Expert of the Institute for resource support for procurement and sales management for state and municipal needs named after. A. B. Solovyova National Research University Higher School of Economics Alexander Burkov says that the current mechanisms for implementing national treatment measures are a complex system, the need for optimization and unification of which has been repeatedly pointed out by the government. The unification of these measures was complicated by the fact that the provision of national treatment for procurement for state and municipal needs (44-FZ) and for the procurement of goods, works, and services by certain types of legal entities (223-FZ) is regulated differently.
In the first case, the issues of granting national treatment are regulated by the legislation on the contract system and by-laws, taking into account the provisions of international treaties of the Russian Federation. In the second case, regulation is carried out taking into account 164-FZ of December 8, 2003 “On the fundamentals of state regulation of foreign trade activities,” as well as international treaties of the Russian Federation, including the WTO and the CIS. “The implementation of the government’s plans to unify the rules for granting national treatment without bringing these rules to a “common denominator” is impossible,” notes Alexander Burkov.
According to 223-FZ, the government now has the right to establish a priority, a minimum share of purchases of goods of Russian origin, works and services (approved by government resolutions of September 16, 2016 No. 925 “On the priority of goods of Russian origin, works, services” and of December 3, 2020 No. 2013 “On the minimum share of purchases of goods of Russian origin”). However, the implementation of the mechanism of “import substitution in 223-FZ” in the current version of the regulatory framework is extremely difficult. As Alexander Burkov explains, priority is established taking into account the provisions of the General Agreement on Tariffs and Trade (GATT) of 1994 and the Treaty on the Eurasian Economic Union of May 29, 2014. “That is, all countries that signed the agreement of the Uruguay Round of multilateral trade negotiations of the WTO in 1994 must comply with the regime of equal favorability for the admission of imported goods into their domestic market. This agreement does not apply to purchases for state and municipal needs,” he explains.
In the bill approved for submission to the State Duma, a direct reference to the GATT is excluded. Instead, the following construction is proposed: prohibitions, restrictions and conditions for the admission of products of foreign origin “cannot be accepted in relation to goods originating from a foreign state, work, services performed or provided by a person registered in the territory of a foreign state, if the Russian Federation with such a foreign state an international agreement has been concluded providing for the provision of national treatment to such goods, works, and services. Moreover, such measures can be taken in cases in which an international treaty allows for the possibility of not providing national treatment.”
According to Alexander Burkov, we can talk about granting national treatment to individual countries. As for exceptions to the GATT general agreement of October 30, 1947, they are as follows. Clause 8 art. III National Domestic Taxation and Regulatory Treatment: “The provisions of this article shall not apply to laws, regulations, or requirements governing the procurement by government agencies of goods acquired for government purposes and not for commercial resale or for use in the manufacture of goods for commercial sale.”
Thus, the proposed bill truly unifies the rules of national treatment, and also establishes more flexible and expanded instruments, including those that take into account the possibilities of international treaties of the Russian Federation (not only the EAEU, but also the WTO, CIS). “Under these conditions, the wording of the new bill expands the possibility of exemptions and will make it possible to respond to the economic situation and meet existing needs,” the expert believes.