Chapter 2 Foreign Trade System and Law
2.1 Licensing system and procedures
Under the law of the Republic of Belarus, some types of business activity may be undertaken only if they are licensed. Generally, the requirement of a licence and the licensing procedure are prescribed by domestic legislation. Licences are required for export and import of goods, which are listed in the uniform list of goods subject to prohibitions or restrictions as regards trade with non-member states. Licence issuing procedures are regulated by the Treaty on Rules of Licensing in Foreign Trade of the Goods of 6 June 2009.
Licensing is the process performed by the state in connection with the issuing of a licence, its renewal, amendment, suspension or revocation. Licensing also involves prescribing conditions that must be satisfied for grant of a licence and its continued validity. Licensing also involves monitoring by the licensing authority in order to ensure that the licence is used only for the permitted purposes and that conditions attached to a licence are duly observed. Licensing authorities may have powers of enforcement which may take the form of amending, suspending or revoking a licence or imposition of civil or criminal sanctions, including confiscation of non-conforming goods or equipment or machinery used in a licensed process.
Types of licences, covered by the legislation of the Customs Union are:
A. One-time licence.
A licence issued to participants in activities of foreign trade leading to the production of a licensed product, which may be exported or imported. Such a licence may be granted for a period not exceeding one year.
B. General licence.
A licence issued to participants in foreign trade activities as determined by a decision of a member state, granting the right to export or import goods of a certain type, there being different types of licences for different kinds of goods. The term of validity of such licence should not exceed one year.
C. Exclusive licence.
This is a licence granting an exclusive right to a company engaged in foreign trade to export and/or import certain kinds of goods. The term of validity is determined by the decision of EEC depending on the circumstances of the particular case. Such licences may be granted with respect to the import of alcoholic drinks, fish, seafood and processed seafood, raw tobacco and tobacco products.
The decision whether or not to issue a licence must be made by the authorised body, within 15 working days of the date of the application.
The grounds for refusal to grant a licence are:
1. the presence of incomplete or false information in the documents submitted by the applicant for a licence;
2. failure to comply with the requirements for granting a licence;
3. A supporting document is no longer valid;
4. granting the licence would enable the performance of a contract which would lead to a contravention of the international obligations of the member state;
5. The quota for the product in respect of which a licence has been applied for is exhausted.
General provisions regarding licensing are found in the Edict of the President of the Republic of Belarus on the licensing of specified types of activities, No. 450 of 1 September 2010（amended on 6 October 2015）. Under this law, a licence is the special permission to carry out activities, in strict observation of licensing requirements and conditions prescribed by the licensing authority. The law describes all the main types of licences and the procedure for obtaining a licence, etc. The Edict provides an opportunity to apply for a licence not only to companies of the Republic of Belarus, but to companies of foreign countries.
A licence should be obtained for each type of activity that is listed in the law of the Republic of Belarus. Each licence should contain the following information:
1. name of the authority issuing the licence;
2. the licence number;
3. the name of the licensed activity;
4. information about the licensee（name and address of an organisation, or the surname, name, patronymic, residence registration of a person, including an entrepreneur and the account number）;
5. the number of the licence and the date of the decision to issue the licence, to extend its validity period, to modify or amend or add to the licence;
6. the period of validity of the licence;
7. registration number of the licence in the register of licences;
8. information about the components of the licensed activity, works and/or services for which the licence is issued, the special licensing requirements and conditions described in the licence, if any;
9. information on the representation of the foreign organisation, including branches（name and address）, indicating the components of the licensed activity works and or services, if they are defined by the Edict.or each separate division, including the branch;
10. information regarding the territory in respect of which the licence has been granted, unless the Edict provides that a particular activity in respect of which a licence has been granted must take place in the territory of the Republic of Belarus;
11. acknowledgement by the applicant for the licence that they are conversant with the applicable law, and the terms and conditions that apply to the activity for which the licence application was made.
The authority must retain a copy of every licence they grant. The licence is valid in the entire territory of the Republic of Belarus or part of it as determined by the licence unless the legislation provides otherwise. The licence only certifies the type of activity and work and/or services constituting the relevant activity, to which the licence relates. It does not affect the need for the licensee to comply with the requirements of any other law. The licensed activity, as well as the work and/or services relating to the licensed activity, may be carried out from the date of obtaining a licence for the period specified in the licence. A licence issued in compliance with the Presidential Edict is valid for a period of not less than five years but not exceeding 10 years, unless otherwise provided by the President of the Republic of Belarus. If needed, the licence may be amended or altered.
2.2 Licensing in the field of environmental protection
Licensing plays a very important part in environmental protection, as it can control and regulate activities which are likely to adversely affect the environment. The complex process of ensuring that an applicant for a licence is able to meet all the criteria for the grant of a licence, that the licensee duly observes licence conditions, and the environment authority has the power to monitor such observance with a view to taking enforcement and remedial measures, plays an important part in environmental regulation. Basically the licensing regime ensures that natural resources are exploited and used in a rational manner promoting sustainable development.
The provisions relating to licensing, including in the field of environmental regulation, are contained in the regulation approved by the Edict of the President of the Republic of Belarus of 1 September 2010, No. 450 on licensing of certain types of activities.
In this sphere the following activities should be licensed:activities which are likely to have a significant impact on the environment; activities in the field of nuclear energy and ionising radiation sources; activities relating to the control of radioactive pollution. Previously a licence was required for activities relating to the use of certain natural resources（such as timber harvesting activities）. Current legislation does not contain such a requirement.
The authors observe the following as the criteria for determining the types of activities that have to be licensed in the field of environmental protection:a threat to environmental safety; the need to limit human exposure, which arises as a result of the activity; the need to ensure that the entity performing the activity meets the requirement that it has in its employed persons with required skills and possesses required equipment and technical knowhow.
The responsibility for licensing activities that might have an impact on the environment is with the Ministry of Environment.
The types of activities that require a licence are:
1. handling of ozone-depleting substances;
2. handling of waste in 1-3 classes of danger, decontamination and disposal of waste.
Listed under the heading“handling of ozone-depleting substances”are:the collection, storage, use, recycling, recovery, disposal, recycling, import, export of ozone-depleting substances and transactions, as well as import, export of products, containing ozone-depleting substances, and transactions.
Under the heading“handling of waste”are listed:the use of waste in the production of energy, works and services. Waste treatment is defined as an activity aimed at processing, incineration or disposal of waste by other means, including those leading to the reduction of waste volume and/or liquidation of their dangerous properties, not related to their use. Waste disposal, on the other hand, is waste isolation on waste disposal sites, in order to prevent the harmful effects of waste products and their interaction with/or the expansion on the environment, and people's health or property, without providing for the possibility of their further use. Radioactive waste does not belong to this class of activity.
It is not necessary to obtain a licence to handle waste of 1-3 hazard classes by a company, a foreign organisation or entrepreneur, if such waste was formed, as a result of their activities of disposal of waste in the process of research and development work; and of waste generation in such works.
Licensing activities in the field of nuclear energy and ionising radiation, as well as licensing in the field of the radioactive pollution, are carried out by the Ministry of Emergency Affairs. This type of licensed activity includes a wide range of components. Activities which require a licence are:activities in the field of nuclear energy（for example, operation of nuclear facilities, the treatment of nuclear fuel）;activities in the field of ionising radiation sources; activities in radioactive waste management（for example, neutralisation, processing, storage and disposal of radioactive waste）. This activity includes a radiation survey of areas, forests and bodies of water, buildings, equipment, vehicles, determination of radionuclides in forest products, agricultural, industrial and other products, building materials, water, soil, air, food, drug and technological raw materials, municipal waste and other facilities, as well as the determination of surface contamination and dose rate of gamma radiation. Licences in this sphere are issued for a period of five years.
2.3 General rules on the certification of goods
For member states of the Customs Union, the quality of goods is of crucial importance. All member states mutually recognise the results of certification（declaration of conformity）. However, not every certification would be recognised in the territory of the Customs Union, or the Republic of Belarus. There are certain requirements that have to be met in order for the certification to be recognised:
1. the technical requirements in respect of specific goods must be the same in all three member states of the Customs Union;
2. the product has to pass a test set by a certified laboratory in one of the member states of the Customs Union;
3. the certificate（declaration of conformity）has to be issued by a body certified in one of the member states of the Customs Union;
4. the certificate must be a unified Customs Union certificate.
There is no mandatory rule that certification must take place in a particular territory of the Union. Thus, a Belarusian producer may go through the certification process in any member state and use the certificate in the Republic of Belarus.
The unified Customs Union certificate（declaration of conformity）is valid within the whole customs territory of the Customs Union and is recognised without reissuance or compliance with any additional procedures. A single CU certificate may be granted not only to goods produced in the Customs Union, but also goods to be imported from third countries. However, this is not possible for the imported goods:only the certification procedure is possible.
Unfortunately, today the unified CU certification does not cover all types of the goods. Currently, the Customs Union is in process of setting out technical rules to establish common uniform requirements for all member states of the Customs Union.
As of 15 January 2012 the EEC had adopted 34 Customs Union technical rules on the following: safety of meat and meat products; safety of milk and milk products; safety of pressurised equipment; safety of railway rolling stock; safety of high-speed railway transport; safety of railway transport infrastructure; safety of low voltage equipment; safety of packages; safety of fireworks; safety of products, which are intended for children and adolescents; safety of toys; safety of perfumes and cosmetics; safety of machines and equipment; safety of lift; safety of equipment for work in explosive environments; requirements to automobile and aviation gasoline, diesel and marine fuel, jet fuel and heating oil; safety of motor road; safety of gas fired mechanisms（instruments）; safety of corn; safety of wheel（tire）transport（carrier vehicle）; technical order on oil-and-fat production; safety of food production; food production marking（marking of food production）; safety of light industry production; safety of body armour facilities; technical order on juice production（from）of fruits and vegetables; electromagnetic compatibility of technical facilities（tools）; safety of agricultural and forestry tractors and trailers; requirements for oils and special fluids; safety of food additives, flavourings and processing aids; the security of explosives based on them; safety of certain types of specialised food products, including dietary medical and dietary preventive nutrition; safety of small vessels; safety of furniture products.
2.4 Veterinary and sanitary measures, quarantine and phytosanitary measures, and technical measures to regulate the radiation requirements
When on 1 January 2015 the Treaty on the Eurasian Economic Union came into force,.he following, which were previously in force, were repealed.
1. the Customs Union Agreement on Veterinary and Sanitary Measures of 11 December 2009;
2. the Customs Union Agreement on Plant Quarantine of 11 December 2009;
3. the Customs Union Agreement on Sanitary Measures of 11 December 2009.
The main instruments now forming the legal base of the Customs Union in the direction of“sanitary measures”are:The decision of the EEC of 18 June 2010, No. 317, which approves the Uniform List of controllable goods of animal origin, as well as uniform requirements for all member states of the Customs Union..his sets out the veterinary rules and regulations: regulations establishing common veterinary（veterinary-sanitary）requirements and zoo hygienic standards, failure of which poses a threat to the emergence and spread of animal diseases, including those common to humans and animals.
Main rules on that are stipulated by the EEC. Importation of controllable goods must be accompanied by a permit issued by the relevant body of the Customs Union（issued for a term of one year in respect of the volume specified in the permit）and veterinary certificate issued by a competent body of the exporter.
Circulation of controllable goods within the Customs Union is made on the basis of single certificate, issued within the Customs Union.
With regard to plant products such as fruits, vegetables, flowers and other products, transport boxes, packaging, soil and organisms are in the Uniform List of controllable products and single requirements to relevant goods. Imported goods have to comply with phytosanitary requirements of the member states of the Customs Union where the point of destination of controllable products is located, and be accompanied by a phytosanitary certificate.