FEDERATION TO THE WORLD TRADE ORGANIZATION 22 страница

610. A Member noted that Article 10 of the Agreement of 25 January 2008 described the way sampling was used to determine the dumping margin and asked whether the selection of exporters, producers and importers was made in consultation with and with the consent of the exporters, producers or importers concerned. The representative of the Russian Federation informed Members that, in accordance with the provisions of Article 10.8 of this Agreement, in cases when the competent body concluded that it was impracticable to determine the individual margin of dumping for every exporter and/or producer of the product due to a large number of exporters, producers or importers of the product, types of products involved, or for any other reason, it could restrict the determination of the individual margin of dumping, either to a reasonable number of interested parties or by using samples of the product from every exporting country which were, as far as the competent body was aware of, statistically valid on the basis of information available to the competent body, at the time of selection, and could be examined without any disruptions in the course of the investigation. He further confirmed that the selection of exporters, producers and importers would be made in consultation with and with the consent of the exporters, producers or importers, as it would be provided for in future CU administrative regulation.

611. A Member noted that paragraph 11 of Article 10 and paragraph 4 of Article 16 of the Agreement of 25 January 2008 stated that the "all others" rate or duty would be based on the highest margin of dumping determined during the investigation and asked the representative of the Russian Federation to explain why the CU chose to make an adverse inference (i.e. the highest margin of dumping) in setting the "all others" rate, as opposed to choosing a more neutral method (e.g., the weighted-average margin of all participating respondents). Furthermore, this Member asked the representative of the Russian Federation to explain how this methodology was consistent with Article 9.4 of the Agreement on Implementation of Article VI of the GATT 1994.

612. The representative of the Russian Federation stated that, if the competent authority found that an interested party had failed to cooperate for the purpose of the investigation, the competent authority could use an inference that was adverse to the interests of that interested party. The competent authority could also determine the dumping margin on the basis of any other information at its disposal, including the weighted-average margin of all participants.

613. The representative of the Russian Federation confirmed that, if an interested party cooperated, but was not selected for the calculation of an individual dumping margin, the anti-dumping duty applied would be applied in accordance with Article 9.4 of the Agreement on Implementation of Article VI of the GATT 1994. The Working Party took note of this commitment.

614. Noting the information given by the representative of the Russian Federation on the new legislation on trade defence instruments, some Members of the Working Party asked the representative of the Russian Federation to explain what would happen to the trade remedies imposed by the Government of the Russian Federation to third countries, not Members to the CU under the regime applicable in the Russian Federation, prior to the entry into force the Agreement of 25 January 2008. In response, the representative of the Russian Federation explained, that an Expert Group established under the CU Commission Decision No. 339 of 17 August 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" had elaborated a new expedited review mechanism for the individual measures of the Russian Federation, as well as those of the Republics of Belarus and Kazakhstan, which were also stipulated in the Transitional Agreement. According to this mechanism, the expedited reviews would be conducted by the investigating authority of the party, which applied the original measure, in order to determine whether the existing national measure should be applied in the single customs territory of the CU or be terminated. The sole criteria used in this review would be the determination of the share of domestic producers in the investigation, as if such an investigation would have been conducted in respect of the whole CU. If the review established the producers in the CU, accounting for not less than 25 per cent of total production in the CU, which would have supported the measure, this measure would be applied in the single customs territory of the CU. The decision, to apply the measure in the single customs territory of the CU, was taken by the CU Commission, upon the proposal of the Government whose competent authority had conducted the investigation.

615. Some Members of the Working Party expressed serious concern about the sole principle applied in the expedited reviews, as presented by the Russian Federation, and invited the Russian Federation to enter into a commitment to conduct a full review of the measures currently applied in its territory that might not meet the requirements of the WTO Agreement, including with regard to whether measures should be applied throughout the CU or terminated. Interested parties should be properly informed about the possibility of such reviews and reviews should be initiated, upon the respective requests of interested parties. The results of these reviews would then be the basis for extending the application of measures to the CU, or terminating the relevant measure.

616. The representative of the Russian Federation stated that, from the date of accession of the Russian Federation to the WTO, interested parties could request the initiation of reviews of trade remedy measures imposed by the Russian Federation or applied in the Russian Federation pursuant to a decision of the CU Commission, identifying the elements of the measures, which were not consistent with the WTO Agreement. He stated that he expected that Russian exporters, after accession of the Russian Federation to the WTO, could also request reviews of measures currently applied by WTO Members against Russian products. One Member replied that, in its trade remedy administration, Russian exporters were presently permitted to ask for reviews of existing measures and that such reviews had been regularly conducted. This Member further stated that Russian exporters would also be able to ask for reviews, after the accession of the Russian Federation to the WTO, and that such reviews would continue to be conducted.

617. In respect of transmission of functions to conduct trade remedy investigations from national authorities to the CU Commission, the representative of the Russian Federation noted, that it would happen when: (i) a relevant unit was formed in the supra-national body; (ii) methodological documents in respect of trade remedy procedures and calculations were worked out in order to develop the Agreement of 25 January 2008, including the arrangements on protection of the confidential data on a supra-national level; and (iii) the supra-national statistic base in respect of internal and external trade was elaborated. The decision to transfer the function to conduct trade remedy investigations from national authorities to a supra-national body would be taken by the Interstate Council of EurAsEC. Until then, trade remedy investigations would be conducted by national authorities on behalf of the industry of the Customs Union, as it was stipulated in the Agreement of 25 January 2008.

618. The representative of the Russian Federation confirmed that every administrative decision, action or inaction of the authorities and officials of the Russian Federation in charge of investigations, impositions, reviews, terminations or applications of trade remedies in the Russian Federation, could be referred for "judicial review". He said that before 1 July 2010, judicial review in these cases was regulated by Federal Law No. 165-FZ. In accordance with Article 36 of that Law, economic disputes and other cases regulated by this Law (including cases challenging normative legal acts and decisions, actions or inactions of the state authorities and officials) were considered by the courts of arbitration. The judicial procedure of the hearing of disputes by the courts of arbitration was regulated by Federal Law No. 95-FZ of 24 July 2002 "Arbitration Procedural Code of the Russian Federation". It provided for the judicial procedure to protect the rights and legal interests of economic operators. In accordance with paragraph 5 of Article 27 of this Code, courts of arbitration considered disputes within their jurisdiction, to which: (i) Russian organizations; (ii) Russian physical persons; (iii) foreign organizations; (iv) foreign physical persons; (v) stateless persons involved in commercial activity; or (vi) organizations with foreign investments, could be parties, unless otherwise provided for by an international treaty of the Russian Federation.

619. The representative of the Russian Federation explained that decisions of the Commission of the Custom Union were supposed to be considered by the EurAsEC Court. Currently, norms regulating appeals to decisions of CU bodies were stipulated in the Statute of the EurAsEC Court. The Statute of the EurAsEC Court was adopted by the EurAsEC Interstate Council Decision No. 502 of 5 July 2010. The competence of the EurAsEC Court was broadened by the new Statute and now covered issues within the CU, as provided for by the Protocol on the Amendment of the Treaty Establishing the EurAsEC", adopted on 7 October 2007. In particular, the Statute provided for the right of the economic operator in the CU Parties to bring a case against the decisions of the CU Commission to the EurAsEC Court (paragraph 2, Article 14). In accordance with the Statute, recourse to the Court by the economic operators and peculiarities of the judicial procedure were determined by the international treaty (paragraph 3, Article 14). Such treaty was the Treaty on Judicial Recourse to the EurAsEC Court of the Economic Operators on Disputes within the Framework on the CU and Peculiarities of the Judicial Procedure on them, approved by the Decision of the Interstate Council of the EurAsEC No. 534 of 9 December 2010 (as described in paragraph 162).

620. The representative of the Russian Federation confirmed that, from the date of accession, compliance with the provisions of the Agreement on Implementation of Article VI of the GATT 1994, the Agreement on Subsidies and Countervailing Measures, and the Agreement on Safeguards, whether by the competent authorities of the Russian Federation or the competent bodies of the CU, would be ensured. He further confirmed that the Russian Federation would notify and implement, upon accession, all appropriate laws and regulations applicable in the Russian Federation in conformity with the provisions of these Agreements. The representative of the Russian Federation further confirmed that any trade remedy measure applied on the date of WTO accession of the Russian Federation and any trade remedy measure procedure launched before the date of accession as well as any trade remedy measure resulting therefrom, whether by the competent authority of the Russian Federation or the competent bodies of the CU, would be consistent with the relevant WTO Agreement, as of the date of accession. He also confirmed that all interested parties, as defined in the relevant WTO Agreement, would have access to any non-confidential information that was relevant to any trade remedy measure applied on the date of WTO accession of the Russian Federation, or adopted subsequently, on the basis of an investigation or review launched before its accession. The representative of the Russian Federation also confirmed that, from the date of WTO accession of the Russian Federation, any interested party could request the initiation of a review of any trade remedy measure, applied on the date of accession or adopted subsequently, on the basis of an investigation or review launched before the WTO accession of the Russian Federation, identifying the elements of that measure, which were, in their view, not consistent with the above-mentioned WTO Agreement. In addition, and with respect to the WTO Agreement on Safeguards, he confirmed that the Russian Federation would, in particular, hold consultations under Article 12.3 of the WTO Agreement on Safeguards with supplying Members and disclose information as provided for by Article 3 of that Agreement. He further confirmed that information in anti-dumping investigations would also be disclosed, as provided for in Articles 6.9 and 12 of the WTO Agreement on Anti-dumping and, in the case of countervailing investigations by Articles 12.3 and 12.8 of the WTO Agreement on Subsidies and Countervailing Measures, whether by the competent authorities of the Russian Federation or competent bodies of the CU. The Working Party took note of these commitments.

2. EXPORT REGULATIONS

Export Duties

621. The representative of the Russian Federation stated that export duties were levied pursuant to Article 3 of the Law of the Russian Federation No. 5003-1 of 21 May 1993 "On Customs Tariff" (as last amended on 3 December 2008). The CU Agreement of 25 January 2008 "On Export Duties with regard to Third Countries" did not provide for unified export tariffs and export tariff regulation. Thus, after the establishment of the Customs Union, export duties remained subject to regulation at the national level.

622. The representative of the Russian Federation stated that export duties were applied on an MFN basis with the exceptions described in this Section. Goods exported to Parties of the Treaty on the Customs Union and Single Economic Space of 26 February 1999 (the Republics of Belarus, Kazakhstan, Tajikistan and the Kyrgyz Republic) were exempted from application of export duties.

623. The representative of the Russian Federation further informed Members that, taking into account the provisions of the Free Trade Agreement between the Russian Federation and Ukraine, and, in accordance with the Government Resolution No. 291 of 30 April 2010 "On Rates of Export Customs Duties on Gas delivered from the Territory of the Russian Federation to the Territory of Ukraine", a special regime of export duties on natural gas had been established with respect to Ukraine. According to this Resolution, a certain volume of natural gas (up to 40 billion cubic metres per year, since 2011 until 2019, inclusive) exported from the Russian Federation to Ukraine could be exempted from export duties. The export duty on natural gas, exported from the Russian Federation to Ukraine, above this volume (that is, above 40 billion cubic metres per year, during the period from 2011 to 2019, inclusive) was determined based on Government Resolution No. 795 of 23 December 2006 "On the Establishment of the Rates of the Export Customs Duties on Goods Exported from the Territory of the Russian Federation beyond the Borders of Countries that are Parties to Agreements on Customs Union".

624. The representative of the Russian Federation noted that the Russian Federation applied export duties to goods exported to other CIS countries with which the Russian Federation had concluded Free Trade Agreements. All changes in export duties were published officially.

625. One Member expressed concern that the Russian Federation applied different export duties to oil produced in the Eastern Siberian fields and in Caspian fields, on the one hand, and oil produced in the rest of the country, on the other. Under Resolution No. 1110 of 24 December 2010 "On Approval of Rates of Export Duties on Crude Oil and Certain Types of Goods Produced from Crude Oil Exported outside the Territory of the Russian Federation and the Territories of States - Members of the Customs Union", the applied export duty for oil produced in the above-mentioned fields was 117.5 USD per tonne, whereas the duty for oil produced in other fields was 317.5 USD per tonne. This Member noted that, due to the existing transmission infrastructure, the oil with a lower export duty was not equally available to all WTO Members and this export duty differentiation could result in a de facto discrimination between oil exports on the basis of the country of destination. Furthermore, this Member noted that a slight chemical difference between these two types of crude oil, produced in the Russian Federation, might not be sufficient to consider that these two types of crude oil were not like products. This Member requested the Russian Federation to eliminate any existing unjustified discriminatory practices with regard to applied export duties for crude oil and to undertake a commitment to apply export duties in a non-discriminatory manner, in conformity with Article I of the GATT 1994.

626. In response to a question from a Member, the representative of the Russian Federation explained that in 1998 export duties had been imposed on raw materials and semi-finished goods, mainly for fiscal purposes, and now ranged from 3 to 50 per cent, with a few exceptions where higher export duties were applied. In very few cases (oil seeds, raw hides and skins), export duties had been imposed to ensure greater availability of raw materials for the domestic industry. Export duties on non-ferrous and ferrous metals waste and scrap (and those in the guise of other products, e.g., used axle-boxes) had been imposed to address problems of environmental protection.

627. The representative of the Russian Federation also explained that, over the last few years, the overall number of products subject to export duties had been reduced four times, from 1,200 to 310 tariff lines.

628. In response to requests from Members of the Working Party, the representative of the Russian Federation informed Members that export duties were subject to regular review (the latest changes to Government Resolution No. 795 of 23 December 2006 "On the Establishment of the Rates of the Export Customs Duties on Goods Exported from the Territory of the Russian Federation beyond the Borders of Countries that are Parties to Agreements on Customs Union" had been made on 12 November 2010). Export duties were also the subject of bilateral tariff negotiations with some Members.

629. Several Members of the Working Party were of the view that export duties acted as indirect subsidies to domestic downstream users and, thus, could distort international trade. Noting that the Russian Federation had argued that export duties were levied mainly for fiscal purposes, some Members expressed concerns that the effect of these duties was to discriminate against foreign buyers and to raise the level of the export price so that third-country producers encountered their own difficulties of supply for the products concerned; suffered from increased production costs resulting from higher input or energy costs; and/or faced a situation where they lost relative competitiveness on the global market for downstream products, as a result of the indirect price support given to domestic Russian producers competing in the same markets. This was particularly the case, as a result of export duties on minerals, petrochemicals, natural gas, raw hides and skins, ferrous and non-ferrous metals and scrap. Some Members also expressed a concern that export duties on certain products, notably, wood and ferrous and non-ferrous metals, were being used to distort investment decisions in processing industries and gave companies, which were producing in the Russian Federation, a cost advantage. These Members requested the Russian Federation to make a commitment to phase-out export duties under an established timetable describing specific modalities. The Russian Federation should also commit that export duties would not be applied on other products and that, once eliminated, export duties on products, currently affected, would not be re-introduced. In particular, some Members were concerned that the introduction of new export duties, or their re-introduction after elimination, created considerable uncertainty as to the reliability of supplies of certain raw materials from the Russian Federation. Some Members also requested the Russian Federation to reduce the number of products subject to export duties, especially the products with higher value added (e.g. a coniferous bonded wood), so that the negative impact in trade in such products could be minimized.

630. Some Members of the Working Party also stated that the Russian Federation should describe its future plans, in conjunction with its application of export duties, VAT, and excise charges to exports. In particular, those Members sought confirmation that the Russian Federation had removed some export duties, and information on plans in this regard. In light of improvements in the economic situation in the Russian Federation, those Members enquired whether the export taxes were still necessary to deal with external debt. Some Members sought clarification on the increase of export duties on oil and natural gas and expressed concern about the potential impact of such measures on prices. Some Members of the Working Party stated, however, that they considered that export duties could play a legitimate role as a tool for trade policy.

631. In response, the representative of the Russian Federation stated that certain export duties continued to play an important fiscal role in the Russian Federation. He noted that, in most cases, export duties did not affect the price at which an exported commodity (i.e. natural gas, oil, oil products, non-ferrous metals) was purchased abroad. He further noted that the level of export duties on crude oil and oil products was linked to the world price of crude oil and, therefore, fluctuated accordingly. They were being revised monthly, according to paragraph 14, point 4 of Article 3 of Law of the Russian Federation No. 5003-1 of 21 May 1993 "On Customs Tariff". As for the 30 per cent export duty on natural gas, he explained that this export duty had replaced the pre-existing excise taxes on natural gas, which were eliminated (see Section "Excise Taxes"). Export duties of a fiscal nature permitted the Russian Federation to replenish the budget (which was also required to comply with the international financial commitments of the Russian Federation).

632. Export duties of a regulatory nature were used to influence the volume of exports and address both problems of environmental protection and economic needs. These duties concerned, for instance, such goods as non-ferrous scrap, which were mainly destined for exportation, as there was hardly any domestic demand (especially, for aluminium and nickel scrap). He further explained that the export duty was also linked to the need to prevent illegal production of non-ferrous scrap and was considered the most effective way to curb this phenomenon, as it made exports of those products unprofitable or, substantially, reduced profitability. He added that his Government was considering other means to address this problem, such as a licensing mechanism to monitor exports. He stated that, in his view, export duties could not be considered as a subsidy in the sense of the WTO Agreement on Subsidies and Countervailing Measures.

633. As for the export duty rates on raw timber (HS 4403), which were increased several times since the beginning of 2007, the purpose of this measure was to accelerate the restructuring of the wood and paper industry of the Russian Federation and to address environmental concerns. Certain Members expressed doubts about the existence of environmental concerns that would justify this measure. Concerning timber, the latest changes to export duties were made by Resolution No. 442 of 16 June 2010 "On the Rates of Export Customs Duties Related to Certain Types of Timber, Exported Beyond the Borders of Countries that are Members of CU Agreements". According to this Resolution, the export duty rate for a small group of "other" precious woods was reduced from 100 EUR per cubic metre to 25 per cent or not less than 15 EUR per cubic metre.

634. In the non-ferrous metals sector, export duties on copper cathode and unalloyed nickel (HS Codes 7403 11 00 and 7502 10 00) were increased to 10 per cent (from zero for copper and from 5 per cent for nickel) following Resolution No. 893 of 12 November 2010 "On the Rates of Export Customs Duties related to Copper Cathode, Exported Beyond the Borders of Countries that are Members of CU Agreements" and Resolution No. 893 of 12 November 2010 "On the Rates of Export Customs Duties related to Unalloyed Nickel, Exported Beyond the Borders of Countries that are Members of CU Agreements".

635. The representative of the Russian Federation further observed that export duties were permitted under WTO rules, and that many Members of the WTO applied export duties as an instrument of trade policy. In this regard, his Government considered that the request of several Members that the Russian Federation established a timetable to completely phase-out export duties was excessive.

636. In response to the request of a Member to eliminate export duties on ferrous scrap and copper cathode well in advance of accession, the representative of the Russian Federation noted that export duties were the subject of bilateral negotiations and their results would be duly reflected. This Member indicated that it had accepted the invitation to engage in bilateral negotiations with the Russian Federation to reduce its export duties on the above-mentioned products, in the context of the accession of the Russian Federation to the WTO. In its view, the results of these negotiations, which could be found in Table 31, would form part of the balance of commitments and concessions in the terms of accession of the Russian Federation. This Member emphasized that, if the Russian Federation subsequently increased these export duties above the commitment level, it would disturb the balance of concessions established in the bilateral and multilateral negotiations for WTO accession, and this Member would have the right to take appropriate action to re-balance the concessions. Some other Members stated that this was without prejudice to their views in respect of the status and legality of export duties in the framework of the WTO Agreement.

637. As noted above, the Russian Federation undertook bilateral tariff negotiations on export duties with some Members of the Working Party. The tariff concessions and commitments resulting from these negotiations were contained in Part V of the Schedule of Concessions and Commitments on Goods of the Russian Federation, which formed Annex 1 to the Protocol on the Accession of the Russian Federation. The representative of the Russian Federation stated that Table 32 of this Report included all export duties applied by the Russian Federation.

638. The representative of the Russian Federation confirmed that the Russian Federation would implement, from the date of accession, its tariff concessions and commitments contained in Part V of the Schedule of Concessions and Commitments on Goods of the Russian Federation. Accordingly, products described in Part V of that Schedule would, subject to the terms, conditions or qualifications set-forth in that Part of the Schedule, be exempt from export duties in excess of those set-forth and provided therein. The representative of the Russian Federation further confirmed that the Russian Federation would not apply other measures having an equivalent effect to export duties on those products. He confirmed that, from the date of accession, the Russian Federation would apply export duties in conformity with the WTO Agreement, in particular with Article I of the GATT 1994. Accordingly, with respect to export duties and charges of any kind imposed on, or in connection with exportation, any advantage, favour, privilege or immunity granted by the Russian Federation to any product destined for any other country shall be accorded immediately and unconditionally to the like product destined for the territories of all other WTO Members. The representative of the Russian Federation confirmed that the Russian Federation would, from the date of accession to the WTO, administer export tariff rate quotas (TRQs) in a manner that is consistent with the WTO Agreement and in particular the GATT 1994 and the WTO Agreement on Import Licensing Procedures. The Working Party took note of these commitments.

Application of VAT Refund to Exports

639. In response to a question by a Member about the regulations relevant to VAT refund, the representative of the Russian Federation explained that the refund of VAT was made in accordance with the Tax Code of the Russian Federation (Federal Law No. 117-FZ dated 5 August 2000, last amended on 7 March 2011). He reaffirmed that the implementation of VAT refund would be made promptly and properly within the period specified under the relevant laws and regulations.

Quantitative Export Restrictions, Including

Prohibitions and Quotas

640. The representative of the Russian Federation noted that, from 1 January 2010, the legal basis for the application of export restrictions, including prohibitions and quotas, on goods exported to third countries from the CU could be found in: (i) EurAsEC Board of Heads of States Decision No. 19 of 27 November 2009 and the Agreement on Common Measures of Non-Tariff Regulation in respect of Third Countries, signed on 25 January 2008 (hereafter: CU Agreement on Non-Tariff Regulation); (ii) the Agreement on the Procedure of Introduction and Implementation of Measures, Concerning Foreign Trade in Goods, on the Common Customs Territory in Respect of Third Countries (hereafter: CU Agreement on Measures Concerning Foreign Trade), signed on 9 June 2009; and (iii) the Agreement on Licensing Procedures in the Sphere of Foreign Trade in Goods, signed on 9 July 2009 (hereafter: CU Agreement on Licensing). As a consequence, decisions to impose non-tariff measures on exports from the CU Parties to third countries would be taken by the CU Commission. The CU Commission Decision No. 132 of 27 November 2009 "On a Single Non-Tariff Regulation of the Customs Union of the Republic of Belarus, Republic of Kazakhstan and the Russian Federation" approved the Common List of Goods that are Subject to Non-Tariff Measures (see Table 28), which also came into force on 1 January 2010. The representative of the Russian Federation explained, that, prior to the establishment of the CU, the imposition of non-tariff measures on exports was governed by Federal Law No. 164-FZ of 8 December 2003 "On the Fundamentals of State Regulation of Foreign Trade Activity" (as amended on 2 February 2006). He noted that this legislation would remain in effect, to the extent provided for in the CU legislation. In addition, separate CU Agreements (referred to in Section "Export Licensing Procedures") set-out the circumstances in which exports of precious metals and stones, as well as mineral raw materials were subject to bans or quantitative restrictions.