FEDERATION TO THE WORLD TRADE ORGANIZATION 23 страница

641. The representative of the Russian Federation further explained that, according to Article 3 of the CU Agreement on Non-Tariff Regulation, the export of goods from the Russian Federation, being a CU Party, was carried out without quantitative limitations, except to prevent or reduce a critical shortage of foodstuffs or other goods considered essential for the domestic market. According to Article 7 of the CU Agreement on Non-Tariff Regulation, and in accordance with Federal Laws and international treaties, non-tariff measures could be imposed on exports from the Russian Federation, if those measures: (i) were necessary to maintain public morals or law and order; (ii) were necessary to protect the life or health of citizens, environment, life or health of animals and plants; (iii) were related to the import or export of gold or silver; (iv) were applied to protect cultural valuables and heritage; (v) were required to prevent the exhaustion of irreplaceable natural resources and implemented simultaneously with curtailment of the domestic production or consumption associated with the utilization of irreplaceable natural resources; (vi) were linked to a limitation of export of domestic raw materials to provide sufficient quantity of such materials for the domestic manufacturing industry in periods when domestic prices for such materials were kept lower than world prices, as the result of a stabilization plan implemented by the Government; (vii) were essential to acquire or distribute goods in case of their general or local shortage; (viii) were essential to comply with international obligations; (ix) were essential to ensure the defence of the country and security of the State; and (x) were necessary to ensure the observance of regulatory legal acts not contravening international commitments and related to the application of the Customs Law, preservation of the environment, protection of intellectual property, and other legal acts.

642. He further stated that, pursuant to Article 8 of the CU Agreement on Non-Tariff Regulation, the CU Commission was authorised to apply quantitative export restrictions and prohibitions to fulfil the obligations of a CU Party under international sanctions regimes or to protect the external financial situation and safeguard the balance of payments (see Section "Balance of payments" of this Report). To meet these situations, the CU Commission was authorised to apply quantitative export restrictions or grant exclusive licenses to import or export based on proposals from a CU Party. Such measures would be implemented in accordance with Federal Laws of the Russian Federation and the international Agreements to which the Russian Federation was a party. In response to a question from a Member, the representative of the Russian Federation explained that the list of general exceptions stipulated in Articles 7 and 8 of the CU Agreement on Non-Tariff Regulations was exhaustive and no other document within the CU provided for such exceptions. He further explained that although the imposition of export restrictions was not provided for under Article 7 of the CU Agreement on Measures Concerning Foreign Trade, the CU Parties would amend the CU Agreement on Measures Concerning Foreign Trade to include the authority to apply export restrictions in appropriate situations.

643. The representative of the Russian Federation explained that, as of 1 January 2010, pursuant to Article 9 of the CU Agreement on Non-Tariff Regulation and Article 1 of the CU Agreement on Measures Concerning Foreign Trade, the authority to impose non-tariff measures on exports from a CU Party to third countries was transferred from the individual Parties to the CU Commission. A proposal to apply a non-tariff measure could be filed by a Party or the CU Commission, and the CU Commission was required to make its determination within 30 days from the date the proposal was submitted. The decision, if positive, would come into force 45 days after the date of publication. Such non-tariff measures would be applied to goods destined for third countries, and applied equally to exports to all countries.

644. In response to a question from a Member, the representative of the Russian Federation explained that under Article 9 of the CU Agreement on Non-Tariff Regulation and Article 8 of the CU Agreement on Measures Concerning Foreign Trade, and pursuant to the procedures set-forth in the latter Agreement, a CU Party could unilaterally impose temporarily a non-tariff measure, if such a measure was aimed at: (i) the observance of public morality, law and order; (ii) defence and security; (iii) protection of life or health of the citizens, environment, life or health of animals and plants; (iv) protection of cultural values and cultural heritage; (v) protection of intellectual property; (vi) prevention of the exhaustion of irreplaceable natural resources; or (vii) prevention or reduction of the critical shortage in the domestic market of food or other goods essential for the domestic market. He further noted that the CU Parties would amend the CU Agreement on Measures Concerning Foreign Trade to allow a CU Party to impose unilaterally a non-tariff measure on a temporary basis if such measure was aimed at the protection of the external financial position and safeguarding the balance of payments. Furthermore, based on its "national interest" a CU Party could, pursuant to Article 6.1 of the CU Agreement on Measures Concerning Foreign Trade, request the CU Commission to impose non-tariff measures on exports. If the CU Commission rejected the proposal, the CU Party could, under Article 6.7 of that Agreement, impose such measures unilaterally, in conformity with Articles 8 through 10 of the CU Agreement on Measures Concerning Foreign Trade. Under these Agreements, unilateral measures could be imposed for only six months. The CU Parties, not imposing the non-tariff measure, were to take the necessary steps to prevent the exportation of the subject good(s) from the CU Party applying the non-tariff measures to third countries. CU Parties, not applying the measure, were to require licenses and/or permits for exportation of the subject goods from their respective territories.

645. Some Members noted that quantitative export restrictions, including quotas, bans and non-automatic licensing restrictions were prohibited by the GATT 1994, unless specifically justified, and requested the Russian Federation to list (identifying by HS tariff number) and justify any current export bans or quantitative restrictions in place. These Members also requested additional information on exports of unprocessed precious metals and stones, the quantitative restrictions on the export of natural gas and the ban on exports of grain (and the consistency of these measures with the requirements of Article XI of the GATT 1994). Concerning gas, they noted that, as provided for in Federal Law No. 69-FZ of 31 March 1999 "On Gas Supply in the Russian Federation" and noted in the most recent OECD Economic Survey, Gazprom was required to supply the domestic market. They considered this to be a de facto restraint on exports. Members also asked the Russian Federation to provide a list of all quantitative restrictions eliminated since 1996 and to clarify the reference to "essential national interests", as a justification for export quotas and any possible relation of this reference to relevant WTO provisions that referred to essential security interest.

646. The representative of the Russian Federation explained that, pursuant to Government Resolutions No. 599 of 5 August 2010 and No. 654 of 30 August 2010, the temporary ban on grain exports was applied due to the severe drought conditions that had sharply reduced the 2010 harvest of the Russian Federation, in order to prevent critical shortages of food for human and animal consumption, which would occur, unless steps were taken to maintain domestic supplies. He further explained that the Russian Federation would terminate the export ban in accordance with the CU Agreement on Non-Tariff Regulation and the CU Agreement on Measures Concerning Foreign Trade, unless it was justified under the relevant provisions of the WTO Agreement, and the CU Commission decided that all CU Parties would apply the export ban.

647. In response to a question from a Member, the representative of the Russian Federation confirmed that upon accession to the WTO, the Russian Federation would apply such quantitative export restrictions, in accordance with Article XI of the GATT 1994 and Article 12 of the WTO Agreement on Agriculture.

(a) Precious stones and metals

648. The representative of the Russian Federation noted that, as of 1 January 2010, the procedures for the import and export of precious metals and stones were set-forth in the Regulations "On the Order of Entry into the Customs Territory of the Customs Union within the Eurasian Economic Community and the Export from the Customs Territory of the Customs Union within the Eurasian Economic Community of Precious Metals, Precious Stones and Commodities Containing Precious Metals" (hereafter in this Section: the Regulations) adopted by the CU Commission Decision No. 132 of 27 November 2009. Pursuant to these Regulations, those products listed in section 2.9 and 2.10 of the Common List attached to Decision No. 132 of 27 November 2009 (see Table 28) were subject to licensing requirements. In addition, the relevant provisions of the Presidential Decree No. 1137 of 20 September 2010 as well as the Agreement on Licensing, continued to apply, as provided in the Regulations on Precious Stones and Metals.

649. The representative of the Russian Federation further stated that the exportation from the Russian Federation under the customs regime of export of natural diamonds (except for unique natural diamonds and the natural diamonds of the form "board" and "drilling", regardless of their sizes and degrees of processing, sieve diamonds of "- 3 + 2" classes and lower classes), refined platinum and metals of platinum group in the form of bullions, plates, powder and granules, and also nuggets of the precious metals, the raw precious metals, ores and concentrates of precious metals, the raw goods, containing precious metals, scrap and waste products of precious metals was implemented without quantitative restrictions on the basis of the licenses, which had been given out by the Ministry of Industry and Trade (MIT) of the Russian Federation. He explained that Presidential Decree No. 742 of 21 June 2001 "On the Procedure for Importation into and Exportation from the Russian Federation of Precious Metals and Precious Stones" and Presidential Decree No. 1373 of 30 November 2002 "On Regulations on Importation to the Russian Federation and Exportation from the Russian Federation of Natural Diamonds and Cut Diamonds" had been amended. These amendments abolished quantitative export restrictions on natural diamonds, unwrought platinum and metals of the platinum group and raw materials, containing precious stones, and removed bans on the export of certain types of goods, such as wastes and scraps of precious metals; precious metals ores and concentrates.

650. With regard to procedures for exporting precious stones and precious metals, the representative of the Russian Federation explained that information on the formalities for obtaining an export licence was provided in the Section "Export Licensing Procedures" of this Report. He also explained that all documentation and procedures for exports or imports of these goods were to be completed at specific customs checkpoints (see Sections "Other Customs Formalities (Import)" and "Other Customs Export Formalities" of this Report).

651. In response to a question from a Member, the representative of the Russian Federation noted that the Russian Federation had eliminated all quantitative restrictions on exports of precious stones and metals, and that it had brought its national legislation on export restrictions for precious metals and stones into accordance with WTO disciplines. Presidential Decree No. 742 of 21 June 2001 "On the Procedure for Importation into and Exportation from the Russian Federation of Precious Metals and Precious Stones" (as amended on 11 January 2007) had abolished quantitative export restrictions and export licensing of articles made of precious stones and meant for industrial-technical purposes; precious metals in the form of products and articles; as well as articles of precious stones and natural pearls and coins. Presidential Decree No. 1373 of 30 November 2002 "On Regulations on Importation to the Russian Federation and Exportation from the Russian Federation of Natural Diamonds and Cut Diamonds" had abolished the need to obtain a licence to export cut diamonds. Under Presidential Decree No. 1373, agents engaged in the manufacturing of cut diamonds were entitled to export and/or remove from customs treatment for processing outside the customs territory up to 15 per cent of the value of natural diamonds, they had purchased within the year from agents of natural diamonds' extraction or the State Fund of Precious Metals and Precious Stones of the Russian Federation. The MIT issued licenses for the exportation of natural diamonds. Presidential Decree No. 26 of 11 January 2007 "On Improvement of State Regulation for Importation into the Russian Federation and Exportation from the Russian Federation of Precious Metals and Precious Stones" had abolished export quota requirements for precious metals, unprocessed natural diamonds, as well as the prohibition for exportation of precious metals ores and concentrates, wastes and scraps of precious metals and unprocessed precious metals.

652. A Member of the Working Party sought information about matters relating to the Regulations on Precious Stones and Metals, other than measures applied to facilitate the participation of the Russian Federation in the Kimberley Process. Information was sought on: the registration requirements applied to organizations involved in the production, domestic or foreign sale of those products; whether any legal or natural person, domestic or foreign, had the right to freely engage in the exportation, or the domestic purchase for export sale, of precious metals and precious stones produced in the Russian Federation; whether owners of precious metals and precious stones could freely sell any amounts of those products, they owned, to any intending exporter; the re-importation requirement for processed diamonds applied to exports of raw diamonds up to 15 per cent of the value of raw diamonds purchased during the current year; and the date of termination of the export quota provided to Alrosa. The Member also requested the elimination of all quantitative export restrictions and other restrictions on the exportation of precious metals and precious stones without an appropriate WTO justification by the date of accession, including all export bans, export quotas, restrictions on the right to export, export reporting requirements, re-importation requirements in relation to foreign processing of domestic raw diamonds, unjustifiable customs checkpoint requirements and the right of first purchase of Gokhran of precious metals and precious stones produced in the Russian Federation, and sought a commitment by the Russian Federation not to introduce or re-apply such measures after accession and to only apply measures relating to or in connection with the exportation of these products, where justified, under and in conformity with WTO provisions. The Member, moreover, urged the Russian Federation to consider monitoring exports of precious metals and precious stones through the adoption of automatic licensing, as alternative to export registration, reporting requirements, and other restrictions.

653. The representative of the Russian Federation said that the information concerning persons who had the right to engage in the exportation of precious metals and precious stones produced in the Russian Federation, and the registration requirements for them were contained in the Section "Registration Requirements for Import/Export Operations" of this Report. The Regulations on Precious Stones and Metals, as well as Presidential Decree No. 742 of 21 June 2001 "On the Form of Import and Export on the Territory of the Russian Federation of Precious Metals and Precious Stones" and Presidential Decree No. 1373 of 30 November 2002 "On Approval of the Regulations on Import into the Territory of the Russian Federation and Export from the Territory of the Russian Federation of Natural Diamonds and Brilliants" formed the legal basis for these issues. He added that all organizations, which were involved in operations with precious stones and metals, had to be registered at State inspections of assay (Federal Law No. 41-FZ of 26 March 1998). A mandatory requirement for registration entailed reporting to the fiscal authorities of the Russian Federation.

654. In accordance with paragraph 14 of the Regulations on Precious Stones and Metals, legal entities and individual entrepreneurs that had legal possession of the precious stones and metals, and were authorised to carry out operations with precious stones or metals, or their agents, may export precious stones and metals (excluding diamonds) from the CU, in accordance with the laws of the Russian Federation. Similarly, under paragraph 24 of the Regulations on Precious Stones and Metals, the export for processing of precious metals and gemstones might be carried out only by legal persons or individual entrepreneurs who held an activity licence. The regulations further established minimum pricing requirements for diamonds as well as raw precious metals, ores and concentrates of precious metals, and prohibited the exportation of raw materials for further processing only upon the finding from the CU Party that the raw materials could not be processed within the CU. In response to the question from some Members, the representative of the Russian Federation explained that the export quota of Alrosa had been eliminated in Presidential Decree No. 1137 of 20 September 2010. He further informed Members, that the prohibition on exports of raw materials for further processing under the condition, that such materials could not be processed in the territory of the CU, applied only to goods, exported under the customs procedure of the processing beyond the CU customs territory. According to the above-mentioned customs procedure, goods were exported from the customs territory without any restrictions and payments under condition that products processed from these raw materials would be re-imported to the customs territory of the CU.

655. The representative of the Russian Federation added that Federal Law No. 90-FZ of 18 July 2005 "On Amending of Legislative Acts of the Russian Federation", amended Federal Law No. 41-FZ of 26 March 1998 "On Precious Metals and Precious Stones", in accordance with the new legislation, namely, Federal Law No. 173-FZ of 10 December 2003 "On Currency Regulation and Currency Control" and Federal Law No. 164-FZ of 8 December 2003 "On the Fundamentals of State Regulation of Foreign Trade Activity". Under Federal Law No. 173-FZ, precious stones and metals were not recognised as currency valuables. Furthermore, pursuant to Federal Law No. 153-FZ of 11 November 2003 "On Amending Article 5 of the Law of the Russian Federation "On State Secrets", and Presidential Decree No. 243 of 3 March 2005 "On Amendments to the List of State Secret Data, Approved Decree of the President of the Russian Federation No. 1203 of 30 November 1995", data on extraction, transfer, consumption of precious stones and metals had been excluded from the list of State secret data. The amendments simplified the procedure for performing transactions with precious stones and metals, and made these transactions more transparent.

Export Licensing Procedures

656. The representative of the Russian Federation stated that, as with import licensing, as of 1 January 2010, the legal basis for the export licensing system in the Russian Federation was established in: (i) the Agreement on Common Measures for Non-Tariff Regulation in Respect of Third Counties, signed on 25 January 2008 (hereafter: CU Agreement on Non-Tariff Regulation); (ii) the Agreement on the Introduction and Application of Measures Concerning Foreign Trade in Goods on the Common Customs Territory in Respect of Third Countries, signed on 9 June 2009 (hereafter: CU Agreement on Measures Concerning Foreign Trade); and (iii) the Agreement on Licensing in the Area of Foreign Merchandise Trade of 9 July 2009 (hereafter: CU Agreement on Licensing). The CU Commission Decision No. 132 of 27 November 2009 approved the Common List of Goods that might be subject to non-tariff measures (see Table 28), including those subject to export licensing, which also came into force on 1 January 2010.

657. The representative of the Russian Federation explained that in addition to the CU Agreements and Commission Decisions, national legislation of the Russian Federation, including 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), and Resolution No. 364 of 9 June 2005 "On the Approval of the Regulations for Licensing in the Area of Foreign Trade in Goods and on Creating and Keeping a Federal Data Bank of Issued Licenses", continued to regulate the application of the licensing regime in the Russian Federation. For example, Federal Law No. 164-FZ established the conditions and procedures for applying supervision of export and/or import of certain kinds of goods. Similarly, Federal Law No. 164-FZ set-forth the procedures for applying for an export licence or permit.

658. The most sensitive goods were subject to non-automatic licensing (Table 33). Among the goods subject to non-automatic licenses, were goods with cryptographic capabilities, governed by the Regulations of 27 November 2009 "On the Order of Entry into the Customs Territory of the Customs Union and Removal of the Customs Territory of the Customs Union of Encryption (Cryptographic) Means", and mineral raw materials, governed by Regulations "On the Order of Exportation of Mineral Raw Materials from the Customs Territory of the Customs Union", adopted by CU Commission Decision No. 132. A limited number of goods were subject to automatic licensing for the purpose of monitoring trade flows (see Table 28. He confirmed that Table 28 was comprehensive and that there were no other exports subject to licensing requirements at this time.

659. The representative of the Russian Federation explained that according to the CU Licensing Agreement, the Ministry of Industry and Trade (hereafter: authorised state body of executive power in the Russian Federation) issued three types of licenses: (i) one-time; (ii) general; and (iii) exclusive. One-time licenses were issued to applicants on the basis of a foreign trade contract relating to goods subject to export licensing. One-time and general licenses were issued to applicants, upon decision of the authorised body of the Russian Federation. Both types of licenses granted the right to export certain types of goods, subject to licensing, in the quantity determined by the licence and were valid for one year or, for goods with respect to which provisional quantitative restrictions had been introduced, until 1 January of the following calendar year. Exclusive licenses gave the applicant the exclusive right to export certain types of goods. The goods subject to exclusive licenses were to be decided by the CU Commission; the holders of an exclusive licence would be designated by the authorised body of each CU Party. The representative of the Russian Federation noted that, in 2007, prior to the establishment of the CU export licensing regime, Gazprom had been granted an exclusive export licence that was effective in the territory of the Russian Federation. He explained, however, that until now, no CU exclusive export licenses had been issued in the Russian Federation. The territorial application of a CU exclusive export licence was currently being negotiated by the CU Parties.

660. One-time and general licenses were issued by the Ministry of Trade and Industry, with the exception of licenses for the exportation of military products and goods that could be used to create weapons of mass destruction, means of transportation of such weapons, and other armament and defence technology, which were delivered by the Ministry of Defence of the Russian Federation. Licenses were issued upon receipt of the following documents: (i) an application for the licence; (ii) an electronic version of the application; (iii) a copy of the contract; (iv) a copy of a certificate confirming that the applicant was registered by a regional tax authority as a tax-payer; (v) a copy of the activity licence, if applicable; and (vi) other documents, as required.

661. The representative of the Russian Federation explained that, if the good in question was subject to a quota, export licenses would be required. Pursuant to Government Resolution No. 1299 of 31 October 1996, tender announcements for quota allocations had to be published in mass media ("Rossiiyskaya Gazeta", "Parlamentskaya Gazeta", etc.), at least 30 days prior to the date of the tender. Information on tenders, auctions and procedures for holding tenders and auctions for the sale of a quota were published on the website of the Ministry of Economic Development (www.economy.gov.ru). Additional information was provided in the Section "Import Licensing Systems" of this Report.

662. Several Members of the Working Party expressed concerns about the export licensing regime of the Russian Federation, whilst noting that the Russian Federation did not presently apply many export quotas. The same Members considered that a system of non-automatic export licensing, however, applied to a wide range of products and that such measures had the potential to be applied in a manner contrary to the general prohibition of quantitative restrictions on exports, provided for in Article XI of the GATT 1994. In the case of precious stones and metals, the legislation on export licensing was applied to certain products listed in Table 28, as provided for in Presidential Decree No. 742 of 21 June 2001 "On the Procedure of Importation into and Exportation from the Russian Federation of Precious Metals and Precious Stones". Pursuant to the Decree, exports of platinum were permitted under licenses within quantitative limits. While a rationale could exist for the application of certain controls on exports under the relevant GATT exception clauses (including Articles XX and XXI of the GATT 1994), for example, in respect of the exports of dual use goods, hazardous products, endangered species, etc., the rationale for such controls on the exports of other goods, particularly pharmaceuticals, precious stones and metals, other than gold and silver, was less clear. Automatic licensing, which was already applied for exports of raw hides and skins, provided a mechanism to monitor export flows, if this was considered desirable. However, as discretionary controls on these particular products were unlikely to meet the relevant criteria of the exceptions clauses of the GATT 1994, it was essential that any licensing regime be genuinely automatic in order to avoid restrictions on trade.

663. Several Members also requested more information on the procedures followed and fees charged in connection with the issuance of export licenses. They requested confirmation that any fees charged on exports were related to the cost of services rendered, in accordance with WTO provisions. Some Members questioned whether the restrictions on precious stones and metals, semi-precious stones, objects made thereof, certain alloys, semi-fabricates, ores, concentrates and wastes could be justified under the WTO provisions invoked by the authorities of the Russian Federation. These Members considered that the Russian Federation should provide a more detailed explanation of the measures applied to these products that the Russian Federation was seeking to justify under Article XV:9 (b) of the GATT 1994, including: (i) a description of each measure and its legal basis; (ii) the bodies involved in applying those measures, including details of their responsibilities; (iii) the products affected by each measure; (iv) the export licensing procedures applicable, including details of any restrictions on eligibility for export licenses, and other terms and conditions associated with their issuance; (v) the provisions of the exchange arrangements of the Russian Federation with the IMF, which were currently in force and required the Russian Federation to adopt or maintain the measures applied by means of non-automatic export licensing that the Russian Federation was seeking to justify under Article XV:9 (b) of the GATT 1994; and (vi) the plans of the Russian Federation to eliminate all measures applied by means of non-automatic export licensing that might be required under those arrangements at the conclusion of their term.

664. In response, the representative of the Russian Federation stated that the Register of Licensed Goods in the Russian Federation was available on the official website of the MIT (www.minpromtorg.gov.ru), which contained: (i) the code of the goods, according to the Commodity Nomenclature of the Russian Federation; (ii) the basis for licensing; (iii) the Federal enforcement authority responsible for licensing; and (iv) the reference to the normative act defining the order of licensing. According to Government Resolution No. 364 of 9 June 2005 "On the Approval of Regulations about the Order of Licensing in the Sphere of Foreign Trade in Goods and about the Order of Formation and Conducting Federal Bank of the Given Licences in the Sphere of Foreign Trade", the fee for the issuance of the licence was RUB 1,000, the fee for re-issuance was RUB 100 and the fee for the processing of the application for issuance of the licence was RUB 300.