that restrictions on goods could be implemented by means of introducing an import quota or other non-tariff measures for a term required to restore the balance-of-payments of the Russian Federation. He further noted that, should such measures be imposed, the Government would designate a Federal executive body responsible for the implementation of these measures. With regard to services, BOP measures would be implemented through restrictions on trade in services.

571. Some Members expressed concern that a mechanism for the application of tariffs or other price-based measures to safeguard the balance of payments of the Russian Federation, as provided for in the WTO Understanding on the Balance-of-Payments Provisions of the GATT 1994 and Article XII of the GATT 1994, was not foreseen in the CU Agreement on Non-Tariff Regulation, the Agreement on Measures Concerning Foreign Trade or any other CU Agreement or regulation of the Russian Federation. Furthermore, these Members noted that the Agreement on Common System of Customs Regulation of 25 January 2008 did not permit the Russian Federation to take unilateral tariff measures to safeguard its balance of payments.

572. In response, the representative of the Russian Federation confirmed that the Russian Federation was not permitted to take unilateral tariff measures and that there was no mechanism to apply tariffs or other price-based measures to safeguard the balance-of-payments of the Russian Federation.

573. In response to a Member who noted that the WTO Understanding on Balance-of-Payments Provisions of the GATT 1994 imposed an order of priority of measures, the representative of the Russian Federation said that since only non-tariff measures could be applied, no order of priority {vis-a-vis} the use of priced-based measures was specified in the CU Agreements or national law.

574. The representative of the Russian Federation confirmed that any measure to safeguard its balance of payments, whether taken by the Russian Federation or by the competent bodies of the CU, would be in conformity with the relevant provisions of the WTO Agreement, in particular, the Understanding on the Balance-of-Payments Provisions of the GATT 1994 and Article XII of the GATT 1994. The Working Party took note of these commitments.

Anti-dumping, countervailing and safeguard measures

575. The representative of the Russian Federation noted that the following legal acts regulated anti-dumping, countervailing and safeguard measures in the Russian Federation: (i) the Protocol of 17 February 2000 on the Mechanism of Application of Safeguard, Anti-dumping and Countervailing Measures in Trade of the Member States of the Customs Union as between the Republics of Belarus, Kazakhstan, Tajikistan, the Kyrgyz Republic and the Russian Federation (hereafter in this Section: the Protocol); (ii) Agreement of 25 January 2008 on Application of Safeguard, Anti-dumping and Countervailing Measures in Respect of Third Countries between the Republics of Belarus, Kazakhstan and the Russian Federation (hereafter: Agreement of 25 January 2008); (iii) the Decision of the Commission of the Customs Union No. 191 of 26 February 2010 "On the Application of Safeguard, Anti-dumping and Countervailing Measures in the Territory of the Customs Union of Belarus, Kazakhstan and the Russian Federation" (hereafter: Commission Decision No. 191); and, (iv) the following national legislation: Federal Law No. 165-FZ of 8 December 2003 "On Safeguards, Anti-dumping and Countervailing Measures Applied to the Imports of Goods", as amended by Federal Law No. 280-FZ of 30 December 2006 "On Amending the Federal Law On Safeguards, Anti-dumping and Countervailing Measures Applied to Imports of Goods"; Government Resolution No. 546 of 13 October 2004 "On Adopting the Rules on Calculation of the Amount of Specific Subsidy of a Foreign State (Union of Foreign States) and on the Invalidation of Certain Acts of the Government of the Russian Federation Regulating Issues of Application of Safeguards, Antidumping and Countervailing Measures".

576. The representative of the Russian Federation further noted that the Agreement of 25 January 2008 entered into force on 1 July 2010 between its Parties, and would be directly applicable in the territory of the Russian Federation, after the expiration of the transitional arrangement that was set-out in the Agreement On Application of Safeguard, Anti-dumping and Countervailing Measures to the Third Countries in Transitional Period (hereafter: the Transitional Agreement) and Federal Law No. 165-FZ of 8 December 2003 "On Safeguards, Antidumping and Countervailing Measures Applied to Imports of Goods". During the transitional period, the provisions of the national regulations would apply to the extent they did not contradict the Agreement of 25 January 2008. Upon the expiration of the transitional period, national regulations would be abolished. The investigations ongoing on the date of the entry into force of the Agreement of 25 January 2008 were to be continued in accordance with the new rules and the national regulations to the extent those regulations did not contradict that Agreement. Therefore, if the national industry met the criteria of the industry of the Customs Union stipulated by the Agreement, the investigation would be continued, otherwise it would be terminated.

(a) Transitional Regime

577. The representative of the Russian Federation informed Members that the Ministry of Industry and Trade of the Russian Federation was the national investigating authority, for safeguards, anti-dumping and countervailing investigations. During the transitional period provided for in the Transitional Agreement signed on 19 November 2010, the national authority of the Russian Federation would continue ongoing investigations and would conduct new trade remedies investigations in the Russian Federation upon the request of the domestic industry of the Customs Union. However, all decisions to impose, extend, review or terminate trade remedy measures would be taken by the CU Commission on the basis of a proposal from the Government of the CU Party that carried out the investigation. After the transitional period investigations would be carried out at the CU level by a single designated competent authority under a request of the CU industry or upon the own initiative of the competent authority.

578. During the transitional period, economic disputes and other cases connected with the safeguard, anti-dumping and countervailing measures (including cases challenging normative legal acts and decisions, actions or inactions of the authorities and officials) would still be considered by courts of arbitration of the Russian Federation in accordance with the order stipulated in the Arbitration Procedural Code of the Russian Federation.

579. Since national laws of the Russian Federation would continue to apply during the transition period, several Members expressed concerns that Federal Law No. 63-FZ of 14 April 1998 "On Measures to Protect of the Economic Interests of the Russian Federation in Foreign Trade in Goods" did not secure full conformity of the Russian Federation with relevant WTO provisions. In particular, investigations seemed to be limited to injury and causality aspects without requiring a proper determination of dumping, while any measures applied would be expected to remain in place for "a limited period of time necessary to eliminate injury".

580. In response, the representative of the Russian Federation stated that Federal Law No. 165-FZ of 8 December 2003 "On Safeguards, Anti-dumping and Countervailing Measures Applied to Imports of Goods" had been enacted with the objective of introducing full conformity with the WTO Agreement. This Law, which had entered into force on 15 December 2003, replaced the relevant provisions of Federal Law No. 63-FZ of 14 April 1998 "On Measures to Protect the Economic Interests of the Russian Federation in Foreign Trade in Goods" (with minor exceptions, such as paragraph 26 of Article 2 and Articles 6.5, 24 and 25). The regulations originally written for the previous legislation had been partly included in the new Law and the new Government Resolution No. 546 of 13 October 2004 "On Adopting the Rules on Calculation of the Amount of a Specific Subsidy of a Foreign State (Union of Foreign States) and on the Invalidation of Certain Acts of the Government of the Russian Federation Regulating Issues of Application of Safeguards, Anti-dumping and Countervailing Measures" (hereafter: Government Resolution No. 546). He further noted that Federal Law No. 165-FZ had been amended by Federal Law No. 280-FZ of 30 December 2006 "On Amending Federal Law "On Safeguards, Anti-dumping and Countervailing Measures Applied to Imports of Products".

581. The representative of the Russian Federation explained that Federal Law No. 165-FZ established procedures for trade remedies investigations, and imposition of safeguards, anti-dumping and countervailing measures. Under this Law, anti-dumping and countervailing measures could be imposed only following an investigation showing evidence of dumped or subsidized imports, material injury to a domestic industry, threat of such injury or material retardation of the establishment of an industry ("material injury") and causality between the dumped or subsidized imports and material injury. Safeguard measures could be imposed only following an investigation showing evidence of substantially increased imports, serious injury or threat of serious injury ("serious injury") and causality between the increased imports and serious injury. The measures could only be in place for up to five years for anti-dumping and countervailing measures and four years for safeguards. The period of an application of anti-dumping and countervailing measures could be extended if a review of the measures showed that the expiry of the measure was likely to lead to a recurrence of dumping, subsidization and injury. The period of application of a safeguard measure could be prolonged up to the maximum period not exceeding eight years in whole (including the period of application of any provisional measure, the period of initial application and any extension thereof) when the investigation authority determined, following a review investigation to remedy or prevent injury, the prolongation of the measure was required and there was evidence that the industry was adjusting to changing market conditions. The decision on prolongation of the safeguard measure would be taken by the Government of the Russian Federation, based on the results of the investigation authority report, and the measure prolonged must not be stricter than the initial one. The Law brought the terminology in these areas into compliance with the rules and provisions of the WTO. It provided a clear distinction between serious and material injury and expanded the Authority of the Government in the initial and main phase of investigation. In his view, the Law defined actionable subsidies in full consistency with WTO provisions. In a similar manner, the definition of dumping contained in the Law corresponded to Article 2 of the WTO Agreement on Implementation of Article VI of the GATT 1994.

582. Other main improvements contained in Federal Law No. 165-FZ {vis-a-vis} Federal Law No. 63-FZ were the detailed description of the investigation procedure and concepts such as increased imports, dumping, subsidies, serious and material injury, causal link, the definition of domestic industry, and other matters. Several provisions of Federal Law No. 165-FZ were directed at improving the mechanism of imposition, review and termination of safeguard, anti-dumping and countervailing measures. The provisions determining the procedure for the application of safeguard, anti-dumping, and countervailing measures (including provisional duties and securities) were framed in a more detailed and intelligible manner. The representative of the Russian Federation confirmed that the same standards would be maintained in any investigation carried out either by the competent authorities of the Russian Federation or competent bodies of the CU from the date of entry into force of the Agreement of 25 January 2008.