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Decision of Economic Court of the Commonwealth of Independent States

of September 28, 1999 No. 01-1/3-99

Economic Court of the Commonwealth of Independent States in structure:

the chairman - the Acting Chairman of Economic Court Apostle D.D.,

judges of Economic Court of Kerimbayeva A. Sh., Makhmudova L. Sh., Miroshnik V. I., Sarsenbayeva A. O., Simonyana G. V.,

in case of the court clerk Medvedeva T. E.,

with participation of the General adviser of Pronina M. G.,

representatives of the applicant Pashukov A. A., Podgaysky E. N.,

having considered in proceeding in open court case at the request of the State committee on aircraft of the Republic of Belarus on interpretation, established:

The state committee on aircraft of the Republic of Belarus at the request of Council of Ministers of the Republic of Belarus (The resolution of Council of Ministers of the Republic of Belarus of April 7, 1999 N 475) appealed to Economic Court of the Commonwealth of Independent States with request about interpretation of Item 1 of article 3 of the Agreement between the Government of the Russian Federation and the Government of the Republic of Belarus about cooperative principles and conditions of relations in the field of transport of July 20, 1992. The State Committee on aircraft of the Republic of Belarus, in particular, asks to explain whether provisions of Item 1 of article 3 of the Agreement between the Government of the Russian Federation and the Government of the Republic of Belarus expatiate on cooperative principles and conditions of relations in the field of transport of July 20, 1992 on charges for aeronautical servicing. The request about interpretation as specifies the State committee on aircraft of the Republic of Belarus, is dictated by lack of regulation of dispute on payment of aeronautical charges from 1993 for 1997 between airlines of the Russian Federation and the Republic of Belarus.

Having heard the judge-speaker Makhmudova L. Sh., representatives of the State committee on aircraft of the Republic of Belarus Podgaysky E. N. and Pashukova A. A., having discussed the conclusion of the General adviser of Economic Court Pronina M. G., having researched the documents which are available in case, the Economic Court came to the following conclusions.

I. Interpretation of Item 1 of article 3 of the Agreement between the Government of the Russian Federation and the Government of the Republic of Belarus about cooperative principles and conditions of relations in the field of transport of July 20, 1992 shall be performed according to article 31 of the Vienna convention on the right of international treaties of 1969 both on the basis of the text of the Agreement, and taking into account the international agreements interconnected with it.

The economic Court states that the Government of the Russian Federation and the Government of the Republic of Belarus on July 20, 1992, except the specified Agreement, signed the special agreement about cooperation in the field of air transport, and on December 12, 1997 the Agreement on air traffic and cooperation in the field of air transport from which signature date the special agreement mentioned above about cooperation in the field of air transport of July 20, 1992 voided.

Item 1 of article 3 of the Agreement between the Government of the Russian Federation and the Government of the Republic of Belarus about cooperative principles and conditions of relations in the field of transport of July 20, 1992 establishes:

"The transportations of passengers and loads performed by carriers of one of the Parties on the territory of other Party based on this agreement and also the vehicles which are carrying out these transportations are exempted from taxes and the state charges connected with use or content of roads and other means of communication, ownership and use of vehicles, and also taxes and fees on the income and profit received from transportations". The economic Court considers that the specified regulation is effective concerning the transportations performed by all modes of transport including air though in its text it is told about tax exemption and the state charges of "transportations of the passengers and loads performed by carriers of one of the Parties on the territory of other Party".

This conclusion of Court is based first of all on the analysis of all set of regulations of the Agreement on cooperative principles and conditions of relations in the field of transport of July 20, 1992, and, first of all, Articles 1, 2 and 5 Agreements.

Article 1 of the Agreement specifies, in particular, about intention of the Parties to develop and deepen mutual economic and sci-tech cooperation in the field of all modes of transport, Article 2 - that each of the Parties provides in the territory on the principles of reciprocity favorable conditions for implementation of transportations of passengers and loads between both Parties and transit across their territory and in airspace, and Article 5 - uses the concept "territory" in relation to transportation of goods and passengers air transport.

The agreement between the Government of the Russian Federation and the Government of the Republic of Belarus on air traffic and cooperation in the field of air transport of December 12, 1997 uses for the purpose of regulation of relations in the field of this mode of transport the concept "territory" as "the terrestrial surfaces, territorial internal waters and airspace over them which are under sovereignty of this state" (the subitem "g" of Item 1 of Article 1).

Besides, the Economic Court considers that use of the concept "territory" of confined sense as "land surface" is normal, regulating economic problems of cooperation in relation to the transportations performed including air transport, it is lawful if to consider that the Chicago convention on international civil aviation of December 18, 1994 which participants are both the Russian Federation, and the Republic of Belarus resolves issue of release from the national taxes and charges for use of airspace ("in transit through the territory of the state or take-off on its territory or departure from its territory of the aircraft of the Contracting state").

Taking into account it the speech can go about taxes and the state charges which can be provided by the national legal system of the Parties for the transportations performed by air transport "on the territory" the Parties, and in particular the income taxes and the income.

The special agreement signed between the Government of the Russian Federation and the Government of the Republic of Belarus about cooperation in the field of air transport on July 20, 1992, having established cooperative principles of the Parties on number of questions, did not contain the rules regulating system of settlement of the Parties for the rendered services, including for aeronautical servicing.

Taking into account stated the Economic Court came to conclusion that questions of economic cooperation in the field of all modes of transport, in particular about release of carriers from taxes and the state charges, are solved in the intergovernmental agreement of July 20, 1992 about cooperative principles and conditions of relations in the field of transport.

II. Item 1 of article 3 of the Agreement provides the following list of taxes and the state charges which are not subject to collection:

connected with use and content of roads, other means of communication;

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