FEDERATION TO THE WORLD TRADE ORGANIZATION 29 страница

780. With respect to accreditation, the representative of the Russian Federation explained that the main principles of the organization of the current system of accreditation were set-out in Article 31 of Federal Law No. 184-FZ and would continue to be implemented until the establishment of a single national accreditation body in 2012. Pursuant to this Law and Government Resolution No. 163 of 24 February 2009 "On Accreditation of Certification Bodies and Testing Laboratories Carrying out the Work on Conformity Assessment" (as amended on 17 June 2010) foreign certification bodies and laboratories operating in the mandatory sphere could not be accredited in the Russian Federation. Similarly, according to the CU Commission Decision No. 319 foreign certification bodies and laboratories could not be included into the CU Unified List of accredited bodies. However, pursuant to Article 30 of Federal Law No. 184-FZ, the Russian Federation was able to accept the results of foreign conformity assessment bodies and similar provisions were incorporated in CU Commission Decision No. 621 of 7 April 2011. When the single national accreditation body of the Russian Federation joined ILAC, acceptance of the results of conformity assessment bodies accredited by other ILAC members would be facilitated.

781. The representative of the Russian Federation explained that accreditation of certification bodies and test laboratories, according to the provisions of Article 31 of Federal Law No. 184-FZ, was voluntary and organised in conformity with the principles set-out in that Article, which included requirements for the certification body and/or test laboratory to provide free access to its rules for the accreditation of certification bodies and test laboratories, to establish its independence and competence, not to restrict competition, and to provide equal access for all applicants to accreditation. Any limitations which could adversely affect or impede the recognition of these accredited bodies in the different regions of the Russian Federation were prohibited. Therefore, anybody accredited by the Russian Federation to conduct conformity assessment was recognised anywhere in the territory of the Russian Federation and with the implementation of the CU Treaty on the Functioning of the Customs Union In Compliance with Customs Union Party Commitments under the Multilateral Trading System, would be recognised in the territory of the other CU Parties as well. Further, as noted in paragraph 709, neither Federal Law No. 184-FZ nor the CU Agreement on Mutual Recognition of Accreditation Bodies permitted the same entity to engage in both certification and accreditation activities. The rules of accreditation and list of the accreditation bodies, including submissions to the CU Unified Register of conformity assessment bodies were set by the Government of the Russian Federation, as further described in paragraphs 702 through 709.

782. One Member requested the Russian Federation to provide a list, in English, of the certification bodies authorised to provide the GOST R certification for electronic/electrical (including IT), mechanical and chemical products. In response, the representative of the Russian Federation stated that such list was available on the website of Rosstandart, www.gost.ru but not yet in English.

783. One Member of the Working Party noted that accreditation of conformity assessment bodies in a foreign country by an accreditation body fulfilling the requirements of ISO 17011, should be sufficient. In response, the representative of the Russian Federation stated that, in his view, all of the accreditation procedures in the Russian Federation were based on standard ISO 17011, which set-out guidelines for accreditation bodies. Thus, simplifying accreditation procedures and avoiding re-accreditation could be accomplished, inter alia, through the agreements on mutual recognition of accreditation bodies, if the relevant accreditation body was a signatory of the ILAC Arrangement or the IAF Multilateral Agreement or the relevant conformity assessment body participates for example, in an IEC scheme. He emphasized that one Russian accreditation body, the Association of Analytical Centres "Analitica" (AAC Analitica), was a signatory to the ILAC Arrangement in the voluntary sphere and that the single national accreditation body of the Russian Federation intended to become a Member of ILAC after its establishment.

784. In response, the representative of the Russian Federation confirmed that the WTO Agreement was an international treaty within the meaning of Article 30 of Federal Law No. 184-FZ of 27 December 2002 "On Technical Regulation" (as last amended on 28 September 2010) (Law No. 184-FZ). Thus, it was possible under Law No. 184-FZ for the Russian Federation to accept the results of conformity assessment procedures done in WTO Members on the basis of, and in compliance with, Article 6.1 of the WTO TBT Agreement, without requiring the conclusion of a mutual recognition or other agreement. The acceptance of such results throughout the CU would be established by the CU Treaty on the Functioning of the Customs Union in Compliance with Customs Union Party Commitments under the Multilateral Trading System. Therefore, from the date of its accession to the WTO, the Russian Federation would ensure, whenever possible, that results of conformity assessment procedures of conformity assessment bodies located in other WTO Members were accepted, provided that the Russian Federation was satisfied, as provided in Article 6.1 of the WTO TBT Agreement, that those procedures offered an assurance of conformity with applicable technical regulations or standards equivalent to the own procedures of the Russian Federation. The representative of the Russian Federation also confirmed that as provided in Article 6 of the WTO TBT Agreement, such acceptance also could, for example, be achieved through the membership of the single national accreditation body of the Russian Federation, once established, in ILAC and the International Accreditation Forum (IAF) and signing of the ILAC Arrangement, which would build confidence in the adequacy and technical competence of the conformity assessment bodies of third countries accredited by other ILAC and IAF members, including acceptance of the results of such conformity assessment bodies, conclusion of a Mutual Recognition Agreement and other appropriate means. The Working Party took note of these commitments.

785. The representative of the Russian Federation explained that in accordance with the authority conferred in Article 31 (3) of Federal Law No. 184-FZ, the current list of accredited certification bodies and test laboratories was published on the Rosstandart website (www.gost.ru). The representative of the Russian Federation confirmed that the accreditation bodies certified pursuant to Article 31 (3) of Federal Law No. 184-FZ of 27 December 2002 "On Technical Regulation" (as last amended on 28 September 2010) would be replaced by a single national accreditation body by 30 June 2012, and the name and other information on this Body would be duly published along with the accredited bodies listed in the CU Unified Register, on the Rosstandart website (www.gost.ru) and the website of the CU Commission (www.tsouz.ru), respectively. The Working Party took note of this commitment.

786. In response to a question from a Member, the representative of the Russian Federation noted that the development of draft technical regulations could proceed in parallel with the development of draft national standards. When developing technical regulations, the Russian Federation would use relevant international standards, or the relevant parts thereof, as a basis, in accordance with Article 2.4 of the WTO TBT Agreement. Before a technical regulation entered into force, Rosstandart, as the national standardization body, must approve and publish in a publication of the Federal Executive Body for technical regulation (Newsletter (Vestnik) of Technical Regulation) and in the public information system in digital electronic form (www.gost.ru) the list of national standards and (or) sets of rules, the voluntary application of which results in compliance with the requirements of the approved technical regulations. The requirements of the particular technical regulation for which voluntary compliance with national standards and (or) sets of rules established compliance with the technical regulation, could be indicated in the national standards and (or) sets of rules. The application of national standards and (or) sets of rules on a voluntary basis would suffice to establish compliance with the requirements of the corresponding technical regulations. In case national standards and (or) sets of rules were applied for compliance with the requirements of the technical regulations, the assessment of compliance with the requirements of the technical regulations could be carried out on the basis of confirmation of compliance with the national standards and (or) sets of rules. These procedures were also relevant in terms of the CU system. Article 6 of the CU Agreement on Uniform Technical Regulation Principles stated that "the Commission shall approve the list of international and regional standards, and in the absence thereof - national standards of the CU Parties - voluntary application whereof ensures observance of requirements of the adopted technical regulations of the Customs Union and the methods of establishing conformity with CU technical regulations".

787. The representative of the Russian Federation confirmed that, depending on the technical regulation at issue, documents establishing compliance with the requirements of the technical regulation could include a supplier's own evidence, such as declaration of conformity with the relevant technical regulation, test reports, and other documents as relevant, in accordance with the legislation of the Russian Federation, CU and EurAsEC Agreements and other EurAsEC and CU Acts, or the results of conformity assessment procedures that the Russian Federation may accept pursuant to Article 6.1 of the WTO TBT Agreement. The Working Party took note of these commitments.

788. The representative of the Russian Federation stated that, Federal Law No. 184-FZ provided that until corresponding technical regulations had come into effect, the Government would approve a unified list of products that would be subject to obligatory certification, and a unified list of products, that would be subject to declaration of conformity, and would supplement these lists every year. In addition, these lists had formed the basis for the contribution of the Russian Federation to the Unified List compiled by the CU Commission, in accordance with CU Commission Decision No. 319.

789. He confirmed that the Russian Federation would review not only its lists of products subject to obligatory certification or declaration of conformity, but all the technical regulations applied on the territory of the Russian Federation, including CU and EurAsEC technical regulations, on an ongoing basis to ensure that they remained necessary to achieve the desired legitimate objective, in accordance with Article 2.3 of the WTO TBT Agreement. Technical regulations would not be maintained if the circumstances or objectives giving rise to their adoption no longer existed or if the changed circumstances or objectives could be addressed in a less-restrictive manner. The Working Party took note of the commitments.

790. The representative of the Russian Federation further explained that, pursuant to Article 24 (1) of Federal Law No. 184-FZ and Article 7.2 of the CU Agreement on Uniform Technical Regulation Principles, persons submitting a conformity declaration had to be registered in the Russian Federation or in one of the CU Parties, respectively, as legal persons or individual entrepreneurs, who were producers or sellers, or who were representing a foreign producer. In the latter case, a contract establishing delegation of authority to apply for conformity of the products to technical regulations and liability for non-conformity of the delivered products was required. Pursuant to Article 46 (4) of Federal Law No. 184-FZ and the CU Agreement on Uniform Technical Regulation Principles, until the corresponding technical regulations had come into effect only producers or persons resident in one of the CU Parties representing a foreign producer could declare conformity on the basis of its own proofs (i.e., the declaration of conformity of a manufacturer or supplier). Importers could do so for foreign goods they imported into the Russian Federation based on a contract for that importation.

791. Some Members expressed concerns about the requirement that, in the case of imports, the person submitting a conformity declaration was required to supply a contract including certain conditions when this was not required for submission of a conformity declaration for domestically produced articles. This additional requirement raised concerns about national treatment and that the decision on whether to provide the conformity declaration would be based on conformity with the contract, including provisions on quality, rather than technical regulations. These Members requested that the Russian Federation eliminate the requirement to submit a contract and to ensure that conformity assessment was for compliance with technical regulations and not the terms of a contract.

792. In response, the representative of the Russian Federation explained that Article 24 (1) of Federal Law No. 184-FZ did not require that the contract contain provisions on the safety of goods which would then be subject to conformity assessment. The purpose for requiring a contract was to establish existence of the contractual obligation of the foreign supplier to the person who represented such supplier to ensure that the imported goods would be in conformity with applicable technical regulations, and that the person who represented such supplier would assume liability for any injury resulting from non-conformity with technical regulations. He added that the authorities of the Russian Federation did not influence or interfere in the economic and legal relations between entrepreneurs in respect of terms of contract.

793. Some Members expressed concern that the provisions imposing liability on local suppliers for goods not meeting the technical regulations or standards-related-requirements implied that the goods manufacturer would be forced to share proprietary and confidential information with the local supplier in order for the latter to exercise its right of defence before the court. They noted that the manufacturer was the only entity which was ultimately responsible for the non-conformity of the good with the technical regulations or standards and, thus, should have the right to stand before the court in defence of conformity claims.

794. In response, the representative of the Russian Federation explained that a foreign manufacturer, who intended to participate in a dispute between a person who represented its interests in the Russian Federation and a consumer who had suffered damages due to the product it had produced, was entitled to do so in accordance with Article 43 of the Civil Procedural Code of the Russian Federation. Under this Article such producer would be qualified as a "third party who does not submit a separate claim" in case the outcome of the dispute could affect its rights and obligations as regards any party of the dispute. In accordance with the said Article such producer could also be involved in the case as a "third party who does not submit a separate claim" at the request of any party to the dispute or at the initiative of the Court. Therefore, the representative of the Russian Federation explained that the manufacturer of the product(s), being the entity possessing the most complete information that could provide evidence on compliance of the good(s) with applicable technical regulations, would be entitled to demonstrate directly to competent judicial and administrative authorities the conformity of the good(s). He also explained that the following provisions of the Federal Law of 29 July 2004 No. 98-FZ "On Commercial Secrets", in particular Articles 10 and 14 thereof that provided for measures that ensured security of the information constituting commercial secret as well as criminal, civil and administrative liability of the persons responsible for illegal disclosure of that type of information, further specified in Article 13.14 of the Code of the Russian Federation on Administrative Offences, Article 183 of the Criminal Code of the Russian Federation, and Article 1472 of the Civil Code of the Russian Federation, guaranteed that confidential and proprietary information would be fully protected.

795. He further stated that, pursuant to Article 24 (2), (3), and (4) of Federal Law No. 184-FZ, when declaring conformity on the basis of the applicant's own proofs and those obtained with participation of a third party, an applicant, at his own choice and in addition to providing his own proof:

- could include in evidentiary materials the reports of research (tests) and measurements carried out in an accredited test laboratory (centre); and

- could submit the certificate of quality system, in relation to which there was provided for the control (supervision) of certification body, which has issued the given certificate, over certification object.

796. The representative of the Russian Federation explained that the certificate of a quality system may be used together with other proofs when assessing the supplier's declaration for any products, except for the case when technical regulations stipulated for such products another form of conformity assurance. The contents of the documentary evidence were to be determined by a particular technical regulation.

797. The representative of the Russian Federation noted that, in respect of mandatory certification, Federal Law No. 184-FZ provided that certification schemes applied for certification of products would be determined in the relevant technical regulations and not by the certification authority (Article 25 (1)). The duration of validity of conformity certificates and conformity declarations were to be established in the relevant technical regulation. Further, according to Article 27 of Federal Law No. 184-FZ, products whose compliance with the requirements of technical regulations had been confirmed in accordance with the procedure stipulated by Federal Law No. 184-FZ must be labelled with the mark of circulation on the market. The applicant must label products with the mark of circulation on the market on his own, by any method (way) suitable for him.

798. Some Members noted that there did not appear to be a commitment to ensure that regulatory authorities allow a reasonable period of time between the final publication of a conformity assessment procedure and its entry into force so that suppliers can adapt. The representative of the Russian Federation replied that Article 7 (10) of Federal Law No. 184-FZ of 27 December 2002, "On Technical Regulation" (as last amended on 28 September 2010) (Federal Law No. 184-FZ) provided that final technical regulations would not enter into force earlier than six months after their official publication. He clarified that the rules of conformity to a technical regulation generally would be contained within the regulation itself. In this context, the reference to "technical regulations" in Article 7 (10) of Federal Law No. 184-FZ referred to conformity assessment procedures as well; thus, there would be no less than six months between the official publication of a conformity assessment procedure and its entry into force. He confirmed that Article 7 (2) of Federal Law No. 184-FZ provided that the requirements of technical regulations must not be applied so as to create obstacles to trade to a greater extent than necessary to achieve the aims set-out in Article 6 (1) of Federal Law No. 184-FZ. The Working Party took note of the commitment.

799. The representative of the Russian Federation further explained that, in cases where a positive assurance of conformity with technical regulations was required and technical rules and methods for ensuring compliance with technical regulations (i.e., elements of conformity assessment procedures, defining the methods of research, tests, measurements, or selection of samples that could be used to comply with the technical regulations) were not included in a technical regulation, such rules and methods would be developed in accordance with CU Commission Decision No. 527 of 28 January 2011, Regulation on Development, Adoption, Amendment and Cancellation of Technical Regulations (CU Commission Decision No. 527). He confirmed that CU Commission Decision No. 527 provided for the placement of such rules and methods in digital electronic form not later than 90 days before the day of their adoption, approved by the CU Commission not later than 60 days before the entry into force of the relevant technical regulation and published on websites of the CU Commission and of MIT (www.tsouz.ru and www.minpromtorg.gov.ru/eng, respectively). He added that these rules were to be based on relevant guides or recommendations issued by international standardizing bodies, in accordance with Article 5.4 of the WTO TBT Agreement, and would define the methods of research, tests, measurements, or selection of samples that may be used to comply with the technical regulations. The rules must, where possible, list a choice of compliance methods and, in order to ensure compliance with Article 5.1.2 and other provisions of the WTO TBT Agreement, conformity assessment procedures would not be more strict or be applied more strictly than necessary to give adequate confidence that products conform with the applicable technical regulations, taking account of the risks non-conformity would create. He confirmed that the above-mentioned rules would not create a bigger impediment to business activity than was necessary to fulfil the goals that are specified in Article 4.2 of the CU Agreement on Uniform Principles and Rules of Technical Regulation in the Republic of Belarus, Republic of Kazakhstan and the Russian Federation of 18 November 2010. The Working Party took note of these commitments.

800. The representative of the Russian Federation noted that pursuant to Article 29 (1) of Federal Law No. 184-FZ, customs clearance of products subject to mandatory conformity assessment required submission of a conformity certificate or a conformity declaration registered with the authorised body. Such a certificate or a conformity declaration was submitted to customs authorities together with the customs declaration, and was necessary to obtain permission to import the products in question into the Russian Federation. Lists of products requiring mandatory certification, including the HS Codes, were to be approved on the basis of technical regulations by the Government. Currently, the national list of products subject to mandatory certification or declaration of conformity was provided in Government Resolution No. 982 of 1 December 2009 "On the Approval of the Single List of Goods Subject to Mandatory Certification and Single List of Goods whose Conformity may be Confirmed by Conformity Declaration" (as last amended 13 November 2010). He noted that 24 current national technical regulations in effect in the Russian Federation also included the list of goods subject to mandatory certification or declaration of conformity. He further recalled that, since 1999, a wide range of products subject to mandatory certification had been consequently transferred to the conformity declaration procedure (in accordance with amendments to the above regulations, provided by Government Resolutions No. 287 of 29 April 2002, No. 72 of 10 February 2004, No. 775 of 17 December 2005, and No. 982 of 1 December 2009). According to preliminary assessments, upon entry into effect of all envisaged technical regulations, approximately 60 per cent of goods would be subject to conformity declaration and 40 per cent to conformity certification. CU and EurAsEC Agreements and Acts also had established the Unified Register of declarations of conformity and certification accepted within the CU. The Unified List of Goods subject to mandatory certification and confirmation by conformity declaration was contained in CU Commission Decision No. 620.

801. In response to concerns of one Member in respect of transparency of mandatory requirements which were currently applied to imported goods and would stay in effect until the adoption of the relevant technical regulations, the representative of the Russian Federation informed Members of the Working Party that a unified list of products subject to mandatory certification and certification of conformity, adopted in accordance with Article 46 (3) of Federal Law No. 184-FZ of 27 December 2002 "On Technical Regulation" (as last amended on 28 September 2010) (Law No. 184-FZ), as well as in accordance with CU Agreement on Circulation of Goods Subject to Mandatory Conformity Assessment on the Customs Territory of Customs Union of 11 December 2009 and CU Commission Decision No. 526 of 28 January 2011, "On the Unified List of Products, in Respect of which Mandatory Requirements are Established in the Framework of the Customs Union" was available at the website www.minpromtorg.gov.ru and the CU Commission website www.tsouz.ru. These lists were legally binding. The Unified List of Goods established by CU Commission Decision No. 620 of 7 April 2011 "On the Unified List's Update with Regard to Products Subjected to Mandatory Conformity Assessment (Confirmation) Within the Framework of the CU" with issuance of single documents, approved by CU Commission Decision No. 319 of 18 June 2010 indicated particular national standards and/or their parts which defined mandatory requirements for such goods and would stay in force until the relevant CU and EurAsEC technical regulations entered into force. He emphasized that the national list would be duly revised and updated in accordance with the procedures provided for by Article 46 (3) of Federal Law No. 184-FZ, i.e. upon adoption of new technical regulations or updating of existing national standards due to developments of technologies. Interested parties and Members would be able to participate in such updating, in accordance with the procedures described in paragraph 766. The Unified List would be amended in accordance with normal CU Commission procedures. He stated that in his view such lists would be an effective mechanism ensuring the transparency of mandatory requirements and facilitation of trade.

802. The representative of the Russian Federation explained that documents (national standards and others) relevant to goods subject to mandatory certification and declaration of conformity were developed in accordance with Government Resolution No. 982 of 1 December 2009 "On Approval of the Single List of Goods Subject to Mandatory Certification and Single List of Goods Subject to Conformity Confirmation Procedures by means of Conformity Declaration" and published on the website of Rosstandart. Rosstandart, the successor of Gosstandart, was in charge of accreditation. The procedures of conformity confirmation of products determined before 1 July 2003 by Rosstandart or other governmental bodies of the Russian Federation, in conformity with established international practices, would remain in effect until the issuance of CU or EurAsEC technical regulations or would be eliminated if the relevant technical regulation was eliminated or transformed into a voluntary standard. Since the entry into force of Federal Law No. 184-FZ, mandatory assessment of conformity with technical regulations has been governed exclusively by the relevant provisions of the Law, specifically Articles 20 (Forms of Compliance Confirmation) and 23 (Obligatory Confirmation of Compliance). The provisions of technical regulations containing the conformity assessment procedures used in respect of particular products must be in compliance with those Articles and with the relevant CU and EurAsEC Agreements and EurAsEC and CU Acts. He noted that work on mandatory certification of goods was currently conducted by Russian authorities and laboratories accredited by Rosstandart and other accreditation bodies in accordance with the established procedure and later, after the new CU System was developed, by a single national accreditation body. This single national accreditation body would be solely responsible for the accreditation of assessment bodies. In response to the request of a member, the representative of the Russian Federation said that a list of certification bodies accredited to provide the GOST R certification for electronic/electrical (including information technology), mechanical and chemical products had been provided on the website of Rosstandart: www.gost.ru.

803. The representative of the Russian Federation explained that the Russian Federation would, from the date of accession, ensure that central government bodies use existing (or soon-to-be-completed) relevant guides or recommendations, or the relevant parts of them, issued by international standardization bodies as a basis for their conformity assessment procedures, except where, as provided for in Article 5.4 of the WTO TBT Agreement, such guides or recommendations or relevant parts of them are inappropriate for the Russian Federation. In addition, he confirmed that the Russian Federation would in accordance with Articles 7 and 8 of the WTO TBT Agreement, from the date of accession, take all reasonable measures to ensure that local government bodies and non-governmental bodies within its territory to the extent that they operated conformity assessment procedures, complied with the respective provisions of the WTO TBT Agreement. He also confirmed that in accordance with Article 5.1.2 of the WTO TBT Agreement, in respect of products subject to mandatory certification the conformity assessment procedure provided for in CU and EurAsEC Agreements and Acts would not be more strict or be applied more strictly than was necessary to give the Russian Federation adequate confidence that products conformed to the applicable technical regulations or standards. He confirmed that the products subject to mandatory certification set-out in the CU Unified List described in paragraph 801 would be defined in accordance with the provisions of the TBT Agreement, including the provisions of Article 5.1.2 thereof. The Working Party took note of these commitments.