FEDERATION TO THE WORLD TRADE ORGANIZATION 42 страница

1115. The representative of the Russian Federation further explained that both participants and non-participants of the Magadan SEZ could conduct business activity in the territory of the SEZ, however, only participants of the SEZ could enjoy tax and other incentives, provided for in Federal Law No. 104-FZ. In terms of investments, the Law did not establish any restrictions based on the origin of capital of a juridical person. To become a SEZ participant, a legal entity had to be established in accordance with the Russian legislation and registered in the Magadan region; goods were required to be manufactured, services to be supplied, and investments to be made, only within the territory of the Magadan SEZ; the investment project of the juridical person must meet the requirements described below.

The following juridical persons could not become Magadan SEZ participants:

- juridical persons, who paid taxes according to the special tax regimes as provided for by the Tax Code of the Russian Federation; and

- financial organizations, including credit organizations, insurance companies and professional participants of a securities market.

The investment projects of the prospective participants of the Magadan SEZ were required to meet, inter alia, the following requirements:

- be performed within the territory of the Magadan region;

- not be aimed at exploitation of crude oil and natural gas and provision of services in these spheres, not be aimed at manufacture of excisable goods, the list of which had to be established by the Government,

- not be aimed at repair of household devices and objects of personal use, or at rendering of financial services; and

- capital investments must not be less than RUB 10 million and must be made within the time period not exceeding three years from the date of investors registration as a participant of the SEZ.

(d) The CU Agreement on SEZs

1116. The CU Parties had established the Agreement on Free (Special) Economic Zones on the Customs Territory of the Customs Union and the Customs Procedures of the Free Customs Zones of 18 June 2010 (hereafter the CU Agreement on SEZs). The Agreement provided the general framework within the CU for rules regarding the establishment and operation of new SEZs and extending the provisions of the Agreement to existing SEZs, including general provisions on the customs procedure of the free customs zone on the territory of SEZs, but left the specific regulations on the establishment, management, extension, early termination, types, and types of activities of SEZs to be determined by the national laws of the CU Parties. National laws would also provide for the registration of residents of the SEZs and national authorities would maintain a national roster of such residents. He added that the said Agreement provided that the CU Parties were required to send information on SEZ operations and the rosters of residents to the CU Commission, which in turn created and published a common CU roster of residents. The CU Commission had the right to decide what economic activities and operations could be prohibited within the SEZs in addition to those established by the CU Parties. The CU Agreement on SEZs confirmed that the territories of SEZs were customs control zones, and that for goods placed in the SEZs, the customs procedure of the free customs zone as defined by the CU Customs Code and the CU Agreement on SEZs was applied. The customs authorities of the Russian Federation were responsible for customs control in the SEZ, according to national law, and importation by residents from and exportation by residents and non-residents of goods to the territory of a SEZ were to be done only with the permission of customs authorities. He further explained that the CU Agreement on SEZs was to be applied provisionally from 1 July 2010 (the date of entry into force of the Treaty on the Customs Code of the Customs Union) pending its formal ratification by CU Parties. The Russian Federation had not yet ratified this Agreement, and therefore its provisions applied in the Russian Federation only to the extent that they did not contradict the provisions of the existing national legislation.

1117. Article 10 of the CU Agreement on SEZs provided that goods manufactured by SEZ residents, registered prior to 1 January 2012, incorporating imported inputs could, be recognised as Customs Union goods up until 1 January 2017, i.e., they could be sold into the rest of the customs territory of the Customs Union without paying the exempted tariffs on the imported components, if the imported inputs had been substantially transformed or, met any of the following conditions listed in Article 19 of the Agreement on SEZs:

a) manufacturing had changed the HS classification code of the good at the level of any of the first four digits;

b) its transformation was recognised as sufficiently implementing a predetermined list of conditions, production and technological or manufacturing operations, necessary to be goods of the Customs Union;

c) the percentage share of the value added of the cost of materials used in the manufacture had reached a predetermined share of the price of the final good (the rule of ad valorem share); or

d) the percentage share of the cost of foreign goods did not exceed a predetermined share.

These provisions were intended to remain in place until 1 January 2017.

1118. The representative of the Russian Federation further explained that under the CU Agreement on SEZs, the CU Commission was charged to decide by consensus (a) the list of conditions and operations for goods manufactured in SEZs, incorporating imported goods that were, or were not, sufficient for these goods to be recognised as goods of the Customs Union, and (b) the procedure for using the rule of ad valorem share as a criterion of sufficient processing for these goods to be recognised as goods of the Customs Union. The rule of ad valorem share could not be applied to repairs of the goods of the Customs Union done in the SEZs. Goods would not be recognised as Customs Union goods, if the transforming operations applied, did not meet the criteria for sufficient processing established by the CU Commission. The national authority, as defined by the national legislation, carried out the determination of the status of the goods in accordance with the rules of the CU Agreement on SEZs, issued the relevant legal findings and enforced them. In the case of the Russian Federation, this national authority was the MED.

1119. Some Members noted that the conditions set-out in Article 19 of the CU Agreement on SEZs and the elimination of any requirement for payment of tariffs and taxes on goods with imported components that met these conditions were not consistent with Federal Law No. 116-FZ and took note of the fact that the Russian Federation had not yet implemented these provisions. They also questioned whether they met WTO requirements, in particular Articles I and III of the GATT 1994 and the WTO Agreement on Subsidies and Countervailing Measures (ASCM). Goods that benefited from the tariff and tax exemption would be competing with imports that were liable for full payment of tariffs and taxes. This adversely affected the terms of competition between these goods. Moreover, the domestic content or substantial transformation requirement set-out in Article 19 of the CU Agreement on SEZs could be inconsistent with Article 3.1 (b) of the ASCM, depending on the nature of the domestic content requirement and its application to a particular processing operation. These Members requested clarification of how the Russian Federation intended to reconcile these conflicts when it implemented the CU Agreement on SEZs. They also sought confirmation that any use of the provisions authorising the exemption from the requirement to pay tariffs and taxes on goods, incorporating imported components, entering the territory of the Customs Union would be eliminated from the date of the accession of the Russian Federation to the WTO.

1120. One Member also asked the Russian Federation to explain how it would ensure that goods produced in SEZs established under the CU Agreement on SEZs in the territory of Kazakhstan and Belarus would be subjected to all customs payments, including tariffs and taxes, otherwise due on goods produced with imported components entering the territory of the Russian Federation for free circulation. That Member was concerned that goods, produced in SEZs of other CU Parties' that benefited from the tariff and tax exemption, would be competing with imports into the Russian Federation, that were liable for full payment of tariffs and taxes. This would adversely affect the terms of competition between these goods.

1121. The representative of the Russian Federation stated that the policy of his Government towards the operation of special economic zones had been established in Federal Law No. 116-FZ, however, during the transition periods specified in paragraphs 1108 and 1114, the operation of the Kaliningrad SEZ and the Magadan SEZ would continue to be governed by the provisions of Federal Law No. 16-FZ of 10 January 2006 "On the Special Economic Zone of the Kaliningrad Region and on Amending some Legislative Acts of the Russian Federation" (as last amended on 30 October 2007) and Federal Law No. 104-FZ of 31 May 1999 "On the Special Economic Zone in the Magadan Region" (as last amended on 24 November 2008), respectively. He further stated that while the CU Agreement on SEZs authorised the exemption from the requirement to pay tariffs and taxes on goods produced in the SEZs, incorporating imported components entering the customs territory of the Customs Union, use of these provisions was not mandatory, and therefore the Russian Federation would not apply them.

1122. With regard to the tariff and tax treatment of imports into the territory of the Russian Federation of goods produced in SEZs of third countries, including CU parties, which incorporated components from third countries, the representative of the Russian Federation confirmed that the Russian Federation would comply with the relevant provisions of the WTO Agreement. The Working Party took note of this commitment.

1123. In response to this information, Members requested that the Russian Federation work within other Customs Union Parties to modify the CU Agreement on SEZs and any relevant CU Commission Decisions to bring them into conformity with WTO requirements.

1124. The representative of the Russian Federation confirmed that, subject to the exceptions applied for the transition periods specified below in respect of the goods of certain juridical persons and individual entrepreneurs of the Kaliningrad and Magadan SEZs, referred to in paragraphs 1108 and 1114 of this Report, special economic zones in the Russian Federation, including those described in paragraphs 1093, 1104 and 1109 of this Report, would be established, maintained and administered, whether by the Russian Federation or the competent bodies of the CU, in conformity with the provisions of the WTO Agreement, and that the provisions of the WTO Agreement would be applied in all of the SEZs of the Russian Federation. The right of firms to register as residents and operate in these zones would not be subject to export performance, trade balancing, or local content criteria requirements. With respect to local content requirements, substantial transformation, and exemptions from tariffs and taxes, the goods of the juridical persons and individual entrepreneurs registered in the Kaliningrad SEZ, which has been registered and active under Federal Law No. 13-FZ of 22 January 1996 "On the Special Economic Zone in the Kaliningrad Region" on 1 April 2006, and to the goods of participants registered in the Magadan SEZ under Federal Law No. 104-FZ of 31 May 1999 "On the Special Economic Zone in the Magadan Region" would continue to enjoy the treatment described in paragraphs 1108 and 1114 of this Report, during the transition period ending on 31 March 2016 and until 31 December 2014, respectively. He further confirmed that all other goods imported into the SEZs of the Russian Federation under provisions that exempt imports from customs tariffs and certain taxes, otherwise applicable, which were then released into the rest of the customs territory of the Russian Federation, would be subject to payment of those tariffs and taxes and customs formalities when entering the rest of the customs territory of the Russian Federation either in an unaltered form or after processing in the SEZs, without exception, and that the Russian Federation would not recognise such goods as CU goods, unless they had been subject to payment of such tariffs and taxes and customs formalities at the time of their release for free circulation into the rest of the customs territory of the Customs Union. The Russian Federation would take action to ensure that any agreements or decisions of the Customs Union relating to SEZs would be amended to conform to WTO requirements. The Working Party took note of these commitments.

Government procurement

1125. Members requested information on laws, regulations and other measures relating to government procurement in the Russian Federation and on the meaning of "procurement for State needs". Members requested further information on the status of the legislation in this area, in particular, on Federal Law No. 94-FZ of 21 July 2005 "On Placement of Orders for Deliveries of Goods, Performance of Works and Provision of Services for State and Municipal Needs", as last amended on 27 July 2010 (hereafter: Federal Law No. 94-FZ).

1126. The representative of the Russian Federation explained that "procurement for State needs" (the legislation of the Russian Federation did not contain the term "government procurement") was governed in the Russian Federation by: (i) the Civil Code of the Russian Federation; (ii) Federal Law No. 94-FZ, which had entered into force on 1 January 2006; (iii) Federal Law No. 53-FZ of 2 December 1994 "On Procurement and Deliveries of Agricultural Goods, Raw Materials and Foods for the State Needs" (as amended on 2 February 2006); (iv) Federal Law No. 60-FZ of 13 December 1994 "On Procurement of Goods for Federal State Needs", as amended on 24 July 2007 (hereafter: Federal Law No. 60-FZ); and (v) Federal Law No. 213-FZ of 27 December 1995 "On the State Defence Order" (as amended on 1 December 2007). The placement of orders for State and municipal needs could be provided only through the procedures set by Federal Law No. 94-FZ. To provide consistency of all laws, regulations and other requirements relating to procurement for State needs with Federal Law No. 94-FZ, the amendments to the above-mentioned Acts had been made by Federal Law No. 19-FZ of 2 February 2006 "On Amending Certain Legislative Acts of the Russian Federation due to the Adoption of Federal Law No. 94-FZ". When Federal Law No. 94-FZ came into force on 1 January 2006, Federal Law No. 97-FZ of 6 May 1999 was abolished.

1127. The principles and procedures for formation, placement, and fulfilment of orders for procurement (tendering procedures) and delivery of goods and services for State needs were set-out in the above-mentioned Acts. These texts took into consideration international practices in this field. According to Federal Law No. 94-FZ, procurement for State needs was the sphere of Federal regulation, and, as stated in paragraph 2 of Article 65 of that Law, all legal acts would be applied to the extent they did not contradict that Law. The legislation of the Russian Federation in this sphere was aimed at the development of fair competition, providing openness and transparency in the placement of orders, and prevention of corruption and other abuses in the placement of State orders.

1128. Federal Law No. 94-FZ applied to the placement of orders for deliveries of products, performance of works and provision of services for State (at Federal and sub-federal level) and municipal needs, excluding those orders, the amount of which would be lower than the maximum sum of payment in cash under one transaction between legal persons allowed by the Central Bank (in August 2010, this amount was RUB 100,000). Federal Law No. 94-FZ defined "State needs" as the needs of the Russian Federation for goods, works and services necessary for the execution of the functions of the Russian Federation, including the implementation of Federal target programmes, execution of international obligations of the Russian Federation, including implementation of international projects, in which the Russian Federation participated, as well as needs of the subjects of the Russian Federation for goods and services necessary for the execution of the functions of the subjects of the Russian Federation, including the implementation of regional target programmes, which were financed by the Federal budget, budgets of the subjects of the Russian Federation, and off-budget funds of the Russian Federation or of the subjects of the Russian Federation.

1129. Further the representative of the Russian Federation explained that, the Government of the Russian Federation used the instrument of Federal target programmes in cases where a development task in the social or economic sphere needed the efforts of several governmental authorities, both in sense of authority and of resources to be invested in order to achieve the goals. In most cases, the targeted areas were those that lacked private investment and/or suffered from infrastructure constraints. Declaring a target to be covered by a Federal programme did not just permit the allocation of special budget funds, necessary to finance measures addressing this target, but also stimulated State authorities to put specific efforts in that direction, and attracted the private sector to invest in the targeted area with a view to enjoying benefits in the future. Since it was one of the most transparent ways of allocating funds from the Federal budget, target programmes were considered to be an important instrument of long-term economic policy of the State. The most representative programmes of this kind were connected with road-building, housing, development of public education, other social goals (support of education of children or public health care), preservation of historic, cultural and natural monuments, increasing the efficiency of State management (i.e., introducing IT technologies in the State institutions).

1130. The representative of the Russian Federation stated that national treatment would be provided in connection with procurement for State needs, with regard to the placement of orders for procurement of services, or works supplied or performed by foreign suppliers, as well as of foreign goods, if national treatment for the placement of orders was provided in respect of Russian goods, works or services supplied by Russian suppliers, by the respective foreign country.

1131. Pursuant to Article 4.1 of Federal Law No. 94-FZ, State customers could be State authorities of the Russian Federation, State authorities of the subjects of the Russian Federation, local self-governmental bodies, as well as budgetary institutions, other recipients of the money from the Federal budget, budgets of the subjects of the Russian Federation or local budgets to place orders at the expense of budget funds. State customers could, on a contractual basis, involve a legal entity exclusively for the execution of the part of the functions of organising and carrying out the procedures for the placement of an order for purchases for State needs. For example, such an entity could provide technical and organizational assistance with carrying out a tender, preparing the tender documentation, publishing the information about the tender, etc. According to Article 6 of Federal Law No. 94-FZ, the State customer would select an entity to provide technical assistance through a placement of order, according to the procedures set-up by that Law. State customers, however, were the actual purchasers and were legally responsible for all aspects of the procurement.

1132. He added, that Federal Law No. 94-FZ provided two ways of placement of orders: (i) through the tender (in the form of competition or auction, including the e-auction); and (ii) without tender (in the form of requests for quotations, from the sole supplier, or at commodity exchanges). The placement of orders with a sole supplier could be implemented only in cases, directly provided by Federal Law No. 94-FZ. Federal Law No. 94-FZ provided that the request for quotations could only take place if: (i) the price of State or municipal order did not exceed RUB 500,000; or (ii) in cases of purchases for providing life support, humanitarian aid or liquidation of the results of emergency situations of natural character or the purchases for providing support for the operation of a customer in the territory of a foreign state, provided that a functioning market for such purchases existed in the territory of that foreign state. Customers or enabled authorities were not able to place orders by requests for quotations for deliveries of like goods, performances of like works and provision of like services, if its amount exceeded RUB 500,000 in a quarter.

1133. Members noted that the scope of government "purchases for State needs", as provided for in current legislation, appeared to go beyond "procurement", as defined in Article III:8 of the GATT 1994 and Article XIII:1 of the GATS, i.e., products and services purchased for governmental purposes and not with a view to commercial re-sale or, with a view, to use in the production of goods for commercial sale, or to use in the supply of services for commercial sale. Purchases for State Needs also appeared to cover more than the goods and services typically subject to the WTO Agreement on Government Procurement. Laws, regulations and other measures relating to purchases that were outside the scope of the definitions in Article III:8 of the GATT 1994, and Article XIII:1 of the GATS, would not be excluded from the coverage of the Agreements in Annex 1 of the Marrakesh Agreement Establishing the World Trade Organization. These Members noted that the Law of the Russian Federation, "Purchases for State Need," appeared to include, in addition to goods for governmental purposes, i.e., direct consumption and support, any products or services needed: (i) by the Government; (ii) to realize government goal-oriented programmes; (iii) to maintain State material reserves; or (iv) for export deliveries to meet international economic commitments, including to honour the currency credits of the Russian Federation. They sought confirmation that, in making purchases that would not be considered as government procurement within the meaning of Article III:8 of the GATT 1994 and Article XIII:1 of the GATS, including national treatment and MFN requirements, would apply and that the Russian Federation would ensure that goods and services purchased for State needs for governmental purposes, would not be re-sold in the commercial sphere or used in the production of goods or the supply of services for commercial sale.

1134. In response, the representative of the Russian Federation stated that Federal Law No. 94-FZ, which replaced Federal Law No. 60-FZ with regard to placement of orders for State and municipal needs, established the definition of State needs mentioned in paragraph 1128. Furthermore, neither Federal Law No. 94-FZ nor other legislation on the purchases for State needs in force contained provisions allowing procurement for State needs to encompass purchases with the aim of commercial re-sale or use in production of goods or the supply of services for commercial sale. Directly engaging in commercial activity did not constitute the function of the State; that was why the definition of the State needs elaborated in Article 3 of Federal Law No. 94-FZ referred to the execution of functions of the State as an aim of the purchases for State needs. Enterprises owned by the State ran their business on their own, and the profit which resulted from such activity was subject to distribution by the enterprises and not by the State. Thus, in his view, the activity of such enterprises did not constitute the activity of the State. With respect to target programmes, the aim of these programmes was to resolve systemic problems in the sphere of State, social and cultural development of the Russian Federation, i.e., to achieve governmental purposes and not to engage in commercial activity.

1135. Members continued to express concerns regarding the role of the State in the commercial sphere in the Russian Federation. The practice of the Government of the Russian Federation of negotiating and concluding contracts for the sale of gas appeared to be an example of where the Government was engaged in "commercial activity". Moreover, Members noted that the Government, as such, was represented on the Board of Directors of many Joint-Stock Companies, and in some companies, exercised special rights as a shareholder through the so-called "golden share". Thus, while engaging in commercial activity might not be defined as a governmental purpose or governmental function, in their view, the Government of the Russian Federation, i.e., the State, did engage in commercial activity.

1136. In response to a Member who asked whether operations of the Federal Agency on the Foods Market Regulation (FFMA) or purchases of the JSC "TVEL" for nuclear power could be considered purchases for State needs, the representative of the Russian Federation said that, as for the operations of the FFMA connected with the organization and performance of State interventions of grain crops and, described in the Section on "State-Trading Enterprises", these operations were not subject to regulations on government procurement within the meaning of Article III:8 (a) of the GATT 1994, but were commercial transactions. As for nuclear fuel, the legislation of the Russian Federation did not contain any restriction on the participation of foreign entities in regard to the purchases of TVEL and such purchases were made based on commercial considerations.

1137. The representative of the Russian Federation confirmed that, in respect of procurement of goods and services, including by State-owned and State-controlled enterprises, which were not purchased for governmental purposes, but with a view to commercial re-sale or with a view to use for production of goods and supply of services for commercial sale, such purchases and sales would not be considered to be "government procurement" within the meaning of Article III:8 (a) of the GATT 1994 and XIII:1 of the GATS, and thus, the Russian Federation and the competent bodies of the CU would comply with all applicable provisions of the WTO Agreement. The Working Party took note of this commitment.

1138. In response to a request from a Member regarding the involvement of the Russian Federation in barter trade, the representative of the Russian Federation stated that the legal provisions for such trade could be found in Federal Law No. 164-FZ of 8 December 2003 "On the Fundamentals of State Regulation of Foreign Trade Activity", Presidential Decree No. 1209 of 18 August 1996 "On State Regulation of Foreign-trade Barter Transactions" and Government Resolution No. 1300 of 31 October 1996 "On the Measures for State Regulation of Foreign Trade Barter Transactions". In response to a request from a Member for information on whether barter trade was used in the context of purchases of goods or services for State needs, the representative of the Russian Federation stated that, there were no more government-to-government barter Agreements, and special bilateral barter arrangements established in the wake of the August 1998 financial crisis, to provide trade in vital commodities, had lapsed.

1139. In response to questions about transparency in procurement for State needs, the representative of the Russian Federation noted that Federal Law No. 94-FZ contained provisions providing for transparency of procurement of goods and services for State needs. Procurement was mainly carried out by open invitation to tender. Under that Law, notices of invitations to tenders would have to be published 30 days before the opening of the tender in an official publication and on an internet website, both determined by the Government of the Russian Federation, the supreme executive body of the subject of the Russian Federation, or local authorities, respectively. Notices of invitations could also be published, upon decision of the State customer, in English, in other printed mass media with international circulation. Notices of invitations to tenders would have to indicate the form of tender; the name and address of the State customer; the subject of the State contract; the place of delivery of the goods, performance of the work, or supply of the services; the initial (maximum) price of the contract; the procedure, time-limit and place for delivery of the application documents for a tender; criteria of the place, time and date of the evaluation of bids; and, benefits (if such were provided by the State customer) to the penitentiary organizations and organizations of disabled persons. The winner would be determined in accordance with the rules established in that Law. The winner would be notified in writing, within three days after conclusion of the tender, and the results of the tender, including the name of the winner, the subject and the price of the contract, would be published in the official publication and on the official internet website.