Free customs zone in the free port of Vladivostok: assessment of the effectiveness of legal regulation

Bereznikova Anna Customs officer of the Customs Procedures and Customs Control Department of the Customs Control Organization Service, Far Eastern Customs Direction 690041, Russia, Primorskii krai, g. Vladivostok, ul. Musorgskogo, 13d bereznikova_ag@mail.ru

Over the past decade, the Far East has been the territory where large-scale projects are being implemented to stimulate the economic development of the region. In addition, the sanctions policy of Western countries towards Russia, on the one hand, causes the need to search for effective tools for spatial economic development, and on the other hand, causes the reorientation of the Russian Federation towards the East^[1].

One of the instruments of economic development of the Far East is free (special, special) economic zones (hereinafter – SEZ, SEZ). The state creates territories that it grants a special legal status and economic benefits to attract Russian and foreign investors.

The Free Port of Vladivostok (hereinafter referred to as the SPV) is one of the varieties of the SEZ. On the territory of the SPV, residents engaged in investment activities are provided with tax benefits, including customs preferences. SPV residents have the right to apply the customs procedure of the free customs zone (hereinafter referred to as the STZ).

The attractiveness of the STZ customs procedure lies in the exemption of SPV residents from paying customs duties. SPV residents have the right to import foreign goods into the territory of the SPV and use them in accordance with investment projects without paying import customs duties and taxes.

Import customs duties, taxes, special, anti-dumping, countervailing duties in respect of foreign goods placed under the customs procedure of the STZ are accrued conditionally, and the obligation to pay them arises upon the occurrence of certain events, the goods also retain the status of foreign goods and continue to be under customs control.

In order to apply the customs procedure of the STZ, a person must have the status of a resident of the SPV, as well as on a plot of land on which an investment project is being implemented, a resident must equip a customs control zone (hereinafter referred to as the ZTC) in accordance with the established requirements. That is, to create the necessary infrastructure and conditions on your site that allow customs control to be carried out with respect to imported foreign goods. Foreign goods placed under the customs procedure of the STZ must be located and used within the ZTC at the resident's site^[2].

As of 13.05.2022, only 11 residents out of almost 3 thousand implementing investment projects in the SPV apply the customs procedure of the STZ^[3].

This indicator is very low, which may indicate the existing problems associated with this customs preference.

In this study, an attempt is made to establish the reasons that affect the low efficiency of such an instrument of economic development of the SPV as the customs procedure of the STZ.

One of the reasons that influenced the practice of applying the customs procedure of the STZ lies in the history of the creation of the SPV.

The form of investment activity "free Port of Vladivostok" was created by Federal Law No. 212-FZ dated 13.07.2015 "On the Free Port of Vladivostok" (hereinafter – Federal Law No. 212-FZ).

At the same time, at the time of the creation of the SPV in the Russian Federation, there already existed Federal Law No. 116-FZ of 22.07.2005 "On Special Economic Zones in the Russian Federation", Federal Law No. 473-FZ of 29.12.2014 "On Territories of Advanced socio-Economic development in the Russian Federation", a special economic zone has been functioning in the Magadan Region since 1999. zone. The customs procedure of the STZ is also applied in these territories. At the same time, the procedure for applying the customs procedure of the STZ in the listed territories is different.

Despite the presented models of territories with special conditions for conducting economic activity and the already existing differences in the procedure for applying the customs procedure of the STZ, the legislator did not use the existing models and took a different path - the creation of a new form of investment activity^[4].

Until 2010, before the entry into force of the Customs Code of the Customs Union (hereinafter – TC CU) FEZs in Russia functioned in accordance with the norms of national law. Due to the beginning of the Eurasian integration process, the regulatory legal regulation of special economic zones in Russia began to be carried out in accordance with the norms of supranational law, which had never happened before.

At the time of entry into force of Federal Law No. 212-FZ, the Russian Federation was a member of the Customs Union. The application of the customs procedure of the STZ until 2018 on the territory of the Customs Union was carried out in accordance with the provisions of the Agreement on Free (Special, Special) Economic Zones in the Customs Territory of the Customs Union and the customs procedure of the Free customs zone (Concluded in St. Petersburg on 06/18/2010) (hereinafter referred to as the Agreement) and taking into account the provisions of those federal laws in according to which territories with a special status functioned.

The creation of a territory with a new status, using the instrument of the customs procedure of the STZ, the procedure for the application of which was regulated by supranational legislation, required the coordination of the provisions of the new Federal Law No. 212-FZ with the Agreement and at the same time preventing confusion of its provisions with other federal laws on territories with a special status.

The Agreement stipulates that a free (special, special) economic zone means: "a part of the territory of a member state of the Customs Union within the limits established by the legislation of a member state of the Customs Union, in which a special (special legal) regime for carrying out entrepreneurial and other activities operates, and the customs procedure of a free customs zone can also be applied"^[5].

At the same time, based on the provisions of Federal Law No. 212-FZ, the SPV is not a free economic zone. At the same time, the SPV satisfies the condition established by the Agreement regarding the definition of the FEZ.

Thus, in part 1 of Article 23 of Federal Law No. 212-FZ, the following provision was introduced: "For the purposes of applying the customs procedure of the free customs zone, the territory of the free port of Vladivostok is equated to a special economic zone."

In 2018, the Customs Code of the Eurasian Economic Union (hereinafter referred to as the EAEU Customs Code) came into force. The Eurasian Economic Union is a deeper degree of economic integration of the member countries. Therefore, the new Customs Code of the EAEU regulates the application of all customs procedures, including the customs procedure of the STZ. 

The EAEU TC has made significant changes to the procedure for applying the customs procedure of the STZ. With regard to actions that can be carried out with goods placed under the customs procedure of the STZ, new opportunities have appeared in terms of exporting goods to the rest of the territory of the FEZ and the EAEU member states, the possibility of transferring goods to another resident or another person without completing the customs procedure of the STZ^[6].

At the same time, Federal Law No. 212-FZ regarding the application of the customs procedure of the STZ continues to contain reference norms to the Agreement and to the TC CU. Public relations are actively developing, but the legislator seems to ignore this process. The accumulation of provisions in Federal Law No. 212-FZ that have lost their legal character and contradict the new Customs Code of the EAEU, which has a higher legal force, reduces the effectiveness and regulatory capabilities of this act.

It is worth noting that the adoption of Federal Law No. 212-FZ happened quite rapidly. 09.06.2015 the bill was submitted to the State Duma, and signed by the President of Russia on 13.07.2015. To date, the pace of work in this area has slowed down significantly. The draft federal law amending, among other things, Federal Law No. 212-FZ, was prepared on 09.07.2018^[7]. Based on the results of the regulatory impact assessment, the project is sent for revision. The new draft was sent to the State Duma on 12.04.2021. On 12.05.2021, the bill was adopted in the first reading, the consideration of the bill in the second reading scheduled for 04.06.2022 did not take place^[8].

The customs procedure of the STZ in accordance with Part 6 of Article 23 of Federal Law No. 212-FZ can be applied in the areas of the territory of the SPV that are owned, including leased, by a resident or residents of the SPV and on which the ZTC has been established.

There is a contradiction between the provisions of Part 1 and Part 6 of Article 23 of Federal Law No. 212-FZ. On the one hand, the customs procedure of the STZ can be applied throughout the territory of the SPV, but at the same time the customs procedure is applied only on the resident's site where the ZTC is established.

This approach is explained as follows. The territory of the SPV includes 22 municipalities, this is a large territory in which the customs authorities cannot maintain constant direct control over goods due to the remoteness of residents' sites from customs posts. At the same time, in respect of foreign goods placed under the customs procedure of the STZ, customs control continues to be carried out. Since customs payments are calculated conditionally, the goods have the status of a foreign one and are under customs control, such goods must be used in accordance with the customs procedure of the STZ at the resident's site where the ZTC is established. At the same time, the resident's ZTC can be located anywhere on the territory of the SPV.

Proceeding from this, the customs procedure of the STZ can be applied throughout the territory of the SPV, but the goods can be used in accordance with the procedure of the STZ only in the ZTC of the resident.

Equating the SPV with the FEZ has led to inconsistency in the content of the new and existing legal acts, which leads to disputes between the participants of legal relations. Some residents believe that goods placed under the customs procedure of the STZ can be located at any point of the SPV, and not only on the territory of the resident's site on which the ZTC was created. Thus, a dispute arose between a resident of the SPV and Nakhodka Customs over the location of goods placed under customs, outside the boundaries of the resident's site. In accordance with the decision of the Arbitration Court of Primorsky Krai in case No. A51-1373/2022, the decision was made in favor of the customs authority. The court stated that the goods under the procedure should be located in the ZTC of the resident^[9]. 

The obligation to create a ZTC is assigned to a resident of the SPV. The resident equips and equips the site in accordance with the requirements established by the Order of the Ministry of Finance of the Russian Federation No. 53n dated 22.04.2016 "On approval of the requirements for the arrangement and equipment of the territory of the Free Port of Vladivostok, where the customs procedure of the free customs zone is applied" (hereinafter referred to as the Requirements for arrangement)^[10]. All material costs of creating a proper customs infrastructure fall on the resident of the SPV.

It is worth noting that when special economic zones began to develop in Russia in 2005 and Federal Law No. 116 "On Special Economic Zones in the Russian Federation" was adopted, in 2006 JSC "Special Economic Zones" was created for the implementation of the bill, 100% of the shares of which belong to the state. JSC "Special Economic Zones" is a management company that manages existing and newly created special economic zones. JSC "Special Economic Zones" is engaged in the creation of infrastructure facilities of special economic zones, which is carried out at the expense of the federal budget, budgets of the subjects of the Russian Federation, local budgets, extra-budgetary sources of financing are determined by the agreement on the creation of a special economic zone^[11].

In accordance with Article 5 of Federal Law No. 212-FZ, financial support for the creation (modernization) of transport, energy, utility, engineering, social, innovation and other infrastructure facilities on the territory of the SPV is carried out at the expense of extra-budgetary sources using public-private partnership mechanisms, as well as in accordance with the procedure provided for by the budget legislation of the Russian Federation, at the expense of appropriations of the federal budget, budgets of the subjects of the Russian Federation and budgets of municipalities whose territories are part of the territory of the SPV.

Thus, it is safe to say that residents of special economic zones and residents of SPV are in unequal conditions. FEZ residents have been granted the right to apply the "preferential" customs procedure of the STZ, while SPV residents must find funds to create conditions for the application of the procedure and independently carry out the arrangement of the territory.

The analytical report of the specialists of the Higher School of Economics also notes that residents are not ready for high financial costs when arranging a ZTC on their sites and this issue significantly reduces the attractiveness of the procedure for residents^[12].

The requirements for the arrangement provide for a different degree of equipment of residents' plots. For residents who place all categories of goods under the customs procedure of the STZ, a broader list of customs infrastructure objects that are necessary for customs control is established, for example, this list includes weighing equipment, loading and unloading equipment, a barrier with a built-in license plate reader, etc. For residents who place only the main production facilities under the customs procedure of the STZ, such facilities are not needed, a less strict list of customs infrastructure objects is presented to them (the presence of fencing, checkpoint equipment, a barrier, a video surveillance system around the perimeter of the site, etc.). The minimum amount of requirements is set for those residents who use in their the automated accounting system of goods (hereinafter referred to as the automated accounting system). Such residents will only need platforms for customs control and scales.

The creation, implementation and maintenance of an automated accounting system is entrusted according to the provisions of Part 13 of Article 26 of Federal Law No. 212-FZ to the Ministry of the Russian Federation for the Development of the Far East and the Arctic.

The introduction of an automated accounting system would allow participants to significantly reduce the costs of arranging and equipping the site, which would increase interest in the application of the customs procedure of the STZ.

This accounting system should serve as the main source of information for customs authorities, that is, it should allow customs control over goods placed under the customs procedure of the STZ, including allowing it to be done remotely without being at the resident's site. In this regard, the Requirements for the arrangement include simplifications regarding the equipment of the site of the SPV resident. With the possibility of operational accounting of goods, the possibility of tracking the use of goods, the need to provide the resident's site with customs infrastructure disappears.

However, when introducing the provision on the use of an automated accounting system, the legislator did not take into account the peculiarities of the functioning of each resident. Each SPV resident is unique. The placement of goods under the customs procedure of the STZ is carried out for various purposes, depending on the investment project of the resident. The work of the automated accounting system, in turn, is interconnected with the resident's accounting system, production systems, and resident's warehouse management systems. For example, if a resident is a "production worker" and places motorcycle parts under the customs procedure of the STZ, then carries out its further assembly, tracking each declared part in production is a very difficult task even for the resident himself. It is necessary to refine its accounting system, change the accounting policy of the enterprise, account for goods in the context of each declaration for goods, ensure the formation of a report for the customs authority.

For the purposes of the resident's interaction with the information systems of the customs authorities, it is necessary to develop a regulatory legal act, which will fix the procedure for carrying out operations by the resident and the customs authority. After the formation of such an act, the customs authority conducts an electronic auction for the right to conclude a state contract for the development and further maintenance of information and software tools. After the technical implementation, it is necessary to ensure that an experiment is conducted with an assessment of the results of the work.

Thus, in order to introduce provisions on an automated accounting system, it is necessary to ensure that preliminary work is carried out, which should allow assessing the possibility of implementing the provisions of the order of the Ministry of Finance of the Russian Federation.

The introduction of provisions on an automated accounting system for goods in the absence of a developed program, established requirements for it, and the absence of preparatory work indicates a violation of the basic principle of legal technology - the feasibility of a legal solution (availability of appropriate resources, organizational and legal mechanisms, etc.)^[13].

The issue of infrastructure concerns not only the objects directly necessary for customs control. Federal Law No. 212-FZ gave a special status to a huge part of the territory of the Far East. At the same time, giving it the status "on paper" does not solve the problems of the lack of proper infrastructure in the region. The fulfillment of the requirements for the arrangement is often impossible to comply with due to the lack of proper infrastructure and communications. For example, if there is no electricity on the resident's site, it will not be possible to equip the boundaries of the site with a fence with an installed video surveillance system and an electric barrier.

With all these costs, which must be borne by a resident, in order to obtain the status of a resident of the SPV, the investment volume must be at least 5 million rubles (until 01.01.2022). This threshold has been lowered from 01.01.2022 to 500 thousand. On the one hand, this improves the situation of SPV residents, on the other hand, another goal of the legislator is seen.

Experts note that despite the existence of preferential treatment in the Far East, the pace of socio-economic development is low, this is due, among other things, to low profitability and high unprofitability of enterprises and organizations in the Far East, against the background of a high rate of investment in fixed assets. By reducing the investment rate, the calculations will improve the indicators, the profitability of projects will be higher, and the payback will be faster^[14].

                                                     Conclusion

Based on the analysis, it should be concluded that the customs procedure of the STZ at the moment cannot be an effective tool for the economic development of the SPV. The reasons that reduce its effectiveness are the creation in the Far East of various territories with a special regime functioning on the basis of separate federal laws, which leads to the absence of identical concepts, the dispersion of legal regulation mechanisms of one institution into several federal laws, the decrease in attractiveness for investors and the inability to apply the positive experience gained in some regions, other regions^[15].

The history of the creation of Federal Law No. 212-FZ and regulatory acts regulating the application of the customs procedure of the STZ (requirements for arrangement) may indicate some spontaneity of their occurrence. Federal Law No. 212-FZ was adopted rapidly, while further actions to coordinate its provisions with the EAEU Customs Code have been ignored for 5 years.

Federal Law No. 212-FZ and Order No. 53n require revision. At the same time, the revision should be carried out systematically and in a timely manner.

Granting the territories of the Far East the status "on paper" does not solve real infrastructure problems "on the ground". Shifting responsibility for the development of the region to residents, unwillingness to invest in the infrastructure necessary for economic development, as well as the absence of truly legal regulations (legal in this case means such regulations that have realizable provisions, a clear conceptual apparatus, pursue the development of the region, the protection of investors' interests), regulating the functioning of the SPV, they will not allow the Far East to develop.

Territories with a special business regime can be powerful engines of economic growth, but if they are poorly planned or poorly implemented, they can contribute to illegal activities. In order to eliminate existing problems, increase the attractiveness of SPV for investors, and extract the planned economic effect from the customs procedure, it is necessary to develop a comprehensive consistent strategy for SPV. This strategy should be reflected in Federal Law No. 212-FZ. It is necessary to eliminate the existing contradictions between the current articles of the EAEU Customs Code and Federal Law No. 212-FZ, while it is necessary to ensure the protection of residents from adverse changes in the legislation of the Russian Federation.

FEZs are economic oases. However, it is not enough just to create an isolated oasis, since its presence alone does not solve the problems of the surrounding desert^[1]. The customs procedure of the STZ can become an effective tool of economic stimulation only with proper legal regulation.