Geum.ru

WT/acc/rus/70 wt/min(11)/2

Вид материалаДокументы

Содержание


Framework for making and enforcing policies
Подобный материал:
1   2   3   4   5   6   7   8   9   ...   75

- Competition Policy
  1. The representative of the Russian Federation stated that his authorities attached great importance to competition policy, and had closely followed the activities of the WTO Working Group on the Interaction between Trade and Competition Policy. The basic goal of competition policy in the Russian Federation was to create a favourable climate for enterprises, and the facilitation of competition and efficient functioning of the markets by preventing, restraining and eliminating monopolistic and anti-competitive practices among economic operators.
  2. Legislative framework for realization of competition policy and prevention of anti competitive practices was set-out in the Federal Law No. 135-FZ of 26 July 2006 "On Protection of Competition" (as last amended on 5 April 2010), the Civil Code of the Russian Federation, the Code on Administrative Offences of the Russian Federation and the Criminal Code of the Russian Federation, which established civil, administrative and criminal liability for infringement of the anti-monopoly legislation.
  3. In response to requests from Members of the Working Party for further information, the representative of the Russian Federation stated that any anti-competitive market structure and unfair business practices, including infringement of intellectual property rights, that impeded competition, were subject to this anti-monopoly legislation. In his view, Russian legislation already in force contained all necessary elements for State supervision and control over arrangements and practices of economic operators that adversely affected competition, abuse of dominant position on the market by economic operators and led to economic concentration. In response to the request of some Members of the Working Party, he provided information on the relationship between anti-competitive behaviour and infringement of intellectual property rights in the Section "Trade-Related Intellectual Property Regime" (see paragraphs and ).
  4. He further added that the Federal Anti-Monopoly Service (FAS) was the Federal body authorised to carry out the State policy on facilitating development of commodity markets and competition, control over execution of antitrust legislation, as well as prevention and suppression of monopolistic activity, undue competition and other activities restricting competition. The main functions of the FAS were to introduce legislative initiatives in the field of anti-monopoly activity and to investigate and ensure compliance with legislation in the sphere of competition in the commodity markets, defence of competition in the financial services market, activities of subjects of natural monopolies, and advertising. The FAS also reviewed anti-monopoly aspects of establishment and mergers, share transactions and acquisitions. According to the provisions of anti-monopoly legislation and, in order to perform the above-mentioned functions, the FAS could initiate and conduct administrative cases, take decisions and issue prescriptions to participants of business activities that were obligatory for such participants. The action by the FAS could be triggered upon initiative of the FAS or by requests of State bodies or legal and natural persons. He noted that, under Article 71(g) of the Constitution of the Russian Federation, regional authorities did not have jurisdiction over competition policy.
  5. He further noted that the Federal Law No. 135-FZ of 26 July 2006 "On Protection of Competition" concerned the barring of monopoly activity and unfair competition, as well as anti competitive behaviour, by Federal Executive bodies and governmental bodies of the subjects of the Russian Federation. Violation of the anti-monopoly legislation by officials of the Federal Executive bodies, the Executive bodies of the subjects of the Russian Federation, local governments, and other bodies and organizations, vested with functions of the above-mentioned bodies under the legislation, as well as by natural persons, including individual entrepreneurs, could lead to civil, administrative or criminal liability.
  6. In response to questions from Members of the Working Party, he added that Federal Law No. 135-FZ of 26 July 2006 covered also the relations connected with protection of competition and prevention of monopolistic activity and unfair competition, and in which foreign legal persons were participating. In this respect, this Law provided for the similar application of the regulations to Russian and foreign legal persons.
  7. In order to eliminate unfair competition, the FAS provided extensive protection of rights to all participants of commodity markets. Most cases of unfair competition uncovered by FAS of the Russian Federation and its regional divisions related to infringement of intellectual property rights and, in particular, to the illegal use of trademarks. Detailed information on the implementation of anti-monopoly legislation and administrative and judicial cases was available on the official website of the anti-monopoly body: www.fas.gov.ru.
  8. He added that online information about decisions of the Government in any field, including competition, could be found on the official website of the Government of the Russian Federation (www.government.ru). Information on decisions of the FAS was available on the FAS website (www.fas.gov.ru). Decisions of the Government and FAS, which were issued as normative legal acts, applicable throughout the Russian Federation, were published in official periodicals (see the Section "Transparency" of this Report).

FRAMEWORK FOR MAKING AND ENFORCING POLICIES

- Powers of executive, legislative and judicial branches of government
  1. The representative of the Russian Federation stated that, in accordance with its Constitution, State power in the Russian Federation was exercised by the President of the Russian Federation, the Federal Assembly (the Council of the Federation and the State Duma), the Government of the Russian Federation, and the Courts of the Russian Federation. The competence of each body of power was defined in Chapters 4, 5, 6, and 7 of the Constitution of the Russian Federation, respectively. In response to further questions from Members of the Working Party, he noted that judicial, legislative, and executive power was exercised independently.
  2. A system of federal executive bodies had been established by Presidential Decree No. 314 of 9 March 2004 "On the System and Structure of the Federal Executive Bodies" (as last amended on 12 May 2008) in pursuance of ongoing administrative reform. The System introduced Federal ministries, Federal services, and Federal agencies as Federal executive bodies with different spheres of competence. Federal ministries were responsible for determining State policy, preparing legislation in related fields, and coordinating and controlling the activity of Federal services and Federal agencies under their authority. Federal services exercised control and supervision in related fields of activity, performed special functions related to national defence, State security, defence of the State borders of the Russian Federation, fight against crime, and, public safety. Federal agencies rendered State services managing State-owned property, as well as law-enforcement, except functions related to control and supervision.
  3. The judicial system of the Russian Federation was regulated by Federal Constitutional Laws No. 1-FKZ of 31 December 1996 "On Judicial System of the Russian Federation" (as last amended on 27 December 2009), No. 1-FKZ of 21 July 1994 "On Constitutional Court of the Russian Federation" (as last amended on 28 December 2010), and No. 1-FKZ of 28 April 1995 "On Courts of Arbitration in the Russian Federation" (as last amended on 30 April 2010). Judicial power was exclusively exercised by courts, manned by judges, juries, and arbitrators duly appointed under constitutional, civil, administrative and criminal court procedures. In accordance with the Federal Constitutional Law "On Judicial System of the Russian Federation", the domestic court system in the Russian Federation consisted of the Constitutional Court of the Russian Federation, Federal Courts of General Jurisdiction, Federal Arbitration Courts and relevant courts in the subjects of the Russian Federation. Judgments, rulings, orders, summons and other lawful communications issued by the courts were binding upon persons, entities or governmental authorities throughout the whole territory of the Russian Federation. Justice was equal for all. Courts were not to favour any agency, person or other complainant based on nationality, sex, race, language, political convictions or any other grounds unless otherwise established by Federal law. Failure to comply with a Russian court judgment, or any other act of contempt of a Russian court, was a breach of Federal law. The rules of civil procedure in Federal courts of general jurisdiction were set-out in the Civil Procedure Code of the Russian Federation No. 138-FZ of 14 November 2002 (as last amended on 6 April 2011). Procedures for the settlement of disputes by arbitration courts were set-out in the Arbitration Procedure Code of the Russian Federation No. 95-FZ of 24 July 2002 (as last amended on 6 April 2011). The representative of the Russian Federation further noted that the State fees for claims or other statements or complaints submitted to the courts of general jurisdiction or to arbitration courts were established in Chapter 25.3 of the Tax Code of the Russian Federation (Federal Law No. 117-FZ of 5 August 2000, as last amended on 7 March 2011). He also added that, in accordance with Law of the Russian Federation No. 2202-1 of 17 January 1992 "On the Public Prosecutor's Office of the Russian Federation" (as last amended on 7 February 2011), the Office of the Public Prosecutor was a single Federal system of authorities responsible for ensuring overall observance of the Constitution of the Russian Federation and all legal acts by federal and regional governments. The representative of the Russian Federation explained that the general authority of the High Courts (the Supreme Court of the Russian Federation and the High Arbitration Court of the Russian Federation) to give guidance to the Courts of the Russian Federation on applying domestic laws was stipulated in the Constitution of the Russian Federation (Articles 126-127). High Courts had the authority to issue guiding resolutions on the interpretation and application of the legislation, and that such resolutions had binding force in respect to all lower courts of their respective judicial branch. He further noted that such resolutions could be adopted only by plenary sessions of the Supreme Court or the High Arbitration Court, or by a joint plenary session of those high courts, in contrast to individual judgments pronounced by judicial benches (collegiums) of those High Courts. Responding to questions from Members, he explained that the binding force of the Plenum resolutions of the High Arbitration Court was provided for in Article 13(2) of the Federal Constitutional Law No. 1-FKZ of 12 April 1995 "On Arbitration Courts", whereas the similar status of the Supreme Court plenary resolutions was established by the Constitutional Law No. 1-FKZ of 31 December 1996 "On Judicial System of the Russian Federation" (as last amended on 27 December 2009) (Article 19). He further explained that the plenary resolutions normally either interpreted an important legislative act or provided guidelines for the decisions of the courts in a specific field of law. He noted that judges were to apply interpretations of the plenary resolutions in all cases involving the subject matter of such resolutions.
  4. The President of the Russian Federation was the Head of State. He determined the guidelines of domestic and foreign policies of the State. Pending resolution of a matter by the appropriate court, the President had the right to suspend the operation of acts of the bodies of executive power of the "subjects"4 of the Russian Federation, if the President believed they were not in compliance with the Constitution of the Russian Federation, Federal laws, and international commitments of the Russian Federation. In response to a question from a Member, the representative of the Russian Federation explained that this authority related only to the bodies of executive power of the subjects of the Russian Federation and not to bodies of executive power of the Federal Government.
  5. Executive power in the Russian Federation was exercised by the Government of the Russian Federation. The Government ensured the implementation, in the Russian Federation, of a single trade, financial, credit and monetary policy, including the implementation of foreign policy, and the implementation of measures required to ensure the rule of law.
  6. The Federal Assembly (the Parliament of the Russian Federation) constituted the legislative authority in the Russian Federation. It consisted of two chambers - the Council of the Federation and the State Duma. The Council of the Federation included two representatives from each subject of the Russian Federation: one from the legislative and one from executive body of State power. The composition of the Council of the Federation was also determined by Federal Law No. 113-FZ of 5 August 2000 "On the Order of Formation of the Council of the Federation of Federal Assembly of the Russian Federation" (as last amended on 15 November 2010). The State Duma consisted of 450 deputies elected for a term of four years. The composition of the State Duma was determined by Federal Law No. 51-FZ of 18 May 2005 "On Election of Deputies to the State Duma of Federal Assembly of the Russian Federation" (as last amended on 23 February 2011). Both chambers were involved, inter alia, in the adoption of the Federal laws on Federal budget, Federal taxes and duties, financial, currency, credit, customs regulation and monetary issues, and ratification and denunciation of international treaties and agreements of the Russian Federation.
  7. The right of legislative initiative with regard to domestic legislation was vested with the President of the Russian Federation, the Members of the Council of the Federation, the Deputies of the State Duma, the Government of the Russian Federation, and the legislative bodies of the subjects of the Russian Federation. The right of legislative initiative was also vested, in matters under their competence, with the Constitutional Court of the Russian Federation, the Supreme Court of the Russian Federation, and the High Arbitration Court of the Russian Federation.
  8. The representative of the Russian Federation further added that the domestic legal system of the Russian Federation comprised Federal legal acts and legal acts of the subjects of the Russian Federation. The Federal legal system of the Russian Federation consisted of the following hierarchy of normative provisions: (i) the Constitution; (ii) Federal constitutional laws; (iii) Federal laws; (iv) decrees and resolutions of the President of the Russian Federation and resolutions and orders of the Government of the Russian Federation; and (v) acts of Federal executive authorities.5 Normative legal acts of Federal executive authorities (i.e., acts whose binding effect extended to all of the territory of the Russian Federation) included resolutions, orders, rules, instructions, regulations and decisions. Recommendations, letters, telegrams, and teletype messages sent by authorities were not normative legal acts (Order No. 88 of the Ministry of Justice of 4 May 2007). Such acts had a recommendatory character only and were intended for use within the relevant executive body. The legal system of the subjects of the Russian Federation consisted of their respective constitutions (in the case of Republics), or charters (in the case of other subjects of the Russian Federation); laws and other legal acts. The Constitution of the Russian Federation had overriding power and was applicable throughout the entire territory of the Russian Federation. All Federal legal acts and legal acts of the subjects of the Russian Federation were required to be in conformity with the Constitution. Federal constitutional laws regulated matters directly provided for under the Constitution of the Russian Federation. Federal laws, inter alia, regulated areas of joint competence of the Russian Federation and its subjects.
  9. He further noted that Presidential decrees and resolutions did not prevent the Federal Assembly from enacting a law covering the same subject matter. If a conflict existed between a law and any other normative legal act, including a Presidential decree or resolution, the law would prevail. Government resolutions and orders (subsidiary legislation) were issued pursuant to and in furtherance of the Constitution, Federal constitutional laws, Federal laws and Presidential decrees and resolutions. The requirement for such resolutions and orders were, as a general rule, provided for in the relevant enabling law, decree or resolution. Those legislative acts were also binding throughout the entire territory of the Russian Federation and might be appealed in court. Acts of Federal Executive Authorities were issued on the basis of and in furtherance of federal laws, presidential decrees and resolutions, and Government resolutions and orders. Those acts needed to be in compliance with the relevant enabling provisions. They had an auxiliary and detailing function.
  10. The representative of the Russian Federation further explained that, in accordance with Article 15.4 of the Constitution of the Russian Federation, international treaties of the Russian Federation formed an integral part of the legal system of the Russian Federation. He stated that international treaties contracted by the Russian Federation were concluded on behalf of the Russian Federation (interstate treaties), on behalf of the Government of the Russian Federation (inter governmental treaties), or on behalf of the federal bodies of executive power (treaties of inter ministerial nature), in accordance with Articles 12 and 13 of Federal Law No. 101-FZ of 15 July 1995 "On International Treaties of the Russian Federation". Once a treaty entered into force, through ratification or otherwise, it was binding and enforceable throughout the entire territory of the Russian Federation. While an international treaty did not prevail over the Constitution of the Russian Federation or Federal constitutional laws, in accordance with Article 15 of the Constitution, in the event of a conflict, international treaties prevailed over domestic Federal laws adopted prior to or after entry into force of the treaty. He explained that once the Russian Federation ratified its Protocol of Accession, which included the WTO Agreement and other commitments undertaken by the Russian Federation as part of the terms of accession to the WTO, it became an integral part of the legal system of the Russian Federation. The judicial authorities of the Russian Federation would interpret and apply its provisions. Thus, international treaties of the Russian Federation, in respect of which consent of the Russian Federation to be bound by such treaty had been expressed in the form of a Federal law (as would be the case with the Protocol of Accession of the Russian Federation), had priority in application over both prior and subsequent Federal laws, as well as all subordinate regulatory acts (Decrees and Regulations of the President, Resolutions and Regulations of the Government, acts of Federal Executive bodies). If the court of highest resort determined that a domestic provision, other than the Constitution or a Federal constitutional law, was inconsistent with an international treaty of the Russian Federation, such provision was deemed not applicable and enforceable. No further action to nullify the provision was required, and the body responsible for the issuance of such provision would have an obligation to launch procedures to bring it into conformity with that international treaty.
  11. According to Article 30 of Federal Law No. 101-FZ of 15 July 1995 "On International Treaties of the Russian Federation" (as last amended on 1 December 2007), such treaties were subject to publication: interstate or inter-governmental treaties were published in "Sobraniye Zakonodatelstva Rossijskoj Federatsii" and treaties of inter-ministerial nature were published in the official editions of the respective government bodies.
  12. The representative of the Russian Federation stated that, in accordance with Government Resolutions No. 437 of 5 June 2008 (as last amended on 6 April 2011) and No. 438 of 5 June 2008 (as last amended on 24 March 2011), the Ministry of Economic Development (the MED) of the Russian Federation and the Ministry of Industry and Trade (the MIT) of the Russian Federation were the Federal executive bodies responsible for State regulation of foreign trade.

- Framework of the Customs Union among the Russian Federation, the Republic of Kazakhstan and the Republic of Belarus

- (a) Legal Framework Establishing the Customs Union
  1. The representative of the Russian Federation informed Members that, in 2007, the Russian Federation, the Republic of Belarus (Belarus), and the Republic of Kazakhstan (Kazakhstan) had concluded the Treaty on the Establishment of the Common Customs Territory and the Formation of the Customs Union of 6 October 2007 (hereinafter: Treaty on the Formation of the CU). With the objective of forming a Customs Union, the Russian Federation, Belarus, and Kazakhstan had concluded a number of international treaties and, pursuant to the Protocol on Rules on Entry into Force of International Treaties aimed at the Formation of the Legal Basis of the Customs Union, Withdrawal from them, and Accession to them of 6 October 2007 (hereinafter: Protocol of 6 October 2007), the EurAsEC Interstate Council (the Supreme Body of the Customs Union) determined the list of international agreements constituting the legal basis of the Customs Union within the EurAsEC. This list of international agreements was set-out in Interstate Council Decision No. 14 of 27 November 2009, and these agreements and others subsequently agreed by the Russian Federation, Belarus, and Kazakhstan through the end of 2009, constituted the legal basis for a Customs Union, and formed a single undertaking, i.e., withdrawal from any of these agreements automatically resulted in withdrawal from all of these agreements. The representative of the Russian Federation explained that these Agreements laid out a framework for progressively increasing economic cooperation among entities of the CU Parties, starting with plans for the unification of foreign trade, customs policies, and trade remedies; and initiating cooperation between the financial and banking systems; cooperation in social and humanitarian areas; and cooperation in the field of legal regulation. Additional agreements could be added to the single undertaking upon decision of the Interstate Council (see Table 10 for the current list of agreements constituting a single undertaking). On 27 November 2009, the EurAsEC Interstate Council approved the Common External Tariff (CET) of the Custom Union, as well as the Treaty on the Customs Union Customs Code. On 1 January 2010, a Customs Union (CU) between the Russian Federation, Belarus, and Kazakhstan became operational. The CET and a number of basic agreements and protocols on tariff and non tariff regulation also came into force on 1 January 2010. The CU Customs Code entered into force in the Russian Federation and Kazakhstan on 1 July 2010 and for Belarus on 6 July 2010. He noted that the CU Parties were still engaged in concluding new treaties and agreements within the framework of the CU (hereinafter: CU Treaties or CU Agreements) and were implementing them through an ongoing process of regional integration.
  2. The representative of the Russian Federation explained that the Treaty on the Formation of the CU required CU Parties to establish unified regulation of foreign trade activities in line with their obligations arising from CU Treaties and through harmonization of standards and rules envisaged by bilateral agreements on the unified regulation of foreign trade activities. The Treaty on the Formation of a Customs Union also specified that the CU Parties' unified regulation of foreign trade activity and coordinated decision making on the simultaneous introduction of changes or amendments to such regulation would include the following areas:

- tariffs on foreign trade;

- non-tariff measures for trade with third countries;

- unified customs regulation and customs procedures; and

- establishment of a unified regime for trade with third countries.

This Treaty and other international agreements forming the legal basis for the CU established the principles and timing for achieving the objective of unified regulation of foreign trade activities.
  1. Members requested that the Russian Federation provide more information on the hierarchy of legislative acts in the Russian Federation, in particular taking into account CU Agreements, CU Commission Decisions, and other CU legal acts.
  2. The representative of the Russian Federation explained that CU Agreements, once they entered into force, were international treaties of the Russian Federation, and, with the exception of the Constitution of the Russian Federation and Federal constitutional laws, would prevail, in the event of a conflict, over the provisions of Federal laws and other normative legal acts in the Russian Federation. With regard to CU Commission Decisions, he explained that the status of such Decisions in the legal system of the Russian Federation corresponded to that which the Decision would have had, if it had been adopted by the Federal Executive Body responsible for regulating the subject matter at the moment when the CU Commission was delegated the relevant authority. Thus, the place of a CU Decision in the domestic legal hierarchy of the Russian Federation could differ, depending on the Federal body previously competent to take the relevant decision. He further explained that CU regulations, rules and other measures were adopted pursuant to a CU Commission Decision and, thus, the same method for determining the status of the measure in the domestic legal hierarchy of the Russian Federation applied. Finally, he explained that the authority of the President, described in paragraph , also applied to acts of the subjects of the Russian Federation that were not in compliance with CU Agreements, CU Commission Decisions, and other CU legal acts.