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- (b) Kaliningrad SEZ
  1. The representative of the Russian Federation informed Members that 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" entered into force on 1 April 2006, replacing Federal Law No. 13-FZ of 22 January 1996 "On the Special Economic Zone in the Kaliningrad Region" (as amended on 22 July 2005). As foreseen by Federal Law No. 16-FZ, the Kaliningrad SEZ was created for a period of 25 years. The Kaliningrad SEZ would cease to exist on the basis of a new Federal Law that would be adopted after the expiration of this 25-year period, but would enter into force not earlier than one year after its official publication.
  2. Federal Law No. 16-FZ envisaged the functioning within the territory of the Kaliningrad region of a customs regime of a free customs zone. Foreign goods were imported to and used in the territory of the SEZ without payment of the customs duties and taxes and were not subject to bans and other restrictions of an economic character established in accordance with the Russian legislation (e.g., trade remedies). Goods imported by the residents of the Kaliningrad SEZ and then released 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 an economic character, established in accordance with the Russian legislation, these bans and restrictions would again apply (as provided for by Article 13 of Federal Law No. 16-FZ and the Customs Code of the Russian Federation). In reply to a question of one Member, the representative of the Russian Federation explained that the excise and VAT exemptions for imports of excisable goods had been suspended and, then at a later stage re-introduced. Excisable goods could not be imported to the territory of the Kaliningrad SEZ under this regime. The Government of the Russian Federation had the right to define other goods that could not enjoy this regime as well. The current list of such goods was defined by the Resolution of the Government No. 186 of 31 March 2006 (as last amended by the Resolution of the Government No. 1002 as of 8 December 2010). According to the current tax legislation (Article 181 of the Tax Code), car spare parts and components, as well as kits for assembly were not considered as excisable goods.
  3. With the exception of some contracts concluded under Federal Law No. 13-FZ of 22 January 1996 (see paragraph ), Federal Law No. 16-FZ mandated that goods, processed in the Kaliningrad SEZ from imported products (materials, raw materials, components, parts) and released for free circulation into the rest of the Russian Federation, were subject to customs duties, and taxes applied to the imported goods used in manufacturing of the processed goods. In such cases, for the purposes of calculation of the customs duties to be paid, the customs value and the quantity of imported goods being part of the processed goods were determined by the date of placement of the imports under the customs regime of a free customs zone. The rates of such duties applied were determined on the basis of the country of origin of the imported goods used in processing. When goods used in processing were imported from different countries, the MFN rate was applied in case of changes to any of the first four digits of the HS code, as the result of processing, or, if the customs value of the goods imported from different countries was the same. Customs duties rates for the country of origin of imported goods with the highest customs value would be used in other cases. Customs clearance fees were not levied with respect to goods imported into the Kaliningrad region, under the customs regime of a free customs zone, or with respect to products of reprocessing of those imported goods, released for free circulation into the rest of the territory of the Russian Federation.
  4. The representative of the Russian Federation further explained that both residents and non residents of the SEZ could conduct business activity in the territory of the SEZ, however, only residents of the SEZ could enjoy tax and other incentives that were provided for by Federal Law No. 16-FZ. In terms of investments, this Federal Law did not establish any restrictions based on the origin of capital of a legal entity. To become a SEZ resident, a legal entity had to be established in accordance with the Russian legislation and registered as a resident in the Kaliningrad region; goods were required to be manufactured and investments made within the territory of the Kaliningrad SEZ; and, the investment project of the legal entity had to meet the requirements described below. In accordance with Federal Law No. 16-FZ, the following legal persons could conduct business activity (including investing) in the territory of Kaliningrad SEZ, but could not become SEZ residents:

- legal persons, who paid taxes according to the special tax regimes, as provided for by the Tax Code of the Russian Federation (for example, simplified tax regime or tax regime related to the realization of production sharing agreements); and

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

The investment projects of prospective residents of the Kaliningrad SEZ were required to meet the following requirements:

- be performed within the territory of the Kaliningrad region;

- not be aimed at exploitation of crude oil and natural gas and rendering services in these spheres, not be aimed at manufacture of alcoholic products, tobacco goods and other excisable goods (except cars and motorcycles), the list of which was established by the Resolution of the Government No. 185, as of 31 March 2006;

- not be aimed at wholesale and retail trade, 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 150 million and must be made within the time period not exceeding three years from the date of investors registration as a resident of SEZ.

According to Article 9 of Federal Law No. 16-FZ, the customs regime of a free customs zone was applied to foreign goods imported into and used in the territory of the Kaliningrad region by the juridical persons registered in the Kaliningrad region (regardless of whether these juridical persons were residents of the Kaliningrad SEZ or not). To prevent the re-exportation of goods imported free of customs duties without further processing from the Kaliningrad region to the rest of the customs territory of the Russian Federation, customs control over goods entering the territory of the Kaliningrad region was performed by the customs authorities located in the region.
  1. The representative of the Russian Federation further explained that for all juridical persons and individual entrepreneurs registered in the Kaliningrad region, which had been established and active under the previous Federal Law No. 13-FZ of 22 January 1996 (except those included in the registry of residents of SEZs, under Federal Law No. 16-FZ), a ten-year transition period, from the date of entry into force of Federal Law No. 16-FZ on 1 April 2006, was provided. During the transition period, these legal entities would continue to enjoy the treatment envisaged by Federal Law No. 13-FZ. This included exemption from export duties when goods were exported outside the customs territory of the Russian Federation. It also provided that goods imported under the free customs zone regime and then released for free circulation into the rest of the Russian Federation were not subject to customs duties and taxes if they met sufficient processing criteria. The goods were considered as meeting sufficient processing criteria, if one of the following conditions was fulfilled: processing of goods resulted in a change of the HS code at a level of any of the first four digits, or value added of the processing operations accounted for not less than 30 per cent of the cost of the goods. However, independently of these conditions, the following operations, according to Federal Law No. 16-FZ, did not meet sufficient processing criteria: (a) ensuring of safety of goods during their transportation and storage; (b) preparation of goods for transportation and sales (splitting of the lots, packing, sorting); (c) simple assembly operations established by the Resolution of the Government No. 184 as of 31 March 2006 (as last amended on 24 May 2007); and (d) mixing of goods originating from different countries, if characteristics of the final product did not differ significantly from the characteristics of the goods mixed. After expiration of the above-mentioned ten year transition period, the provisions of Federal Law No. 16-FZ, governing free customs zone regime in the Kaliningrad SEZ, would apply without these reservations.

- (c) Magadan SEZ
  1. In response to requests for information on the Magadan Special Economic Zone, the representative of the Russian Federation stated that the Magadan Special Economic Zone had been established in accordance with 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). Provisions of this Federal Law did not apply to foreign trade operations with precious metals. This Federal Law would remain in effect until 31 December 2014, and allow the Magadan SEZ to function until that time.
  2. The Magadan region was a Far North district with limited (three months, a year maximum) sea navigation possibilities, and without railway and highway communications with other regions of the Russian Federation. The basic sectors of the regional economy were gold-mining and fishery, accounting for 70-75 per cent of the total volume of industrial production of the region. More than 90 per cent of the industrial production of the Magadan region, except gold, was consumed in the region itself.
  3. The representative of the Russian Federation further explained that the establishment of a SEZ in this region, was primarily aimed at social and economic development of the region as a way to compensate for its unfavourable location. Both residents (called "participants" in the Magadan SEZ) and non-participants of the SEZ could conduct business activity in the territory of the SEZ, however, as with other SEZs, only registered participants of the Magadan SEZ could enjoy tax and other incentives. The Magadan SEZ participants had been exempted from Federal taxes (except deductions made to the Pension Fund and the Social Insurance Fund of the Russian Federation) until 31 December 2006. According to the amendments enacted in December 2005, from 1 January 2007 to 31 December 2014, participants of the Magadan SEZ would be exempted from taxes on profits invested in the development of production and social sphere in the territory of the Magadan region. These tax incentives were granted if a SEZ participant had a separate balance sheet for his activity in the territory of the SEZ. Status as a SEZ participant could be granted to juridical persons and individual entrepreneurs registered in the territory of the SEZ in accordance with the legislation of the Russian Federation that conducted their main business activity and kept not less than 75 per cent of their key assets in the territory of the SEZ as provided by Article 3 of Federal Law No. 104-FZ.
  4. Federal Law No. 104-FZ, as amended, envisaged the functioning within the territory of Magadan City of a customs regime, of a free customs zone, based on the activities of registered participants of the Magadan SEZ. Foreign goods were imported into and used in the territory of the SEZ without payment of the customs duties and were not subject to bans and other restrictions of an economic character established in accordance with the Russian legislation (e.g., trade remedies). Similar exemptions for value-added and excise taxes had been suspended regularly since the establishment of the SEZ, most recently until 1 January 2012 by Federal Law No. 205-FZ of 24 November 2008. Such imports used by participants for production or their own consumption could be circulated in the Magadan region without paying the exempted duties. Products produced in the SEZ and exported to other countries were exempted from export duties and other fees, except customs clearance fees, and from payment of any import duties exempted on imported inputs in the manufacturing process.
  5. Goods imported by the participants of the Magadan SEZ and then released for free circulation into the rest of the customs territory of the Russian Federation without further processing were subject to import duties, and, if these goods had been subject to bans and other restrictions of an economic character established in accordance with the Russian legislation, these bans and restrictions would apply again. Federal Law No. 104-FZ provided that excisable goods (defined in Article 181 of the Tax Code) could not be imported to the territory of the Magadan SEZ without payment of the applicable taxes. The Government of the Russian Federation had the right to define other goods and the terms or transitional periods, for which those goods could not enjoy this regime as well. Unless, they were considered to have originated in the Magadan SEZ, goods processed in the SEZ from imported products (materials, raw materials, components), and released for free circulation into the rest of the Russian Federation, were subject to customs duties and taxes applied to the imported goods used in the manufacturing of the processed goods. In such cases, for the purposes of calculation of the customs duties or taxes to be paid, the customs value and (or) the quantity of imported goods was determined as the date of placement of the imports under the customs regime of a free customs zone. When customs duties were applied, the rates of such customs duties were determined on the basis of the country of origin of the imported goods used in the processing. When goods used in the processing were imported from different countries, an MFN rate was applied in case of changes to any of the first four digits of the HS code as a result of the processing; or, if the customs value of the goods imported from different countries was the same. Customs duties for the country of origin of imported goods with the highest customs value were used in other cases. Customs clearance fees were not levied with respect to goods imported into the Magadan region under the customs regime of a free customs zone, or with respect to products for reprocessing of those imported goods, released for free circulation into the rest of the territory of the Russian Federation.
  6. The representative of the Russian Federation explained that for juridical persons and individual entrepreneurs that were participants of the SEZ in the Magadan region in accordance with Federal Law No. 104-FZ, there were special provisions that lasted until the SEZ expired on 31 December 2014. Participants registered in the SEZ were understood as juridical persons registered for the same benefits in the entire Magadan region, carrying out their main business activity and having not less than 75 per cent of their capital assets in the territory of the Magadan SEZ. Articles 6.4 and 6.6 of Federal Law No. 104-FZ provided that goods processed in the SEZ from imported products (materials, raw materials, components, parts) and considered to be originating in the SEZ, were not subject to any further application of customs duties when released for free circulation into the rest of the customs territory of the Russian Federation. He stated that goods were considered to be originating from the SEZ when they were fully produced in its territory or, if the imported inputs used to produce the goods met sufficient processing criteria. The goods were considered as meeting sufficient processing criteria if one of the following conditions was fulfilled: processing of goods resulted in a change of the HS code at a level of any of the first four digits; processing of production and technological operations, sufficient for the goods to be considered originating from the SEZ; or, the value added of the processing operations accounted for not less than 30 per cent of the goods price (for electronics and sophisticated technological goods - not less than 15 per cent). However, independent of these conditions, the following operations, according to Federal Law No. 104-FZ, did not meet the criteria for sufficient processing: (a) ensuring of safety of goods during their transportation and storage; (b) preparation of goods for transportation and sales (splitting of the lots, packing, sorting); and (c) mixing of goods originating from different countries, if characteristics of the final product did not differ significantly from the characteristics of the goods mixed. In addition, any imports used by participants of the Magadan SEZ for production or their own consumption could be circulated in the Magadan region without paying the exempted duties.
  7. 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
  1. 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.
  2. 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:
        1. manufacturing had changed the HS classification code of the good at the level of any of the first four digits;
        2. 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;
        3. 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
        4. 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.
  1. 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.
  2. 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.
  3. 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.
  4. 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 and , 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>
  5. 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.
  6. 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.
  7. 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 and of this Report, special economic zones in the Russian Federation, including those described in paragraphs , and 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 and 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.