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- (g) Decision Making within the Customs Union Bodies
  1. In accordance with Article 7 of the Treaty on the Commission of the Customs Union of 6 October 2007, the decisions of the CU Commission were binding on CU Parties. The representative of the Russian Federation explained that, if pursuant to a CU agreement, the CU Commission was the competent authority to impose certain trade measures, a CU Commission decision was required for these measures to be imposed. A decision of the Interstate Council of the EurAsEC determined the timing of the transfer of powers from the national level to the CU Commission. In accordance with the Decision of the Interstate Council of EurAsEC No. 15 of 27 November 2009, all CU Commission Decisions that had binding effect under Article 7 of the Treaty on the Commission of the CU were directly applicable in the CU Parties. He recalled that CU Commission Decisions had the corresponding legal effect of acts adopted (issued) by those state bodies or officials of the CU Party that were competent to regulate the relevant issue at the time that the relevant power was transferred from the domestic regulators of the CU Party to the CU Commission. Thus, if a CU Commission Decision related to a matter that would have been dealt with by a ministry under the national law of a CU Party, the CU Decision would have the status of a Ministerial action in the national law of that CU Party. Similarly, if a CU Commission Decision related to a matter previously subject to a Government Resolution, the CU Commission Decision would have that status under the national law of the CU Party. CU Parties were to ensure the implementation of CU Commission Decisions within their respective territories.
  2. CU Commission decisions were normally taken by a qualified (two-thirds) majority of votes. The CU Commission could also take decisions by consensus when the international treaties comprising the legal basis of the CU provided for a decision by consensus. Currently, the CU Parties had the following share of votes: Russian Federation - 57 per cent; Kazakhstan - 21.5 per cent; and Belarus - 21.5 per cent. If a proposal under consideration by the CU Commission failed to obtain the required number of votes, a CU Party or the CU Commission could refer the matter to the Interstate Council for decision. If a CU Party disagreed with an adopted decision of the CU Commission, the Interstate Council (Board of Heads of State) would reconsider the decision upon written request of that CU Party and take a final decision by consensus. Any CU Party had the right to seek reconsideration of a CU Decision by the Interstate Council. The CU Commission could also issue recommendations of non-obligatory nature.

- (h) Areas of Customs Union Commission Competency
  1. The representative of the Russian Federation explained that the international agreements comprising the legal basis for the CU stipulated those areas in which the CU Commission would assume competence from the CU Parties. CU Agreements themselves normally specified whether the normative provisions set-out in the agreement applied directly in each CU Party, including the Russian Federation. The CU Parties were continuing to negotiate and conclude international agreements, the EurAsEC Interstate Council continued to adopt required decisions on timing for entry into force of these agreements and the CU Parties continued their work on adopting necessary national laws and other normative legal acts to implement the CU treaties and decisions of the CU Bodies. He further explained that any provisions of the agreements concluded earlier by the CU Parties and resolutions of governing bodies that did not conflict with the Agreement on the Establishment of the EurAsEC continued to be in force. At some time, the Interstate Council would take a decision, as called for in the Treaty on the Formation of the CU on the Establishment of the Common Customs Territory and the Completion of the Formation of the Customs Union.
  2. The representative of the Russian Federation informed Members that further information on the respective competency of CU Bodies and the national authorities of CU Parties, as well as the legal basis for the CU Bodies and CU Parties on specific WTO-related issues was set-out in the relevant sections of this Working Party Report. He noted that the Russian Federation had undertaken commitments in those sections that ensured that the WTO obligations of the Russian Federation would be fully implemented, including in those areas where the CU Bodies had competency.

- (i) Transparency
  1. The representative of the Russian Federation explained that proposals for the introduction, amendment, or elimination of a CU measure were prepared by the interested CU Party in accordance with its national legislation. This CU Party consulted with interested stakeholders on the proposal as provided for in its applicable national legislation. He also informed Members that such proposals by another CU Party, once submitted to the Russian Federation for consideration, would be promptly made subject to public consultations in the same way as proposals prepared by the Russian Federation. In accordance with Article 12 of the Agreement on Introduction and Implementation of Measures Concerning Trade in Goods in the Common Customs Territory in Respect of Third Countries of 9 June 2009, organizations or individual entrepreneurs of a CU Party might also provide their comments within the procedure of the development of draft CU decision on introduction, implementation, and abolishment of non-tariff measure, concerning trade in goods with third countries. Furthermore, in cases when an international treaty of a CU Party with a third country provided for consultations, organizations and entrepreneurs of such a country could present their views to that CU Party with regard to the proposal consistent with the procedure stipulated by the provisions of the relevant international treaty.
  2. The representative of the Russian Federation explained that the date when a Decision of the CU Commission was published on the CU website was the basis for determining the date of entry into force of that decision. Specifically, Decisions of the CU Commission, which were obligatory, rather than recommendations, entered into force not earlier than 30 days after the date of publication on the CU website. He explained that, additionally, CU Parties were to ensure the publication of all CU Commission decisions in their respective dedicated national official journals, as well as in the СU official journal, stating the date of entry into force of a decision, which was determined based on the date of its publication on the CU website. In the Russian Federation, decisions of the CU Commission were posted on the website www.tsouz.ru within two working days from the date of their adoption.
  3. Members expressed concerns regarding transparency, and also noted that it appeared that neither CU Agreements, nor CU Commission Decisions, including those promulgating CU Regulations and other acts, provided WTO Members and interested persons of WTO Members with the right to consult with and provide views directly to CU Bodies. This deficiency raised concerns about whether CU Agreements and procedures complied with WTO requirements. These Members requested that the Russian Federation explain how it intended to implement its commitments under paragraphs and in cases where a CU Body was responsible for proposing or adopting CU legal acts, including CU decisions, or other measures.
  4. With regard to concerns raised by Members about transparency and access to CU Bodies, the representative of the Russian Federation informed Members that nothing precluded WTO Members from providing comments directly to the CU Commission and other CU Bodies. He noted that the Russian Federation invited views from Members on proposals that it was presenting to the CU Commission and other CU Bodies.
  5. The representative of the Russian Federation confirmed that CU Commission Decision No. 308 of 18 June 2010 "Decision-Making at the Commission of the Customs Union", would be amended to establish and put into effect a mechanism for publication of proposed CU legal acts covered under paragraph before their adoption and to provide a reasonable period of time for Members and interested persons to provide comments to the competent CU Body. Such a Body would be authorised to take these comments into account in its consideration of such proposed legal act. Moreover, pursuant to this mechanism, no CU legal act covered under paragraph would become effective prior to publication as provided for in the applicable provisions of the WTO Agreement. The Working Party took note of these commitments.

- (j) Implementation of WTO Commitments under the Customs Union Regime
  1. Based on information provided by the representative of the Russian Federation and Members' consideration of CU Agreements and other documentation that the Russian Federation had made available to the Working Party, Members raised a number of questions and concerns about provisions of CU Agreements and issues where it appeared that CU Bodies had or shared competency with CU Party national authorities. Members questioned how the Russian Federation would ensure that it could implement and comply with WTO provisions on those issues where CU Bodies were the competent authorities. Members also requested additional information regarding the status of the WTO Agreement within the CU legal system. They asked for confirmation that the WTO Agreement would be an international treaty for the CU and part of the single undertaking for all CU Parties. Members also sought assurances that in case of a conflict, the WTO Agreement would always prevail over provisions of CU Agreements and CU Commission Decisions and other measures adopted by CU Bodies, including those in effect prior to the date of the accession of the Russian Federation to the WTO. Members also requested information on how the Russian Federation would ensure that future CU international treaties and CU Commission Decisions would comply with the WTO obligations of the Russian Federation.
  2. The representative of the Russian Federation explained that the CU Parties had concluded a Treaty on the Functioning of the Customs Union in The Framework of the Multilateral Trading System of 19 May 2011 (Treaty on the Multilateral System) which had been ratified by all CU Parties as of 8 November 2011. This interstate CU Treaty entered into force in accordance with the provisions of the Protocol on the Rules of Entry into Force of International Treaties Comprising the Legal Basis of the Customs Union. According to the Treaty on the Multilateral System, 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. Under this Treaty, CU Parties were obligated when making an international treaty in the framework of the CU to ensure that the CU agreement was consistent with the WTO commitments of each CU Party. Similarly, when CU Bodies adopted and applied CU acts, those acts had to comply with those commitments. The representative of the Russian Federation further explained that the rights and obligations of the Parties resulting from the WTO Agreement, as they were set-out in the Protocol of Accession of each Party, including the commitments undertaken by each Party as part of the terms of its accession to the WTO and that became a part of the legal framework of the CU could not be subject to abrogation or limitation by decision of CU Bodies, including the EurAsEC Court or by an international treaty of the Parties. When another CU Party became a WTO Member, the rights and obligations of that Party under the WTO Agreement also became an integral part of the legal framework of the CU. He explained that WTO provisions which regulated the creation and functioning of the CU also applied. He noted that a CU Party that>
  3. The representative of the Russian Federation explained that the Treaty on the Multilateral System was a CU treaty and part of the domestic legal framework of each CU Party. As such, the national courts would apply the provisions of the Treaty. He also confirmed that the Treaty on the Multilateral System, established obligations on CU Parties and CU Bodies regarding the commitments undertaken by each Party as part of the terms of its accession to the WTO and that became part of the legal framework of the Customs Union. Thus, an infringement of such rights and obligations by a CU Party or a CU Body could be challenged by a CU Party, or CU Commission before the EurAsEC Court. In addition, economic operators could assert breaches of the provisions of the Treaty on the Multilateral System in the EurAsEC Court, as provided for in Article 13 of the Statute of the Court and in the Treaty on Judicial Recourse.
  4. Members also expressed concern regarding CU Commission competency, since it did not appear that CU Parties had granted any CU Body the authority to negotiate or conclude agreements notwithstanding provisions of CU Agreements that called for a common CU document, e.g., veterinary certificates. In some cases, requirements were in place that traders from Members could not meet because of the absence of common documents or standards.
  5. The representative of the Russian Federation responded that Decisions of the CU Commission were being developed that would establish procedures for implementing CU requirements, including those requiring coordination of negotiations between CU Parties and third countries. These procedures would be adopted and applied so that they did not operate to restrict trade and would comply with WTO requirements.

- Government entities responsible for making and implementing policies affecting foreign trade; Right of Appeal
  1. Members noted that a right of appeal to an independent tribunal or judicial review should be provided to all (economic operators) entities, engaged in economic activity with the Russian Federation and that various WTO Agreements explicitly required that a right of appeal be provided. These Members sought a commitment that a right of appeal would be provided, whether the Russian Federation or a CU Body was the competent authority. Members raised several questions regarding the scope of authority of the EurAsEC Court, how this Court would function, and its role with regard to the domestic judicial system of the Russian Federation and implementation of the international obligations of the Russian Federation. As a threshold matter, Members sought confirmation that the WTO Agreement would be considered to be a Treaty of the EurAsEC and that the obligations of a CU Party under the WTO Agreement would always prevail over those in CU Agreements and CU Commission Decisions now in effect, as well as those agreements and decisions adopted after the accession of the Russian Federation to the WTO. Members also requested information on how the EurAsEC Court and the national courts of the Russian Federation would interact.
  2. Members asked whether the supreme judicial bodies of the Russian Federation were required to take EurAsEC opinions and interpretations into account in the domestic judicial system of the Russian Federation and whether these bodies would issue guidance to the lower courts in all cases where the EurAsEC Court interpreted CU Treaties and CU Commission Acts. Members also requested information on how the appeal process would operate when national authorities were responsible for some aspects of a measure, e.g., conducting a trade remedy investigation, and a CU Body was responsible for taking the decision on whether to apply the measure. If issues covered by CU provisions were appealable in national courts, could such issues be appealed to the EurAsEC Court as well, and if not in first instance, then after exhaustion of national court appeals.
  3. The representative of the Russian Federation informed Members that the EurAsEC Court and the national judicial system of the Russian Federation were independent. The Treaty on Judicial Recourse and the Statute of the Court provided that the highest judicial authority of the Russian Federation was authorised to apply to the EurAsEC Court for an opinion on interpretation of certain international treaties through procedures described in paragraph . The EurAsEC Court, however, did not serve as an appeals court from the national judicial system. The representative of the Russian Federation noted that, in accordance with 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 all lower national courts.
  4. Members also requested information on the availability of administrative appeals, in the Russian Federation. Those Members also requested that the Russian Federation ensure that the central Government would monitor and take active steps to ensure that measures taken by sub-central authorities or other subjects of the Russian Federation, such as WTO-inconsistent legislation, actions or non-uniform application, would be brought into conformity with the obligations of the Russian Federation under the WTO Agreement promptly, particularly when such measures were notified to the Federal Government by a WTO Member or other interested party.
  5. In response, the representative of the Russian Federation noted that, pursuant to Article 46 of the Constitution of the Russian Federation, decisions and actions (or inactions) of bodies of State authority and local governments, public associations and officials might be appealed to the national court with appropriate jurisdiction. In case of appeals against administrative action or inaction, at the discretion of the appellant, an appeal could also be addressed to either the Government or a Government agency overseeing the administrative body responsible for the decision (Article 33 of the Constitution of the Russian Federation). He also added that the person aggrieved by the decision could decide whether to pursue an administrative review or court procedures. In case of judicial procedure, appeals of a decision of a lower court were also possible. He further added that the legislation of the Russian Federation provided the opportunity to use administrative procedures before appealing to a court. The right of appeal to judicial and administrative procedures, in case of violation of civil rights of natural and legal persons, was also foreseen by Article 11 of the Civil Code. Article 18 of Federal Law No. 164-FZ "On the Fundamentals of State Regulation of Foreign Trade" also provided the right of any participant in foreign trade to appeal to a court or administrative procedure (in cases foreseen by the legislation) against a decision, action (or inaction) of a State authority (or its officer), if, in his view, his rights or legal interests had been violated by such decision, action (or inaction).
  6. Further, the representative of the Russian Federation noted that Federal Law No. 59-FZ of 2 May 2006 "On the Procedure for Consideration of Appeals of Citizens" established the general procedure for dealing with appeals and complaints brought by persons (Russian and foreign persons) to the bodies of State authorities and local governments concerning the realization or violation of their rights and legal interests, violations of laws or other normative legislative acts or decision, action (or inaction) of State or local authorities or officials. The Federal Law did not restrain the right to appeal of persons on behalf of associations and entities. According to this Federal Law, the appeal or complaint should be addressed to a concrete authority or an official and made in written form signed by the applicant. The appeal or complaint was to be registered upon receipt by the authority within three days. From the moment the appeal was registered, the authority had 30 days (fixed term) to address the applicant with reasoned answer in written form and/or to take actions aimed at the restoration or defence of the violated rights and legal interests of the person. The control of observance of these procedures was carried out by bodies of State authorities, local governments and officials, responsible for analysing the incoming appeals and complaints and taking measures to prevent and eliminate the cause of violation of rights and legal interests of persons. The Federal Law provided the right of persons (applicants) to complain about decisions taken in consequence of the appeal or about any action (or inaction) in connection with the consideration of the appeal in administrative and/or judicial manner. In case of violation of rights and legal interests by decisions or actions (or inactions) of bodies of State authorities, local governments and officials, the person had the right to compensation of losses and moral damage. The Federal Law also stipulated the responsibility of State officials for violating the provisions of this Law. He added that the procedure provided by the Federal Law was free of charge.
  7. In response to requests for additional information on the types of appeal mechanism available and the standing of an aggrieved party, the representative of the Russian Federation stated that Section 3 of the Federal Law on Customs Regulation, No. 311-FZ of 27 November 2010 (hereinafter: Law No. 311-FZ), included detailed provisions on the right of appeal on customs-related matters. Article 36 provided that any person could lodge an appeal against any resolution, action or in action, if such resolution, action or in action, violated, in the opinion of such person, his rights, freedoms or legal interests, or created any obstacles for implementation of such rights, or legal interests or illegally imposed any obligation on him. The right of appeal could not be waived.
  8. The procedure for appeals in respect of decisions, action (inaction) of the customs authorities and their officers was set-out in Section 3 of Law No. 311-FZ applied to any decisions, action (inaction) of the customs authorities and their officers, unless a special procedure was provided. Under Article 38 of Law No. 311-FZ, appeals were to be lodged with the superior customs authority directly, or through the customs authority whose decision, action (inaction) was appealed against. Appeals against decisions or actions (inactions) of Federal executive bodies, competent for customs related matters, were to be lodged with that Federal executive body. Appeals could be lodged to a court simultaneously or consecutively to an administrative procedure. They could be lodged within three months from the date the appellant knew or should have known of a violation of the appellant's rights, freedoms or legal interests, the creation of obstacles for implementation of such rights, freedoms or interests, or the illegal imposition of any obligation on the appellant; or from the date the term expired for the customs authority to adopt a resolution or take an action. Article 40 provided for the extension of the time for submitting appeals.
  9. Article 49 of Law No. 311-FZ provided a simplified procedure for bringing an administrative appeal of decisions or actions (inactions) taken by a customs officer at a customs checkpoint concerning shipment of goods through the border, which did not exceed RUB 1.5 million in value and (or) one vehicle. This involved an oral claim to a superior customs officer. Such appeals were dealt with by immediate ruling. The simplified appeal procedure did not preclude the appellant lodging an appeal via the standard procedure.
  10. Administrative appeal procedures were similar to those envisaged by Law No. 311-FZ, except they would be taken under the Code of Administrative Offences. Appeals could be lodged within ten days after receipt of a copy of the decision appealed against and were required to be processed within ten days from the date of lodging the appeal. Pursuant to Article 37 of Law No. 311-FZ, the appeal mechanism provided for in that Law did not apply to decisions in respect of the Code of Administrative Offences No. 195-FZ of 30 December 2001 (as last amended on 14 July 2008). Appeal decisions issued by the customs authority could be appealed against to the superior customs authority or court, or arbitration court.
  11. In response to further questions, the representative of the Russian Federation stated that the procedure for appealing against decisions of tax bodies and actions or inaction of their officers was regulated by the Tax Code of the Russian Federation. Decisions issued by tax bodies, as well as actions and inaction by their officers, could be appealed to a supervising officer or a court, either simultaneously or consecutively. An appeal was required to be determined within one month from the date of lodging the appeal. The tax body was required to take a decision within one month, and the decision on the appeal was required to be notified to the person lodging the appeal within three days after the decision was taken.
  12. As regards appeals and complaints in the sphere of technical regulations (including SPS issues), the representative of the Russian Federation explained that, under the CU, there was a common system of Technical Regulations, including on SPS matters, and thus the EurAsEC Court had jurisdiction over appeals covered by the relevant CU Agreements, CU Commission Decisions, including those promulgating CU Regulations and other CU measures. With regard to decisions, actions or inaction of the authorised bodies of the Russian Federation related to technical regulation, including SPS issues, he explained that legal measures were in place to allow appeals to be made via the independent judicial system against any decisions of the relevant authorities of the Russian Federation (and non-governmental bodies delegated to take such decisions) and to ensure corrective action was taken, in accordance with decision by the Court, when a complaint was justified. The relevant authorities were authorised to establish their own procedures for filing a complaint or requesting an appeal in the area of certification and conformity assessment. These procedures reflected common principles of dealing with appeals and complaints brought to the authorities of executive power of the Russian Federation by natural or legal persons (e.g., the requirement to address the applicant with a reasoned answer and in written form within a fixed term (normally 30 days); control of addressing the appeal by superior authority and the Government, etc.). He noted that, pursuant to Federal Law No. 184-FZ of 27 December 2002 "On Technical Regulation" (as last amended on 28 September 2010), non-acceptance by the authorities of a voluntary certification could be appealed via judicial procedure. With regard to mandatory conformity certification, an applicant could lodge a complaint with the accreditation authorities against unlawful actions of certification authorities and accredited testing laboratories (centres).
  13. Further, regarding appeals and complaints in the field of intellectual property rights, the representative of the Russian Federation stated that the legislation of the Russian Federation provided for the enforcement of intellectual property rights through judicial and administrative procedures. In particular, in accordance with the Civil Code of the Russian Federation, commercial secrets, copyright and related rights were protected by court. As for the other intellectual property rights, the Civil Code of the Russian Federation provided the opportunity to appeal to a court, as well as to the Patent Disputes Chamber of Rospatent. The procedure for lodging objections and applications to the Chamber and the procedure for their consideration were determined by Order of Rospatent No. 56 of 22 April 2003 "On the Rules of Filing Objections and Applications and the Consideration thereof by the Patent Disputes Chamber" (as last amended on 11 December 2003). Decisions of the Patent Dispute Chamber could be appealed in court in accordance with the legislation of the Russian Federation. More detailed information on this issue was contained in the Section "Trade Related Intellectual Property Regime".
  14. In response to questions concerning fees for appeal procedures, the representative of the Russian Federation stated that judicial procedure of appeal was subject to State duties set-out in Chapter 25.3 of the Tax Code of the Russian Federation. Appeal in administrative procedure, generally, was free of charge, with few exceptions. For example, administrative procedure of appeal in the field of intellectual property rights was subject to a duty, in accordance with the Civil Code of the Russian Federation. He further explained that judicial appeal fees were applied in connection with exercise of judicial power by courts. Administrative procedures' fees were applied in connection with exercise of executive power by Governmental bodies.