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- (c) Aircraft area
  1. In response to Members' concerns regarding the aircraft sector, the representative of the Russian Federation noted that Government Resolution No. 574 of 2 August 2001 "On Certain Issues of Regulation of Temporary Imports of Foreign Made Aircraft" had superseded Government Resolution No. 716 of 7 July 1998 "On Additional Measures of State Support for Civil Aviation in Russia" and had terminated the full exemption from customs duties and taxes for temporary import for aircraft, aircraft parts and engines and simulators which were imported under investment agreements. No investment agreements had been concluded since the adoption of Government Resolution No. 574 of 2 August 2001 "On Certain Issues of Regulation of Temporary Imports of Foreign Made Aircraft". He clarified that Russian legislation did not impose local content requirements for the production of aircraft engines. The Russian Federation confirmed that Government Resolution No. 574 of 2 August 2001 "On Certain Issues of Regulation of Temporary Imports of Foreign Made Aircraft" was in full conformity with the provisions in the WTO TRIMs Agreement. In response to a further question from a Member, the representative of the Russian Federation further explained that Resolution No. 839 lowered the rate of customs tariff in respect of components and raw materials imported for the purposes of airplane engines production irrespective of an investment agreement scheme. Thus, in his view, this was simply a reduction in applied tariffs and not a measure covered under the WTO TRIMs Agreement.

- (d) Diamonds
  1. In the response to a question from a Member, the representative of the Russian Federation stated that his Government did not consider measures related to the trade in diamonds to be Trade Related Investment Measures. Information on special conditions for trade in diamonds was presented in the relevant sections of this Report.

- (e) Conclusion
  1. The representative of the Russian Federation confirmed that the use of goods produced in the Russian Federation accounting for 35 per cent of the total ex-factory value of all components used under the Auto Investment Program No. 2 was considered as equivalent to the 60 per cent average annual level of production localization required in paragraph 1.2(d) of Annex 1 of Order No. 73/81/58n, which was calculated according to paragraph 1.6 of the same Annex. Given that the 60 per cent requirement did not apply until the sixth year of the investment agreement, each year, the requirement to use goods produced in the Russian Federation would apply proportionally until that maximum level of local content was required. The representative of the Russian Federation confirmed that this equivalence would be recognized when assessing the fulfilment by an investor of the requirements under paragraph 1.2(d) of Annex 1 of Order No. 73/81/58n. However, this equivalence would not exempt investors from the obligation to implement other requirements of Order No. 73/81/58n, including but not limited to ensuring a minimum annual production capacity, or creating or modernising Research and Development centres, or fulfilling specific local content requirements such as for engines. The Working party took note of these commitments.
  2. The representative of the Russian Federation confirmed that, from the date of the accession of the Russian Federation to the WTO, the Russian Federation would ensure that all laws, regulations and other measures applied in the Russian Federation that are related to issues covered by this section, whether adopted by the Russian Federation or the competent bodies of the CU, would be consistent with the provisions of the WTO Agreement, including the WTO Agreement on Trade-Related Investment Measures, except for measures applied under Auto Investment Program No. 1 and Auto Investment Program No. 2 and investment agreements concluded under these programmes - as described and defined in paragraphs through . With regard to Auto Investment Program No. 2, the representative of the Russian Federation confirmed that the amount of any requirement to purchase or use domestically produced parts and components, would not exceed 25 per cent of the ex factory price of the automobiles annually. With regard to manufacture of components under Auto Investment Program No. 2, the amount of any requirement to purchase or use domestically produced parts and components would not exceed 25 per cent of the total aggregate value of inputs of the manufacturer of car components annually. The representative of the Russian Federation confirmed that the Russian Federation would engage in consultations with interested WTO Members, no later than 1 July 2016, regarding WTO-consistent measures that could be applied in connection with its Auto Investment Program No. 1 and Auto Investment Program No. 2 and would notify WTO Members of any measures planned to replace the WTO-inconsistent measures applied under these programmes at least six months prior to the adoption of such new measures. The representative of the Russian Federation confirmed that all WTO-inconsistent measures, including preferential tariffs or tariff exemptions, applied pursuant to Auto Investment Program No. 1 and Auto Investment Program No. 2 and agreements concluded under these programmes would be eliminated by 1 July 2018. The representative of the Russian Federation also confirmed that the Russian Federation would not conclude any new agreements with investors in any sector that contained provisions contrary to the WTO Agreement, including the WTO Agreement on Trade-Related Investment Measures. The Working Party took note of these commitments.

- Special Economic Zones
  1. The representative of the Russian Federation stated that the establishment of special economic zones (SEZs) was aimed primarily at fostering high technology industries; expanding sources of investments; and, promoting the development of tourism and transportation infrastructure. In the Russian Federation, Federal Law No. 116-FZ of 22 July 2005 "On Special Economic Zones in the Russian Federation" (as last amended on 25 December 2009) was the basic law on SEZs, with two exceptions for zones established before its enactment in the Kaliningrad and Magadan regions. These two SEZs had continued to operate on the basis of two other laws pending expiration of the contracts established under the provisions of the relevant law. Once the contracts expired, Federal Law No. 116-FZ would apply in the Kaliningrad or Magadan as the case may be. The two specific laws were 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), (which replaced Federal Law No. 13-FZ of 22 January 1996 "On the Special Economic Zone in the Kaliningrad Region"); 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). Thus, currently, each of these three Laws continued to be the relevant legislation governing the operation of SEZs in the Russian Federation.
  2. Members requested further information on the establishment and operation of the SEZs, as well as information to help them assess whether the zones that could be established under Federal Law No. 116-FZ "On Special Economic Zone", and in Kaliningrad and Magadan, were consistent with WTO requirements. They asked how the WTO obligations of the Russian Federation would be enforced in the SEZs after accession, and in particular, whether Articles I and III of the GATT 1994 would be applied, and whether incentives granted to firms, which were established in the SEZs were or would be based on export performance or local content requirements. Other issues raised by Members in this connection concerned the need to restore any tariffs or taxes from imported goods or inputs used in the manufacturing process to goods eventually exported to the rest of the Russian Federation or the territory of other CU Parties. One Member sought information about the provisions of the law of the Russian Federation which provided that goods manufactured in Kaliningrad and Magadan from inputs eligible for tariff and/or tax exemptions were considered to have transformed imported inputs sufficiently to eliminate the need to pay the duties and taxes originally exempted when the inputs were imported. Another Member noted that no level of transformation would be sufficient to eliminate the need to restore exempted duties and taxes, as rules of origin operated between countries, not parts of countries. These Members noted that Federal Law No. 116-FZ required the payment of exempted duties and taxes when the manufactured product was sold to the rest of the customs territory of the Russian Federation. Other Members sought information on what other benefits, if any, in terms of tax exemptions or otherwise, were available to firms that located in the SEZs. A description of the provisions for firms located in Kaliningrad and Magadan SEZ was also requested.

- (a) Basic Law on SEZs
  1. In response, the representative of the Russian Federation explained that Federal Law
    No. 116-FZ "On Special Economic Zones" had been the legal basis for establishing SEZs on the customs territory of the Russian Federation since 2005. As last amended on 25 December 2009, it provided for four types of SEZs: manufacturing zones, technological parks, recreation zones, and port zones.
  1. Manufacturing SEZs were aimed at production and reprocessing of finished products. It was assumed that according to respective contracts, the investments within the first year would not be less than €1 million and total investment would amount to at least €3 million.
  2. SEZs of engineering and innovation type (technological parks) were aimed at creation of incentives for inventions and realization of new technologies. No minimum investment funding was required for this type of SEZ.
  3. Recreation zones were created in order to foster development of tourism and sanatorium resort activity (construction, reconstruction, and operation of travel industry facilities, facilities for sanatorium-resort therapy, medical rehabilitation and recreation, as well as tourist activity and activity related to exploitation and utilization of waters, peloids and other natural remedial resources, including sanatorium-resort therapy, disease prevention, medical rehabilitation, recreation and industrial bottling of mineral waters). No minimum investment funding was required for this type of SEZ.
  4. Creation of port SEZs was aimed at enhancing conditions for construction and modernization of the infrastructure of sea ports, airports and river ports to stimulate port economic activity and port services, as well as the development and expansion of port facilities by means of foreign and national direct investments.
  1. He added that once a port SEZ was established, investors could apply for residency, i.e., to be registered as a legal entity or individual entrepreneur as provided for in Federal Law No. 116-FZ eligible for a special tax regime and other conditions more favourable than those available to firms and entrepreneurs in the rest of the customs territory, and conclude contracts that specified the terms of their participation as "residents" in the zones. According to the respective contracts, a resident of such an SEZ, the legal entities or individual entrepreneurs eligible for the special tax regime and other conditions more favourable than those available to firms and entrepreneurs in the rest of the customs territory, undertook to invest at least €10 million when constructing the infrastructure units of a new sea port, and at least €3 million when reconstructing the infrastructure units of sea, river or airport. Residents of port SEZs also had to provide to the customs authorities guarantees for payments of duties and taxes. The security for such payments of duties and taxes could not be less than:

- RUB 30 million when conducting the port-related activity associated with the warehousing of any goods along with storage of, wholesale or stock-exchange trading in them, including excise goods or mineral raw material;

- RUB 10 million when conducting the port-related activity associated with the warehousing of goods which were not excise goods or mineral raw material, along with storage of or wholesale stock-exchange trading in them; or

- RUB 2.5 million when conducting other port-related activity.

Firms engaged in the extraction of minerals, steelmaking or the manufacture of goods subject to excise taxes, with a few exceptions, including the manufacture of automobiles and motorcycles, could not locate in the SEZs. The Government of the Russian Federation could define other types of prohibited activities in a SEZ according to the national legislation.
  1. The representative of the Russian Federation also explained that within the authority granted by Federal Law No. 116-FZ, the Government of the Russian Federation could establish SEZs, other than port SEZs, only on land plots that were State and municipal property. Generally, all types of SEZs were established by Government Resolution after a tendering process, although until 1 January 2015 and, under exceptional circumstances, the Government could establish an SEZ directly, without such a process. Except for port zones, SEZs were established for a 20-year term without extension. Port zones were established for a 49-year period, also without extension. Upon expiration of the 20-year period for manufacturing zones, technological parks, and recreation zones, and of the 49-year period for port zones, the SEZs would be liquidated and general customs and a tax regime would be applied on the former territory of the SEZs. Under these circumstances, or if the time period provided for in the contract of a SEZ resident expired, imported goods which had been placed under the customs procedure of free customs zone would return to normal customs procedures within three months and would have to be exported or the exempted taxes and tariffs would have to be paid. The investment goods (i.e., means of production) of residents in these circumstances would be considered to be goods of the CU and payment of the previously exempted taxes and tariffs>
  2. With a view to implementing the provisions of Federal Law No. 116-FZ, pursuant to Presidential Decree No. 1107 of 5 October 2009, the Ministry of Economic Development (MED) coordinated and administered the activity of all SEZs within the Russian Federation jointly with local Governments. In addition, each SEZ established a supervisory board to register residents, to carry out the day-to-day administration and management of the individual zones, and to ensure that the terms of operation laid out in Federal Law No. 116-FZ and the individual contracts signed with residents were adhered to.
  3. The representative of the Russian Federation informed Members, that following the first tender conducted in accordance with Federal Law No. 116-FZ in 2005, six regions had been permitted to establish a SEZ regime: four technological parks (in Moscow (Zelenograd) and Moscow Region (Dubna), Saint-Petersburg and Tomsk); and, two SEZs of the manufacturing type (in Tatarstan (Elabuga) and Lipetsk region). The respective Resolutions of the Government Nos. 779-784 "On the Creation of these Zones" were issued on 21 December 2005. These SEZs became operative after the conclusion of contracts between the MED (the Federal Executive power body designated to manage the zones) and respective local Governments. The main specialization of these zones was the following:
  • manufacturing of home electronics (in particular, refrigerators) in Lipetsk region zone;
  • manufacturing of cars and their components, advanced technology products in petrochemical sphere in Elabuga zone;
  • development of information and nuclear technologies in Dubna zone;
  • development of micro- and nano-electronics in Zelenograd zone;
  • development of advanced technology products in St.-Petersburg zone; and
  • development of new materials, bio-nanotechnologies and medical technologies in Tomsk zone.
  1. Subsequently, he continued, additional SEZs had been established by Resolutions of the Government, including eight recreation zones (in Stavropol region; Kaliningrad region; Irkutsk region; Krasnodar region; Altai Republic; Altai region; Republic of Buryatiya; and, the North Caucasian Federal District), one additional manufacturing zone in Samara and three Port SEZs in Khabarovsk region, Ulyanovsk and Murmansk.
  2. The representative of the Russian Federation emphasized that Federal Law No. 116-FZ did not establish any special regime for foreign investments within the SEZs that was different from the regime in force in the rest of the Russian territory, and foreign invested firms irrespective of the percentage of foreign participation could be registered as residents of the zones subject to fulfilment of respective requirements applied on a non-discriminatory basis to all applicants. Once registered, they were equally eligible for the benefits available to domestically invested residents. The representative of the Russian Federation stated that the provisions for registration as a SEZ resident were contained in Articles 12-31 of Federal Law No. 116-FZ. Legal Persons intending to be registered as residents must submit an application including information on the intended activities of the applicant in the SEZ, the area and type of land required, and the volume of capital investment contemplated, as well as copies of the certificate of State registration and tax registration of the applicant, and constituent documents. Additional documents were required in the following cases:
  • For application on activities in port SEZs: information confirming receipt of a security for payment of customs duties and taxes; a copy of the activity licence if required under the legislation of the Russian Federation; and, documents supporting the data regarding acceptance by the customs body of security for payment of customs duties and taxes.
  • For application on activities in recreation zones, other documents could be requested in accordance with the legislation of the Russian Federation.

The applicant must also submit a business plan and a positive evaluation of the plan by a bank or other credit organization meeting criteria established by the Government of the Russian Federation. If the SEZ managing authorities accepted the application, an "Agreement on Exercising Activities" in the SEZ would be developed. It was this Agreement that established the terms of the resident status of the applicant in the SEZ. Failure to live up to the terms of the Agreement was grounds for termination of the resident status. Details on the development and, as necessary, termination, of the "Agreement on Exercising Activities" were contained in Federal Law No. 116-FZ. He further stated that an exhaustive list of documents were required for registration as a resident of an SEZ, except for recreation zones.
  1. Foreign legal entities could not become SEZ residents unless they were registered as a Russian commercial organization, within the municipal border of the territory where the SEZ had been established, in accordance with the national legislation of the Russian Federation. Both residents and non-residents of SEZs could conduct business activity on the territory of the SEZs, except for port SEZs, in compliance with laws of the Russian Federation (Article 10.3 of Federal Law No. 116-FZ), however, only residents of SEZs could enjoy tax and other incentives (Article 37 of Federal Law No. 116 FZ), including exemptions from customs duties, taxes, bans and other restrictions of economic character established in accordance with the Russian legislation (e.g. trade remedy measures) for the goods imported into the territory of the SEZ under the regime of a free customs zone. Such incentives would be granted automatically to all residents of the SEZ. Tax incentives included expedited procedures for acceptance of expenditures for research and development activities; elimination of the 30 per cent limitation on transfer of losses to subsequent tax periods; reduction of single social tax for the residents of technological parks; and, a five-year exemption from land and property taxes. Residents of the SEZs were not entitled to have branches and representative offices outside the territory of the SEZ where the resident was registered (Article 10.4 of Federal Law No. 116-FZ), in order to prevent the possibility of a SEZ resident from evading tax obligations and from becoming, in effect, an offshore entity that could use the SEZ tax and tariff preferences for purposes not connected with legitimate activities in a SEZ.
  2. In response to a question from a Member, the representative of the Russian Federation stated that Federal Law No. 116-FZ did not impose any export performance requirements and did not restrict access of imported goods to the territory of the SEZs. He explained that after the accession of the Russian Federation to the WTO, the Russian Federation would enforce its WTO obligations in its SEZs.
  3. The representative of the Russian Federation further explained the main features of the regime of a free customs zone as applied to goods imported into the territory of the SEZs, in accordance with the provisions of Article 37 of Federal Law No. 116-FZ. For goods of both foreign and Russian origin located and used within an SEZ territory, the customs procedure of free customs zone was applied by the customs authorities in accordance with the CU Customs Code. Customs duties, VAT and excise taxes, and non-tariff restrictions (other than prohibitions of goods not permitted within the Russian Federation) were not applied to imports. Export duties, prohibitions and restrictions, otherwise applied to goods exported from the Russian Federation, were not applied to exports from the Russian Federation to the SEZs. The list of goods subject to such exemptions was approved by the customs authorities for each SEZ resident, according to the declared activity of such resident. The goods could be imported to the territory of manufacturing zones and technological parks under the regime of a free customs zone, if they were used either for production and reprocessing, or for technological and innovation activity respectively.
  4. The representative of the Russian Federation emphasized that goods imported by the residents of a SEZ and then released, without further processing, for free circulation into the rest of the customs territory of the Russian Federation were subject to import duties, VAT, and excise taxes, and if these goods had been subject to bans and other restrictions of economic character established in accordance with the Russian legislation, these bans or other restrictions would again apply (as provided for by Article 37 of Federal Law No. 116-FZ). Article 37.19 of Federal Law No. 116-FZ also provided that when imported goods were used by the SEZ residents in a production process and the final products were released for free circulation into the rest of the customs territory of the Russian Federation, the import duties, VAT, and excise taxes still needed to be paid for the imported goods that were incorporated in the final processed goods. This was done without taking into account any change in tariff line designation through substantial transformation, quantity of local content in the final good, or the value and the quantity added as a result of processing. In such cases, for the purpose of calculation of the customs duties to be paid, the customs value and the quantity of imported goods being incorporated in the processed goods was determined as of the date of placement of the imported goods under the customs regime of a free customs zone or the customs value and quantity of processed goods as of the date of their release for free circulation. The representative of the Russian Federation further described the legal framework and main conditions of operation of the SEZs in the Magadan and in the Kaliningrad regions.