Decision of Economic Court of the Commonwealth of Independent States

of September 15, 1997 No. 01-1/2-97

Economic Court of the Commonwealth of Independent States in structure:

the chairman - the Chairman of Economic Court Safiullin D. N.,

judges of Economic Court of the Apostle D.D., Begaliyev M. A., Bekenova R. A., Vylkova I. K., Makhmudova L. Sh., Miroshnik V. I., Plaksina S.A., Simonyana G. V.,

in case of Madudina T. I. secretary.,

with participation of the specialist - the head of the department of the commercial right of Moscow State University of M. V. Lomonosov Puginsky B. I., General adviser of Economic Court Hvaley V. V.,

having considered in proceeding in open court case on interpretation of the Agreement on the Customs union between the Russian Federation and the Republic of Belarus of January 6, 1995 at the request of the Ministry of the Russian Federation of cooperation with the State Parties of the Commonwealth of Independent States,

ESTABLISHED:

On July 9, 1997 the Ministry of the Russian Federation of cooperation with the State Parties of the Commonwealth of Independent States with request appealed to Economic Court of the Commonwealth of Independent States to give interpretation of application of separate provisions of the Agreement on the Customs union between the Russian Federation and the Republic of Belarus of January 6, 1995 on the following questions.

1. Whether implementation by the customs authorities of the Russian Federation of customs control over the goods coming from the third countries and imported on the territory of the Russian Federation is lawful if these goods underwent customs control and registration in the territory of the Republic of Belarus earlier and are issued by customs authorities for free circulation?

2. Whether application by customs authorities of the Russian Federation of provisions, stipulated in Item 1 article 4 of the Agreement on the Customs union between the Russian Federation and the Republic of Belarus of January 6, 1995, about collection of import customs duties, the taxes and fees having equivalent action on the goods coming from the third countries and issued for free circulation in the territory of the Republic of Belarus and realized by resident sellers of the Republic of Belarus to buyers in the Russian Federation is lawful; or in this case the procedure, stipulated in Item 2 articles 4 of the Agreement on the amounts of the export customs duties, taxes and fees having equivalent action on the goods coming from the third countries, but issued for free circulation in the territory of the Republic of Belarus which shall be levied only in the territory of the Republic of Belarus from the resident organizations of the Republic of Belarus which realize these goods to buyers in the Russian Federation shall be applied?

Having heard the judge-speaker Apostle D.D., Puginsky B. I. specialist, the General adviser of Economic Court Hvaley V. V., and having researched the documents which are available in case, the Economic Court came to the following conclusions.

The custom union between the Russian Federation and the Republic of Belarus is created according to the Agreement on the Customs union between the Russian Federation and the Republic of Belarus signed in Minsk on January 6, 1995.

This Agreement was ratified:

from the Russian Federation - the Federal Law "About Ratification of the Agreement on the Customs Union between the Russian Federation and the Republic of Belarus and the Protocol on Introduction of Free Trade Regime without Withdrawals and Restrictions between the Russian Federation and the Republic of Belarus" of November 4, 1995;

from the Republic of Belarus - the Resolution of the Supreme Council of the Republic of Belarus "About ratification of the Agreement on the Customs union between the Republic of Belarus and the Russian Federation" of April 13, 1995 No. 3721-XXII.

According to article 2 of the Agreement on the Customs union the Customs union is understood as the economic merging of the states which is based on the following basic principles:

a) availability of single customs area of the State Parties of the Customs union;

b) availability of the same mechanism of the regulation of economy which is based on the market principles of managing and the unified legislation.

At the same time the Agreement directly does not determine what is understood as single customs area. In the subitem and) Item 2 it is specified that forming of single customs area is performed in the way:

cancellations in trade between the states of Contracting Parties the goods occurring from their territories, customs duties, taxes and fees having equivalent action and also quantitative restrictions;

establishments and applications in the relations with the third countries of identical trade regime, general customs tariffs and measures of non-tariff regulation of foreign trade;

forming of the mechanism of relations of the Customs union with the third states and the international organizations on the basis of provisions of the Agreement between the Government of the Russian Federation and the Government of the Republic of Belarus about single procedure for regulation.

According to article 6 of the Agreement on the Customs union the State Parties of the Customs union shall provide unity of management of the Customs Services on the basis of the relevant Agreement between the Government of the Russian Federation and the Government of the Republic of Belarus.

Taking into account this provision of the Party shall organize joint control of movement of goods and vehicles, and also to cancel customs control on general border in case of unconditional ensuring reliable customs control on the external borders.

On February 21, 1995 in Minsk the Agreement between the Republic of Belarus and the Russian Federation on unity of management of Customs Services is signed. According to Article 21 this Agreement is temporarily applied from the date of its signing and becomes effective from the date of the last notification on accomplishment of the interstate procedures by the Parties necessary for its entry into force. It is specified also that the Agreement will be effective before the expiration of six months from the date of when one of the Parties sends to other Party the written notice of the intention to stop its action.

For the purpose of realization of provisions on cancellation of customs control on general border according to article 6 of the Agreement on the Customs union from the Russian Federation the following actions are made:

The presidential decree of the Russian Federation of May 25, 1995 No. 525 "About cancellation of customs control on border of the Russian Federation with the Republic of Belarus" the assignment was given to the Government of the Russian Federation to cancel customs control on border of the Russian Federation and the Republic of Belarus.

In it it is indicated also the need of ensuring control on this border of transit cargoes of the third countries according to the special scheduled plan.

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