Ukraine and WTO: how to make the pluses larger and the minuses smaller

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UKRAINE AND WTO: HOW TO MAKE THE PLUSES LARGER AND THE MINUSES SMALLER

The issue of entering the World Trade Organization is high on Ukraine's agenda. Its non-participation in this global economic organization has no reasonable explanation: in late 2001 the WTO was joined by China, prospects for Russia becoming its member in 2003 have become more or less definite. The beginning of a new round of multilateral trade negotiations in the WTO frameworks will obviously raise the global economic regulation system to a new level and will lead to a considerable influence on Ukraine. After all, joining the WTO is a prerequisite for Ukraine's real, not simply declarative, integration with the European Union.

On July 3, a round table was organized in Kyiv by the Razumkov Center and the Kyiv office of the Eurasia Foundation to discuss Ukraine's relations with the WTO and assess the conditions and likely effects of joining it. The discussion involved about 150 representatives of government bodies, foreign embassies, staffers with the National Science academy, experts with non-governmental research organizations, and representatives of the mass media.

The new prospects for the WTO are defined in the Declaration of the 4th Ministerial Conference in Doha, Qatar. The Declaration provides for holding of talks before January 1, 2005 on a wide range of issues which would stimulate the development of international economic regulation mechanisms, extend the sphere of their influence and increase their effect on all national economies. It is extremely important for Ukraine to take part in such talks, in order to maintain its national interests. However, the new round of talks has complicated the task of adapting to the parameters of the multilateral trade system and under these conditions Ukraine cannot count on easy terms of acquiring membership.

Other countries' experience of negotiating WTO membership shows that concrete terms of joining it may undergo significant changes, depending on the level of the negotiators' professionalism and political will. That is why the agreements on joining the WTO differ so greatly: for instance, countries whose macro-economic performance is better and whose level of development is higher are given consent to set higher import tariffs.

If any negotiations take less time, it is not necessarily due to the effectiveness of the negotiation process. The reason could be that the candidate country wants membership at any cost, including quick surrender of its positions. And lengthy negotiations may result either from a principled position or from weak reforms, or from an inability to negotiate consistently and purposely. In Ukraine's case, we have seen all these factors at different stages of the negotiation process.

The key question in the context of joining the WTO is: how to maximize the potential advantages of being part of the multilateral trade system, and how to minimize any possible negative consequences of entering it?

Possible Consequences of Joining the WTO

The possible consequences of joining the WTO have found no systematized analysis in this country. Unlike in Russia, there has been no tender for an independent study of this problem. The government has not consulted Ukrainian businessmen on tentative terms of joining the WTO. It has not invited any experts. In Russia, during 2001, the Ministry of Economic Development and Trade had more than 260 meetings with unions or associations of producers to discuss Russia's positions at the negotiations of joining the WTO.

This certainly tells negatively on the Ukrainian government's ability to objectively evaluate the numerous positive and negative factors of the influence of its prospective membership in the WTO on its economic and social sectors.

In theory, joining the WTO could give Ukraine many new opportunities.

Ukrainian producers ought to gain from a wider choice, higher quality and lower prices of goods and services as a result of more effective competition. Prices would go down not only for finished imported goods and services, but also for domestic ones, where imported components are used. Also, there would be subsequent changes in the volume and structure of consumption which would approximate the standards of the developed economies. An increased solvent demand would have a positive effect on production growth and improvements in people's social and economic status.

Producers could gain from easier access to the world markets of goods, services and capital, from internationally recognized rights to protect the national interests in these markets. Commercial risks would be lower due to the establishment of a more stable trade regime and transport expenses would be lower due to a guaranteed free transit of goods within the WTO territory. As a result, the cost of Ukrainian products would be lower and the competitiveness of Ukrainian companies would grow.

The export-oriented industries could sustain smaller losses from discriminative measures (which currently amount to $2 billion - $3 billion annually), particularly, anti-dumping investigations. This country could have more possibilities to defend its national interests thanks to the multilateral mechanisms of a just resolution of trade disputes which are applied within the WTO.

There is one more potential advantage - Ukraine may be internationally authorized to defend its own market and industries in accordance with the GATT Article 12 on the limitations on keeping the stable payment balance; with the agreements on protective measures, on agriculture, on application of sanitary measures, on subsidies and compensations; with GATT Article 6 on anti-dumping and compensatory measures.

It is important, however, that these positive effects should be tied to additional incentives for reforms within the country. Within a civilized environment of competition and a transparent legal field, structural reforms could gain momentum, competition and innovations could receive fresh impetus. This would be facilitated by the adjustment of the national legislation (on taxation, customs, standardization and certification, services, competition, intellectual property) to the WTO standards and rules. With the government's policy becoming more transparent and a great number of preferences abolished, trade would become free from administrative pressure. Also, it would no longer be necessary to lobby excessively corporate interests in parliament. And this is an important prerequisite for a more effective struggle against corruption.

But the practical experience of many WTO member-nations, especially developing ones, proves that most of the possible positive effects for the country and its industries do not come automatically. They are achieved by a rational policy which creates the potential for using such opportunities. That is why one of the terms used in the WTO today is “capacity building” - the creation of a potential for using the available opportunities.

How to Make the Best of WTO Membership?

In order to make the best of membership in the WTO, we should be aware of its limitations.

The advantages of free access to the market provide by WTO membership mostly concern markets with predominantly price competition, i.e. markets of raw materials and standard ready-made consumer products. To a much lesser degree they concern hi-tech products circulating within the closed turnover of transnational companies which are less influenced by liberalizing the measures of the WTO. Therefore, if Ukraine relies on trade liberalization only, it is doomed to remain for a long time in the low-profit niche of low-tech export, which will further deter domestic reforms. This nation has to use a wider arsenal of economic policies which would speed up innovations in potentially competitive sectors, and create favorable environments for forming powerful and globally competitive transnational companies in Ukraine.

The possibility of increasing the volume of sales of Ukrainian goods and services to foreign markets may be prevented by the incompatibility of Ukraine's commodity export structure with international. In 2001, Ukrainian exports were dominated by non-precious metals (41.3%), agricultural products (ca. 11%), chemicals (ca. 9%), textiles (3.8%). The products of machine-building and instrument-making, means of transport accounted for a mere 14.3%. The situation on the world commodity market is entirely different. According to the WTO International Trade Statistics 2001, during 1990-2000 the share of ferrous metals decreased from 3.1% to 2.3% (down to $144 billion), textiles - from 3.1% to 2.5% (down to $157 billion), agricultural products - from 9.3% to 7.2% (down to $558 billion). At the same time, the share of office and telecommunications equipment increased from 8.8% to 15.2% (up to $940 billion). The same can be said about Ukrainian exports of services which were dominated in 2001 by transport services (83.5%), while in world exports they stood under 23%. Also, export of tourist services in Ukraine makes up 2.3% of the total, while the figure for world exports is 23%.

So without a structural adaptation to the priorities of a global economy, without developing adequate innovative and investment strategies, Ukraine can forget about the advantages of the global trade system.

One should not expect Ukraine's membership of the WTO to remove the threat of anti-dumping investigations, although it strengthens the position of any country that is under such an investigation. The number of anti-dumping measures against WTO member-nations is growing. According to the WTO Secretariat, during 1995-2001, 1845 anti-dumping investigations were launched, 1066 cases of the imposition of anti-dumping customs duties were registered. Notably, in 2001 the number of such cases grew to 330 as compared to 1995 from 157 and from 118 to 163 respectively.

An effective use of the WTO mechanism of multilateral settlement of disputes may be deterred by the fact that the Ukrainian economic sectors lack experienced specialists in international trade law. With such a shortage, Ukraine will have a difficulty in using the advantages of its membership in the WTO and in avoiding unjustified expenses in the process of entering it.

How to Minimize the Possible Negative Effects of Joining the WTO?

Joining the WTO may aggravate a number of internal economic problems in Ukraine which are less marked at present, due to certain trade barriers and the government's supportive measures for certain industries. The possible negative effects are as follows.

With the further liberalization of trade, Ukraine's economy will be increasingly influenced by global situation and face greater economic risks in periods of global economic instability. These risks may be inadequately compensated by the positive influence of the global conjuncture in favorable periods, - considering the fact that liberalization and involvement in global processes do not automatically lead to structural corrections in less developed economies.

The negative impact of the global situation may considerably diminish the advantages of a liberalized access to markets. One could expect that the gradual lifting of quantitative limitations would enable Ukraine to increase its exports of ferrous metals to the European Union. But this possibility is unlikely to be used within the crisis of the global market of ferrous metals and subsequently coordinated reductions in European capacities in this sector.

Concentrating on potential long-term advantages of its membership of the WTO, Ukraine may underestimate some of the effects of the initial period. The government may fail to come up with adequate measures under unfavorable circumstances (it is quite possible, especially with the inadequate approach to formulating conditions and defending the national interests in the process of joining the WTO).

There may be same complications within the sphere of state regulation of economic development caused by: a) shifting to new, internationally agreed terms of state regulation of economy and b) giving up the traditional vertical levers of economic policy. The latter concerns possibilities to use tax and other privileges, to write off companies' debts to the state, to use state purchase orders as an instrument to stimulate domestic producers, to control and regulate financial flows, to tell foreign investors where they should buy raw materials and manufactured parts and where they can sell their goods. Ukraine would have to cancel many privileges which are presently enjoyed by the national coal-mining, metallurgy, ship-building, automobile- and aircraft-making industries but which are incompatible with WTO rules. Although these changes can be regarded as a positive factor within a long-term context, within a short-term context they could cause problems for these sectors. There may also be complications for the producers that work under the system of state purchase order, without open competition.

One of the most serious of the negative factors activated by WTO membership is that some Ukrainian producers may find themselves unprepared for the tough international competition. Ukraine's competitiveness potential is still low by international standards. According to the Global Competitiveness Report 2001-2002 drawn by the World Economic Forum, in 2001 Ukraine's competitiveness rating was only 69th out of 75 countries.

The returns of a poll among 83 Ukrainian and foreign experts conducted by the Razumkov Center from May 28 to June 14, 2002 show serious doubts about the chances of many national producers to withstand future competition. No other potential problem listed in the questionnaire collected as many votes than “the aggravation of problems connected with low competitiveness of industries, dwindling production, growing unemployment”: this point was marked by 58.5% of respondents in relation to a period of less than one year after joining the WTO, 59.8% - a period up to five years and 30.5% - a period exceeding five years.

However, there are no sufficient grounds to expect a completely negative impact, although there have been apocalyptical forecasts of the ruin of Ukraine's economy after it joins the WTO. In reality, the national commodity market is unlikely to be damaged.

According to the data of the Ministry of Economics and European Integration, the level of tariff security of the domestic market already equals that of the countries which joined the WTO after 1995, with 80% of Ukrainian customs duty rates standing at the level of the new members (Albania, China, Croatia, Estonia, Latvia, Lithuania, Moldova, Taiwan), about 7% of duty rates being under this level and only 13% of duty rates exceeding it. Moreover, the Ukraine-Europe Consultative Center estimates that real added customs tariffs will be in Ukraine at 1% - 2%. This means that already even before Ukraine joins the WTO, they are lower than in the EU, the USA or Japan. This figure is so low because the majority of Ukrainian importers of consumer goods evade customs duties. So the level of tariff security is very unlikely to be reduced substantially when Ukraine joins the WTO, considering the fact that the WTO rules and standards involving customs valuation procedures and abolition of privileges to specific industries are aimed at the opposite - higher customs duties.

These arguments and the expert opinions make us believe that the diverse impact of joining the WTO will reflect on different sectors of the national economy. However, the negative influence will tend to recede, as is forecast by the experts whose pessimism about the long-term period is almost twice as small.

The Likely Consequences of Joining the WTO for Ukraine's Economic Sectors

High probability of prevailing positive consequences

Food industry, light industry, telecommunications, tourist services, stock markets, pipelines, insurance, postal services, banking services.

Certain probability of prevailing positive consequences

Aircraft-building, ship-building, chemical industry, agriculture, railroad transport, realty services, education, marine transport, medical services.

Possible balance between positive and negative consequences

Power engineering, aviation transport.

Certain probability of prevailing negative consequences

Metallurgy.

High probability of prevailing negative consequences

Automobile-making, coal-mining, radio-electronic industry, agricultural machine-building.

The Ukrainian agricultural sector is also likely to face the problems of drastic restructuring, as it presently enjoys protection from external competition.

On the other hand, the level of state support to domestic agricultural producers is much lower than in the developed economies. In recent years, the government has spent about 0.5% of GDP on this, whereas Hungary has spent 1.8%, Japan and the EU countries - 1.7%, the Czech republic - 1.6%, the USA - 1.5%, Canada - 1.3%, Russia - 0.8%. Per capita subsidies total $566 in Japan, $355 in the USA, $336 in the EU, $163 in Canada, $111 in Hungary, $100 in the Czech Republic, $60 in Russia and only $3.3 in Ukraine.

But here, too, Ukraine may face problems when the subsidies are cut that are liable to prohibition or limitation under the Agreement on Agriculture and subsequent raising of permitted subsidies - for funding research, educational, consultative and marketing programs, state reserves to ensure food security, insurance and security of incomes, damage compensations, structural reformations, environmental programs and regional aid programs.

Problems of restructuring are also likely to have to be faced within the Ukrainian service sector. WTO candidate countries are required to have a more rigid approache to obligations in the service sectors. This applies to both the scope of obligations and restrictions for the application of interim provisions in the period of their introduction. It should be noted, however, that most sectors of services are less vulnerable to international competition than those engaged in the manufacture of commodities. Because local providers of services have advantages before foreign ones thanks to their better understanding of local customers and local traditions, legislative and administrative regulations, closer public relations and to the absence of a language barrier.

There is an exception: the sector of air and, partly, sea transportation, where accelerated liberalization and non-application of preventive measures in an effort to raise the competitiveness of national carriers may lead to their partial exclusion from international transportation markets.

Ukraine has a certain margin of safety: its foreign trade balance is positive; the share of imports of foods and nonfoods, the foreign debt and the spending on its servicing, the share of oil import from one supplier country in the total amount, the import-export ratio are at a safe level. So joining the WTO should not affect Ukraine's economic security. But its gold reserves are still insufficient to guarantee macro-economic stability under any increased influence on its economy from global fluctuations. As for the growing share of hi-tech and machine-building products, it will largely depend on the ability of the national industry to adapt to tougher competition and shorter terms set for innovations.

In appraising possible problems and risks ensuing from membership of the World Trade Organization, one should not generalize them. It is possible in principle to take measures to prevent or minimize them. Such measures should be included in final Ukraine-WTO agreements and in the government's program of actions for joining the WTO.

On the whole, joining the WTO meets Ukraine's strategic interests. It would mean a sharp turn from the practice of arbitrary introduction and application of rules of economic conduct to a gradual introduction of internationally recognized rules. This step may become decisive in the process of building a civilized market economy, carrying out radical administrative and structural reforms, accelerating Ukraine's integration with global and European economic and political structures.

The problems emerging during this route should not be regarded as reasons to delay this process. On the contrary, they demand an acceleration of social and economic transformations on the basis of clearly formulated objectives tied closely to Ukraine's international obligations. To wait for the day when this economy becomes competitive enough to be ready to be a member of the World Trade Organization - as is proposed by those who criticize Ukraine's membership bid - is about the same as to hope to learn to swim without stepping into the water.

Customs audits of business entities in the context of WTO accession

On 16 May 2008, Ukraine became the 152nd member of the World Trade Organisation. This event impacted Ukraine's customs regulations as follows:

- Customs processing fees were abolished (except for overtime and off-location customs clearance fees);

- Customs duties for a number of goods were significantly reduced (reduction of the average duty from 21% to 10,66% for agricultural goods and from 6,7% to 4,95% for industrial goods);

- A reduced duty rate now applies to goods originating from the more than 150 WTO countries. Previously, there were about 80 countries whose goods were subject to reduced duties;

- Export duties for certain goods were reduced.

All these factors result in a reduction in the amount of customs duties and taxes collected by the customs authorities during customs clearance of goods. In addition, the recent economic slowdown reduced the volume of imports into Ukraine. According to the customs authorities, in the first half of 2009 the volume of goods imported to Ukraine fell 42%. Customs collected 16% less VAT and 56% less customs duty compared to the same period in 2008.

It is clear that the customs authorities will be seeking additional ways of compensating for the reduction in customs duties, for example, by being more aggressive in their use of customs audits of importers.

Below we analyse whether the customs authorities are ready to audit companies importing to Ukraine; the legal basis for this; how customs audits are carried out; and how audit procedures could be further improved.

General outlook

The customs authorities have had the right to audit business entities since 1998. However, they started detailed audits only in early 2004 (before this there were only occasional audits). Recent developments in customs legislation indicate that within the next few years the customs authorities will conduct regular and more frequent customs audits of business entities. This means that the customs authorities will gradually shift their focus from maximum customs control during customs clearance procedures to customs control after goods are released. In the short term, it is likely that the customs authorities will actively pursue customs audits and apply penalties wherever possible.

The customs authorities need to further develop customs audit procedures for verifying the customs value of imported goods. The 2004 Customs Code of Ukraine introduced a new definition of customs value which serves as the basis for the levying of customs duties and VAT upon customs clearance of goods. Since 2004, the Ukrainian definition of customs value (with later amendments) has been based on the provisions of the Agreement on Implementation of Article VII of the GATT. Upon WTO accession, Ukraine committed to honour this Agreement. These provisions allow importers to adjust customs values for various costs.

A customs audit will check whether the importer correctly determined the customs value by including certain costs (e.g., royalties, assists, etc.) in the dutiable value. In many cases verification may only be possible after a thorough review of the importer's accounting records after customs clearance of goods, as this data is not available during customs clearance.

Right to customs audit: legislation

In 1998, the President of Ukraine authorised the customs authorities to carry out audits of business entities. However, wide-scale audits were not implemented due to a lack of relevant procedures and the authorities' inexperience.

Ukraine's Law “On Payment of Taxes” of 21 December 2000, No. 2181-III, appointed customs as the controlling authority responsible for the collection of customs duties and other taxes (excise tax and VAT) paid during import of goods. The law explicitly established that the controlling authorities (including customs authorities) were entitled to audit tax liabilities.

However, until the introduction of the 2004 Customs Code, the rights of the customs authorities when conducting customs audits were still vague. The customs authorities were authorized to audit business entities, but customs doctrine recognised that customs control ends with the release of goods into free circulation. The customs authorities did not have the status of law enforcement authorities, and thus their ability to conduct post-entry audits was disputable.

The 2004 Customs Code established that customs control may be performed after the customs authorities have released goods into free circulation, provided there were sufficient grounds to conclude that there were infringements. The Customs Code also permitted the customs authorities to check business entities' records with respect to goods moved across the border.

In 2004 the government passed a resolution defining the primary rights of the customs authorities when conducting customs audits. It also determined the grounds for scheduled and unscheduled customs audits.

To enhance their capacities, in 2004 the tax and customs authorities issued regulations on joint procedures for auditing business entities. Then, in 2005 the government passed a resolution that required that the tax and customs authorities further coordinate audits of business entities.

Finally, in 2006 the customs authorities approved regulations that stipulated the procedure for undertaking customs audits.

Current status of customs audits

world trade organization

Since 2003 there has been a specific unit within the customs authorities which is responsible for post-entry audits - the Central Bureau of Risk Analysis and Audit. Between 2005 and 2007, this unit developed into the Department of Risk Analysis and Audit, further renamed into the Department of Analytical Work and Information Monitoring. Furthermore, similar units were created in each customs office.

The procedures for customs audits are as follows:

- The customs authorities plan scheduled customs audits quarterly. Scheduled audits can last up to 30 days and the customs authorities may audit a business entity once a year.

- Unscheduled customs audits may be carried out at random, e.g. if the customs authorities obtain facts that indicate a business entity has violated customs law. Unscheduled customs audits can last for an unlimited period of time. Court decisions are not required for unscheduled customs audits (as opposed to unscheduled tax audits).

- The customs authorities need to inform business entities of scheduled audits 10 calendar days in advance. No advance notification is required for unscheduled customs audits.

- A customs officer must have written authorisation to carry out a customs audit. The Head of the customs office must approve the order outlining the scope of the customs audit.

- During a customs audit, the customs authorities have broad powers. Specifically, they may:

- - check financial and accounting documents and records, including electronic information in the possession of the business entity;

- - inspect manufacturing, warehousing, commercial and other premises;

- - measure the volume of construction, repair and other works, conduct analyses of raw materials, etc.;

- - obtain explanations and copies of documents and other data related to the calculation and payment of taxes.

- The customs authorities prepare an act (report) at the end of the customs audit, which should be signed by the customs officers and the chief officials of the audited business entity.

Specific areas that the authorities have focused on elsewhere and are expected to focus on in Ukraine include:

- Potential adjustment of the customs values of goods for transportation costs, which may be added to or deducted from the customs value;

- Revealing cases where in-kind contributions to the capital of Ukrainian legal entities or joint-ventures were disposed of within a 3-year period. If this happens, the customs duty for which exemption was granted during import must be paid;

- Reviews of toll manufacturing transactions. In order to carry out this task, the customs authorities examine whether tax exemptions were correctly applied to the raw materials imported for processing;

- Inclusion of royalties in the customs value of imported goods;

- Verification of whether exemptions from customs duties and taxes were correctly applied to imported goods.

We anticipate that during future customs audits, the customs authorities will also review:

- The classifications of imported goods. They will specifically focus on cases where revised tariff codes would attract higher customs duties and VAT;

- The country of origin of imported goods, especially in cases where the goods were imported free of customs duty under Free Trade Agreements;

- The inclusion of artwork, design, and engineering works in the customs value of imported goods;

- The pricing of imported goods between related entities, and determining whether relations could impact the customs values of imported goods.

There are a number of circumstances that may prevent the further development of customs audits in the short term. These circumstances include the lack of experience of the customs authorities in carrying out audits and the lack of experienced personnel who may be involved in the audits. Nevertheless, it is likely that within the next year or two "real" audits will become common.

Further development of customs audit procedures

In 2006, Ukraine joined the Protocol of the Amendment to the International Convention on the simplification and harmonisation of customs procedures (Kyoto Convention). The Kyoto Convention aims at more rapid customs clearance of goods through the use of information technology and new techniques for customs control, such as risk assessment and audit-based control. The Convention defines "audit-based control" as measures by which the customs authorities satisfy themselves as to the accuracy and authenticity of declarations, for example through the examination of the relevant books, records, business systems and commercial data held by concerned persons (i.e., importers).

The customs authorities are now reviewing the customs legislation in order to bring it into compliance with the requirements of the Kyoto Convention. Based on this review, they are proposing a number of amendments to the current Customs Code.

The draft Customs Code, which now is under consideration by the Verkhovna Rada, incorporates a detailed section on customs audits of business entities. In particular, the customs authorities would be entitled to:

- Verify payment of customs duty and import taxes;

- Verify the entitlement of importers to tax exemptions;

- Verify correct classification of goods for customs purposes;

- Verify if there were sufficient legal grounds for importing goods.

In addition to existing powers, the draft Code envisages that the customs authorities would be authorised to carry out customs cross-audits. This would mean that the customs office may audit any business entity that had any business relations with the entity that imported/exported goods. The customs authorities would carry out cross-audits without prior notification of the business entities. Currently the customs authorities occasionally perform cross-audits, although there are no sufficient grounds for this. The draft Code would provide legal grounds for cross-audits.

Conclusion

Currently there are sufficient legislative grounds for the customs authorities to carry out customs audits. The customs authorities occasionally exercise these rights and audit business entities, though with a limited scope.

As their skills improve, the customs authorities will carry out customs audits more frequently and extend the scope of these audits. The Kyoto Convention recognizes the concept of customs audits and the authorities will develop the methodology of audits in order to comply with the Convention. Moreover, the Convention strives to simplify customs clearance procedures, meaning that it will become more common. The Ukrainian customs authorities will follow these guidelines.

The reduction of customs duties after WTO accession, coupled with the decrease of imports due to the economic slowdown, will force the authorities to actively seek other methods of increasing state revenues. In this regard, the customs authorities may use customs audits to verify importers' past compliance with customs regulations and assess additional duties and taxes. Thus, compliance issues are growing more important than ever.

We recommend that importers analyse customs procedures, identify risky areas and develop defence files (if needed). This particularly relates to entities that pay royalties on imported goods, carry out toll manufacturing, purchase goods from related entities, import goods under free trade agreements, or enjoy tax preferences. Finally, a thorough customs review by external advisors is recommended.

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