FEDERATION TO THE WORLD TRADE ORGANIZATION 43 страница

1140. According to Article 16 of that Law, all the information concerning procurement was placed on the official website of the Russian Federation, determined by Government Order No. 229-r of 20 February 2006 (www.zakupki.gov.ru). The official website of the Russian Federation contained information on all of the addresses of the official websites of the subjects of the Russian Federation. An official website of a subject of the Russian Federation contained information on all official websites of the municipal units located in the territory of this subject of the Russian Federation. The information was placed on the official websites and accessible free of charge.

1141. Federal Law No. 94-FZ also contained the detailed rules for administrative appeal of actions (inactions) of State customers. Such an appeal was possible to be made until the conclusion of the procurement contract. After such conclusion, disputes would be dealt with by the judicial system.

1142. Some Members asked the Russian Federation to enter into a commitment to become an observer to the WTO Agreement on Government Procurement and to initiate negotiations for the accession to this Agreement upon accession.

1143. The representative of the Russian Federation confirmed the intention of the Russian Federation to join the WTO Agreement on Government Procurement and to notify the Committee on Government Procurement to this effect at the time of accession of the Russian Federation to the WTO and to ensure that from the date of accession, its government agencies would award contracts in a transparent manner according to published laws, regulations and guidelines. He also confirmed that the Russian Federation would request observership in the WTO Agreement on Government Procurement at the time of its accession to the WTO and would initiate negotiations for membership in the WTO Agreement on Government Procurement by tabling an Appendix 1 offer within four years of accession. He confirmed that, if the results of the negotiations were satisfactory to the interests of the Russian Federation and the other Members of the Agreement, the Russian Federation would accede to that Agreement. The Working Party took note of these commitments.

1144. The representative of the Russian Federation confirmed that, from the date of accession, the Russian Federation would ensure that its governmental agencies would place orders for deliveries of goods and supply of services for State needs in a transparent manner, according to published laws, regulations and guidelines. The Working Party took note of this commitment.

Regulation of trade in transit

1145. The representative of the Russian Federation stated that, in his view, the Russian Federation granted freedom of transit through its territory, as prescribed by Article V of the GATT 1994. Article 31 of Federal Law No. 164-FZ of 8 December 2003 "On the Fundamentals of State Regulation of Foreign Trade Activity" (as last amended on 2 February 2006) provided, as a basic principle, for freedom of transit through the territory of the Russian Federation, via routes, whichever were most convenient for international transit, and that no distinction was made which was based on the flag of the vessels, the place of origin, departure, entry, exit or destination, or on any circumstances relating to the ownership of goods, of vessels or of other means of transport. In such a way, freedom for traffic in transit to or from the territory of WTO Members was provided.

1146. He added that the basic principles of these provisions had not been affected by the participation of the Russian Federation in the Customs Union with Kazakhstan and Belarus. Operationally, however, from 1 July 2010, customs control of goods, in transit through the territory of the Russian Federation, was based on the provisions of Chapter 32 of the CU Customs Code. The provisions of the previous Customs Code of the Russian Federation Federal Law No. 61-FZ of 28 May 2003 (as last amended on 24 November 2008) concerning transit control, and other relevant Russian Federal legislation, regulations, and SCC and FSC Orders, continued to apply to the extent they did not conflict with the CU Customs Code. With the adoption of Federal Law No. 311-FZ of 27 November 2010 "On Customs Regulation", the provisions of Chapter 29 of that Law became the principle Russian legislation in this area, elaborating Russian procedures on trade in transit in accordance with the CU Customs Code.

1147. Specifically, Article 215 of the CU Customs Code stated that customs transit was a customs procedure under which foreign goods (i.e., not Russian, Kazakhstani, or Belarusian) were transported: 1) across the CU customs territory under customs custody between the point of their entry into and departure from the CU customs territory (i.e., if transit constituted a part of their itinerary which began and ended outside the boundaries of the CU customs territory); 2) from the point of entry into the CU to a customs point of entry within the CU; 3) from an internal customs point to the point of departure from the CU customs territory; and 4) between two customs entry points within the CU customs territory. In addition, it provided that the customs procedure of customs transit was applied to goods transported by international mail, by pipelines and by power transmission lines. Goods in customs transit were exempted from any customs taxes and duties or application of any economic restrictions or prohibitions, except for: (i) prohibitions applied to the goods listed in sub-section 1 of the Common List of Goods that are Subject to Non-Tariff Measures adopted by the CU Commission Decision No. 132 of 27 November 2009 and included in Table 28; (ii) SPS measures described in paragraphs 814 through 1062 of this Report; and (iii) prohibitions introduced by the Russian Federation regulations implementing UN Security Council Decisions. Any foreign merchandise could be subject to international customs transit, except goods whose transit was prohibited pursuant to Federal laws, other statutes and legal norms of the CU and the Russian Federation, as stated in paragraph 1160, and other international treaties to which the Russian Federation was a party. However, specific control procedures for goods in transit transported by railway on the territory of the Customs Union were defined by a separate CU Agreement, i.e., the Agreement on the Specificity of Customs Transit of Goods, Transported by Railway on the Customs Territory of the Customs Union signed on 21 May 2010, and in effect since 1 July 2010. Furthermore, as stipulated in Article 215 of the CU Customs Code, customs transit procedure was not applied to the goods transported by air transport, if the air vessel, in an international flight, performs an intermediate landing or a landing by necessity (technical landing) without a partial discharging (unloading) of goods. He added that customs transit could be applied to goods of CU Parties if these goods were transported from a point of departure in the CU to the point of entry in the CU through a third country. Goods of CU Parties originating from one CU Party, exported through the territory of another CU Party, were placed in the customs procedure of export and transported through the territory of the CU without being placed in customs procedure of transit, unless it has otherwise been decided by the CU Commission. In response to a request from a Member to clarify the legal basis and possible circumstances for placement of goods exported from one CU Party through the territory of another CU Party under the transit procedure, the representative of the Russian Federation explained that Article 215.5 of the CU Customs Code authorised the CU Commission to take such decisions.

1148. Following the request of a Member for further clarification in respect of the legal basis and possible circumstances for placement of goods, exported from one CU Party through the territory of the other CU Party, under the transit procedure, the representative of the Russian Federation explained that the legal instrument that envisaged the right of the CU Commission to introduce such a measure was Article 215 of the CU Customs Code, which directly delegated this right to the CU Commission. He further explained that such measures could be necessary to ensure proper implementation of provisions of the CU legislation that provided for necessity of control over movement of goods within the single customs territory of the CU (for example, to ensure the implementation of unilateral measures introduced by a CU Party, as described in paragraphs 643 and 644).

1149. He further noted that, pursuant to Article 216 of the CU Customs Code, the placement of goods under the customs procedure of customs transit was allowed, if the following conditions were fulfilled: 1) the import of goods into the customs territory of the Customs Union was not prohibited; 2) the documents, confirming that requirements (if any) for the transport of goods through the customs border of the Customs Union had been fulfilled, were presented; 3) if the goods were to be subject to such control at the place of arrival, the customs control and other forms of state control had been performed at their point of entry; 4) the transit declaration had been presented (i.e., the goods had been declared); 5) the measures ensuring the customs transit in accordance with Article 217 of the CU Customs Code were fulfilled; 6) the identification of goods in accordance with Article 109 of the CU Customs Code was ensured; and 7) the international transport vehicle was equipped in a due manner, if the goods were transported under the customs seals. According to Article 156 of the CU Customs Code, the requirement specified in point 7 of the previous sentence did not apply to goods carried by sea or river vessels or aircrafts crossing the customs territory of the Customs Union without stopping at a port or airport located in the customs territory of the Customs Union, or to the goods transported via pipelines and electricity transmission lines.

1150. Several Members noted that a sufficient and detailed description of Russian and CU provisions on transit was still required to confirm whether the policies for trade in transit of the Russian Federation were in conformity with WTO provisions, in particular Article V of the GATT 1994. Concerns were raised about SCC Order No. 631 of 2 July 2001 "On the Application of Order of the State Customs Committee of the Russian Federation No. 25 of 15 January 2001", which appeared to provide for measures inconsistent with WTO requirements in this area. In particular, a Member expressed concerns about the practice of the application of specific customs procedures by the Russian authorities in respect of the transport companies of this Member. This Member noted that country-specific restrictive transit procedures were incompatible with WTO provisions, notably Articles I and V of the GATT 1994. This Member requested the Russian Federation to ensure that these and any other country-specific measures of transit procedures would be brought into conformity with WTO requirements upon accession.

1151. In response, the representative of the Russian Federation said that SCC Order No. 631 of 2 July 2001 "On the Application of Order of the State Customs Committee of the Russian Federation No. 25 of 15 January 2001" had been abolished by SCC Order No. 517 of 24 May 2002.

1152. Other Members also asked questions regarding the circumstances under which the Russian Federation might currently impede transit of other countries' exports through its territory; the conditions to require a guarantee of payment of customs duties and taxes; the charges for transit escort and the reasons for their application; and, the provisions for the transit of goods of dual usage. The same Members asked the Russian Federation to ensure that all WTO obligations providing for freedom of transit (and associated disciplines dealing with, for example, fees and charges) would be applied to all products. These Members noted, in particular, concerns with regard to certain transit arrangements for energy products such as oil and gas.

1153. In response to these and other questions from Members on customs escort through the territory of the Russian Federation, the representative of the Russian Federation stated that Article 218 of the CU Customs Code defined customs escort of goods as the escort, by employees of customs authorities or by other organizations, in accordance with the legislation of CU Parties, of the vehicles transporting the merchandise, in accordance with the CU customs transit procedures with the purpose of ensuring the observance of the customs legislation of the Customs Union. Article 217 established the authority of Customs officials at the customs point of departure to apply measures for ensuring the observance of the customs legislation of the Customs Union in customs transit, including a requirement for customs escort, payment of fees for customs support (provided for in Article 130 of the Federal Law "On Customs Regulation"), and/or a guarantee of payment of customs duties and taxes (provided for in Article 86 of the CU Customs Code). Customs officials, when using the system of risk management, could also define or modify the itinerary of the goods in customs transit upon written authorisation of the customs point of departure or of any other customs office, located on route.

1154. Pursuant to Article 218, Customs authorities had the right to put goods in transit under customs escort in the following cases:

- defined on the basis of the risk management system;

- upon non-presentation of guarantee of payment of customs duties and taxes;

- due to repeated non-fulfilment by the transport operator of the operators' obligations in transport of goods in accordance with the customs procedure of customs transit, which was established by the resolutions, entered into legal effect, on imposing administrative penalty for cases of administrative customs law infringement, if at least one of the above-mentioned resolutions has not been fulfilled; and

- due to non-fulfilment by the transport operator of the obligation to pay the customs taxes, duties in accordance with Article 227 of the CU Customs Code.

Further instances justifying the use of customs escort were set-out in Article 87 (2) of the Customs Code of the Russian Federation (Federal Law No. 61-FZ), e.g.,

- in case of re-exportation of merchandise delivered to the Russian Federation by mistake or of goods whose importation into the Russian Federation was prohibited, when the place of the actual crossing by such goods of the customs border of the Russian Federation during their exportation did not coincide with the location of the goods;

- when haulage of the goods subjected to the restrictions and prohibitions under the legislation of the Russian Federation on the State regulation of foreign trade activity;

- in case of lack of a customs office located at the place of destination of the goods; and

- if the goods were prohibited from importation or did not have all the requisite permits and licenses required for their transit through the customs territory of the Russian Federation and due to the facts that the permission for domestic customs transit could not be issued, provided that the customs body authorised delivery of the goods to the temporary storage warehouse or other places constituting the customs control zone.

These provisions would continue to apply to the extent they did not conflict with the CU Customs Code.

1155. He confirmed that these were all of the circumstances in which customs escort could be required, and that this list of circumstances could be changed through amendment of the CU Customs Code or establishment of conforming domestic legislation. Customs escort of goods was to be carried out to ensure observance of applicable customs transit procedure. Expenses associated with customs escort had to be fully reimbursed in the form of customs fees levied, in accordance with the Russian legislation on taxes and duties.

1156. Concerning customs clearance and escort fees, he noted that Article 72 of the CU Customs Code authorised their application and the method of their application, currently governed by Article 357 of the Customs Code of the Russian Federation, would be governed by the Federal Law "On Customs Regulation", when that legislation was adopted. Goods placed under the customs transit regime were subject to customs clearance fees, except when the customs unit of departure was the same as the customs unit of destination. In this case, goods placed under the customs transit regime were exempted from customs clearance fees. This was the only exception (see Section on "Fees and Charges for Services Rendered"). As for customs clearance and escort fees, the rates of customs clearance fees were provided in Government Resolution No. 863 of 28 December 2004 and the rates of escort fees in Article 357.10 of the Customs Code of the Russian Federation. Once implemented, the escort fees would be authorised in accordance with Article 130 (in Section 14) of the Federal Law "On Customs Regulation". Escort fees were described in the Section "Fees and Charges for Services Rendered" and listed in Table 20. of this Report. In addition, Chapter 14 of the Federal Law "On Customs Regulation" established a single system of fees for customs clearance procedure for goods crossing the CU customs border. The same customs clearance procedures were applied uniformly for import, export, or customs transit of goods and, therefore, there was a single system of fees for these customs clearance procedures. Notwithstanding the explanations, the matter of the level of fees and how they were established continued to be of concern. Some Members believed that the service rendered in the case of transit was less than that provided in connection with imports going through customs clearance.

1157. In response to a question from a Member, the representative of the Russian Federation explained that guarantees for customs transit were regulated by Articles 85 to 88 of the CU Customs Code. These provisions set-out that guarantees could be required to secure the fulfilment of the customs taxes and duties payable, unless: a) a procedure for transit escort was applied; b) transit was conducted by a Russian authorised customs transport operator or accredited economic operator; or c) customs transit was regulated by the obligations of the Russian Federation under international treaties, inter alia, the International Road Transport (TIR) Convention, that provided otherwise. Transit by power transmission lines, pipelines and railways were also exempt from customs guarantees. The payer had the right to choose the means of guarantees: 1) payment in cash; 2) bank guarantee; 3) surety; 4) pledge of property; or other means foreseen in the national legislation of a CU Party. The representative of the Russian Federation informed Members that Article 88 of the CU Customs Code outlined the rules to assess the value of guarantees and noted that guarantees would be approximated to the value of the customs taxes and duties payable. He further explained that guarantees on customs transit were applied in a transparent and non-discriminatory manner and, in his view, were in line with the requirements of Article V of the GATT 1994 on freedom of transit.

1158. Several Members of the Working Party noted that railway freight fees for transiting the territory of the Russian Federation were higher than those paid for domestic destinations and asked the Russian Federation to provide additional information on this matter. In response, the representative of the Russian Federation said that the Russian Federation was a party to the Agreement on International Transit Tariffs (ITT) and the Agreement on the Single Transit Tariffs (STT). Thus, railway tariff rates for carrying goods in transit were established according to the principles of these international Agreements and calculated on a non-discriminatory basis. Basic ceiling tariffs were calculated on the principles provided for by these Agreements and the Members established applied tariffs below the ceiling calculated annually. The transit tariff rates for same railways/destinations were unique and did not depend on the nationality of goods. Generally, the transit tariff policy was mostly dependent on competitive capacity of international transit routes, crossing several countries, and the rates were established by such countries jointly. These transit tariffs were normally lower than export/import transportation tariffs. The transit tariff policy of the Russian Federation was transparent; all related information was published on the website of the Federal Service on Tariffs of the Russian Federation (www.fstrf.ru) and in related official editions. He also referred to the Section on "Pricing Policies" where tariffs for rail transportation of goods were discussed. Some Members noted that they expected the Russian Federation to provide additional information on principles according to which the tariffs were established and that a further precision/update of the description of the elements, on the basis of which tariffs were set, needed to be done in connection with the railway fee discussion in the Section on "Pricing Policies" of this Report.

1159. One Member noted that it was unclear which agreements were being referenced in paragraph 1158. This Member further noted that this Section of the Report appeared to reference the International Transit Tariff used in cases when a cargo owner paid for the transportation services directly, as well as the "East-West" tariffs for transportation through the Russian Federation to non-CIS European countries were determined by the CIS Rail Transport Tariff Conference. The agreements in question were regional arrangements for which the term "international" might be misleading. It would be useful to provide additional references to these agreements to clarify their coverage, countries included, etc. In response, the representative of the Russian Federation stated that the terms and descriptions used in paragraph 1158 correctly reflected the official title of the above-mentioned Agreements.

1160. When asked about the ban on transit over the territory of the Russian Federation for certain goods, the representative of the Russian Federation stated that, pursuant to Article 152 of the CU Customs Code, transit (as well as importation or exportation) of some types of goods could be prohibited by Federal laws, decisions of the CU Commission, as well as international agreements of the CU Parties and regulations of a CU Party implementing those international agreements. Currently, such prohibitions could be imposed, in accordance with the CU Agreement on Non-tariff Regulation, CU Commission Decision No. 132, and relevant decisions adopted under the Federal laws of the Russian Federation. In general, such provisions were applied for reasons of safety, health, or national security. They could not have an economic character. In particular, transit of goods likely to affect human life and health and, the environment was forbidden or strictly limited. Aircraft carrying armaments, military equipment, and military property were not allowed to transit the territory of the Russian Federation without landing. Import to, export from, and transit of explosives for industrial purposes by juridical persons over the territory of the Russian Federation as part of the accompanied or unaccompanied luggage and hand luggage and their cargo shipment to natural persons' addresses were also prohibited. In addition, special rules applied to the transit of narcotics, substances with psychotropic effects, poisons and substances listed in Tables I and II of the "Convention of the United Nations Organization against Illegal Circulation of Drugs and Psychotropic Substances" of 1988. For example, Article 28 of Federal Law No. 3-FZ of 8 January 1998 "On Narcotic Agents and Psychotropic Substances" prohibited transit of narcotic agents, psychotropic substances and their precursors across the territory of the Russian Federation. In order to implement Federal Law No. 89-FZ of 24 June 1998 "On Production and Consumption of Wastes" (as last amended on 8 December 2008) and commitments of the Russian Federation under the Basel Convention on Control Over Transborder Transportation of Dangerous Wastage and Its Removal, the Government of the Russian Federation issued Resolution No. 442 of 17 July 2003 "On the Transborder Transfer of Wastes", where Appendix 2 contained the list of dangerous wastes, banned to be imported and transited across the territory of the Russian Federation.

1161. The representative of the Russian Federation confirmed that the Russian Federation would apply all its laws, regulations and other measures governing transit of goods (including energy), such as those governing charges for transportation of goods in transit by road, rail and air, as well as other charges and customs fees imposed in connection with transit, including those mentioned in paragraphs 1155 and 1156 in conformity with the provisions of Article V of the GATT 1994 and other relevant provisions of the WTO Agreement. The representative of the Russian Federation further confirmed that, from the date of accession, all laws and regulations regarding the application and the level of those charges and customs fees imposed in connection with transit would be published. Further, upon receipt of a written request of a concerned Member, the Russian Federation would provide to that Member information on the revenue collected from customs fees and customs charges, including those mentioned in paragraphs 1155 and 1156, and on the costs of providing the associated services. The Working Party took note of this commitment.

Policies affecting foreign trade in agricultural products

1162. The representative of the Russian Federation said that policies in the Russian agricultural sector needed first and foremost to address the problems that had accumulated over the years of planned economy and notably the sectoral imbalance in prices and revenues, which was a major adverse factor in agricultural sector; of low profitability; and, underdevelopment of production and social infrastructure.

1163. In response to questions from some Members, the representative of the Russian Federation said that the following normative legal acts had been adopted to resolve these accumulated problems in the agriculture sector:

- "Major Guidelines of the Agri-Food Policy of the Russian Federation Government for the Years 2001 - 2010", approved by the Government of the Russian Federation on 27 July 2000;

- Federal Law No. 264-FZ of 29 December 2006 "On Development of Agriculture" (as last amended on 24 July 2009); and

- Resolution of the Government of the Russian Federation No. 446 of 14 July 2007 "On the State Program of Development of Agricultural Sector and Regulation of Markets of Agricultural Products, Raw Materials and Food for 2008 - 2012".

1164. The representative of the Russian Federation also presented a detailed explanation of the programme provided for in Resolution No. 446. This programme was a result of implementation of Federal Law No. 264-FZ and was to be realized at both regional and Federal levels. The main objectives of the programmes provided for in Resolution No. 446 were to ensure sustainable development of rural territories, increase in employment and standard of living, as well as to increase the competitiveness of Russian agricultural products on the basis of financial stability and modernization of agriculture. The implementation of the programme was financed from the Federal and regional budgets according to planned expenses for each successive three-year period on a rolling basis. The representative of the Russian Federation concluded that thus the measures provided for in Resolution No. 446 were the basis for realization of key long-term policy objectives of the Russian Federation in the agricultural sector aimed at ensuring sustainable development of rural territories and establishing of effective and competitive agro-industrial production.

1165. The representative also stated that the successful realization of these measures created terms for stable development of agriculture, and were the grounds for increasing the financing of those programmes that had no, or at most minimal, trade-distorting effect or effects on production.

1166. During the negotiations on accession, the Russian Federation provided data (support levels and explanations of programmes) for domestic support to agriculture, starting from the year 1989 through most years to the period 2007 - 2009. The Russian Federation also provided answers to specific questions from interested Members. The provided data demonstrated significant decrease of domestic support in the Russian Federation during the period from the year 1989 to the period 2007 - 2009.

1167. Some Members requested further information on implementation and the mechanisms for provision of subsidies at Federal and regional levels. In particular, these Members wanted to know if the same types of subsidies were provided to a commodity by both Federal and regional authorities. In response, the representative of the Russian Federation stated that data concerning the sources of support for all programmes was presented in the Supporting Tables of the Russian Federation, the last revision of which had been provided to the Working Party in August 2011. He noted that some support measures were implemented only at Federal level and some only at a regional level. Some programmes were financed both at Federal and regional level, being financed partially from the regional and Federal budgets. In any case, funds were calculated separately. Specifically, for measures financed from the Federal budget, the funds could be transferred to the regional level, but any such transfers were included in the calculations as Federal level support. The calculations for regional measures reflected only those measures which were financed from regional budgets.