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- (b) Customs Union Structure and Competency in the Area of Trade
  1. The representative of the Russian Federation explained that the following bodies were responsible for the implementation of the CU Agreements and further development of the CU:
    • the Interstate Council of EurAsEC, which had two boards: the Board of Heads of States and the Board of Heads of Governments. Sessions of the Board of Heads of States were to be held not less than once a year; sessions of the Board of Heads of Governments were to be held not less than twice a year;
    • the EurAsEC Court;
    • the CU Commission; and
    • the Secretariat of the CU Commission.

- (c) The Interstate Council of EurAsEC
  1. The representative of the Russian Federation explained that the Interstate Council of EurAsEC was the supreme Body of the CU and performed the following functions:
    • defined the strategy and objectives of formation and further development of the CU and took decisions on its realization;
    • decided on issues of common interest to the EurAsEC Member States, and CU Parties;
    • defined the list of international treaties comprising the legal framework of the CU, i.e., those included in Table 10;
    • took decisions on entry into force of the CU agreements forming the legal basis of the CU;
    • decided issues related to integration of the customs territories of the EurAsEC Member States into a single customs territory in accordance with Article 2 of the Treaty on the Formation of the CU;
    • approved the structure of the CU Commission;
    • appointed the Chairman of the CU Commission;
    • approved the rules of procedure of the CU Commission;
    • approved the budget of the CU Commission and considered the report on its fulfilment;
    • reconsidered decisions of the CU Commission where one of the CU Parties objected to the decision, upon request of this Party;
    • reconsidered decisions of the CU Commission at the request of one or more CU Parties;
    • considered, upon request, proposals to the CU Commission which failed to collect the number of votes necessary to adopt them;
    • nominated candidates to the Court of the EurAsEC for the hearing of the cases concerning CU issues to the Inter-Parliamentary Assembly of the EurAsEC; and
    • gave recommendations to and requested information from the Inter-Parliamentarian Assembly of the EurAsEC and the Court of the EurAsEC on CU issues.
  1. Members welcomed the information regarding the competency of the Interstate Council and noted that the Interstate Council had the authority to define the list of international treaties that might comprise the legal basis of the CU. In that regard, some Members requested information on the criteria used to define which treaties would be included on this list. In response, the representative of the Russian Federation explained that the Interstate Council determined the list of international treaties comprising the legal basis of the CU, which consisted of two parts: Part 1 - those international treaties effective within the framework of the EurAsEC; and Part 2 - those international treaties aimed at the completion of the formation of the legal basis of the CU. The second list constituted the single undertaking of each CU Party. He noted that neither of these lists were exhaustive and that agreements could be added to both of these lists. There were no special criteria for identifying the treaties to be included in these lists.
  2. Members also noted that the Interstate Council was authorised to give recommendations to the EurAsEC Court and requested information on the nature of those recommendations. The representative of the Russian Federation explained that, in accordance with Article 5 of the Statute of the Court, the Interstate Council presented the judges nominated to serve on the Court to the Interparliamentary Assembly of the EurAsEC which formally appointed them. This was the only type of recommendation that the Interstate Council was authorised to provide to or regarding the EurAsEC Court.

- (d) The EurAsEC Court
  1. The representative of the Russian Federation informed Members that, on 5 July 2010, the Interstate Council of EurAsEC adopted Resolution No. 502 adopting the Statute of the Court of the EurAsEC (hereafter: EurAsEC Court). In addition to establishing the EurAsEC Court, the Statute of the Court established the competency of the Court and procedures to be applied in the context of the Customs Union. He explained that pursuant to Article 13 of the Statute, the Court was authorised to:

- ensure uniform application of the EurAsEC Treaty and other treaties in force within the framework of the EurAsEC, including CU Agreements and decisions taken by the EurAsEC bodies, including the CU bodies;

- consider disputes of an economic nature, i.e., non-political, arising between the Parties on the implementation of decisions of the bodies of the EurAsEC, and treaty provisions in force in the framework of the EurAsEC; and

- interpret provisions of international treaties in force within the framework of the EurAsEC, and the decisions of the EurAsEC bodies.

In connection with the formation of the Customs Union, the EurAsEC Court:

(a) considered cases on compliance of acts of the bodies of the CU with the international treaties constituting the legal basis of the CU;

(b) examined cases on challenging the decisions, actions (inaction) of CU bodies;

(c) interpreted the international treaties that made up the legal basis of the CU, and the acts adopted by the CU Interstate Council and CU Commission;

(d) resolved disputes between the CU Commission and CU Parties, as well as between CU Parties on fulfilment of their commitments, taken within the framework of the Customs Union; and

(e) considered other disputes, as provided in international agreements constituting the framework of the EurAsEC and the CU.

The representative of the Russian Federation explained that in the cases specified in
sub-paragraphs (a), (b) and (d) above, the Court could not consider the case, unless the matter had been submitted to the CU Commission previously. However, if the CU Commission did not act on the matter within two months, the case could then be referred to the Court. The Court was required to issue its decision within 90 calendar days after receipt of the case. If a case involved a CU Decision, that decision continued to operate during the case.
  1. The representative of the Russian Federation underlined that the competence of the EurAsEC Court was defined solely by the provisions of Article 13 of the Statute of the Court. The EurAsEC Court did not have jurisdiction to opine directly on the WTO obligations of a Party and the Court could not rule on compliance with such obligations. He also noted that the competence of the Court could be enlarged or limited only if it was prescribed directly by an international agreement constituting part of the legal framework of the CU (see paragraph ). The Treaty on the Functioning of the Customs Union in the Framework of the Multilateral Trading System (hereafter: Treaty on the Multilateral System) was such a Treaty. Under this Treaty, from the date of accession of any CU Party to the WTO, the provisions of the WTO Agreement, as set-out in its Protocol of Accession, including the commitments undertaken by that CU Party as part of the terms of its accession to the WTO, which related to matters that the Parties had authorised CU Bodies to regulate in the framework of the CU, as well as to the legal relationships regulated by the international treaties constituting the legal framework of the CU, became an integral part of the legal framework of the CU. As such, these provisions were part of the single undertaking and were CU Agreements that were part of the single undertaking for each CU Party (see paragraph ). Since, this Treaty was part of the legal framework of the CU, an infringement by a CU Party or a CU Body of such rights and obligations under the Treaty to the extent that they were a part of the legal framework of the CU could be challenged by a CU Party, or the CU Commission before the EurAsEC Court in accordance with the Statute of the Court. In addition, economic operators could assert breaches of the provisions of the above-mentioned Treaty in the EurAsEC Court (see paragraph ).
  2. The representative of the Russian Federation noted that the Statute establishing the EurAsEC Court also authorised the Court to issue advisory opinions on the application of the international treaties of the EurAsEC and the CU, as well as decisions of their respective Bodies. Such opinions were issued at the request of the Parties, or the bodies of EurAsEC or the CU, or the highest judicial authorities of the Parties, and were in the nature of a recommendation.
  3. With regard to who could apply to have the Court hear a case, the representative of the Russian Federation explained that with regard to cases involving the CU, cases could be brought before the Court based on an application submitted by:

- a Party to the Customs Union;

- bodies of the Customs Union; and

- economic operators.

Further, on 9 December 2010, EurAsEC Member States signed the Treaty on Judicial Recourse to the EurAsEC Court of the Economic Operators on Disputes within the Framework of the CU and Peculiarities of the Judicial Procedure on Them, approved by the Decision of the Interstate Council of EurAsEC No. 534 of 9 December 2010 (hereinafter: Treaty on Judicial Recourse). This Treaty was being applied provisionally and would formally go into effect once three EurAsEC Members had ratified it. Under the Treaty on Judicial Recourse, economic operators of CU Parties and of third countries were able to bring actions to the EurAsEC Court to:

- challenge the acts of the CU Commission, i.e., decisions of the CU Commission, which were binding and affected the rights and lawful interests of economic operators in the field of entrepreneurial and other economic activities, or the individual provisions of such acts; and

- challenge the actions (inaction) of the CU Commission.

The grounds to challenge acts of the CU Commission, or their individual provisions, or any action (inaction) of the CU Commission were their non-compliance with international treaties concluded within the framework of the CU, which resulted in the violation of the rights and lawful interests of economic operators in the field of entrepreneurial and other economic activities, provided for by those international treaties. He further explained that the EurAsEC Court would not consider applications to bring an action, if the decision of the Court on a previously considered case regarding the same subject and based on the same grounds was in effect. He further explained that a decision of the Court could be reviewed due to newly-discovered circumstances.
  1. The representative of the Russian Federation further explained that, in the Treaty on Judicial Recourse the EurAsEC, Member States had created an appeals chamber within the EurAsEC Court. A party to the case had the right to appeal the decision of a panel of judges to the Appeals Chamber of the Court. The Appeals Chamber consisted of judges of the Court from the CU Parties, which had not participated in the panel that had taken the decision that was being appealed. The decision of the Appeals Chamber was the final decision in the case and could not be appealed.
  2. The representative of the Russian Federation stated that with regard to disputes of an economic nature arising between the Parties on the implementation of decisions of EurAsEC bodies, treaty provisions in force in the framework of the EurAsEC, and cases in connection with the CU, the decisions of the Court were binding on the Parties to the dispute. The decision of a panel of judges, if not appealed, entered into force 15 days after the date of its pronouncement. Decisions of the Appeals Chamber were effective on the date of pronouncement. In accordance with Article 20.2 of the Statute of the Court, its decisions were to be implemented within the time-frame specified by the Court. If the decision of the Court>
  3. Members thanked the representative of the Russian Federation for the information on the EurAsEC Court and requested additional information on the operation of this Court. Members asked whether the EurAsEC Court had the authority to provide compensation to the economic operators, if the Court found that certain CU acts violated CU or WTO rules. In response, the representative of the Russian Federation explained that, under paragraph 4 of Article 11 of the Treaty on Judicial Recourse, the EurAsEC Court did not consider claims for damages. As to the competence of the EurAsEC Court on the matters relating with the WTO, see paragraph .
  4. Members noted that the highest judicial authorities of a CU Party had the right to refer certain issues falling under the legal framework of the CU to the EurAsEC Court for interpretation. Members asked whether these interpretations would bind the national legal authorities or would they be recommendations to the national court. These Members also asked if economic operators or WTO Members would have a right to request that the EurAsEC Court issue an interpretation of CU Agreements and CU Commission acts including on their compatibility with the WTO commitments of the Russian Federation. In response, the representative of the Russian Federation noted that Article 20.1 of the Statute of the Court stipulated that rulings on issues covered by paragraphs 2 and 4 of Article 13 of the Statute were binding on the Parties to the dispute. Paragraph 4 covered interpretation of the international treaties comprising the legal basis of the CU and of decisions of its bodies. With regard to the rights of economic operators and WTO Members, he noted that Article 3 of the Treaty on Judicial Recourse established a procedure under which the highest judicial authority of a CU Party could apply to the EurAsEC Court for an opinion regarding the implementation of international treaties concluded within the framework of the CU and the acts of the CU Commission affecting the rights and lawful interests of economic operators, if these issues significantly affected in substance the consideration of the case. The national judicial authorities were required to apply for an opinion, if the decision of the national court could not be appealed, and provided that the issues on which an opinion was requested significantly affected in substance the consideration of the case, and the Court had not previously delivered opinions on similar issues. Under the existing regulation of the CU the economic operators or WTO Members did not have a right to request that the EurAsEC Court issue an interpretation of CU Agreements and CU Commission acts including on their compatibility with the WTO commitments of the Russian Federation. As to the competence of the EurAsEC Court on the matters relating with the WTO, see paragraphs and .
  5. Members noted that Article 26 of the Statute of the EurAsEC Court provided for issuance of advisory opinions and asked whether such opinions could relate to the consistency of CU Agreements or CU Commission Decisions with the WTO Agreement and related commitments. The representative of the Russian Federation explained that, in accordance with Article 26 of the Statute of the EurAsEC Court, the national Supreme Court of a CU Party could ask the EurAsEC Court to provide an advisory opinion in respect of implementation of CU legal acts. Subsequently, the national Supreme Court could reflect this opinion in a Resolution of the Plenum which would be taken into account by lower national courts. The representative of the Russian Federation noted that such opinions of the EurAsEC Court could relate to the consistency of CU Agreements or CU Commission decisions with the WTO Agreement and related commitments of each Party of the CU as it was prescribed in the Treaty on the Functioning of the Customs Union in the Framework of the Multilateral Trading System (see also paragraph on the matters relating with the WTO).
  6. The representative of the Russian Federation stated that the Decision of the Interstate Council of EurAsEC at the level of Heads of State No. 16 of 27 November 2009 established the Experts Council of the Supreme Body of the CU and also adopted regulations on the operation of the Experts Council. The Interstate Council Decision No. 69 of 9 December 2010 appointed the members of the Experts Council. Economic operators could apply to the Experts Council for an opinion on whether a CU Commission Decision complied with an international treaty that was part of the legal framework of the CU. If the Experts Council accepted an application, a Conciliation Commission was formed to examine the issue and to provide an opinion to the CU Commission on whether the CU Commission Decision conformed with the legal basis of the CU and, if the CU Decision did not conform, recommendations on revising the CU Decision. The CU Commission was required to inform the Interstate Council (Board of Heads of Government) of the opinion of the Experts Council and the results of the consideration by the CU Commission of that opinion.

- (e) The Customs Union Commission
  1. The representative of the Russian Federation explained that the CU Commission was the permanent regulatory Body of the CU. The CU Commission performed the following functions:

- implemented decisions taken by the supreme body of the CU;

- monitored the implementation of the international treaties forming the CU (see Table 10 and Table 11);

- worked out recommendations for the supreme body of the CU on issues of development and functioning of the CU (jointly with national governments);

- ensured, within its competence, the implementation of international treaties constituting the legal basis of the CU (see Table 10);

- provided assistance to CU Parties in dispute settlements within the CU before the appeal was sent to the Court of the EurAsEC;

- interacted, within its competence, with the State authorities of the CU Parties; and

- performed the functions of the depositary of the international treaties forming the CU.

The rules of procedure and terms of reference for the functions of the CU Commission in certain spheres of activity were determined by separate international agreements between the CU Parties. He explained that the CU Commission consisted of representatives of the Governments of the CU Parties, each of them operating on the basis of the mandate issued by their respective Government. Currently, Deputy Prime Ministers represented the Governments of the CU Parties in the CU Commission. As of 1 January 2010, the representative of the Russian Federation held the Chairmanship of the Commission for a two-year term. The post of Chair of the Commission was subject to rotation on the basis of a Decision of the Interstate Council of EurAsEC.

- (f) The Secretariat of the Customs Union Commission
  1. The Agreement on the Secretariat of the CU Commission authorised the Secretariat of the CU Commission to:

                - prepare draft decisions of the Interstate Council of the CU;

                - prepare informational materials and draft recommendations for these bodies;

                - monitor the implementation by the CU Parties of CU agreements and implementation of decisions taken by the Interstate Council of the CU, as well as by the CU Commission;

                - monitor and analyse trade legislation of the CU Parties;

                - prepare drafts of CU agreements and other documents required to develop the CU;

                - cooperate with the executive bodies of the CU Parties; and

                - publish the decisions taken by the Interstate Council of the CU, as well as the CU Commission in the official journal.
  1. Some Members noted that the Secretariat of the CU Commission (CU Secretariat) was authorised to monitor and analyse trade legislation of the CU Parties. These Members asked whether this analysis would include compliance with the WTO obligations of a CU Party. The representative of the Russian Federation stated that, after its accession to the WTO, the commitments of the Russian Federation would be part of its legal framework of the Russian Federation and, thus, the Secretariat of the CU Commission was authorised to monitor and analyse trade legislation with regard to its compliance with these commitments.