FEDERATION TO THE WORLD TRADE ORGANIZATION 50 страница

1358. In response to questions from Members on the system of licensing in the sphere of services, the representative of the Russian Federation informed Members that, according to the existing legislation, some types of services were subject to licensing. The fundamentals of the regulation of licensing in the area of services were provided for in Federal Law No. 128-FZ of 8 August 2001 "On Licensing of Specific Types of Activity" (hereafter: Federal Law No. 128-FZ), and a limited number of other Federal Laws, regulating individual service sectors. Federal Law No. 128-FZ had been adopted in the context of the governmental programme of "debureaucratization" of the economy and established a unified and transparent licensing regime aimed at the removal of excessive administrative regulation and barriers to market access. The representative of the Russian Federation informed Members of the basic provisions of that Law. One of the basic licensing principles was ensuring the existence of a single economic space in the territory of the Russian Federation. For that purpose, the Government of the Russian Federation designated the Federal Executive bodies responsible for licensing specific types of activity, and also determined the types of activity to be licensed by the executive bodies of the regions of the Russian Federation. If an enterprise wanted to pursue an activity that required a licence under Federal Law No. 128-FZ and received a licence from the Federal Executive body or the executive body of a region of the Russian Federation it could pursue the licensed activity throughout the territory of the Russian Federation. If authorities of a region of the Russian Federation issued a licence to an enterprise to engage in an activity, the enterprise could engage in the licensed activity in other regions, only if it notified the licensing authorities in the other regions of its intent to engage in the licensed activity in their respective regions before engaging in the activity. Federal Law No. 128-FZ also defined the powers of licensing bodies, established the procedure for consideration of an application for a licence, as well as for issuance of a licence, and set-out the list of documents to be provided by an applicant. A fee of RUB 300 charged for the consideration of a licence application by a licensor was abolished, in accordance with the Federal Law No. 374-FZ of 27 December 2009. A licence fee of RUB 2,600 was charged for the issuance of a licence to engage in activities listed in Article 17 of Federal Law No. 128-FZ, except for activities connected with the gambling industry, for which a fee for issuance of a licence amounted to RUB 10,000. For those services that were not governed by Federal Law No. 128-FZ the amount of fees was different. The list of such services was the following: telecommunication services; financial services other than insurance; distribution of ethyl spirit, alcoholic and alcohol-containing products; the use of frequencies for tele- and radio broadcasting; and the use of natural resources and services in the field of the use of nuclear energy (e.g. designing, construction and operation of nuclear plant, treatment of radioactive wastes). The volume of the licensing fees applied for the licensing of these services was governed by the Tax Code and the respective sectoral legislation. In response to a specific question, the representative of the Russian Federation explained that in respect to services auxiliary to all modes of transport, Federal Law No. 128-FZ provided for licensing in respect to cargo-handling services of dangerous cargos in maritime, railway and internal waterways transport.

1359. The Representative of the Russian Federation stated that the governmental policy with respect to the establishment of the licensing fees reflected in Federal Law No. 128-FZ was not aimed to distort competition in the market.

1360. The representative of the Russian Federation clarified that, according to the Civil Code of the Russian Federation, a juridical person of the Russian Federation was an entity that had separate property under its ownership, economic management, or operative administration and was liable for its obligations with respect to that property and that might, in its own name, obtain and exercise property and non-property personal rights, bear duties, and be a plaintiff and defendant in Court. Juridical persons must have an independent balance sheet or budget. Branches were not considered to be juridical persons of the Russian Federation, but were a separate subdivision of a juridical person and could conduct all of the functions of a juridical person or part of them. Representative offices were also not considered to be juridical persons, but were a separate subdivision of a juridical person, which represented the interests of the juridical person and exercised its protection. In response to a specific question of a Member, the representative of the Russian Federation clarified that the notion of juridical person referred to in this paragraph covered also juridical persons of the Russian Federation, owned or controlled by natural or juridical persons of other Members.

1361. In accordance with the Civil Code of the Russian Federation, a juridical person of the Russian Federation could be organized as a commercial organization, which had making profits as the chief goal of its activity, or as a non-profit organization. Juridical persons that were non-profit organizations, could be set-up in the form of State-corporations, non-commercial partnerships, institutions, autonomous non-profit organizations, consumer cooperatives, public or religious organizations (associations), charity or other funds, associations that were a group of juridical persons (associations and unions).

1362. The representative of the Russian Federation explained that juridical persons of the Russian Federation, including those that were service suppliers of a Member established in the territory of the Russian Federation, could, in accordance with Russian legislation, exercise their rights and bear responsibilities freely and in their own interest, inter alia, on a contractual basis. The terms and conditions of the contracts were to be defined by the parties to such contracts and could not contradict the legislation of the Russian Federation.

1363. Regarding the energy sector, some Members noted that the Russian Federation had made rather weak commitments on services incidental to mining and no commitments for pipeline transport services. In this regard, these Members requested details of the relationship, if any, between the relative weakness of commitments for these services and the exercise of the sovereign rights of the Russian Federation over its subsoil and mineral and energy resources. They further asked for a clarification on the intentions of the Russian Federation with respect to the development of a market environment for the provision of services incidental to mining and pipeline transport services, and whether these would be consistent with the role that the Russian Federation saw for the conclusion of production sharing agreements and concession arrangements.

1364. In response, the representative of the Russian Federation noted that all natural resources of the Russian Federation including subsoil domain as well as mineral, energy and other resources contained therein were subject to sovereign rights of the Russian Federation exercised with the regions of the Russian Federation jointly and constituted State property. Subsoil areas could not be subject to purchase, sale, gift, inheritance, deposit, pledge or any other form of alienation. He referred Members to the Section on Trade-related Investment Measures (TRIMs) of the Working Party Report and Investment for information on PSA, including services related obligations of such production sharing agreements.

1365. The representative of the Russian Federation explained that, under the legislation of the Russian Federation, State support for juridical persons could be subject to criteria or conditions such as, inter alia, employment of/or provision of services to persons suffering from an unfavourable social and economic position, entities considered to be of social importance, or small businesses. Criteria in the legislation were applied on a non-discriminatory basis independent of foreign participation in the juridical person.

Under current legislation:

- persons suffering from an unfavourable social and economic position included persons of limited abilities due to illness or age, jobless persons, orphans, persons suffering from low income, natural and other disasters, war or social conflict and other circumstances, which denied common conduct of life and could not be solved by these persons themselves;

- entities of social importance included entities providing services of mutual social use and/or services consumption of which could be of principal importance to any juridical persons and/or individuals, and/or entities being of key importance as a source of employment, within a respective region or economy, in general, and entities providing services, which were closely connected to the production of above-mentioned services, for example, as part of the technological process of such production or as a condition of production; and

- small businesses were those commercial organizations in which the average number of workers did not exceed, in the reporting period, the following maximum levels: 100 in industry and construction; 80 in agriculture; 60 in the scientific and cultural sphere; 30 in retail trade and domestic services; and 50 in wholesale trade and in other activities or branches of activity, as well as in the case of investment from juridical persons not being small businesses accounted for less than 25 per cent of a business' capital.

1366. Several Members of the Working Party stressed the need for more information on the progress of the Russian Federation towards establishing the required enquiry point and other transparency and procedural requirements for complying with the WTO GATS Agreement. These Members requested confirmation that, in service sectors requiring licensing, foreign natural and juridical persons, needing licences, could obtain them on the same terms as Russian natural and juridical persons. Some Members also noted that the Russian Federation had used the "infant industry" argument to justify a certain level of protection of its service sectors and asked how the Russian Federation would implement measures in this regard, considering that the WTO GATS Agreement did not contemplate any safeguard mechanism.

1367. In response to these questions from Members, the representative of the Russian Federation informed the Working Party of the adoption of the Presidential Decree No. 314 of 9 March 2004 "On the System and Structure of Federal Executive Bodies". In accordance with the Presidential Decree, "administrative reform" was realized. The purpose of this reform was to divide the legal regulation functions and control/supervision of activities between different Federal Executive bodies, as well as to guarantee the independence of the Federal Executive bodies from service suppliers. The function of elaboration of State policy and legal regulation, in the respective spheres, was assigned to the ministries in accordance with their competence. The function of control/supervision was assigned to the Federal services.

1368. Currently, there were certain sectors where the Federal Executive bodies responsible for the regulation of the respective service sectors had their designated representatives using a special right ("golden share") in the participation of the Russian Federation and the subjects of the Russian Federation in the management of Joint-Stock Companies supplying services in such sectors, as telecommunications, transport and energy. In addition, the Central Bank of the Russian Federation (hereafter: Bank of Russia or CBR) responsible for the registration of credit organizations, the supervision of activities of credit organizations and the establishment of rules for activities of credit organizations, currently participated in the capital of Sberbank.

1369. A Member noted that the Russian Federation had not addressed questions from Members in paragraph 1366 about the establishment of an enquiry point, as required by Article III:4 of the WTO GATS Agreement. This Member believed that this information should be included in the Section "Policies Affecting Trade in Services" of this Report, unless the commitment on an enquiry point was to be specifically addressed in the Section "Transparency" of this Report. In response, the representative of the Russian Federation referred to paragraph 1426, which contained the information on the enquiry point.

1370. Regarding the banking sector, some Members expressed concern that one of the largest commercial banks in the Russian Federation (Sberbank) was currently owned by the CBR. This bank held a dominant position in the market of the Russian Federation, and its ownership by the CBR created a clear potential conflict of interest with the oversight functions and other responsibilities of the CBR. While welcoming the information on plans to divest the CBR holdings in commercial banks, these Members invited the Russian Federation to indicate a firm date by which the ownership of these banks and their commercial activities would be legally and, in practice, separated from the CBR. In addition, these Members expressed further concern about the distortions of competition created by the unlimited (i.e. 100 per cent) State guarantee given to deposits in accounts held with Sberbank. No State guarantee at all existed for deposits held in accounts with other banks, whether Russian or foreign. In order to foster equal conditions of competition in the banking sector of the Russian Federation and help improve the solidity and functioning of the financial sector, more generally, these Members expected that the Russian Federation would commit, by an agreed time-frame, to divest or bring under the responsibility of another public authority the commercial activities of the CBR and to ensure that there was no discrimination between established banks as regards to the guarantee of deposits.

1371. Some Members expressed concerns with respect to the potential conflict of interest arising from role of the Bank of Russia, as a supervisory body, and its equity participation in some commercial banks, as well as the possible distortions of competition created by the unlimited State guarantee given to deposits in accounts held with Sberbank.

1372. In response the representative of the Russian Federation noted that, the Bank of Russia held a 58 per cent stake in Sberbank. The remaining shares were owned by non-governmental investors, including foreign investors.

1373. In the Bank of Russia, the functions with respect to control over Sberbank were strictly divided. Management of Sberbank, as an object of ownership, was performed by those divisions of the Bank of Russia that did not exercise banking supervision authority. At the same time, banking supervision divisions applied to Sberbank the same supervision rules and norms, as those applied to any other bank.

1374. Sberbank maintained a historically leading role in the personal deposits' market (at present, about 51.5 per cent), although its share of individual deposits had been gradually decreasing (in early 2002, for example, it constituted almost 75 per cent). Sberbank remained a socially significant bank, since the majority of its depositors were individuals with low-income, primarily pensioners (retired people). It was impossible to indicate a firm date by when the Bank of Russia would withdraw from participating as an investor in Sberbank.

1375. He further noted, that the issue of the participation of Sberbank in the deposit guarantee system had already been resolved in Article 49 of Federal Law No. 177-FZ of 23 December 2003 "On Insurance of Deposits of Physical Persons in Banks of the Russian Federation", which had eliminated preferences for banks with participation of the CBR in the deposits guaranteeing system from 1 January 2007.

1376. In light of the limitations in the financial services sector on foreign participation in the capital of an enterprise, some Members requested information on the definitions of various forms of capital in the Russian Federation and the practical implications of these definitions.

1377. In response to questions from Members about the definition of various forms of capital in the legislation of the Russian Federation, the representative of the Russian Federation explained that, charter capital <*> was defined as the par value of the shares of a company that were issued, pursuant to: (i) Articles 66, 90, 96 and 99 of Part 1 of the Civil Code of the Russian Federation; (ii) Articles 2 and 25 of Part 1 of Federal Law No. 208-FZ of 25 December 1995 "On Joint Stock Companies"; (iii) Articles 2 and 14 of Part 1 of Federal Law No. 14-FZ of 8 February 1998 "On Limited Liabilities Companies"; (iv) Articles 11 and 18 of Federal Law No. 395-1 of 2 December 1990 "On Banks and Banking Activity"; and (v) provisions of the Law of the Russian Federation No. 4015-1 of 27 November 1992 "On Organization of Insurance Activity in the Russian Federation". He further explained that this included shares re-purchased by the company for re-sale or for retirement that were issued, but not outstanding. For the insurance sector, operational capital was comprised of charter capital, reserve capital, additional capital and undistributed profits. He also explained that for the banking sector, operational capital was comprised of charter capital, emissive income <**>, funds of credit organizations confirmed by the audit (including reserves) and drawn from profits of previous years, profits of the current and previous years confirmed by the audit, and other sources of operational capital (but not including subordinated debt). Thus, limits on charter capital did not necessarily constrain total operational capital, but could do so depending on the other resources of a particular bank.

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<*> Capital composed of instalments made by participants of the insurance company or bank.

<**> Difference between selling price and par value of securities multiplied by the quantity of securities of present issue.

1378. In response to questions from Members regarding regulatory limits on various components of capital, the representative of the Russian Federation clarified that, in the banking sector, the sum of subordinated debt of each individual bank could not exceed 50 per cent of total operational capital. He explained that this limit did not apply to the insurance sector.

1379. A Member of the Working Party asked whether pension funds and annuities were considered insurance products. The representative of the Russian Federation explained that pension funds were established as juridical persons regulated separately from insurance by a different regulatory body. He further confirmed that investments in charter capital of companies that were licensed as pension funds would not be subject to the foreign charter capital ratio for insurance. Annuities were considered as insurance products and were provided by insurance companies that were subject to insurance regulations.

1380. In response to a specific question of a Member, the representative of the Russian Federation said that the activity of self-regulatory organizations of professional participants in the securities market was subject to Federal Law No. 39-FZ of 22 April 1996 "On Securities Market". The Federal Law did not establish restrictions with respect to participation of Russian juridical persons with foreign investments in the activity of such self-regulatory organizations. The representative of the Russian Federation further noted that Federal Law No. 39-FZ did not establish restrictions with respect to participation of Russian juridical persons with foreign investments in trading at stock exchanges or in clearing activity, provided that such juridical persons met the respective domestic regulations requirements, or those applied by stock exchanges or clearing companies to all market participants. Answering further questions of that Member, the representative of the Russian Federation explained that, so far, there were no measures taken by the relevant financial authorities of the Russian Federation to prevent transfers of financial information to the banks and other companies operating in the financial market of the Russian Federation, or to prevent processing of financial information transferred from abroad, by such banks and companies.

1381. One Member of the Working Party expressed deep concern over the maintenance of a discriminatory regime in the Russian Federation with regard to the supply of services on the Russian services market by nationals of its country, residing in different regions of its country, under the mode of supply "commercial presence" and "movement of natural persons". This Member requested the Russian Federation to make the necessary adjustments in order to avoid discriminatory treatment and to allow all his nationals to provide services on the Russian market on an equal footing.

1382. In response, the representative of the Russian Federation stated that the nature and origin of this situation was due to complicated historical factors. The Russian Federation felt that the settlement of those problems which, were outside the WTO, could be achieved through bilateral negotiations and was prepared to take all reasonable steps in this regard.

1383. Another Member requested confirmation regarding the intention of the Russian Federation to introduce International Accounting Standards (IAS), adopted by the International Accounting Standards Board (IASB) for banks on 1 January 2004 and for all listed companies on 1 January 2005. This Member asked the Russian Federation to confirm this information and indicate the steps by which it intended to achieve this objective. He also requested the Russian Federation to provide information on the actual application of IAS by Russian companies. Another Member asked whether the financial measures described by the Russian Federation, in relation to currency regulations and controls, were not already covered by Article XII of the WTO GATS Agreement and paragraph 2 of the Annex on Financial Services of the WTO GATS Agreement.

1384. The representative of the Russian Federation replied that it was the plan of the Government of the Russian Federation to introduce IAS. He noted that Federal Law No. 208-FZ of 27 September 2010 "On Consolidated Financial Accounting in the Russian Federation" had been adopted. This Federal Law established the general requirements on drawing up, offering, and publishing of the consolidated financial accounting of the company. The company had to be a juridical person of the Russian Federation. The provisions of the Law were applied to credit organizations, insurance organizations and other organizations listed in a stock exchange, or securities market arrangers. In accordance with the provisions of the Law, the consolidated financial accounting would be drawn up under the International Financial Reporting Standards. He also stated that, in the service sectors inscribed in the Schedule of Specific Commitments of the Russian Federation, service suppliers of WTO Members would be accorded treatment no less favourable than that provided for under the terms, limitations and conditions and subject to qualifications specified in the Schedule of Specific Commitments on Services. He noted that the requirement for establishing a WTO GATS Agreement enquiry point was being addressed, and that the enquiry point would be established and operational upon accession. He further noted that the Russian Federation had a limited number of bilateral Agreements related to debt settlements and technical assistance measures resulting from Agreements on legal assistance, which contained some preferential provisions, and Agreements on conditions for activities on the territory of the Russian Federation of Severniy Investitsionniy Bank (North Investment Bank) and Tchernomorskiy Bank Torgovliy i Rasvitiya (Tchernomorskiy Bank of Trade and Development).

1385. One Member suggested that the Working Party Report be updated and include language to clarify plans with respect to accountancy standards (e.g. scope of those plans, manner in which the standards would be implemented and time-frame being considered). Where international standards had been partially adopted, further details would be required. This Member noted that most recent discussions suggested that the accountancy standards applied to companies listed on the stock market. This Member further noted that he remained concerned that the lack of compatibility of accounting systems would impede service providers from obtaining the market access that the Russian Federation had agreed to offer. In response, the representative of the Russian Federation explained that information on the introduction of IAS in the Russian Federation provided for in paragraph 1384 above constituted the quintessence of all new developments, at this stage.

1386. Concerning horizontal measures of regulation, the representative of the Russian Federation explained that services, considered to be public utilities and referred to in the Horizontal Part of the Schedule of Specific Commitments on Services of the Russian Federation, could be subject to public monopolies or exclusive rights granted to private operators. Exclusive rights to provide such services could be granted to private operators, for instance, operators with concessions from bodies of State power and local self-governmental bodies, subject to the specific services obligations of the Russian Federation. Services considered as public utilities were supplied on the basis of public contracts. In service sectors, included the Schedule of Specific Commitments on Services of the Russian Federation, Russian juridical persons with 100 per cent foreign equity participation were allowed to apply for these exclusive rights on equal terms with national services suppliers.

1387. He stated that the policy of the Russian Federation in preserving, developing, and disseminating culture, required an authorization with respect to the acquisition of control over a Russian juridical person related to the cultural heritage of the Russian Federation and/or being a cultural property of the peoples of the Russian Federation. Also the number of service suppliers and scope of their operation could be limited on a non-discriminatory basis in specially protected territories.

1388. He noted that for the purpose of the protection and preservation of indigenous persons and exiguous ethnic communities, measures directed at the protection and preservation of the territories of the traditional habitation of these groups could be applied, and preferences to these groups could be granted with respect to their traditional economic activity in the territory of their traditional habitation. For the purpose of the protection and preservation of indigenous persons and exiguous ethnic communities, a special regime had been established for the use of land where they traditionally resided and exercised economic activity. According to that regime, such persons and communities had, inter alia, a priority right to the use of wild life and other natural resources in that land, and they had to give their consent to any use of natural resources in that land.

1389. For national security reasons the Russian Federation could also use measures to limit or prohibit economic and entrepreneurial activities with respect to trade in services, including possession, use and disposal of land, natural resources and immovable property, entry and/or permanent stay of natural persons, within the border zones and closed administrative areas.

1390. Responding to the concerns of some Members, the representative of the Russian Federation confirmed that commitments on "tour operator and tour agency services, CPC 7471" included services rendered for passenger travel by: (i) tour agencies, tour operators, and similar services; (ii) travel information, advice and planning services; (iii) services related to arrangement of tours, accommodation, passenger and baggage transportation; and (iv) ticket issuance services.

1391. A Member noted that the Russian Federation had listed in its Schedule of Specific Commitments on Services discretionary authority to impose temporary limits on foreign investment in the banking and insurance sectors, if foreign investment in those sectors exceeded a specified charter capital ratio. This ratio was calculated annually and, if foreign investment exceeded this ratio, the relevant regulatory authority had the discretion to take certain actions to temporarily limit further foreign investment. This Member asked, if all banks and insurance enterprises had to meet the same charter capital requirements and requested detailed information from the Russian Federation on how the ratio would be calculated and administered. Noting that in the case of the banking sector, the regulator (the CBR) was also a stakeholder in some commercial banks, this Member sought assurances that for any sector subject to this limitation, any decisions relating to charter capital, including decisions on whether to act, if foreign investment in the banking or insurance sector exceeded the ratio, would be made on prudential grounds and not influenced by the participation of the regulator in the sector.