FEDERATION TO THE WORLD TRADE ORGANIZATION 34 страница

898. The representative of the Russian Federation explained that CU Commission Decision No. 721 of 22 June 2011 "On Application of International Standards, Recommendations and Guidelines" required that: in cases in which no mandatory requirements on veterinary, or phytosanitary, or sanitary epidemiological and hygienic requirements, had been established at CU or national level, the CU Parties would apply standards, recommendations and guidelines of the OIE, IPPC and the Codex Alimentarius respectively. Similarly, if CU veterinary, phytosanitary and sanitary-epidemiological and hygienic mandatory requirements in effect in the territory of the CU were more stringent than relevant international standards, guidelines and recommendations, in the absence of scientific justification of risk to human, animal, or plant life or health, relevant international standards, guidelines, and recommendations, or parts thereof, would be applied.

899. One Member noted that it would be useful to have a clarification on how this principle would be applied in a given case, as the operationalization of this concept did not seem self-evident. It also seemed that paragraphs 994 and 1003 referred to the same principle.

900. In response, the representative of the Russian Federation stated that Decision No. 159 and now CU Commission Decision No. 721 of 22 June 2011 were mandatory and, in his view, when CU Commission Decision No. 721 entered into effect, there would be a basis for application of international standards, recommendations and guidelines. He invited this Member, in case it had particular examples of its non-implementation, to provide them to the Russian authorities, in order to address those issues.

901. A Member of the Working Party expressed concern that bovine spongiform encephalopathy (BSE) requirements set-out in existing bilateral certificates as well as in the CU common veterinary certificate for live cattle, did not conform to OIE standards, since they respectively foresaw testing of animals for BSE and required the absence of a genetic link with animals affected by BSE. The representative of the Russian Federation clarified that in respect to BSE, as of the date of accession of the Russian Federation to the WTO, bilateral certificates as well as the CU common certificates would, as provided for in the WTO Agreement, be in conformity with OIE standards. The Working Party took note of this commitment.

902. In response, a Member stated that the Russian Federation should amend its requirements to be in conformity with international standards, recommendations, and guidelines in order to avoid confusion whilst achieving the appropriate level of protection. The representative of the Russian Federation stated that the harmonization of CU requirements with the international standards, recommendations and guidelines was being achieved, inter alia, through the work on elaboration of new technical regulations in the SPS sphere, as described in paragraphs 828 through 845, and 1045 through 1048. Furthermore, the CU Commission had adopted Decisions No. 625 as amended by Decision No. 722 of 22 June 2011 and No. 721 of 22 June 2011 to ensure that harmonization with international standards, recommendations and guidelines would be achieved as of the date of entry into force of CU Commission Decision No. 721 of 22 June 2011.

903. One Member noted that the Russian Federation had adopted some veterinary certificates that included provisions that appeared to be inconsistent with international standards, e.g., those of the OIE, and had not provided a scientific justification or a risk assessment done in accordance with Articles 3 and 5 of the WTO SPS Agreement. This Member asked whether the Russian Federation was prepared to undertake modifications of these certificates to bring them into compliance with these standards and obligations.

904. In response, the representative of the Russian Federation confirmed that, if an exporting Member believed that the SPS requirements of the CU or the Russian Federation resulted in a higher level of protection than would be achieved by measures based on the relevant international standards, guidelines or recommendations, the Russian Federation was prepared to consult with the exporting Member on such SPS requirements and, if necessary, would, as a result of such consultations, modify requirements included in the relevant certificate to bring them into compliance with international standards, guidelines, or recommendations consistent with the WTO SPS Agreement. The Working Party took note of this commitment.

(iv) Establishment Approval through Systems Audits, Guarantees and Inspections

905. The representative of the Russian Federation explained that, currently, according to CU Commission Decision No. 317, all goods included in the list of goods subject to veterinary control were subject to three requirements: (i) the exporting establishment had to be included in the Registry of Establishments authorised to export to the CU; (ii) the good had to be accompanied by a veterinary certificate; and (iii) an import permit had to be issued for importation of goods from an establishment in the Registry. In addition, these goods underwent veterinary checks at the CU border. Members of the Working Party expressed concerns that the veterinary risk associated with certain of these goods, such as feed of plant origin, did not justify subjecting these goods to veterinary control. In these Members' view, these goods should be subject to another type of control than a veterinary control.

906. In response to a request from a Member for further information on the requirements and procedures for an establishment to be included on the list of establishments authorised to export a product to the Russian Federation and the CU, the representative of the Russian Federation explained that, prior to 1 July 2010, establishments seeking to export meat and poultry, meat products, fish and fishery products, milk and dairy products, feed and feed additives of animal origin to the Russian Federation had to be listed by Rosselkhoznadzor. The listing requirements were established by Rosselkhoznadzor. The representative of the Russian Federation explained that, as of 1 July 2010, imports of products subject to veterinary control, as established in CU Commission Decision No. 317, were required to come from establishments approved by the CU Parties and included in the Common Registry. The representative of the Russian Federation stated that this requirement now also applied to ready-to-eat meat products, bee-farming products, eggs, and raw materials of animal origin in addition to those products that had previously been required to be listed.

907. The representative of the Russian Federation explained that the CU Commission Decision No. 830 of 18 October 2011 amended CU Commission Decision No. 317 to specify, for each type of good included in the list of goods subject to veterinary control, which veterinary measures (import permits, veterinary certificates and/or listing of establishments) applied to that particular good. In some cases, the form of veterinary control had been modified or eliminated. For example, the requirement for veterinary certificates and/or import permits had been eliminated. Similarly, the requirement for an establishment to be included in a Register had been eliminated or amended to require only the provision of the name or number of the final establishment dealing with the goods prior to export to the territory of the CU, which was included in the import permit or veterinary certificate. Pursuant to CU Commission Decision No. 810 of 23 September 2011, certain goods on the list of goods subject to veterinary control were not subject to any of the three forms of veterinary control mentioned above when exported to the Russian Federation. CU Commission Decision No. 317, as amended by CU Commission Decisions Nos. 810 of 23 September 2011 and 830 of 18 October 2011, clearly specified those goods which were not subject to veterinary control when they were destined for the Russian Federation, as reflected in Table 41. The representative of the Russian Federation confirmed that goods destined for the Russian Federation and imported via another CU Party would be subjected, at the external border of the Customs Union, only to those veterinary measures applicable to goods imported directly into the Russian Federation.

908. With regard to the list of goods as set-out in Table 41, the representative of the Russian Federation confirmed that categories of goods would be added to the list of goods subject to veterinary control or the form of veterinary control applied to categories of goods on the list would be modified only if such action was in compliance with the provisions of the WTO SPS Agreement. The Working Party took note of this commitment.

909. Members expressed concerns that the listing requirements had been extended to many new commodities, such as live animals, composite products containing small amounts of fishery or meat products, and feed of vegetable origin, and that such requirements were not based on scientific evidence or proportionate to the risk and would represent an unjustified burden on trade, and were in their view, inconsistent with the WTO SPS Agreement. In response, the representative of the Russian Federation explained that, in his view, the listing requirement itself could not be a burden on trade. The burden on trade could result from the application of the wrong mechanism for including an establishment on the Register, for example, if the required actions that had to be done by the competent authority of an exporting country and/or establishment were not based on a risk analysis or were more trade restrictive than necessary. CU Commission Decision No. 317, as amended, allowed the use of different mechanisms for listing establishments that provided the possibility of minimizing the application of a more burdensome process than necessary for including an enterprise on the list by basing actions on the results of a risk analysis. The representative of the Russian Federation also explained that the requirement to be in the Common Register of establishments approved to export particular controlled products was a means to ensure compliance with CU veterinary requirements.

910. The representative of the Russian Federation further explained that since 1 July 2010 and before completing work on creating a common web-interface of the CU Commission's website, the three national lists of establishments from which imports were authorised were valid for imports into the entire CU territory (unless specified otherwise for specific establishments on the lists). Currently these lists were available within the following website: http://tsouz.ru/db/techregulation/vetmeri/Pages/Reestrorg.aspx. If a CU Party took a decision to add an establishment to its national list, the other CU Parties had to accept this decision. As a result of this decision, products from such an establishment could freely circulate within the territory of the CU, unless specifically provided otherwise in this decision. The representative of the Russian Federation explained that the CU Parties intended to develop a common web-interface of the CU Register of establishments and a common information system so as to have a unique list of establishments that would consolidate their national lists, but exact timing for the development of this database could not be specified. The representative of the Russian Federation explained that the system would be functional no later than by the date of accession of the Russian Federation to the WTO.

911. In response to a question from a Member, the representative of the Russian Federation explained that in accordance with a transitional period provided under CU Commission Decision No. 317, trade could continue from establishments not on a "list" in the Common Registry - when there was no requirement for such a "list" prior to 1 July 2010. Such trade could take place on the basis of an import permit. He further explained that according to point 11.3 of the CU Regulation "On Veterinary Checks at the CU Border and on the CU territory" (CU Commission Decision No. 317 as amended by CU Commission Decision No. 342), a transitional period for listing establishments had been established, for the following products: animals; genetic material; apicultural products; raw material of animal origin (skins, fur, feather, etc.); feed additives of animal origin; feed of plant origin, etc., to permit trade to continue until lists were established. In response, some Members highlighted that this transitional period did not cover all commodities, such as composite products and gelatine, which were not subject to listing requirements before the entry into force of CU Commission Decision No. 317. The representative of the Russian Federation explained that pursuant to CU Commission Decision No. 317, as amended by CU Decision No. 724 of 22 June 2011, gelatine and composite products had been included in the list of products subject to a transition period. In such cases, the duration of the transition period would be not less than 18 months from 22 June 2011.

912. The representative of the Russian Federation further explained that since 1 July 2010, establishments could be added to the list of establishments authorised to export to the CU following an on-site joint inspection conducted by the three CU Parties or following the delivery of guarantees as regards conformity with the CU requirements by the exporting country, if the three CU Parties commonly agreed to rely on such guarantees. Indeed, as of 1 July 2010, the "Regulation of a Common System of Joint Inspections of Sites and Sampling of Goods (Products), Subjected to Veterinary Control (Supervision)" approved by CU Commission Decision No. 317 of 18 June 2010 had entered into force. This Decision outlined two possibilities for exporting countries' establishments to become eligible to export to the CU. The first option was that the competent authority of the exporting country provided guarantees to the CU that the establishment met the requirements of the CU. The second option was through a joint inspection conducted by all CU Parties. He explained, however, that if a third country had never exported products of animal origin to any of the CU Parties before, and wanted to export to the CU for the first time, exporting establishments proposed by this third country would have to be inspected by the CU Parties before being added to the Register, in order to confirm the reliability of the veterinary control system of this country.

913. Some Members asked on which basis CU Parties could decide to rely on the guarantees of the exporting country. Another Member sought clarification as to the processes available to exporting countries to have facilities added to the Common Registry. In this Member's view, it was unclear whether both options are available to all Members. A Member expressed concern that, in practice, the listing of new establishments was no longer accepted on the basis of written guarantees of the exporting country since the entry into force of the CU. In this Member's view, the Russian Federation and the other CU Parties did not have the resources to carry out inspections for any new establishment requesting to be listed by an exporting party and some establishments, even already exporting, could not be listed due to this lack of resources. In this Member's view, this represented an unjustified barrier to trade.

914. In response, the representative of the Russian Federation noted that prior to 1 July 2010, approximately 90 per cent of the establishments included in the Russian Register were placed there based on guarantees provided by the competent authorities of the exporting country. In general, the competent authorities of the CU Parties had to have confidence that the competent authorities of the exporting country would effectively ensure that exporting establishments in that country met CU requirements. He added that more detailed criteria on foreign guarantees were included in the new Regulation "On Common System of Joint Inspection of Objects and Sampling Goods (Products) Subject to Veterinary Control (Supervision)" adopted on 18 October 2011 (hereafter: new Regulation) which replaced the regulation of the same name adopted on 18 June 2010.

915. The representative of the Russian Federation explained that CU Commission Decision No. 317 also allowed for joint inspections by the three CU Parties of all establishments in third countries that sought to be permitted to export goods to the CU that are subject to veterinary control in the CU. Inspections must be carried out on the basis of a request by the competent authority of the exporting country. He further explained that it was possible that the representatives of the other CU Parties could delegate their authority to another CU Party to carry out an inspection. However, before an establishment could be included in the approved establishment list, all CU Parties had to concur.

916. Some Members expressed concern about the process of approving an establishment by each of the CU Parties. For example, one Member of the CU could approve the addition of an establishment to the Registry, but the establishment would not be added to the Registry due to a lack of response from the other CU Parties. Further these Members expressed concern that approval, to be added to the Registry, was by consensus and rejection was subjective and did not appear to be based on any criteria. These Members requested information on what would constitute a valid reason for refusal to be added to the Registry, by CU Parties and for other (non-auditing) CU Parties to refuse to list an establishment or any time-frames for such a decision. In some Members' view, these decisions could be arbitrary and discriminate against Members where the same conditions prevailed.

917. Members of the Working Party expressed concerns that the CU Regulation "On Joint Inspections of Goods Subject to Veterinary Control" (CU Commission Decision No. 317) was not in line with Codex Guidelines for the design, operation, assessment and accreditation of food import and export inspection and certification systems (CAC/GL 26-1997), which recommended that: assessment activities by the importing country in the exporting country "should concentrate primarily on evaluating the effectiveness of the official inspection and certification systems rather than on specific commodities or establishments in order to determine the ability of the exporting country's competent authority(s) to have and maintain control and deliver the required assurances to the importing country". Members requested that the Russian Federation amend the CU Regulation so that it conformed to international standards, guidelines and recommendations.

918. In response to Members' questions and concerns, the representative of the Russian Federation explained that the new Regulation provided three ways for a country to have establishments located on its territory included on the Register of establishments authorised to export. At the request of the competent authorities of the third country, the CU Parties would conduct a systems audit to determine if the official system of supervision of that third country was capable of providing a level of protection at least equivalent to that provided by CU requirements. If this audit of the official system of supervision was successful, the CU Parties would include establishments of the audited country on the Register in accordance with a list of establishments that the competent authority of the third country provided to the CU Parties. If an audit of a third country's official system of supervision was not carried out or was not completed or if, as a result of such audit, the third country's official system of supervision was not recognized as being capable to provide a level of protection at least equivalent to that provided by CU requirements, the CU Parties could agree to include establishments of that country on the Register on the basis of joint inspections or guarantees provided by the competent authority of the third country. The new Regulation mentioned in paragraph 914 also established the procedures for conducting a systems audit, including provisions on visits to establishments located in the third country. In connection with a systems audit, the purpose of the visit was to ensure that, within the framework of the third country's regulatory system, related to production, processing, transporting and storage of the relevant goods, all of the country's laws, regulations and other requirements on inspection and certification, which the CU Party(s) recognised as capable to provide a level of protection, at least equivalent to that provided by CU requirements at the stage of analysis of documentation, were properly implemented. If the CU provided a third country the authority to list establishments located on its territory in the Registry, based on guarantees, the CU Parties could conduct joint inspections of a representative percentage of establishments to check and confirm the operation of the third country's official system of supervision that was the basis for the guarantees. Establishments could also be included on the Register based on a joint inspection of the establishment.

919. The representative of the Russian Federation explained that, in this Regulation, CU requirements were defined as international standards, guidelines and recommendations within the meaning of CU Commission Decision No. 721 of 22 June 2011 "On Application of International Standards, Recommendations and Guidelines", related to Veterinary and Sanitary Requirements for Goods, CU Technical Regulations for Goods, CU Common Veterinary Requirements or, the different requirements that CU Parties have agreed with the third country in veterinary export certificates, as provided in CU Commission Decision No. 726 of 15 July 2011 "On Veterinary Measures", and mandatory national requirements for goods.

920. The representative of the Russian Federation further explained that the new Regulation established CU procedures, including time-frames, for every aspect of organizing and taking decisions on systems audits, on-site visits, and including establishments on the Register in each of the cases described in paragraph 918 above. The competent authorities of CU Parties were notified of requests for audits, requests for authorization to provide guarantees, and for joint inspections of establishments and invited to participate. If a CU Party declined to participate or did not respond within the prescribed time, that CU Party authorised the participating CU Party or Parties to act on its behalf and accepted the decision of the participating CU Party or Parties on the relevant matter.

921. Finally, the representative of the Russian Federation explained that the new Regulation authorised and provided criteria for accepting guarantees from the competent authorities of third countries on the compliance of goods produced by an establishment located on its territory. These criteria were the following:

- Level of development of the competent authority of the third country;

- Level of justification of guarantees of the competent authority of the third country;

- Risk of entry into and spread of pathogens of infectious animal diseases in the third country, including those common to humans and animals;

- Epizootic situation in the third country;

- Results of monitoring tests of goods subject to veterinary control imported into the CU territory from the third country;

- Data from monitoring of relevant goods done by the competent authority of the third country;

- Compliance with CU requirements with regard to importing relevant goods into the territory of the CU from the third country; and

- Results of inspections by the competent authority of a CU Party or Parties of establishments located on the territory of the third country.

922. Members raised concerns about the Russian Federation's practice of removing establishments from the Registry (de-listing) based on the results of a joint inspection or monitoring of imports of controlled goods at the border. The decision to de-list an establishment often did not appear to correspond to the observations that inspectors made at the establishment. In addition, de-listing an establishment based on a finding of non-compliance made at the border could be disproportionate to the non-compliance. Members requested that the Russian Federation provide additional information regarding de-listing establishments before taking such action and to provide a meaningful opportunity for the establishment to take corrective actions, as provided for in the WTO SPS Agreement, before it was removed from the Registry.

923. In response, the representative of the Russian Federation explained that the new Regulation provided for removal of an establishment from the Registry (de-listing) in only two cases: at the request of the relevant establishment, and at the request of the competent authority of the third country. Instead of de-listing an establishment, the CU could, in line with international standards or based on risk assessment, temporarily suspend imports from the establishment and/or subject imports from that establishment to intensified monitoring. Except in emergency situations, understood in the sense provided for in the OIE, a temporary suspension of imports from an establishment could be applied only:

(a) upon the request of the establishment or the competent authority of the third country; or

(b) based on repeated non-compliances with CU requirements either detected during on-site inspection and/or re-inspection of the establishment by the competent authority of a CU Party, or as a result of monitoring and enhanced laboratory testing of the establishment's goods, which have been notified to the competent authority of the third country, if such non-compliances represented a significant threat to human or animal life and health.

The Working Party took note of these commitments.

924. In response to a question from a Member, the representative of the Russian Federation confirmed that, currently, Rosselkhoznadzor was not entitled to de-list an establishment on the basis of minor non-compliances with CU requirements or requirements included in the certificate not affecting the safety of the products, observed during on-site inspection or laboratory analysis at the border or based on issues which fall outside of Rosselkhoznadzor's field of competence (e.g. controls on potable water).

925. A Member expressed concern that inspection reports were not always submitted to the competent authority of the exporting country before decisions on the listing or de-listing of establishments were taken. This Member also expressed concern that the competent authority of the exporting country was not given an opportunity to comment on the draft inspection report and to propose corrective actions before decisions on the de-listing or refusal to list establishments were taken.

926. The representative of the Russian Federation confirmed that, except in case of serious risks of animal or human health, Rosselkhoznadzor would not suspend imports from establishments based on the results of on-site inspection before it had given the exporting country the opportunity to propose corrective measures. As required under the new Regulation, the preliminary report would be sent to the competent authority of the exporting country for comments before the report was finalised. He noted again that the CU Parties had developed criteria and reasons for a decision to suspend imports from an establishment. Minor errors would not be valid grounds for suspending imports from an establishment and he reminded Members that there would be an administrative procedure for appealing such decisions as well as recourse to the courts. The Working Party took note of this commitment.

927. Regarding emergency situations, the representative of the Russian Federation confirmed that the decisions and procedures for the suspension of establishments would be in accordance with the WTO SPS Agreement. The Working Party took note of this commitment.

928. The representative of the Russian Federation further explained that in extraordinary cases, the CU Commission could take a decision to suspend a group of establishments or all establishments of a third country as the result of the detection of a serious systemic failure of the official system of control, as specified in the new Regulation. The representative of the Russian Federation explained that, upon taking such a decision, the CU Commission would have to provide the Competent Authority (CA) of the third country with the technical information and scientific justification on the risk detected. The third country would be requested to take corrective measures within a specified timeframe for their adoption. Any suspension would not be implemented before the expiration of the specified timeframe. Once the corrective measures were taken, the CA of the third country would send a report on the corrective measures to the CU Commission. The CU Commission would evaluate the report and it would decide if the corrective measures were effective and sufficient. The suspension, if implemented, would be lifted within five working days after the decision. In case corrective measures were not taken or were considered ineffective by the CU Commission, the decision on a temporary suspension of imports from a group of establishments or all establishments of a third country could be implemented. The representative of the Russian Federation confirmed that such temporary suspensions would be proportionate to the risk to human health or life and not more restrictive to trade than necessary, as provided in the WTO SPS Agreement. The Working Party took note of these commitments.