FEDERATION TO THE WORLD TRADE ORGANIZATION 39 страница

1044. He confirmed that all information on SPS measures and current SPS legislation could be found on the websites of the MOA (www.mcx.ru); the MOH (www.mzsrrf.ru); Rospotrebnadzor (www.rospotrebnadzor.ru); and the Information and Methodical Centre "Expertiza" of Rospotrebnadzor.

1045. The representative of the Russian Federation stated that development and introduction of new standards, animal health regulations and food safety regulations would be done in conformity with the rules and norms of WTO SPS Agreement. The representative of the Russian Federation further explained that the ongoing work within the CU and EurAsEC on drafting and adopting technical regulations in the SPS area was aimed at fulfilling this condition.

1046. The representative of the Russian Federation referred Members to the Section "Technical Barriers to Trade" for a detailed discussion of the procedures for drafting and adopting a technical regulation. As explained in paragraphs 713 and 724, any person could become the author of a draft technical regulation. The author was obliged to provide, on demand, a copy of the draft technical regulation. The fees collected for providing of such a copy, could not exceed the expense of its production.

1047. Any stakeholder was permitted to send comments regarding the draft technical regulations directly to the author or to the Ministry of Industry and Trade of the Russian Federation (MIT) in written form. Contact information for the author of the SPS-related draft technical regulations could be received from the MIT (Department for State Policy in the Field of Technical Regulation and Uniformity of Measurements, telephone: +7 (495) 647-74-51, fax: +7 (495) 647-73-90), the MOH (Department for Health Protection and Sanitary and Epidemiological Human Well-Being, telephone: +7 (495) 627-24-84 fax: +7 (495) 627-24-84) and the MOA (Department for Food and Food-Processing Industry and Quality of Products, telephone: +7 (495) 607-89-62, fax: +7 (499) 975-13-34). Foreign stakeholders were permitted to participate in the development and public discussions of technical regulation projects. The procedures for development, adoption, amendment, and revocation of a technical regulation, including the acceptance or rejection of the suggestions of interested persons, was set-out in the Law "On Technical Regulation", CU Commission Decision No. 527 of 28 January 2011, and was discussed in the Section "Technical Barriers to Trade".

1048. According to the Article 7.8 of Federal Law No. 184-FZ, and EurAsEC Agreement on Implementation of Coordinated Policy in the Field of Technical Regulation, Sanitary and Phytosanitary Measures of 25 January 2008, existing international standards shall be used in full or in part as a basis for the elaboration of draft technical regulations, including draft technical regulations in the SPS sphere. However, if international standards, guidelines or recommendations did not exist, or the proposed national regulations differed substantially from the relevant international standards, guidelines or recommendations, and based on an examination and evaluation of available scientific information in conformity with the relevant provisions of the WTO SPS Agreement and a risk assessment, CU authorities determined that the relevant international standards, guidelines or recommendations were not sufficient to achieve the appropriate level of sanitary or phytosanitary protection, the proposed national SPS measure that differed from the relevant international standards, guidelines and recommendations would be adopted. The Russian Federation would then provide the notification required in Annex B of the WTO SPS Agreement. He further confirmed that drafts of SPS technical regulations and other mandatory requirements would be publicly available for comments from all interested parties. The agencies involved in the preparation of the notifications required by the provisions of the WTO SPS Agreement, would be the MOA, the MOH and the MED, as the coordinating authority responsible for providing notifications to the WTO.

1049. In response to a question from Members regarding the adoption of SPS measures other than technical regulations, the representative of the Russian Federation explained that the procedure for the development of national standards and sets of rules was set-out in Federal Law No. 184-FZ, and included an opportunity for receiving and considering comments from the public. The totality of all other draft measures was subject to consultations with interested parties, as provided in Article 15 of Federal Law No. 164-FZ of 8 December 2003 "On Basics of Regulation of Foreign Trade Activity." He explained that the only exception to this requirement was for emergency situations, and that laws and measures of general application relating to SPS matters were not the subject of emergencies, as foreseen in Article 15. He referred Members to the Section "Technical Barriers to Trade" (see paragraphs 747 through 756) for a discussion of the procedures for adoption and application of national standards, and sets of rules. As regards emergency measures, he confirmed that the Russian Federation would comply with point 6 of Annex B to the WTO SPS Agreement.

1050. Some Members recalled concerns regarding the lack of available information on detailed conditions or requirements for the importation of specific products, including those Members and establishments authorised to export to the Russian Federation. These Members also requested that when the Russian authorities denied an application for an import permit, they informed each applicant of the detailed reasons for the rejection within two days after the decision on refusal. A Member suggested that the website should be searchable by HS code to increase its usefulness.

1051. In response, the representative of the Russian Federation confirmed that it had made available to importers, as well as to third-country exporters through a website (www.fsvps.ru), full detailed conditions for import of specific products. The representative of the Russian Federation further confirmed that to this end, it would publish a list on the website of the National Enquiry Point in English of the products which were permitted to be imported into its territory; the countries and establishments authorised to export to the Russian Federation and the territory of the CU; and the conditions for import. Where an application for an import permit was denied, Rosselkhoznadzor would inform the applicant of the reasons for this rejection within five days of the decision. The Working Party took note of these commitments.

1052. In response to a question about the functioning of a national enquiry point on SPS, the representative of the Russian Federation informed Members that the Russian Information Centre on Standardization, Certification and to Overcoming of Technical Barriers in Trade (RIC WTO TBT/SPS) had been operating since 1997. In the structure of RIC WTO TBT/SPS, there was an Enquiry (Dispatching) Service (National Enquiry Point - NEP), providing the implementation of WTO Agreements on TBT and SPS in corpore. The contact information (website, address/phone/fax numbers and e-mail) of the NEP was:

Address: 4 Granatny per.,

Moscow 103001,

Russian Federation;

Telephone: +7 (495) 332-56-28, 332-56-59, 225 61 89;

Fax: +7 (495) 332-56-59,

E-mail: [email protected].

Website: http://www.gostinfo.ru;

1053. The primary function of RIC WTO TBT/SPS activity was to supply domestic authorities and businesses, as well as foreign trade partners of the Russian Federation and the Secretariat of the WTO, with Russian rules, directives, and regulations relating to TBT and SPS, and to provide information on foreign national standards and certification systems. The NEP responded to the requests of interested parties, provided information and documentation on TBT and SPS, standards, and conformity assessment. The NEP published on its website (on a month-by-month basis), the list of WTO Members' notifications on TBT and SPS in the Russian language (http://www.gostinfo.ru/show.php?/ric_vto/reestr_yved.htm).

1054. In response to a question from a Member, the representative of the Russian Federation confirmed that the Russian Federation had established an enquiry point authorised to provide information on both TBT and SPS issues. He noted that paragraph 1052 provided detailed information on the enquiry point, including contact information and the services that the contact point could provide. He noted that this contact point would also provide information on CU Agreements, CU Commission Decisions and other CU Acts in the spheres of TBT and SPS measures. Prior to the accession of the Russian Federation to the WTO, the Government of the Russian Federation would issue a resolution to implement various provisions of the WTO Agreement, including Article 7, Article 13, and Annex B of the WTO SPS Agreement. He stated that the government resolution would include the following major provisions: (i) Designation of a single central government authority in charge of implementation of the provisions of the WTO SPS Agreement regarding notification in accordance with Articles 5, 6, 7, and 8 of Annex B; (ii) Mandatory cooperation between all governmental agencies in charge of implementation of the WTO SPS Agreement and this central government authority in respect of issues set-out in Annex B of the WTO SPS Agreement, and (iii) Designation of this central government authority as responsible for information exchanges with WTO Members and the Secretariat on issues relevant to the implementation of Annex B to the WTO SPS Agreement.

1055. The representative of the Russian Federation confirmed that the Russian Federation had set up an SPS notification authority and an SPS enquiry point which would be notified to the WTO SPS Committee. SPS measures, including those relating to inspection, were published in publications, such as those mentioned in paragraph 1037. Information on all proposed SPS measures and those in effect, as foreseen in Annex B of the WTO SPS Agreement, could also be obtained from the SPS notification authority or from the SPS enquiry point of the Russian Federation. The Working Party took note of these commitments.

(j) Proportionality, Necessity, and Reasonableness

1056. Some Members of the Working Party expressed concern that SPS measures applied by the Russian Federation and other CU Parties to exports to the Russian Federation were not always proportionate to the risk identified. These Members gave the following examples of measures that were disproportionate or otherwise inconsistent with international rules:

- the list of goods subject to veterinary control included goods that did not represent a veterinary or sanitary risk which would justify submitting these goods to requirements for listing establishments on the Common Register, State Registration, import permits, and veterinary certificate requirements;

- imposition of trade restrictive measures, such as suspension of establishments or mandatory pre-export testing, were not reviewed and eliminated after food safety standards had been harmonized with international standards or when steps had been taken to address food safety issues;

- Russian Federation inspectors requesting exporting establishments to show the results of monitoring of residues of veterinary medicinal products in processed products in addition to the monitoring carried out on the raw materials;

- the Russian Federation not using residue monitoring plans as a tool to manage the risk of exposure, as foreseen in Codex guidelines, but requesting pre-export tests;

- the Russian Federation requesting systematic inspections of plant nurseries before allowing export to the Russian Federation of plants for planting, in absence of basis foreseen by the IPPC to have such preliminary inspection; and

- overly detailed and unnecessary requirements of inspectors during inspections.

These Members recalled that the principles of proportionality, necessity and reasonableness were enshrined in a number of articles of the WTO SPS Agreement, such as Articles 2.1, 2.2, 5.3, 5.4, 5.6 and Annex C thereof, and that, in their view, the Russian Federation should also modify its practices to make them more proportionate to the risks and reasonable.

1057. The representative of the Russian Federation reiterated that SPS measures, which were not consistent with the WTO Agreement, in particular with the WTO SPS Agreement, would be brought into compliance with the WTO Agreement, as of the date of accession of the Russian Federation to the WTO. He also stated that, in adopting and implementing SPS measures, the Russian Federation recognized the importance of applying the principles of proportionality, necessity and reasonableness consistently with the WTO SPS Agreement. However, any disagreements over the assessment on how these principles were implemented in individual cases, in his view, must be dealt with under appropriate WTO procedures rather than under the Working Party Report.

1058. One Member expressed strong concerns that, despite repeated reassurances of the Russian Federation, the Russian authorities continued to apply certain requirements which were not in conformity with the SPS principles of proportionality, necessity and reasonableness. In particular, they referred to the requirement to present a safety certificate, including results of laboratory analysis for residues of pesticides, nitrates and nitrites in fruits and vegetables upon their exportation from this Member to the Russian Federation in cases where there was no violation of the relevant international standards of MRLs, which were also reflected in the Russian law, concerning pesticide, nitrates and nitrites residue levels. This Member considered that this measure was trade restrictive, totally unnecessary and unjustified and was not in line with the WTO SPS Agreement. Furthermore, this Member noted its concern that certain Russian authorities requested that in the absence of these safety certificates, the importation of these goods could take place provided that a laboratory analysis was carried out at the border upon importation, at the cost of the importer. In this Member's view, such measure would have an equivalent effect to the unjustified requirement for a safety certificate.

1059. In response, the representative of the Russian Federation stated that the situation in respect of safety certificates as described by this Member was inaccurate and, according to the legislation of the Russian Federation, accompanying of the products of plant origin by the safety certificates, when imported into the territory of the Russian Federation, was not required. He furthermore noted that this type of measures, if introduced, would be covered by the commitments of the Russian Federation in paragraphs 1060 and 1062 of this Report.

1060. In response to these concerns, the representative of the Russian Federation confirmed that all SPS measures, whether adopted by the Russian Federation or the competent bodies of the CU, would be applied in conformity with the WTO SPS Agreement. In particular these SPS measures would be applied only to the extent necessary to protect human, animal or plant life or health and would be not more trade restrictive than required to achieve the appropriate level of sanitary or phytosanitary protection of the CU and the Russian Federation. Finally, when determining the appropriate level of sanitary, veterinary, or phytosanitary protection, the Russian Federation or the competent bodies of the CU, would take into account the objective to minimize negative trade effects in accordance with the WTO SPS Agreement. The Working Party took note of these commitments.

(k) Issues Related to Irregularities or Fraud

1061. In response to concerns expressed by some Members, the representative of the Russian Federation stated that potential measures adopted in reaction to evidence of irregularities or fraud in import applications, certificates issued by exporting Members and related documentation would be applied in accordance with the WTO SPS Agreement and, in particular, be no more trade restrictive than required to achieve the appropriate level of sanitary or phytosanitary protection, in compliance with Article 5.6 of the WTO SPS Agreement. Such measures would, to the extent possible, be targeted at the specific operator or operators involved in irregularities or fraud and would not imply a prohibition, temporary or otherwise, of importation of goods from a WTO Member unless, exceptionally, this was necessary to address the particular risk posed by such irregularities or fraud.

(l) Conclusion

1062. The representative of the Russian Federation confirmed that, from the date of accession of the Russian Federation to the WTO, all SPS measures would be developed, whether by the Russian Federation or the competent bodies of the CU, and applied in the Russian Federation in accordance with the WTO Agreement and in particular, the WTO SPS Agreement. In particular, SPS measures would be applied only to the extent necessary to protect human, animal, or plant life or health; would be based on scientific principles and, where they exist, on international standards, guidelines, and recommendations; and, would not be more trade restrictive than required to achieve the appropriate level of protection applied in the Russian Federation. SPS measures would not arbitrarily or unjustifiably discriminate between Members where identical or similar conditions prevail, including between the territory of the Russian Federation and that of other Members. SPS measures would not be applied in a manner which would constitute a disguised restriction on international trade, and would not be maintained without sufficient scientific evidence, except as provided for in Article 5.7 of the WTO SPS Agreement. The Working Party took note of these commitments.

Trade-related investment measures (TRIMs)

1063. The representative of the Russian Federation explained that the legal basis for preferential tariffs or tariff exemptions for imports of parts and components used in "industrial assembly" programmes for motor vehicles and parts and components thereof was established by the CU Common External Tariff (CET) (as approved by the Decision of the Inter-State Council of EurAsEC No. 18 of 27 November 2009 and put into effect through CU Commission Decision No. 130 of 27 November 2009) as well as in the relevant national legislation. He further explained that the following national laws and regulations were relevant, in his view, for the consideration of the question of consistency of the Russian legislation with the provisions of the WTO Agreement on Trade-Related Investment Measures (hereinafter referred to as the "WTO TRIMs Agreement"): Federal Law No. 225-FZ of 30 December 1995 "On Production Sharing Agreements" (as last amended on 19 May 2010); Presidential Decree No. 135 of 5 February 1998 "On Additional Measures to Attract Investments for Development of Domestic Car Making"; Resolution of the Government of the Russian Federation No. 413 of 23 April 1998 "On Additional Measures to Attract Investments for Development of Domestic Car Making" (currently not applied in practice but still in force); Resolution of the Government of the Russian Federation No. 166 of 29 March 2005 "On Introduction of Amendments to the Customs Tariff of the Russian Federation with Respect to the Parts and Components Imported for the Purpose of "Industrial Assembly" (as last amended on 8 December 2010); Joint Order No. 73/81/58n of the Ministry of Economic Development and Trade of the Russian Federation (since May 2009, Ministry of Economic Development of the Russian Federation), the Ministry of Industry and Energy of the Russian Federation (MIT) and the Ministry of Finance of the Russian Federation (MOF) of 15 April 2005, "On Approval of the Order, Defining the Term "Industrial Assembly" and Establishing Conditions for Its Application to Imports to the Territory of the Russian Federation of Parts and Components for the Manufacture of Motor Vehicles (Tariff Positions 8701 - 8705) and Parts and Components Thereof", as last amended on 24 December 2010 by Joint Order No. 678/1289/184n "On Amendments to the Order Defining the Term "Industrial Assembly" of Motor Vehicles and Establishing Conditions for its Application to Imports to the Territory of the Russian Federation of Parts and Components for the Manufacture of Motor Vehicles (Tariff Positions 8701 - 8705) and Parts and Components Thereof".

(a) Production Sharing Agreements

1064. The representative of the Russian Federation noted that Federal Law No. 225-FZ of 30 December 1995 "On Production Sharing Agreements" (as last amended on 19 May 2010, hereinafter referred to as "Federal Law No. 225-FZ") set-out the legal framework for relations arising in the course of Russian and foreign investment in search, exploration and mining of minerals in the Russian Federation. A "production sharing agreement" was an agreement in which the Russian Federation provided to an investor, in consideration for value received and for a limited term, exclusive rights to perform search, exploration, and mining of minerals in a subsoil plot specified in such agreement and any related work, and the investor undertook to perform the prescribed work at his own risk and expense. The rights and obligations of the parties to a production sharing agreement were governed by the Russian Federation's civil law. The term of the agreement was defined by the parties in compliance with the legislation of the Russian Federation applicable as of the date the agreement was concluded.

1065. The representative of the Russian Federation stated that, according to the Russian legislation, no special tax regime regarding realization of production sharing agreements was established. Chapter 25 of the Tax Code of the Russian Federation stipulated the order of taxation for extraction of natural resources. The Provisions of Chapter 25 applied during the implementation of production sharing agreements.

1066. Pursuant to Federal Law No. 225-FZ, an agreement whose provisions had not entered into force within one year after signature of the agreement, would be terminated on the expiry of that period, i.e., the special procedure for calculating and paying taxes and fees established by the Tax Code and other acts of taxation of the Russian Federation for this agreement would not be applied and this field's exploration would be realized on common terms of taxation, without recourse to provisions of Federal Law No. 225-FZ.

1067. Federal Law No. 225-FZ also contained the requirement that the Parties must include in such agreements an obligation to buy Russian technical equipment for natural resources extraction, their transportation and processing accounting for no less than 70 per cent of total cost of equipment and materials, purchased in each particular calendar year, for execution of works under the agreement. The other obligation of investors was to employ citizens of the Russian Federation, their proportion being no less than 80 per cent of all employed personnel engaged in realization of a production sharing agreement. This obligation was established by Article 7 of the Law. The representative of the Russian Federation added that provisions of paragraph 11 of point 2 of Article 7 of Federal Law No. 225-FZ provided that in case of accession of the Russian Federation to the WTO, all provisions that contradicted the principles of the WTO, would become invalid or would be brought into accordance with the above-mentioned principles. He also clarified, that the Federal Law in question had not imposed local content requirements on agreements concluded before its entry into force. Similarly, it had not changed respective provisions in such agreements, if they were there. In addition, the representative of the Russian Federation informed Members that since the adoption of Federal Law No. 225-FZ no new production sharing agreements had been concluded.

1068. The representative of the Russian Federation also noted that some production sharing agreements had been concluded before the entry into force of Federal Law No. 225-FZ. These were:

a. Production sharing agreement on Chayvinskoe, Odoptinskoe and Arkutun-Daginskoe oil and gas condensing fields (Sakhalin-1). This agreement had been concluded in 1995 and was valid for 25 years (extendable);

b. Production sharing agreement on Piltun-Astokhskoe and Lunskoe oil and gas fields (Sakhalin-2). This agreement had been concluded in 1994 and was valid for 25 years (extendable); and

c. Production sharing agreement on oil-field development and oil production on Kharyaguinskoe oilfield. This agreement had been concluded in 1995. It was valid for 20 years and could be extended for a further 13 years.

1069. Although the agreement on exploration of the southern part of the Samotlorskoe oil and gas condensing field had been concluded between the Government of the Russian Federation, the Administration of Hanty-Mansijsk region and Joint Stock Company "Samoltorneftegaz" it had not been implemented, and instead the normal investment and tax regime applied to this project.

1070. The representative of the Russian Federation noted that Federal Law No. 225-FZ was applicable to agreements concluded prior to the entry into force of Federal Law No. 225-FZ only to the extent that the law did not conflict with the provisions of these production sharing agreements. The production sharing agreements that had been concluded prior to the entry into force of the Federal Law did not contain either local content or export performance requirements. However, two of those agreements (Sakhalin-2 and Kharyaguinskoe) contained recommendations concerning the use of Russian equipment, but neither agreement provided for sanctions or penalties if the investor did not follow these recommendations and did not use such equipment.

1071. One Member noted that in the event that any of the three production sharing agreements listed in paragraph 1068 were renewed and/or extended, the Russian Federation should commit to eliminating any provisions which were TRIMs non-compliant. This Member believed that this should be noted in paragraph 1069. In response, the representative of the Russian Federation explained that any additional commitment was redundant since this was already covered by paragraph 1090 of this Report.

(b) Domestic Motor Vehicle and Components Industry

1072. The representative of the Russian Federation stated that since 2005 the Russian Federation had imposed a system for attraction of investments for development of domestic car making. This system was based on the Resolution of the Government of the Russian Federation No. 166 of 29 March 2005 "On Introduction of Amendments to the Customs Tariff of the Russian Federation with Respect to the Parts and Components Imported for the Purpose of "Industrial Assembly" (as last amended on 8 December 2010) (hereinafter referred to as "Resolution No. 166"); Joint Order No. 73/81/58n of 15 April 2005, "On Approval of the Order, Defining the Term "Industrial Assembly" and Establishing Conditions for Its Application to Imports to the Territory of the Russian Federation of Parts and Components for the Manufacture of Motor Vehicles (Tariff Positions 8701 - 8705) and Parts and Components Thereof" (as last amended on 24 December 2010) (hereinafter referred to as "Order No. 73/81/58n"); Resolution of the Government of the Russian Federation No. 718 of 27 November 2006 "On Customs Tariff of the Russian Federation and Customs Nomenclature, Applied During Execution of Foreign Economic Activity"; Resolution of the Government of the Russian Federation No. 839 of 30 December 2006 "On Introduction of Amendments to the Customs Tariff of the Russian Federation with Respect to the Automobile Car Parts Imported for the Purpose of "Industrial Assembling" and Components and Raw materials Imported for the Purpose of Airplane Engines Producing" (as last amended on 8 December 2010) (hereinafter referred to as "Resolution No. 839"). With the establishment of the Customs Union, the CU CET provided for preferential tariffs or tariff exemptions for imports of parts and components used in "industrial assembly" programmes for motor vehicles and parts and components thereof as referred to in paragraph 1063.

1073. The above-mentioned normative legal acts became the basis for investment agreements, replacing previously applied Presidential Decree No. 135 of 5 February 1998 "On Additional Measures to Attract Investments for Development of Domestic Car Making", and Government Resolution No. 413 of 23 April 1998 "On Additional Measures to Attract Investments for Development of Domestic Car Making" that permitted automobile and car parts production within a "bonded warehouse" under special conditions. According to available information, no agreements under the latter acts which were based on the system of bonded warehouse were currently in force.