WT/DS499/R  
 
30 July 2018  
(18-4776) Page: 1/223 
    
 
 
  
 
 
RUSSIA – MEASUR ES AFFECTING THE IMP ORTATION OF  
RAILWAY EQUIPMENT AN D PARTS THEREOF  
FINAL REPORT OF THE PANEL  
BCI DELETED, AS INDICA TED BY [[XXX ]] 
  
 
 WT/DS499/ R 
 
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  TABLE OF CONTENTS  
 
1   INTRODUCTION  ................................ ................................ ................................ ........  20 
1.1   Complaint by Ukraine  ................................ ................................ ................................ ..20 
1.2   Panel establishment and composition  ................................ ................................ ............ 20 
1.3   Panel proceedings  ................................ ................................ ................................ .......20 
1.3.1    General  ................................ ................................ ................................ .................. 20 
1.3.2    Working procedures on Business Confidential Information (BCI)  ................................ ....21 
1.3.3    Preliminary ruling  ................................ ................................ ................................ ....21 
2   FACTUAL ASPECTS ................................ ................................ ................................ ..... 21 
3   PART IES' REQUESTS FOR FI NDINGS AND RECOMMEND ATIONS  ................................  22 
4   ARGUMENTS OF THE PAR TIES  ................................ ................................ ...................  23 
5   ARGUMENTS OF THE THI RD PARTIES  ................................ ................................ ........  23 
6   INTERIM REVIEW  ................................ ................................ ................................ ...... 23 
6.1   Panel's preliminary ruling  ................................ ................................ ............................ 23 
6.2   Ruling on a request to exclude two exhibits from the record  ................................ ............ 25 
6.3   Overview of claims and order of the Panel's analysis  ................................ ....................... 25 
6.4   Claims concerning the suspension of certificates  ................................ ............................. 26 
6.4.1    Measures at issue  ................................ ................................ ................................ ....26 
6.4.2    Consistency of the suspensions with Article 5.1.1 of the TBT Agreement  ......................... 27 
6.4.3    Consistency of the suspensions with Article 5.1.2 of the TBT Agreement  ......................... 29 
6.4.4    Consistency of the suspensions with Article 5.2.2 of the TBT Agreement  ......................... 32 
6.5   Claims concerning the rejections of applications for new certificates  ................................ .32 
6.5.1    Consistency of the rejections with Article 5.1.2 of the TBT Agreement  ............................ 32 
6.6   Claims concerning the non -recognition of CU certificates issued in other CU 
countries under CU Technical Regulation 001/ 2011 ................................ ................................ 33 
6.7   Claims concerning the alleged systematic import prevention  ................................ ............ 35 
7   FINDINGS  ................................ ................................ ................................ .................  37 
7.1   Preliminary matters  ................................ ................................ ................................ ....37 
7.1.1   Panel's preliminary ruling  ................................ ................................ .......................... 37 
7.1.1.1    Issue 1: Whether Ukraine's panel request fails to "present the problem clearly"  ............ 37 
7.1.1.1.1    Issue 1(a)  ................................ ................................ ................................ ......... 38 
7.1.1.1.2    Issue 1(b)  ................................ ................................ ................................ ......... 45 
7.1.1. 1.3   Issue 1(c)  ................................ ................................ ................................ ......... 48 
7.1.1.1.4    Issue 1(d)  ................................ ................................ ................................ ......... 50 
7.1.1.1.5    Issue 1(e)  ................................ ................................ ................................ ......... 51 
7.1.1.1.6    Issue 1(f)  ................................ ................................ ................................ .......... 54 
 Issue 2: Whether Ukraine's panel request expands the scope of the dispute  ................. 55 7.1.1.2   
7.1.1.2.1    Issue 2(a)  ................................ ................................ ................................ ......... 55 
7.1.1.2.2    Issue 2(b)  ................................ ................................ ................................ ......... 58 WT/DS499/ R 
 
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  7.1.1.2.3    Issue 2(c)  ................................ ................................ ................................ ......... 63 
7.1.2    Ruling on the breach of confidentiality  ................................ ................................ ........ 68 
7.1.2.1    Confidentiality of information submitted to and by the Panel  ................................ ......68 
 Alleged breaches of confidentiality  ................................ ................................ .......... 70 7.1.2.2   
7.1.2.2.1    Disclosure of parts of the Panel's timetable ................................ ............................ 70 
7.1.2.2.2    Disclosure of aspects of Russia's position  ................................ .............................. 71 
7.1.3    Ruling on a request to exclude two exhibits from the record  ................................ .......... 72 
7.1.3.1    Main arguments of the parties  ................................ ................................ ................ 72 
 Exclusion of evidence in WTO dispute settlement on procedural and other 7.1.3.2   
grounds  ................................ ................................ ................................ ............................ 73 
 Assessment of Russia's request  ................................ ................................ .............. 73 7.1.3.3   
7.1.4    Designation of information as Business Confidential Information (BCI)  ........................... 74 
7.2   Overview of claims and order of the Panel's analysis  ................................ ....................... 76 
7.3   Claims concerning the suspension of certificates  ................................ ............................. 78 
7.3.1    Measures at issue  ................................ ................................ ................................ ....78 
 Overview of Russia's legal framework on conformity assessment procedures  ................ 78 7.3.1.1   
 Challenged FBO instructions  ................................ ................................ ................... 80 7.3.1.2   
 Panel's terms of reference  ................................ ................................ ...................... 86 7.3.1.3  
7.3.2    Consistency of the suspensions with Article 5.1.1 of the TBT Agreement  ......................... 86 
 Interpretation  ................................ ................................ ................................ .......87 7.3.2.1   
7.3.2.1.1    Like products  ................................ ................................ ................................ .....88 
7.3.2.1.2    The importing Member grants access  for suppliers of products  from another 
Member under conditions less favourable  ................................ ................................ .............. 88 
7.3.2.1.3    The importing Member grants less favourable access conditions for suppliers 
of like products, " in a comparable situation"  ................................ ................................ .......... 92 
 Application  ................................ ................................ ................................ ........... 94 7.3.2.2   
7.3.2.2.1    Nature of the claims  ................................ ................................ ........................... 94 
7.3.2.2.2    Applicability of Article 5.1.1 and order of analysis  ................................ ................... 94 
7.3.2.2.3    Whether Russia has granted access  for specific suppliers of products from 
another Member under conditions less favourable  ................................ ................................ ..95 
7.3.2.2.4    Whether Russia has granted less favourable access conditions for specific 
suppliers of products, " in a comparable situation"  ................................ ................................ ..98 
7.3.2.2.4.1    Horizontal considerations  ................................ ................................ ................. 98 
7.3.2.2.4.2    Uncertainty with respect to the safety and security of FBO employees 
travelling to Ukraine to conduct inspections  ................................ ................................ .........  100 
7.3.2.2.4.3    Restrictions on Russian citizens entering Ukraine  ................................ ...............  106 
7.3.2.2.4.4    Overall assessment of the evidence submitted by the parties  ..............................  110 
7.3.2.2.5    Like product analysis  ................................ ................................ ........................  112 
7.3.2.2.6    Conclusion  ................................ ................................ ................................ ...... 113 
7.3.3    Consistency of the suspensions with Article 5.1.2 of the TBT Agreement  .......................  114 
 Interpretation  ................................ ................................ ................................ ..... 114 7.3.3.1   
7.3.3.1.1    Article 5.1.2, first sentence  ................................ ................................ ...............  115 WT/DS499/ R 
 
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  7.3.3.1.2    Article 5.1.2, second sentence  ................................ ................................ ...........  116 
7.3.3.1.3    Burden of proof  ................................ ................................ ................................  119 
 Application  ................................ ................................ ................................ .........  121 7.3.3.2   
7.3.3.2.1    Nature of the claims  ................................ ................................ .........................  121 
7.3.3.2.2    Applicability of Article 5.1.2 and order of analysis  ................................ .................  121 
7.3.3.2.3    Article 5.1.2, second sentence  ................................ ................................ ...........  121 
7.3.3.2.3.1    Contribution to giving Russia adequate confidence that the products 
conform to the technical regulations  ................................ ................................ ...................  122 
7.3.3.2.3.2    Strictness of the manner of applying the conformity assessment procedure  ..........  123 
7.3.3.2.3.3    Risks that non -conformity would create  ................................ ............................  124 
7.3.3.2.3.4    Less trade -restrictive manners of application  ................................ ....................  124 
7.3.3.2.3.5    Overall assessment of whether Ru ssia has applied its conformity assessment 
procedure more strictly than necessary ................................ ................................ ...............  138 
7.3.3.2.3.6    Conclusion  ................................ ................................ ................................ .... 139 
7.3.3.2.4    Article 5.1.2, first sentence  ................................ ................................ ...............  139 
7.3.3.2.5    Overall conclusion  ................................ ................................ ............................  139 
7.3.4    Consistency of the suspensions with Arti cle 5.2.2 of the TBT Agreement  .......................  139 
 Interpretation of the second and third obligations in Article 5.2.2  ..............................  140 7.3.4.1   
 Application of the third obligation in Article 5.2.2  ................................ ....................  142 7.3.4.2   
7.3.4.2.1    Applicability of Article 5.2.2  ................................ ................................ ...............  142 
7.3.4.2.2    Overview of relevant facts  ................................ ................................ .................  143 
7.3.4.2.3    Consistency with the third obligation in Article 5.2.2  ................................ .............  143 
7.3.4.2.4    Conclusion  ................................ ................................ ................................ ...... 146 
7.4   Claims concerning the rejections of applications for new certificates  ...............................  147 
7.4.1    Measures at issue  ................................ ................................ ................................ .. 147 
 Overview of CU legal framework on conformi ty assessment procedures  .....................  147 7.4.1.1   
 Challenged FBO decisions ................................ ................................ .....................  148 7.4.1.2   
 Panel's terms of reference  ................................ ................................ ....................  152 7.4.1.3   
7.4.2    Consistency of the rejections with Article 5.1.1 of the TBT Agreement  ..........................  152 
 Nature of the claims  ................................ ................................ ............................  152 7.4.2.1   
 Applicability of Article 5.1.1 and order of analysis  ................................ ...................  153 7.4.2.2   
 Decisions 1 and 2: Impossibility to carry out a certification procedure in full  ...............  154 7.4.2.3   
7.4.2.3.1    Whether Russia has granted access  for specific suppliers of products from 
another Member under conditions less favourable  ................................ ................................  154 
7.4.2.3.2    Whether Russia has granted less favourable access conditions for specific 
suppliers of products, " in a comparable situation"  ................................ ................................  156 
7.4.2.3.3    Like products analysis  ................................ ................................ .......................  157 
7.4.2.3.4    Conclusion  ................................ ................................ ................................ ...... 157 
 Decision 3: Absence of documents  ................................ ................................ ........  157 7.4.2.4   
7.4.2.4.1    Whether Russia has granted access  for specific suppliers of products from 
another Member under conditions less favourable  ................................ ................................  157 
 Overall Conclusion  ................................ ................................ ..............................  159 7.4.2.5   WT/DS499/ R 
 
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  7.4.3    Consistency of the rejections with Article 5.1.2 of the TBT Agreement  ..........................  159 
 Nature of the claims  ................................ ................................ ............................  159 7.4.3.1   
 Applicability of Article 5.1.2 and order of analysis  ................................ ...................  159 7.4.3.2   
 Decisions 1 and 2  ................................ ................................ ................................  160 7.4.3.3   
7.4.3.3.1    Article 5.1.2, second sentence  ................................ ................................ ...........  160 
7.4.3.3.1.1    Contribution to giving Russia adequate confidence that the products 
conform to the technical regulations  ................................ ................................ ...................  160 
7.4.3.3.1.2    Strictness of the manner of applying the conformity assessment procedure  ..........  162 
7.4.3.3.1.3    Risks that non -conformity would create  ................................ ............................  162 
7.4.3.3.1.4    Less trade -restrictive manners of application  ................................ ....................  162 
7.4.3.3.1.5    Overall assessment of whether Russia has applied its conformity assessment 
procedure more strictly than necessary ................................ ................................ ...............  172 
7.4.3.3.1.6    Conclusion  ................................ ................................ ................................ .... 173 
7.4.3.3.2    Article 5.1.2, first sentence  ................................ ................................ ...............  173 
7.4.3.3.3    Overall conclusion  ................................ ................................ ............................  174 
 Decision 3  ................................ ................................ ................................ ..........  174 7.4.3.4   
7.4.3.4.1    Article 5.1.2, second sentence  ................................ ................................ ...........  174 
7.4.3.4.1.1    Contribution to giving Russia adequate confidence that the products 
conform to the technical regulations  ................................ ................................ ...................  175 
7.4.3.4.1.2    Strictness of the manner of applying the conformity assessment procedure  ..........  176 
7.4.3.4.1.3    Risks that non -conformity would create  ................................ ............................  177 
7.4.3.4.1. 4   Less trade -restrictive manners of application  ................................ ....................  177 
7.4.3.4.1.5    Overall assessment of whether Russia has applied its conformit y assessment 
procedure more strictly than necessary ................................ ................................ ...............  178 
7.4.3.4.1.6    Conclusion  ................................ ................................ ................................ .... 178 
7.4.3.4.2    Article 5.1.2, first sentence  ................................ ................................ ...............  178 
7.4.3.4.3    Overall conclusion  ................................ ................................ ............................  179 
7.4.4    Consistency of the rejections with Article 5.2.2 of the TBT Agreement  ..........................  179 
 Application of the second and third obligations in Article 5.2.2  ................................ .. 179 7.4.4.1   
7.4.4.1.1    Applicability of Article 5.2.2  ................................ ................................ ...............  179 
7.4.4.1.2    Overview of relevant facts  ................................ ................................ .................  179 
7.4.4.1.3    Consistency with the third obligation in Article 5.2.2  ................................ .............  180 
7.4.4.1.3.1    Conclusion  ................................ ................................ ................................ .... 182 
7.4.4.1.4    Consistency with the second obligation in Article 5.2.2  ................................ ..........  182 
7.4.4.1.4.1    Conclusion  ................................ ................................ ................................ .... 185 
7.5   Claims concerning the non -recognition of CU certificates issued in other CU 
countries under CU Technical Regulation 001/ 2011 ................................ ..............................  186 
7.5.1    The measure at issue  ................................ ................................ .............................  186 
 Terms of reference  ................................ ................................ ..............................  187 7.5.1.1   
 Existence of the measure at issue  ................................ ................................ .........  190 7.5.1.2   
7.5.1.2.1    Conclusion  ................................ ................................ ................................ ...... 197 
7.5.2    Ukraine's claim under Article 2.1 of the TBT Agreement  ................................ ..............  198 WT/DS499/ R 
 
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   Obligation to ensure no less favourable treatment "in respect of technical 7.5.2.1   
regulations" ................................ ................................ ................................ .....................  199 
 Conclusion  ................................ ................................ ................................ .........  202 7.5.2.2   
7.5.3    Ukraine's claim under Article I:1 of the GATT 1994  ................................ ....................  202 
 Matters referred to in Article III:4 of the GATT 1994  ................................ ...............  203 7.5.3.1   
 Like imported produc ts ................................ ................................ ........................  203 7.5.3.2   
 Non-extension of an advantage  ................................ ................................ ............  205 7.5.3.3   
 Conclusion  ................................ ................................ ................................ .........  206 7.5.3.4   
7.5.4    Ukraine's claim under Article III:4 of the GATT 1994  ................................ ..................  206 
 Internal requirement affecting the internal sale and offerin g for sale  .........................  206 7.5.4.1   
 Like imported and domestic products  ................................ ................................ .... 207 7.5.4.2   
 Less favourable treatment  ................................ ................................ ....................  208 7.5.4.3   
 Conclusion  ................................ ................................ ................................ .........  209 7.5.4.4   
7.5.5    Claim under Article X:3(a) of the GATT 1994  ................................ .............................  209 
 Conclusion  ................................ ................................ ................................ .........  210 7.5.5.1   
7.6   Claims concerning the alleged systematic import prevention  ................................ ..........  210 
7.6.1    Measure at issue  ................................ ................................ ................................ .... 211 
 Ascertaining the existence of an unwritten systemati c measure  ................................  211 7.6.1.1   
 Precise content and evidence of the existence of the measure  ................................ .. 212 7.6.1.2   
7.6.1.2.1    The components of the measure and its systematic nature  ................................ .... 212 
7.6.1.2.2    Import trade data  ................................ ................................ ............................  218 
7.6.1.2.3    Overall assessment of the evidence submitted  in support of the existence of 
the measure  ................................ ................................ ................................ ....................  221 
7.6.2    Conclusion  ................................ ................................ ................................ ............  221 
8   CONCLUSIONS AND RECO MMENDATION  ................................ ................................ . 222  
 
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  LIST OF ANNEXES  
ANNEX A  
PRELIMINARY RULING  
Contents  Page  
Annex  A-1 Preliminary Ruling by the Panel (Conclusions)  A-2 
 
 
ANNEX  B 
WORKING PROCEDURES O F THE PANEL  
Contents  Page  
Annex  B-1 Working Procedures of the Panel  B-2 
Annex  B-2 Additional Working Procedures concerning  Business Confidential Information ( BCI) B-7 
ANNEX C 
ARGUMENTS OF THE PAR TIES 
UKRAINE  
Contents  Page  
Annex  C-1 First part of  the executive summary of the arguments of Ukraine  C-2 
Annex  C-2 Second part of the  executive summary of the arguments of Ukraine  C-11 
 
RUSSIAN FEDERATION  
Contents  Page  
Annex  C-3 First part of the executive summary of the arguments of the Russian  Federation  C-21 
Annex  C-4 Second part of the executive summary of the arguments of the Russian  Federation  C-31 
ANNEX  D 
ARGUMENTS OF THE THI RD PARTIES  
Contents  Page  
Annex  D-1 Execut ive summary of the arguments of Canada  D-2 
Annex  D-2 Executive summary of the arguments of the European Union  D-6 
Annex  D-3 Executive summary of the arguments of Indonesia  D-10 
Annex  D-4 Executive summary of the arguments of Japan  D-11 
Annex  D-5 Executive summary of the arguments of the United States  D-16 
 
 WT/DS499/ R 
 
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  CASES CITED IN THIS REPORT  
Short title  Full case title and citation  
Argentina – Financial 
Services  Appellate Body Report, Argentina – Measures Relating to Trade in Goods and 
Services , WT/DS453/AB/R and Add.1, adopted 9 May 2016  
Argentina – Import 
Measures  Appellate Body Report, Argentina – Measures Affecting the Importation of 
Goods , WT/DS438/AB/R / WT/DS444/AB/R / WT/DS445/AB/R, adopted 26 
January 2015  
Argentina – Hides and 
Leather  Panel Report, Argentina – Measures Affecting the Export of Bovine Hides and 
the Import of Finished Leather , WT/DS155/R and Corr.1, a dopted 16 February 
2001, DSR 2001:V, p. 1779  
Australia – Apples  Australia – Measures Affecting the Importation of Apples from New Zealand , 
WT/DS367/R, adopted 17 December 2010, as modified by Appellate Body 
Report WT/DS367/AB/R, DSR 2010:VI, p. 2371  
Australia – Salmon  Appellate Body Report, Australia – Measures Affecting Importation of Salmon , 
WT/DS18/AB/R, adopted 6 November 1998, DSR 1998:VIII, p. 3327  
Brazil – Aircraft  Appellate Body Report, Brazil – Export Financing Programme for Aircraft , 
WT/DS46/AB/R, adopted 20 August 1999, DSR 1999:III, p. 1161  
Canada – Autos   
 Panel Report, Canada – Certain Measures Affecting the Automotive Industry , 
WT/DS139/R, WT/DS142/R, adopted 19 June 2000, as modified by Appellate 
Body Report WT/DS139/AB/R, WT/DS142/AB/R, DSR 2000:VII, p. 3043  
Canada – Continued 
suspension  Panel Report, Canada – Continued Suspension of Obligations in the EC – 
Hormones Dispute , WT/DS321/R and Add.1 to Add.7, adopted 14 November 
2008, as modified by Appellate Body Report WT/DS 321/AB/R, DSR 2008:XV, p. 
5757 
Canada – Wheat Exports 
and Grain Imports  Appellate Body Report, Canada – Measures Relating to Exports of Wheat and 
Treatment of Imported Grain , WT/DS276/AB/R, adopted 27 September 2004, 
DSR 2004:VI, p. 2739  
Canada – Wheat E xports 
and Grain Imports  Panel Report, Canada – Measures Relating to Exports of Wheat and Treatment 
of Imported Grain , WT/DS276/R, adopted 27 September 2004, upheld by 
Appellate Body Report WT/DS276/AB/R, DSR 2004:VI, p. 2817  
Chile – Alcoholic Beverages  Panel Report, Chile – Taxes on Alcoholic Beverages , WT/DS87/R, WT/DS110/R, 
adopted 12 January 2000, as modified by Appellate Body Report 
WT/DS87/AB/R, WT/DS110/AB/R, DSR 2000:I, p. 303  
China – Publications and 
Audiovisual Products  Panel Report , China – Measures Affecting Trading Rights and Distribution  
Services for Certain Publications and Audiovisual Entertainment Products, 
WT/DS363/R and Corr.1, adopted 19 January 2010, as modified by Appellate 
Body Report WT/DS363/AB/R, DSR 2010:II, p. 261  
China – Raw Materials  Appellate Body Reports,  China – Measures Related to the Exportation of Various 
Raw Materials , WT/DS394/AB/R / WT/DS395/AB/R / WT/DS398/AB/R, adopted 
22 February 2012, DSR 2012:VII, p. 3295  
Colombia – Ports of Entry  Panel Report, Colombia – Indicative Prices and Restrictions on Ports of Entry , 
WT/DS366/R and Corr.1, adopted 20 May 2009, DSR 2009:VI, p. 2535  
Dominican Republic – 
Import and Sale of 
Cigarettes  Appellate Body Report, Dominican Republic – Measures Affecting the 
Importation and Internal Sale of Cigarettes , WT/DS302/AB/R, adopted 19 May 
2005, DSR 2005:XV, p. 7367  
EC – Approval and 
Marketing of Biotech 
Products  Panel Reports, European Communities – Measures Affecting the Approval and 
Marketing of Biotech Products , WT/DS291/R, Add.1 to Add.9 and Corr.1 / 
WT/DS292/R, Add.1 to Add.9 and Corr.1 / WT/DS293/R, Add.1 to Add.9 and 
Corr.1, adopted 21 November 2006, DSR 2006:III, p. 847  
EC – Asbestos  Appellate Body Report, European Communities – Measures Affecting Asbestos 
and Asbestos -Containing Products , WT/DS135/AB/R, adopted 5 April 2001, DSR 
2001:VII, p. 3243  WT/DS499/ R 
 
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  Short title  Full case title and citation  
EC – Computer Equipment  Appellate Body Report, European Communities – Customs Classification of 
Certain Computer Equipment , WT/DS62/AB/R, WT/DS67/AB/R, WT/DS68/AB/R, 
adopted 22 June 1998, DSR 1998:V, p. 1851  
EC – Chicken Cuts  Appellate Body Report, European Communities – Customs Classification of 
Frozen Boneless Chicken Cuts , WT/DS269/AB/R, WT/DS286/AB/R, adopted 27 
September 2005, and Corr.1, DSR 2005:XIX, p. 9157  
EC – Export Subsidies on 
Sugar (Australia)  Panel Report, European Communities – Export Subsidies on Sugar, Complaint 
by Australia , WT/DS265/R, adopted 19 May 2005, as modified by Appellate 
Body Report WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R, DSR 
2005:XIII, p. 6499 
EC – Export Subsidies on 
Sugar (Brazil)  Panel Report, European Communities – Export Subsidies on Sugar, Complaint 
by Brazil , WT/DS266/R, adopted 19 May 2005, as modified by Appellate Body 
Report WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R, DSR 2005:X IV, p. 
6793 
EC – Export Subsidies on 
Sugar (Thailand)  Panel Report, European Communities – Export Subsidies on Sugar, Complaint 
by Thailand , WT/DS283/R, adopted 19 May 2005, as modified by Appellate 
Body Report WT/DS265/AB/R, WT/DS266/AB/R, WT/DS283/AB/R,  DSR 
2005:XIV, p. 7071  
EC – Hormones  Appellate Body Report, EC Measures Concerning Meat and Meat Products  
(Hormones) , WT/DS26/AB/R, WT/DS48/AB/R, adopted 13 February 1998, DSR 
1998:I, p. 135  
EC – IT Products  Panel Reports, European Communities and its me mber States – Tariff 
Treatment of Certain Information Technology Products , WT/DS375/R / 
WT/DS376/R / WT/DS377/R, adopted 21 September 2010, DSR 2010:III, p. 
933 
EC and certain membe r 
States – Large Civil Aircraft  Appellate Body Report, European Communities and Certain Member States – 
Measures Affecting Trade in Large Civil Aircraft , WT/DS316/AB/R, adopted 1 
June 2011, DSR 2011:I, p. 7  
EC – Sardines  Appellate Body Report, European Communities – Trade Description of Sardines , 
WT/DS231/AB/R, adopte d 23 October 2002, DSR 2002:VIII, p. 3359  
EC – Sardines  Panel Report, European Communities – Trade Description of Sardines,  
WT/DS231/R and Corr.1, adopted 23 October 2002, as modified by Appellate 
Body Report WT/DS231/AB/R, DSR 2002:VIII, p. 3451  
EC – Seal Products  Appellate Body Reports, European Communities – Measures Prohibiting the 
Importation and Marketing of Seal Products , WT/DS400/AB/R / 
WT/DS401/AB/R, adopted 18 June 2014, DSR 2014:I, p. 7  
EC – Selected Customs 
Matters  Appellate Body Report, European Communities – Selected Customs Matters , 
WT/DS315/AB/R, adopted 11 December 2006, DSR 2006:IX, p. 3791  
EC – Tariff Preferences  Appellate Body Report, European Communities – Conditions for the Granting of 
Tariff Preferences to Developing Countries , WT/DS246/AB/R, adopted 20 April 
2004, DSR 2004:III, p. 925  
EC - Trademarks and 
Geographical Indications 
(Australia)  Panel Report, European Communities – Protection of Trademarks and 
Geographical Indications for Agricultural Products and Foodstuffs , Compl aint by 
Australia, WT/DS290/R, adopted 20 April 2005, DSR 2005:X, p. 4603  
India – Additional Import 
Duties  Appellate Body Report, India – Additional and Extra -Additional Duties on 
Imports from the United States, WT/DS360/AB/R, adopted 17 November 2008, 
DSR 2008:XX, p. 8223  
India – Agricultural Products  Panel Report, India – Measures Concerning the Importation of Certain 
Agricultural Products , WT/DS430/R and Add.1, adopted 19 June 2015, as 
modified by Appellate Body Report WT/DS430/AB/R  
India – Solar Cells Panel Report, India – Certain Measures Relating to Solar Cells and Solar 
Modules , WT/DS456/R and Add.1, adopted 14 October 2016, as modified by  
Appellate Body Report WT/DS456/AB/R  
Indonesia – Chicken  Panel Report, Indonesia – Measures Concerning the  Importation of Chicken 
Meat and Chicken Products , WT/DS484/R and Add.1, adopted 22 November 
2017 WT/DS499/ R 
 
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  Short title  Full case title and citation  
Korea – Various Measures 
on Beef  Appellate Body Report, Korea – Measures Affecting Imports of Fresh, Chilled 
and Frozen Beef , WT/DS161/AB/R, WT/DS169/AB/R, adopted 10 January 2001, 
DSR 2001:I, p. 5  
Mexico – Anti-Dumping 
Measures on Rice  Appellate Body Report, Mexico – Definitive Anti -Dumping Measures on Beef and 
Rice, Complaint with Respect to Rice , WT/DS295/AB/R, adopted 20 December 
2005, DSR 2005:XXII, p. 10853  
Russia – Tariff Treatment  Panel Report, Russia – Tariff Treatment of Certain Agricultural and 
Manufacturing Products,  WT/DS485/R, Corr.1, Corr.2, and Add.1, adopted 26 
September 2016  
Russia – Pigs (EU)  Panel Report, Russian Federation – Measures on  the Importation of Live Pigs, 
Pork and Other Pig Products from the European Union , WT/DS475/R and Add.1, 
adopted 21 March 2017, as modified by Appellate Body Report WT/DS475/AB/R  
Thailand – Cigarettes 
(Philippines)  Panel Report, Thailand – Customs and Fiscal Measures on Cigarettes from the 
Philippines , WT/DS371/R, adopted 15 July 2011, as modified by Appellate Body 
Report WT/DS371/AB/R, DSR 2011:IV, p. 2299  
Thailand – H-Beams  Appellate Body Report, Thailand – Anti-Dumping Duties on Angles, Shapes and 
Sections of Iron or Non -Alloy Steel and H -Beams from Poland , 
WT/DS122/AB/R, adopted 5 April 2001, DSR 2001:VII, p. 2701  
US – Anti-Dumping and 
Countervailing Duties 
(China)  Appellate Body Report, United States – Definitive Anti -Dumping and 
Countervailing D uties on Certain Products from China , WT/DS379/AB/R, 
adopted 25 March 2011, DSR 2011:V, p. 2869  
US – Anti-Dumping 
Measures on Oil Country 
Tubular Goods  Appellate Body Report, United States – Anti-Dumping Measures on Oil Country 
Tubular Goods (OCTG) from M exico, WT/DS282/AB/R, adopted 28 November 
2005, DSR 2005:XX, p. 10127  
US – Carbon Steel  Appellate Body Report, United States – Countervailing Duties on Certain 
Corrosion -Resistant Carbon Steel Flat Products from Germany , WT/DS213/AB/R 
and Corr.1, adopted 19 December 2002, DSR 2002:IX, p. 3779  
US – Clove Cigarettes  Appellate Body Report, United States – Measures Affecting the Production and 
Sale of Clove Cigarettes , WT/DS406/AB/R, adopted 24 April 2012, DSR 
2012:XI, p. 5751  
US – Continued Suspension  Appellate Body Report, United States – Continued Suspension of Obligations in 
the EC – Hormones Dispute , WT/DS320/AB/R, adopted 14 November 2008, 
DSR 2008:X, p. 3507  
US – Continued Zeroing  Appellate Body Report, United States – Continued Existence and Application of 
Zeroing Methodology,  WT/DS350/AB/R, adopted 19 February 2009, DSR 
2009:III, p. 1291  
US – COOL (Ar ticle 21.5 – 
Canada and Mexico)  Appellate Body Reports, United States – Certain Country of Origin Labelling 
(COOL) Requirements – Recourse to A rticle 21.5 of the DSU by Canada and 
Mexico , WT/DS384/AB/RW / WT/DS386/AB/RW, adopted 29 May 2015  
US – Countervailing and 
Anti-Dumping Measures 
(China)  Appellate Body Report, United States – Countervailing and Anti -Dumping 
Measures on Certain Products from China , WT/DS449/AB/R and Corr.1, 
adopted 22 July 2014, DSR 2014:VIII, p. 3027  
US – FSC (Article 21.5 – 
EC II) Panel Report, United States – Tax Treatment for "Foreign Sales Corporations" – 
Second Recourse to Article 21.5 of the DSU by the European Co mmunities , 
WT/DS108/RW2, adopted 14 March 2006, upheld by Appellate Body Report 
WT/DS108/AB/RW2, DSR 2006:XI, p. 4761  
US – Gambling  Appellate Body Report, United States – Measures Affecting the Cross -Border 
Supply of Gambling and Betting Services , WT/DS28 5/AB/R, adopted 20 April 
2005, DSR 2005:XII, p. 5663 (and Corr.1, DSR 2006:XII, p. 5475)  
US – Gambling (Article 21.5 
– Antigua and Barbuda)  Panel Report, United States – Measures Affecting the Cross -Border Supply of 
Gambling and Betting Services – Recourse to Article 21.5 of the DSU by 
Antigua and Barbuda , WT/DS285/RW, adopted 22 May 2007, DSR 2007:VIII, p. 
3105 
US – Gasoline  Panel Report , United States – Standards for Reformulated and Conventional 
Gasoline,  WT/DS2/R, adopted 20 May 1996, as modified by Appellate Body 
Report WT/DS2/AB/R, DSR 1996:I, p. 29  WT/DS499/ R 
 
- 11 - 
 
 
  Short title  Full case title and citation  
US – Oil Country Tubular 
Goods Sunset Reviews  Appellate Body Report, United States – Sunset Reviews of Anti -Dumping 
Measures on Oil Country Tubular Goods f rom Argentina , WT/DS268/AB/R, 
adopted 17 December 2004, DSR 2004:VII, p. 3257  
US – Poultry (China)   
 Panel Report, United States – Certain Measures Affecting Imports of Poultry 
from China , WT/DS392/R, adopted 25 October 2010, DSR 2010:V, p. 1909  
US – Shrimp (Thailand) / US 
– Customs Bond Directive  Appellate Body Report, United States – Measures Relating to Shrimp from 
Thailand / United States – Customs Bond Directive for Merchandise Subject to 
Anti-Dumping/Countervailing Duties , WT/DS343/AB/R / WT/DS345/A B/R, 
adopted 1 August 2008, DSR 2008:VII, p. 2385 / DSR 2008:VIII, p. 2773  
US – Steel Safeguards  Panel Reports, United States – Definitive Safeguard Measures on Imports of 
Certain Steel Products , WT/DS248/R and Corr.1 / WT/DS249/R and Corr.1 / 
WT/DS251/R and Corr.1 / WT/DS252/R and Corr.1 / WT/DS253/R and Corr.1 / 
WT/DS254/R and Corr.1 / WT/DS258/R and Corr.1 / WT/DS259/R and Corr.1, 
adopted 10 December 2003, as modified by Appellate Body Report 
WT/DS248/AB/R, WT/DS249/AB/R, WT/DS251/AB/R, WT/DS252/AB/R, 
WT/DS253/AB/R, WT/DS254/AB/R, WT/DS258/AB/R, WT/DS259/AB/R, DSR 
2003:VIII, p. 3273  
US – Tuna II (Mexico)  Appellate Body Report, United States – Measures Concerning the Importation, 
Marketing and Sale of Tuna and Tuna Products , WT/DS381/AB/R, adopted 13 
June 2012, DSR 2012:IV, p. 1837  
US – Tuna II (Mexico) 
(Article 21.5 – Mexico)  Appellate Body Report, United States – Measures Concerning the Importation, 
Marketing and Sale of Tuna and Tuna Products – Recourse to Article 21.5 of the 
DSU by Mexico , WT/DS381/ AB/RW and Add.1, adopted 3 December 2015  
US – Underwear  Panel Report, United States – Restrictions on Imports of Cotton and Man -made 
Fibre Underwear , WT/DS24/R, adopted 25 February 1997, as modified by 
Appellate Body Report WT/DS24/AB/R, DSR 1997:I, p. 31  
US – Upland Cotton  Appellate Body Report, United States – Subsidies on Upland Cotton , 
WT/DS267/AB/R, adopted 21 March 2005, DSR 2005:I, p. 3  
US – Upland Cotton  Panel Report, United States – Subsidies on Upland Cotton , WT/DS267/R, Add.1 
to Add.3 and Corr.1, adopted 21 March 2005, as modified by Appellate Body 
Report WT/DS267/AB/R, DSR 2005:II, p. 299  
US – Wool Shirts and 
Blouses  Appellate Body Report, United States – Measure Affecting Imports of Woven 
Wool Shirts and Blouses from India , WT/DS33/AB/R,  adopted 23 May 1997, 
and Corr.1, DSR 1997:I, p. 323  
US – Zeroing (EC)  Appellate Body Report, United States – Laws, Regulations and Methodology for 
Calculating Dumping Margins ("Zeroing") , WT/DS294/AB/R, adopted 9 May 
2006, and Corr.1, DSR 2006:II, p. 417  
US – Zeroing (Japan) 
(Article 21.5 – Japan)  Appellate Body Report, United States – Measures Relating to Zeroing and 
Sunset Reviews – Recourse to Article 21.5 of the DSU by Japan , 
WT/DS322/AB/RW, adopted 31 August 2009, DSR 2009:VIII, p. 3441  
US – Zeroing (Japan)  
 Appellate Body Report, United States – Measures Relating to Zeroing and 
Sunset Reviews , WT/DS322/AB/R, adopted 23 January 2007, DSR 2007:I, p. 3  
 WT/DS499/ R 
 
- 12 - 
 
 
  EXHIBITS REFERRED TO  IN THIS REPORT  
Panel Exhibit  Title Short Title  
UKR-1 Federal Law No. 184 -FZ "On Technical Regulation " of 
27 December 2002  Law No . 184 "On Technical 
Regulation"   
UKR-2 "Rules of the Certification System for Federal Railway 
Transport of the Russian Federation. General provisions " 
approved by the Ministry of Railways of the Russian 
Federation on 12 November 1996  CS FRT 01 -96 
UKR-3 (Corr.)  "Rules of the Certification System for Federal Railway 
Transport. Procedure for organizing and conducting an 
inspection control. " ("CS FRT 12 -2003") CS FRT 12 -2003 
UKR-5 Treaty on the Eurasian Economic Union  EAEU Treaty  
UKR-9 (Corr.)  Technical Regulation 001/2011 "On the safety of railway 
rolling stock"  CU Technical Regulation 
001/2011  
UKR-10 (Corr.)  Technical Regulation 002/2011 "On high-speed rail safety"  CU Technical Regulation 
002/2011  
UKR-11 (Corr.)  Technical Regulation 003/2011 "On the safety of rail 
transport infrastructure"  CU Technical Regulation 
003/2011  
UKR-12  Extract of  the FBO's Register   
UKR-13  Extract of Unified Register of Issued Certificates of 
Conformity and Registered Declarations of Conformity  Extract of Unified Register  
UKR-14 Export data from International Trade Centre for customs 
code 86  
UKR-15(BCI)  Letter [[ xxx]] from the FBO to PJSC [[xxx]] with instruction 
[[xxx]] attached, 8 August 2014  Letter [[xxx]] from the FBO 
of 8 August 2014  
UKR-16(BCI)  Letter [[ xxx]] from the FBO to PJSC [[xxx]], 2 October 2014  Letter [[ xxx]] from the FBO 
of 2 October 2014  
UKR-17(BCI)  Letter [[ xxx]] from PJSC [[xxx]] to the FBO, 12 May 2014   
UKR-18(BCI ) 
(Corr.)  Letter [[ xxx]] from PJSC [[xxx]] to the FBO   
UKR-19(BCI)  
(Corr.)  Letter [[ xxx]] from the FBO to PJSC [[xxx]] with instruction 
[[xxx]] attached, 3 October 2014  Letter [[xxx]] from the FBO 
of 3 October 2014  
UKR-20(BCI)  Letter [[ xxx]] from the FBO to PJSC [[xxx]] with instruction 
[[xxx]] attached, 27 February 2015  Letter [[ xxx]] from the FBO 
of 27 February 2015  
UKR-21(BCI)  Letter [[ xxx]] from PJSC [[xxx]] to the FBO, 13 March 2015   
UKR-22(BCI)  Letter [[ xxx]] from the FBO to PJSC [[xxx]], 26 March 2015   
UKR-23(BCI)  Letter [[ xxx]] from the FBO to PJSC [[xxx]], 9 February 2015  Letter [[ xxx]] from the FBO 
of 9 February 2015  
UKR-25(BCI)  Letter [[ xxx]] from the FBO to PJSC [[xxx]] with instruction 
[[xxx]] attached, 17 July 2014  Letter [[ xxx]] from the FBO 
of 17 July 2014  
UKR-28(BCI)  Letter [[ xxx]] from the FBO to PJSC [[xxx]], 1 August 2014   
UKR-30(BCI) 
(Corr.)  Letter from State Border Service of Ukraine to PJSC [[xxx]]   
UKR-31(BCI)  Letter [[ xxx]] from the FBO to PJSC [[xxx]] with instruction 
[[xxx]] attached, 11 February 2015  Letter [[ xxx]] from the FBO 
of 11 February 2015  
UKR-32(BCI)  Letter [[ xxx]] from the FBO to PJSC [[xxx]], 23 January 2015  Letter [[ xxx]] from the FBO 
of 23 January 2015  
UKR-33(BCI)  Letter [[ xxx]] from LLC [[xxx]] to the FBO, 14 April 2015   
UKR-34(BCI)  Letter [[ xxx]] from PJSC [[xxx]] to the FBO, 30 December 
2014   
UKR-35(BCI)  Letter [[ xxx]] from PJSC [[xxx]] to the FBO, 22 January 2015   
UKR-36(BCI)  Letter [[ xxx]] from the FBO to PJSC [[xxx]] with instruction 
[[xxx]] attached, 27 January 2015  Letter [[ xxx]] from the FBO 
of 27 January 2015  
UKR-37(BCI)  Letter [[ xxx]] from the FBO to PJSC [[xxx]] with instruction 
[[xxx]] attached, 11 February 2015  Letter [[ xxx]] from the FBO 
of 11 February 2015  
UKR-39(BCI)  Letter [[ xxx]] from the FBO to PJSC [[xxx]] with instruction 
[[xxx]] attached, 8 October 2014  Letter [[ xxx]] from the FBO 
of 8 October 2014  
UKR-40(BCI)  Letter [[ xxx]] from the FBO to PJSC [[xxx]] with instruction 
[[xxx]] attached, 9 October 2014  Letter [[ xxx]] from the FBO 
of 9 October 2014  
UKR-41(BCI)  Letter [[ xxx]] from PJSC [[xxx]] to the FBO, 10 October 2014   
UKR-42(BCI)  Letter [[ xxx]] from the FBO to PJSC  [[xxx]] with instruction 
[[xxx]] attached, 11 February 2015  Letter [[ xxx]] from the FBO 
of 11 February 2015  
UKR-43(BCI)  Letter [[ xxx]] from the FBO to PJSC [[xxx]] with instruction 
[[xxx]] attached, 18 May 2015  Letter [[ xxx]] from the FBO 
of 18 May 2015  WT/DS499/ R 
 
- 13 - 
 
 
  Panel Exhibit  Title Short Title  
UKR-45(BCI) 
(Corr.)  Letter [[ xxx]] from the FBO to PJSC [[xxx]] with instruction 
[[xxx]] attached, 8 June 2015  Letter [[ xxx]] from the FBO 
of 8 June 2015  
UKR-46(BCI)  Letter [[ xxx]] from the FBO to PJSC [[xxx]] with instruction 
[[xxx]] attac hed, 6 July 2015  Letter [[ xxx]] from the FBO 
of 6 July 2015  
UKR-47(BCI)  Letter [[ xxx]] from the FBO to PJSC [[xxx]] with instruction 
[[xxx]] attached, 7 September 2015  Letter [[ xxx]] from the FBO 
of 7 September 2015  
UKR-48(BCI)  Letter from the Federal Railway Transport Administration of 
the Ministry of Transport of the Russian Federation to JSC 
[[xxx]] accompanied to Protocol No. A 4 -3 of 20 January 
2015 of the Ministry of Transport of the Russian Federation 
regarding issuance by  the certification authority of the 
Customs Union of the certificates of conformity for products 
manufactured by third -countries  Cover letter and Protocol 
No. A-4-3 of 20 January 
2015 
UKR-49(BCI) 
(Corr.)  Letter from the Federal Agency for Railway Transport to 
company  [[xxx]] – on validity of certificates, 4 February 201 6   
UKR-50 "Between two stools: Ukraine says EU trade deal certain, 
Russia –led union also an option ", RT, 25 Sep, 2013   
UKR-51 "Minister  of the EEC: exports of goods from the Customs 
Union to Ukraine could be complicated ", Chamber of 
Commerce of the Russian Federation, 30 September 2013   
UKR-52 Irina Ksayanova, "Glazyev: Euromissioners receive good fees 
for involving Ukraine ", Vesti, Dec ember 14, 2013   
UKR-53 Extract of the FBO's Register concerning European producers   
UKR-54 (Corr.)  Extract of Unified Register of Issued Certificates of 
Conformity and Registered Declarations of Conformity 
concerning European producers   
UKR-55 Extract of the FBO's Register concerning Kazakh producers   
UKR-56 Extract of Unified Register of Issued Certificates of 
Conformity and Registered Declarations of Conformity 
concerning Kazakh producers   
UKR-57 Extract of the FBO's Register concerning Belarusian producers   
UKR-58 Extract of Unified Register of Issued Certificates of 
Conformity and Registered Declarations of Conformity 
concerning Belarusian producers   
UKR-59(Corr.)  Resolution of Cabinet of Ministers of Ukraine "On the list of 
settlements in the territory where anti -terrorist operation is 
carried out, and declare invalid some orders of the Cabinet of 
Ministers of Ukraine ", No. 1275 -р, 2 December 2015   
UKR-60  Extract of the FBO's Register concerning Russian producer s  
UKR-61 Certificate [[xxx]]   
UKR-62(BCI)  List of producers holding certificates in 2013 and 2017   
UKR-63(BCI)  Map of Ukraine indicating producers holding certificates in 
2017   
UKR-64 Dmytro Kostyuk (First Deputy Director of JSC  [[xxx]] ), 
"Results of the year for Ukrainian heavy manufacturing ", 29 
December 2014   
UKR-65 Olga Levkovich, "Infographics: what 's happening to import 
and export in Ukraine ", 1 October 2015   
UKR-66(BCI)  Decision [[ xxx]] of the FBO dated 21 January 2015   
UKR-67 Certificate [[xxx]]   
UKR-68 Tehnomashkomplekt 's shop webpage   
UKR-69 Certificate [[xxx]]   
UKR-70 Rostok 's shop webpage   
UKR-71(BCI)  Screenshots of search engine available at FBO's website    
UKR-72 Letter No. 4422 -05/26901 -03 from the Administration of 
State Border Service of Ukraine to the Ministry of Economic 
Development and Trade of Ukraine, 3 August 2017   
UKR-79 Annex B to CS FRT 01 -96  
UKR-80 CS FRT Rules 31/PMG 40 -2003, 25 June 2003  CS FRT Rules 31/PMG 40 -
2003 
UKR-81 Extract from the FBO's website   
UKR-82 Extract of the FBO's Register indicating reasons for 
suspension   
UKR-83 Extract of Unified Register of Issued Certificates of 
Conformity and Registered Declarations of Conformity 
concerning Russian producers   
UKR-85 "The real crisis is coming up – Nazarbayev ", TENGRI NEWS, 
19 October 2015.   WT/DS499/ R 
 
- 14 - 
 
 
  Panel Exhibit  Title Short Title  
UKR-87 State Statistics Service of Ukraine "On production of railway 
products in Ukraine during 2012 -2016"  
UKR-88 Letter of the State Border Service of Ukraine dated  29 June 
2017; extract from the website of  the State Statistics Service 
of Ukraine  Letter of Ukraine's State 
Border Service of 29 June 
2017 
UKR-89 (BCI)  
(Corr.) Certificate of compliance [[xxx]] issued to PJSC [[xxx]]  
UKR-90 (BCI)  Certificate of compliance [[xxx]] issued to PJSC [[xxx]]  
UKR-92 Statistics "On the number of Russian citizens that travelled to 
Ukraine for 'official, business and diplomatic ' purposes in 
2014-2016"  
UKR-94 Eurasian Economic Commission, Decision No. 20, 
28 April 2017  
UKR-95 "Russia's customs service halts all  Ukrainian imports, says 
Ukraine's Employers Federation ", Interfax -Ukraine, 
14 August  2013  
UKR-96 R. Emmott, "Putin warns Ukraine over Europe ambitions ", 
Reuters, 23 September 2014   
UKR-97 "Russia is getting ready to cease cooperation with Ukraine in 
production of aircraft ", 22 August 2013, Levyy Bereg   
UKR-98 B. Hoyle, "Russia threatens to back Ukraine split ", The Times, 
23 September 2013   
UKR-99 S. Walker, "Ukraine's EU trade deal will be catastrophic, says 
Russia ", The Guardian, 22 September 2013   
UKR-100 J. Fleming, "Lithuania warns Russia over cheese ban and KGB 
smears ", Euractiv, 6 November 2013   
UKR-101 "More than 500 trucks occupied the Russian -Ukrainian 
border ", Vesti, 31 October 2013   
UKR-102 Russia will strengthen customs control if Kyi v is to sign an 
agreement with the EU, RIA Novosti Ukraine, 18 August 2013   
UKR-104 Russia's government Order  No. 328 "On implementation of 
state program of Russian Federation 'Development of the 
manufacturing industry and increase of its competitiveness '", 
15 April 2014   
UKR-105 The main results of the work of Russia's  Ministry of Industry 
and Trade in 2016, 19 April 2017   
UKR-106 Russia's government Decree  No. 925 Moscow "On the priority 
of goods of Russian origin, works and services performed by 
Russian persons in relation to goods originating from a 
foreign country, work, services performed by foreign 
Persons ", 16 September 2016   
UKR-107 Gazeta.ru,  "The most popular foreign city of winter was 
Kyiv", 1 June 2016.   
UKR-108 RBC, "Russian tourists in 2016 became less likely to travel 
abroad ", 16 March 2016   
UKR-109 LentaRu , "Ukraine enters the top 5 popular foreign country 
destinations for Russians ", 25 July 2016.   
UKR-110 Statistics on most popular destinatio ns for Russian citizens in 
2014–2016  
UKR-111(BCI)  Applications submitted by PJSC [[xxx]], 1 October 2014   
UKR-112(BCI)  Applications submitted by PJSC [[ xxx]] on behalf of PJSC 
[[xxx]], 22 December 2014   
UKR-113(BCI)  Decisions [[xxx]], 20 and 21 January 2015   
UKR-114 Ukraine's Law "On Border Control"   
UKR-115 Ukraine's Law "On the legal status of foreigners and stateless 
persons"   
UKR-116 Ukraine's Law No 1207 -VII "On Securing the Rights and 
Freedoms of Citizens and the Legal Regime on the 
Temporarily Occupied Territory of Ukraine", 15 April 2014   
UKR-117 Resolution No. 86 of the Cabinet of Ministers of Ukraine "On 
certain issues of the s tate border of Ukraine crossing ", 
4 March 2015   
UKR-118 Resolution No. 884 of the Cabinet of Ministers of Ukraine "On 
approval of the Procedure of sufficient funds proof for 
foreigners and apartheids for entry into, stay in, transit 
through and leaving th e territory of Ukraine and of 
calculation of such funds ", 4 December 2013   
UKR-119 Agreement between Ukraine and Russia  on visa -free travels  WT/DS499/ R 
 
- 15 - 
 
 
  Panel Exhibit  Title Short Title  
for citizens of Russia  and Ukraine, 16 January 1997  
UKR-120 Resolution of the Cabinet of Ministers of Ukraine No. 23 "On 
suspension of validity of certain provisions of the Agreement 
between [Ukraine]  and [Russia]  on visa -free travels for 
citizens of [Russia]  and Ukraine ", 30 January 2015   
UKR-123 Agreement betwee n Ukraine and Russia  on the procedure of 
crossing Ukraine -Russian state border by citizens living in the 
border regions of Ukraine and Russia   
UKR-124 Commission Implementing Regulation (EU) 2016/90 of 26 
January 2016 amending Council Implementing Regulat ion 
(EU) No 102/2012 imposing a definitive anti -dumping duty 
on imports of steel ropes and cables originating, inter alia , in 
Ukraine following a partial interim review pursuant to Article 
11(3) of Council Regulation (EC) No 1225/2009  EU Commission 
Impleme nting Regulation 
2016/90 imposing an anti -
dumping duty on imports of 
steel ropes and cables from, 
inter alia , Ukraine  
UKR-125 Government of Pakistan National Tariff Commission Report 
On Final Determination and Levy of Definitive Anti -Dumping 
Duties on Dum ped Imports of Cold Rolled Coils/Sheets into 
Pakistan Originating in and/or Exported from the People 's 
Republic of China and Ukraine, ADC NO 35/2015/NTC/CRC, 
January 13, 2017  Pakistan's Tariff Commission 
Report on anti -dumping 
duties on cold rolled 
coils/sheets from China and 
Ukraine  
UKR-126 Final Findings, Anti -dumping investigation concerning imports 
of "Cold-Rolled flat products of alloy or non -alloy steel " 
originating in or exported from China PR, Japan, Korea RP 
and Ukraine -reg, Government of India, Ministry of Commerce 
& Industry, Department of Commerce (Directorate General of 
Anti-Dumping & Allied Duties), F.No.14/12/2016 -DGAD, 10 
April 2017  India's Depa rtment of 
Commerce Final Findings on 
an anti -dumping 
investigation concerning 
"cold-rolled flat products of 
alloy or non -alloy steel" 
from, inter alia , Ukraine  
UKR-127 Resolution No. 367 of the Cabinet of Ministers of Ukraine "On 
Approval of the Procedure  for Entry into and Exit from the 
Temporarily Occupied Territory of Ukraine, " 4 June 2015  Resolution No. 367  
UKR-128 "Russia hits at Ukraine with chocolate war ", Euractiv, 14 
August 2013   
UKR-129 Customs Union Customs Code (selected provisions)  CU Custom s Code  
UKR-131 D. Cenusa, M. Emerson, T. Kovziridese & V. Movchan, 
Russia 's Punitive Trade Policy Measures towards Ukraine, 
Moldova and Georgia, CEPS Working Document, No. 400, 
September 2014   
UKR-132 "An unfortunate agreement with the anti -Russian nature - 
Russia's reaction to the ratification of the Ukraine -EU 
Association Agreement ", 24TV, 31 May 2017   
UKR-134(BCI)  Letter [[ xxx]] from PJSC [[ xxx]], 22 September 2017   
UKR-135(BCI)  Letter [[ xxx]] from PJSC [[ xxx]], 21 September 2017   
UKR-136(BCI)  Letter [[ xxx]] from PJSC [[ xxx]], 7 September 2017   
UKR-137(BCI)  Letter [[ xxx]] from PJSC [[ xxx]], 25 September 2017   
UKR-138(BCI)  Letter [[ xxx]] from PJSC [[ xxx]], 22 September 2017   
UKR-139(BCI)  Letter [[ xxx]] from company  [[xxx]] to Ukraine's  Ministry of 
Economic Development and Trade, 12 September 2017   
UKR-140 GOST 31814 -2012 "Conformity assessment. General Rules of 
sampling for tests of products in the course of conformity 
assessment " GOST 31814 -2012 
UKR-141(BCI)  Letter from the Federal Agency for Railway Transport to JSC 
[[xxx]] – on validity of certificates, 10 August 2016   
UKR-147 Letter from Border Department of Odes sa, 13 December 
2017  
UKR-148 (BCI)  Extract of Belarus Register with information concerning 
certificates issued to PJSC [[ xxx]]   
UKR-150 Extract of the FBO's Register, November 2017   
UKR-151(BCI)  Inspection act of certified products of PJSC [[ xxx]], 23 
January 2014   
UKR-152(BCI)  Inspection act of certified products of PJSC [[ xxx]], 24 
January 2014   
UKR-154 Extract of the Unified Register of certificates issued to 
Ukrainian producers under the CU Technical Regulations   
UKR-155 
(Corr.)  The Order of Administration of the State Border Service of 
Ukraine "On approval of Regulation on the State Border 
Protection Agency of the State Border Service of Ukraine "  
RUS-2 Protocol of the 61st Meeting of the Commission of the Rolling 
Stock of 22 -24 March 2016 and  the annexed Dissenting Protocol of the Commission 
of Rolling Stock Meeting of WT/DS499/ R 
 
- 16 - 
 
 
  Panel Exhibit  Title Short Title  
opinion; The Railway Administration of the Russian 
Federation  March 2016  
RUS-3 Letter of the FBO No. [[xxx]] of 2 October 2014  
RUS-4 Letter of the FBO No. [[xxx]] of 23 January 2015  
RUS-5 Extract of the FBO's Register with respect to the suspended 
certificates   
RUS-6(BCI)  Declaration of FBO employees   
RUS-11(BCI)  Certificate of Conformity [[xxx]]  
RUS-12(BCI)  Certificate of Conformity [[xxx]]  
RUS-13 Explanatory l etter of the Eurasian Economic Commission   
RUS-14 Protocol of the State Border Service of Ukraine, Border 
Department of Ode ssa, 17 April 2014  Border Service Protocol  
RUS-15 Facebook post of 10 July 2017   
RUS-16 Facebook post of 11 July 2017   
RUS-17 Official website of  Ukraine's  Ministry of Economic 
Development and Trade, "First meeting in the WTO with 
respect to Russia 's ban on imports of Ukrainian railway 
products ", 11 July 2017   
RUS-18 Eurointegration , "Russia 's ban on imports of railway products 
from Ukraine will be considered in the WTO ", 10 July 2017   
RUS-19 Facebook post of 9 July 2017  
RUS-22  Abstract from  Ukraine's  Criminal Code  Ukraine's Criminal Code  
RUS-23  Organization Standard СTO PC -FZT 08 -2013 "Procedure of 
organization and implementation of inspection control of 
certified products " PC-FZT 08 -2013 
RUS-25  Certification Rules R CSFRT 31/PMG 40 -2003 (P SSFZhT 
31/PMG 40 -2003) "Procedure of certification of technical 
equipment of railway transport " CS FRT 31/PMG 40 -2003 
RUS-27(BCI)  Report of Financial Results for 2015 of Public Joint -Stock 
Company [[xxx]]  
RUS-28(BCI)  Report of Financial Results for 2015 of Public Joint -Stock 
Company "Public Joint Stock Company [[xxx]]"  
RUS-29(BCI)  Report of Financial Results for 2015 of Public Joint -Stock 
Company "Public Joint Stock Company [[xxx]]"  
RUS-30(BCI)  Report of Financial Results for 2015 of Public Joint -Stock 
Company "Public Joint -Stock Company [[xxx]]"  
RUS-31(BCI)  Report of Financial Results for 2015 of Public Joint -Stock 
Company "Public Joint Stock Company [[xxx]]"  
RUS-32  Travel advice of the Department of the Situation and Crisis 
Center of the Ministry of Foreign Affairs of Russia  Russia's Travel Advice  
RUS-33  Media report "Chaos grips Odessa, Ukraine's third -largest 
city", 2 May 2014  Media report, 2 May 2014  
RUS-34  Media report "Dozens die in Odessa, rebels down Ukraine 
helicopters" , 2 May 2014  Media report, 2 May 2014  
RUS-35  Media report "How did Odessa's fire happen?" , 6 May 2014  Media report, 6 May 2014  
RUS-36 Media report "Ukrainian protestors vandalise Russian  bank" , 
22 November 2016  Media report, 22 November 
2016 
RUS-37  Mass media report "Ukraine Political Crisis Update: Russian 
Banks Attacked On Anniversary Of Revolution" , 20 February 
2016 Media report, 20 February 
2016 
RUS-38  Decree of the Cabinet of Ministers of Ukraine "On Approval of 
the Procedure for Entry into and Exit of the Temporarily 
Occupied Territory of Ukraine "  
RUS-39(BCI)  Volume of Purchase by  the company  [[xxx]] of the park of  
Russia's  cargo wagons in 2013 -2016  
RUS-40(BCI)  Volume of Purchase by [[xxx]] of Production for Rolling Stock 
in the Period 2012 -2016  
RUS-42  List of the certificates of conformity to the requirements of 
CU Technical Regulations 001/2011, 002/2011, 003/2011 
issued in the period from 02  August 2014 to 31  August 2017 
to foreign manufacturers   
RUS-43  Report on the governmental portal of Ukraine "Citizens of the 
Russian Federation to enter Ukraine on foreign passports, PM 
on the Government 's decision "  
RUS-45  News on the web -site of Russian Ministry of Foreign Affairs 
"On changing of the order of trips of Russian citizens to 
Ukraine "   
RUS-46  News on the web -site of Russian Ministry of Foreign Affairs  WT/DS499/ R 
 
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  Panel Exhibit  Title Short Title  
"On changing of the order of trips of Russian citizens to 
Ukraine "  
RUS-47  News on the web -site of Russian Ministry of Foreign Affairs 
"Statement of the Russian Ministry of Foreign Affairs in 
connection with the new restrictions of the Ukrainian 
authorities against Russian citizens "   
RUS-49(BCI)  Table of the valid certificates issued to Ukrainian producers 
on the basis of CU Technical Regulations 001/2011, 
002/2011 and 003/2011 (based on Exhibit  UKR-13)  
RUS-50(BCI)  Certificates of conformity issued on the basis of CU Technical 
Regulations 001/2 011, 002/2011 and 003/2011 during the 
period from 02  August 2014 to 31  August 2017 t o the third 
countries producers   
RUS-51(BCI)  The certificates issued by the certification body of the 
Republic of Belarus and the Republic of Kazakhstan to 
Ukrainian producers (as of 15 September 2017)   
RUS-52 Extract of Belarusian registry of certificates  [[xxx]]  
RUS-53 Extract of Belarusian registry of certificates  [[xxx]]  
RUS-55 Media report,  20 February 2014   
RUS-56 Media report , 29 January 2014   
RUS-57 Media report , 2 March 2014   
RUS-58 Media report , 2 March 2014   
RUS-59 Media report , 3 February 2014   
RUS-60 Media report , 10 May 2017   
RUS-61 Abstract from "Report on the human rights situation in 
Ukraine: 16 November 2016 to 15 February 2017 " 2017 OHCHR Report  
RUS-62 (BCI)  Documents of the FBO providing for the inconsistencies of the 
certified products of PJSC [[xxx]]  
RUS-63 (BCI)  Documents of the FBO providing for the inconsistencies of the 
certified products of PJSC [[xxx]]  
RUS-64(BCI)  Documents of the FBO providing for the inconsistencies of the 
certified products of PJSC [[xxx]]  
RUS-65(BCI)  Documents of the FBO providing for the inconsistencies of the 
certified products  of PJSC [[xxx]]  
RUS-66(BCI)  Documents of the FBO providing for the inconsistencies of the 
certified products of PJSC [[xxx]]  
RUS-67(BCI)  Letter from company  [[xxx]] to the FBO of 23  May 2016  
RUS-68(BCI)  Letter from company  [[xxx]] to the Deputy Minister of the 
Ministry of Transport of 13  June 2013  
RUS-69(BCI)  Letter from company  [[xxx]] to the FBO of 3 December  2015  
RUS-70(BCI)  Letter from company  [[xxx]] to the FBO of 17  February 2013  
RUS-71 Abstract from the Statute of the Federal Agency for Railway 
Transport of  Russia's  Ministry of Transport    
RUS-72  Information provided on analytical website Share Ukrainian 
Potential with respect to  the company [[xxx]]  
RUS-73(BCI)  Letter from company  [[xxx]] to the FBO of 3 November 2017   
RUS-74 Uaprom.info, extract from article   
RUS-75 Center of Transport Strategies, extract from the article, 
"Second life: How [[xxx]] produces railway wheels from 
scrap iron ", 8 November 2016   
RUS-77(BCI)  Information provided by the FBO on certificates of conformity 
with the requirements of CU T echnical Regulations  001/2011, 
002/2011,  and 003/2011 issued in the period from 
2 August .2014 to 31  August 2017 to foreign manufacturers   
RUS-78(BCI)  Letter from company  [[xxx]] to the FBO of 7  November 
2017, [[xxx]]  
RUS-79(BCI)   The documents of the FBO providing for the lack of 
inconsistencies of the certified products of  PJSC [[xxx]] under 
the CU Technical Regulations   
RUS-80(BCI)  The documents of the FBO providing for the lack of 
inconsistencies of the certified products of PJSC [[xxx]] under 
the CU Technical Regulations   
RUS-81(BCI)  The documents of the FBO providing for the lack of 
inconsistencies of the certified products of PrJSC [[xxx]] 
under the CU Technical Regulations   
RUS-82(BCI)  The documents of the FBO providing for the lack of 
inconsiste ncies of the certified products of  PJSC [[xxx]] under 
the CU Technical Regulations   WT/DS499/ R 
 
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  Panel Exhibit  Title Short Title  
RUS-85(BCI)  Extract of the FBO's Register with respect to the suspended 
certificates (dates of suspension and reasons for suspension)   
RUS-89(BCI)  The Decision of the FBO on issuance of the conformity 
certificate [[xxx]]  
RUS-90(BCI)  The Decision of the FBO on issuance of the conformity 
certificate [[xxx]]   
RUS-92(BCI)  Order of Federal Agency on Railway Transport as of 27 
January 2016 No. 50/k "On temporary assignment of 
performance of duties "  
RUS-93(BCI)  Extract of  the FBO's Register concerning Kazakh producers   
RUS-94(BCI)  Extract of the FBO's Register concerning Belarusian producers   
RUS-95(BCI)  Extract of the FBO's Register concerning European producers   
 
 WT/DS499/ R 
 
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  ABBREVIATIONS USED I N THIS REPORT  
Abbreviation  Description  
BCI  Business Confidential Information  
CS FRT Rules  Russia's Regulations governing conformity assessment procedures for railway 
products that form part of the Certification System for Federal Railway 
Transport  
CU Eurasian Economic Union as established in accordance with the Treaty on 
Eurasian Economic Union of 29 May 2014 (former Customs Union of the 
Republic of Belarus, the Republic of Kazakhstan a nd the Russian Federation)  
CU Technical Regulation  Customs Union Technical Regulation  
DSB Dispute Settlement Body  
DSU Understanding on Rules and Procedures Governing the Settlement of Disputes  
EAEU  Eurasian Economic Union  
EAEU Treaty  Treaty on the Eurasian Economic Union  
FBO Federal Budgetary Organization "Register of Certification on the Federal Railway 
Transport"  
GATT 1994  General Agreement on Tariffs and Trade 1994  
OHCHR  Office of the United Nations High Commissioner on Human Rights  
PJSC Public Joint Stock Company  
Russia  Russian Federation  
TBT Agreement  Agreement on Technical Barriers to Trade  
Vienna Convention  Vienna Convention on the Law of Treaties, Done at Vienna, 23 May 1969, 1155 
UNTS 331; 8 International Legal Materials 679  
WTO World Trade Organization  
 WT/DS499/ R 
 
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  1  INTRODUCTION  
1.1  Complaint by Ukraine  
1.1.  On 21 October 2015, Ukraine requested consultations with the Russian Federation (Russia) 
pursuant to Articles 1 and 4 of the Understanding on Rules and Procedures Governing the 
Settlement of Dis putes (DSU), Article XXII of the General Agreement on Tariffs and Trade 1994 
(GATT 1994) and Article 14 of the Agreement on Technical Barriers to Trade (TBT Agreement) with 
respect to the measures and claims set out below.1 
1.2.  Consultations were held on 4 Dec ember 2015.2  
1.2  Panel establishment and composition  
1.3.  On 10 November 2016, Ukraine requested the establishment of a panel pursuant to Article  6 
of the DSU with standard terms of reference.3 At its meeting on 16 December 2016, the Dispute 
Settlement Body (DSB) established a panel pursuant to the request of Ukraine in document 
WT/DS 499/2 , in accordance with Article  6 of the DSU.4 
1.4.  The Panel's terms of reference are the following:  
To examine, in  the light of the relevant provisions of the covered agreements cited by 
the parties to the dispute, the matter referred to the DSB by Ukraine in document 
WT/DS499/2 and to make such findings as will assist the DSB in making the 
recommendations or in givin g the rulings provided for in those agreements.5 
1.5.  On 2 March 2017, the parties agreed that the panel would be composed as follows:  
Chairperson:  Mr Ronald Saborío Soto  
 
Members:   Mr Hugo Cayrús  
   Mr Hunter Nottage  
 
1.6.  Canada, China, the European Union, India, Indonesia, Japan, Singapore and the 
United  States  notified their interest in participating in the Panel proceedings as third parties.  
1.3  Panel proceedings  
1.3.1   General  
1.7.  After consultation with the parties, the Panel adopted its Working Procedures and timetable 
on 24 March 2017 and 27 March 2017, respectively. The Panel adopted an amended version of its 
timetable on 10 April 2017 and 29 March 2018 and of its Working  Procedures on 4 October 2017.6 
1.8.  The Panel held a first substantive meeting with the parties on 10 and 1 1 July 2017. A session 
with the third parties took place on 10 July 2017. The Panel held a second substantive meeting 
with the parties on 6 and 7 November 2017. On 18 December 2017, the Panel issued the 
descriptive part of its Report to the parties. The Pa nel issued its Interim Report to the parties on 
19 April 2018.  The Panel issued its Final Report to the parties on 25 May 2018.  
                                                
1 See WT/DS499/1.  
2 See Ukraine's request for the establishment of a panel (Ukraine's panel request), WT/DS499/2.  
3 See WT/DS499/2.  
4 See WT/DSB/M/390, para. 5.4.  
5 WT/DS499/3.  
6 See the Panel's Working Procedures in Annex A -1. WT/DS499/ R 
 
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  1.3.2   Working procedures on Business Confidential Information (BCI)  
1.9.  On 16 March  2017, at the Panel's organizational meeting, Ukraine a nd Russia  requested the  
Panel to adopt additional working procedures to protect any BCI that the parties might submit to 
the Panel . On 17 March 2017, the Panel sent the parties its proposed BCI procedures. On 20 March 
2017, both parties provided comments on the proposed BCI procedures. In the light of these 
comments, the Panel on 23 March 2017 adopted Additional Working Procedures Concerning 
Business Confidential Information.7 
1.10.   Following a n invitation  from the Panel, on 18 June 2018 Ukraine submitted specif ic requests 
for further redaction of BCI from the  public version of the  Panel Report. Russia did not submit any 
requests . On the basis of Ukraine's communication, we made appropriate changes  to the public 
version of the Panel Report . 
1.3.3   Preliminary ruling  
1.11.   On 3 April 2017, Russia submitted a request for a preliminary ruling to the Panel , in which it 
claimed that Ukraine's panel request did not meet the requirements of Article 6.2 of the DSU . 
Ukraine  respond ed to Russia's request on 13 April 2017 . Russia  comment ed on Ukraine's response  
on 18 May 2017 . Ukraine  commented on Russia's comments on  30 May 2017 . The parties were 
also advised that they could further address  Russia's request in their opening oral statements at 
the Panel's first substantive meeting with th e parties. The Panel additionally advised the third 
parties that they could comment on Russia's request in their written submissions to the Panel, or 
in their oral statements during  the third -party session conducted in the context of the Panel's first 
substantive meeting. Taking into account Russia's request that the Panel issue a preliminary ruling 
prior to the first substantive meeting (which the Panel considered not to be feasible), the Panel 
issued its conclusions on Russia's request for a preliminary r uling on 17 July 2017 , shortly after 
the end of the first substantive meeting.   
1.12.   In its conclusions on Russia's preliminary ruling request, the Panel indicated that the 
reasons supporting its conclusions  would become an integral part of the Panel's Report. Thus, the 
Panel's conclusions and supporting reasons appear in section 7.1.1  below.  
2  FACTUAL ASPECTS  
2.1.  This dispute concerns certain measures allegedly taken  by Russia  concerning its conformity 
assessment procedures for railway products as they relate  to suppliers from Ukraine. These 
products were identified by Ukraine as  railway rolling stock, railroad switches, other railroad  
equipment and parts thereof. Certificates of conformity are required to place such products on 
Russia's market.  
2.2.  In its panel request Ukraine challenges the following measures allegedly imposed by Russia. 
section II of the panel request provides:  
Since 2014, the conformity assessment certificates issued by the Federal Budgetary 
Organization "Register of Certification on the Federal Railway Transport" (FBO "RC 
FRT") to Ukrainian producers of railway products prior to the entry into force of the 
Technical Regulations have systematically been suspended.  
Moreover, Ukrainian producers have not been able to obtain new conformity 
assessment certificates based on the Technical Regulations from the certification 
bodies in the Russian Federation. The applications submitted by Ukrainian producers 
to the FBO "RC FRT" have systematically been rejected or returned without 
consideration.  
Furthermore, the conformity assessment certificates issued by the authorities in the 
Republic of Belarus and in the Republic of Kazakhstan have not been recognized by 
the authorities of the Russian Federation. In fact, the relevant authorities of the 
                                                
7 See the Panel's Additional Working Procedures on BCI in Annex B-2. WT/DS499/ R 
 
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  Russian Federation, including its Ministry of Transport and the Federal Agency for 
Railway Transport, decided that Technical Regulation No.  001/2011 is applicable only 
to goods produced in the CU countries. Consequently, the authorities of the Russian 
Federation concluded that the conformity assessment certificates issued to Ukrainian 
producers in other CU countries were not valid in the territory of the Russian 
Federation a nd that the railway products of these producers could neither be imported 
nor registered for operation in the territory of the Russian Federation.  
The measures at issue covered in this panel request are:  
1) The systematic prevention of Ukrainian producers from exporting their 
railway products to the Russian Federation by way of suspension of their 
valid conformity assessment certificates, refusal to issue new conformity 
assessment certificates and the non -recognition of conformity assessment 
certificates is sued by the competent authorities of other members of the 
CU namely the Republic of Belarus and the Republic of Kazakhstan. This 
practice is evidenced by instructions of the authorities of the Russian 
Federation listed in Annexes I, II and III.  
2) The susp ensions of conformity assessment certificates, the rejections 
of new applications for conformity assessment certificates and the 
refusals to recognize valid conformity assessment certificates issued by 
other CU countries with regard to Ukrainian producers as mentioned in 
Annexes I, II and III.  
3) Technical Regulation No. 001/2011 "On safety of railway rolling stock", 
read together with the Protocol of the Ministry of Transport of the Russian 
Federation regarding issuance by certification authority of the Cu stoms 
Union of the certificates of conformity for products manufactured by third -
countries No. A 4 -3 adopted on 20 January 2015 and the instructions 
mentioned in Annex III.  
As a result of the measures described above, certain Ukrainian producers have been 
effectively banned from exporting railway products to the Russian Federation. 
Following the implementation of the measures at issue, exports of such products from 
Ukraine to the Russian Federation, which had reached USD 1.7 billion in 2013, 
decreased to US D 600 million in 2014 and to only USD 110 million in 2015.8 
3  PARTIES' REQUESTS FO R FINDINGS AND RECOM MENDATIONS  
3.1.  Ukraine requests that the Panel find that:  
a. the systematic prevention of Ukrainian railway products from being imported into Russia 
is inconsisten t with Russia's obligations under Articles I:1, XI:1, and XIII:1 of the 
GATT  1994;  
b. the instructions issued by the competent Russian authority suspending valid  certificates 
of conformity held by Ukrainian producers of railway products as well as several 
decisions issued by the competent Russian authority rejecting applications for certificates 
of conformity submitted by Ukrainian producers of railway products are inconsistent with 
Russia's  obligations under Articles 5.1.1, 5.1.2, and 5.2.2 of the TBT  Agreement; and  
c. Russia's decision not to accept in its territory the validity of certificates  issued to 
Ukrainian producers  in other Customs Union ( CU)9 countries , found in the Protocol of the 
Ministry of Transport No. A 4 -3 and the decisions listed in Annex III to the panel request 
                                                
8 WT/DS499/2, p. 2.  
9 The parties have used the term "Customs Union" in th ese proceedings to refer to the Eurasian 
Economic Union established in accordance with the Treaty on Eurasian Economic Union of 29 May 2014, which 
was formerly the Customs Union of Belarus, Kazakhstan and Russia.  WT/DS499/ R 
 
- 23 - 
 
 
  read together with Technical Regulation 001/2011, is inconsistent with Russia's 
obligations under Articles 2.1, 5.1.1, and 5.1.2 of the TBT Agreement and Articles I: 1, 
III:4, and X:3(a) of the GATT 1994.10 
3.2.  Ukraine further requests, pursuant to Article 19.1 of the DSU, that the Panel recommend that 
Russia bring its measures into conformity with its WTO obligations under the GATT 1994 and the 
TBT Agreement.  
3.3.  Russia reques ts that the Panel find that the measures challenged by Ukraine are not within 
its terms of reference. Alternatively, Russia request s that the Panel reject Ukraine's claims in this 
dispute in their entirety and find that the challenged measures are not inco nsistent with Russia's 
WTO obligations.  
4  ARGUMENTS OF THE PAR TIES  
4.1.  The arguments of the parties are reflected in their executive summaries, provided to the 
Panel in accordance with paragraph 19 of the Working Procedures adopted by the Panel (see 
Annexes B -1, B-2, B-3, and B -4). 
5  ARGUMENTS OF THE THI RD PARTIES  
5.1.  The arguments of Canada, the European Union, Indonesia, Japan and the United States are 
reflected in their executive summaries, provided in accordance with paragraph 20 of the Working 
Procedures adopted b y the Panel (see Annexes C -1, C-2, C-3, C-4, and C -5). China, India and 
Singapore did not submit written or oral arguments to the Panel.  
6  INTERIM REVIEW  
On 19 April 2018, the Panel issued its Interim Report to the parties. On 3 May 2018, Ukraine 6.1.  
and Russia submitted written requests for the Panel to review aspects of the Interim Report. On 
14 May 2018, Ukraine and Russia submitted comments on each other's requests for review. 
Neither party requested an interim review meeting.  
In accordance with Article 15.3  of the DSU, this section of the Report sets out the Panel's 6.2.  
response to the parties' requests made at the interim review stage.  
In addition to the changes indicated below, the Panel corrected typographical errors and 6.3.  
other non -substantive editorial clari fications in this Report, including those identified by the 
parties. We have also made, where relevant, certain horizontal changes that Ukraine included 
under the heading "typographical errors" in its comments of 3 May 2018.  
6.4.  The numbering of some of the paragraphs and footnotes in the Report has changed from the 
numbering of the Interim Report. The discussion below refers to the numbering in this Report and, 
where it differs, includes the corresponding numbering of the Interim Report.  
6.1  Panel's preliminary ruling  
Regarding paragraph 7.16, Ukraine requests that the Panel make changes to fully reflect 6.5.  
Ukraine's position regarding Russia's allegation that Ukraine failed to provide the legal basis 
sufficient to present the problem clearly.  
Russia does not oppose  Ukraine's suggestions, provided that it is made clear that the 6.6.  
changes suggested by Ukraine reflect Ukraine's position.  
The Panel made appropriate changes to paragraph 7.16.  6.7.  
                                                
10 Ukraine's first written submission, para.  401; and second written submission, paras. 447 -450. WT/DS499/ R 
 
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  Regarding paragraph 7.18, Ukraine requests that the Panel make changes to better  reflect 6.8.  
Ukraine's position on how Ukraine's panel request can be distinguished from those of the 
complaining parties in China – Raw Materials .  
The Panel made appropriate changes to paragraph 7.18.  6.9.  
Regarding paragraphs 7.32 and 7.33, Ukraine requests that , in order to avoid any doubt as 6.10.   
to the Panel's position, the Panel elaborate further on the specific reasons why it takes the view 
that the first measure is sufficiently connected with the claims under Articles 5.1.1, 5.1.2, and 
5.2.2 of the TBT Agreement .  
The Panel made appropriate changes to paragraphs 7.32 and 7.33. In view of Ukraine's 6.11.   
comment seeking further clarification, we also elaborated on our position in respect of the link 
between the suspensions of certificates and Ukraine's claims under Arti cle 5.2.2 of the 
TBT Agreement.   
Regarding paragraph 7.34, Ukraine requests that the Panel include in paragraph 7.34 the 6.12.   
fact that Ukraine abandoned its claims under Article 5.2.3 of the TBT Agreement and add that it is 
not necessary to inquire into that c onnection.  
The Panel added footnote  29 to paragraph 7.34 to indicate that Ukraine abandoned its 6.13.   
claims under Article 5.2.3. However, we disagree that it is not necessary to enquire into the 
connection between the measures at issue and Article 5.2.3. Russia 's preliminary ruling request 
concerns whether the panel request satisfies the requirements of Article 6.2 of the DSU and 
relates, inter alia , to Ukraine's claims under Article 5.2.3. We therefore consider it necessary to 
examine this matter, regardless of  Ukraine's decision, long after it had filed its panel request, to 
abandon its claims under Article 5.2.3.  
Regarding paragraph 7.48, Ukraine requests that the Panel move the footnote from the 6.14.   
third to the second sentence of this paragraph. Ukraine submits  that its reference to the Appellate 
Body Report in EC – Chicken Cuts  refers to the fact that Article 6.2 of the DSU contemplates that 
the identification of the products at issue must flow from the specific measures identified in the 
panel request and not to Ukraine's view that it is necessary only for certain WTO obligations to 
identify the products at issue in order to identify the measures at issue.  
The Panel does not consider this change to be appropriate because the general approach in 6.15.   
the Report is to  include only one footnote in each paragraph that includes references supporting 
the statements contained in the entire paragraph.  
Regarding paragraph 7.49, Ukraine requests that the Panel make changes to more 6.16.   
accurately reflect Ukraine's position that its  panel request properly identified the products at issue.  
Russia objects to Ukraine's request to add, among the changes requested to this paragraph, 6.17.   
that Russia accepts that Ukraine's panel request identifies the products at issue. Russia considers 
this to  be contrary to its position in these proceedings.  
The Panel made appropriate changes to paragraph 7.49.  6.18.   
Regarding paragraph 7.54, Ukraine requests that the Panel add a new paragraph 6.19.   
complementing the description of Ukraine's position regarding Ukraine's c omments on Russia's 
preliminary ruling request.  
Russia submits that it does not see any added value in the paragraph suggested by Ukraine, 6.20.   
and that, if the Panel were to accept Ukraine's request, to ensure the balance in the presentation 
of each party's p osition, Russia would welcome reflection of its position on this matter.  
The Panel considers that the arguments referred to by Ukraine are already appropriately 6.21.   
summarized in paragraph 7.49. We have therefore made no changes to paragraph 7.54.  WT/DS499/ R 
 
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  Regarding pa ragraph 7.116, Ukraine requests that the Panel make changes to reflect more 6.22.   
accurately Ukraine's position with respect to the differences between the identification of the 
measures at issue in the consultations request and in the panel request.  
The Panel made appropriate changes to paragraph 7.116.  6.23.   
Regarding paragraph 7.127, Ukraine requests that the Panel specify to which legal 6.24.   
instruments listed in the consultations request and in the panel request the Panel is referring.  
The Panel considers that no add itional specification is necessary. A comparison between the 6.25.   
two documents in the light of our explanation provided in paragraph 7.161 allows identification of 
the legal instruments that are referred to in paragraph 7.127.  
Regarding paragraph 7.168, Russia  requests that the Panel clarify that in its submissions 6.26.   
Russia emphasized the fact that the letters in question were issued under another CU Technical 
Regulation not mentioned in the consultations request.  
Ukraine objects to Russia's request because, in i ts view, the current wording of this 6.27.   
paragraph accurately reflects Russia's arguments.  
The Panel made appropriate changes to paragraph 7.168.  6.28.   
6.2  Ruling on a request to exclude two exhibits from the record  
Regarding paragraph 7.207, Ukraine requests that the Panel add a summary of Ukraine's 6.29.   
position regarding Russia's request to exclude two exhibits from the record.  
Russia does not support any additional summary, description, or discussion with respect to 6.30.   
the issues raised by Ukraine in this request due to the ir political nature.  
The Panel considers that Ukraine's request is based on an incorrect premise. Ukraine seems 6.31.   
to consider that paragraph 7.207 is a summary of Russia's position. That is not the case. 
Paragraph 7.207 seeks to set out the basis of Russia's  request to exclude two exhibits. We 
summarized Russia's arguments in paragraph 7.202 and Ukraine's arguments in paragraph 7.203. 
We therefore consider it unnecessary to repeat the summary of Ukraine's arguments.  
Regarding paragraph 7.210, Russia comments that it takes note of the Panel's conclusion 6.32.   
set out in that paragraph, but observes that the Panel's decision does not imply any judgment on 
the relevance, accuracy or value of the content of the exhibits that Russia requested to be 
excluded from the reco rd. 
 Ukraine notes that Russia's comment does not correspond to the type of requests that can 6.33.   
be made in respect of the interim report. Ukraine further objects to the views expressed by Russia.  
6.34.   The Panel notes that Russia's comments on paragraph 7.210 do n ot set out a specific 
request for review. We have taken note of Russia's comments.  
6.3  Overview of claims and order of the Panel's analysis  
Regarding paragraph 7.225, Russia requests that the Panel describe the measures at issue 6.35.   
as it did in paragraph 3.1 of t he Interim Report, i.e. that it quote precisely Ukraine's description of 
the relevant measures at issue.  
Ukraine objects to Russia's request. In Ukraine's view, paragraph 7.225 accurately reflects 6.36.   
the measures at issue as described in several parts of Ukr aine's submissions. Ukraine further 
considers that it would not be appropriate to follow the description in paragraph 3.1 as that 
paragraph describes specifically Ukraine's request for findings.  WT/DS499/ R 
 
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  The Panel does not find it appropriate to make the requested change because this 6.37.   
paragraph reflects its overview of the claims made and the order in which the Panel considers and 
analyses Ukraine's claims.  
Regarding paragraph 7.230, Ukraine requests that the Panel modify the last sentence to 6.38.   
clarify Ukraine's descri ption of the alleged systematic prevention of imports of Ukrainian railway 
products into Russia.  
6.39.   The Panel does not consider it appropriate to make the requested change. However, we 
made appropriate changes to clarify the text of the paragraph.  
6.4  Claims conc erning the suspension of certificates  
6.4.1   Measures at issue  
Regarding paragraph 7.233, Russia requests that the Panel replace the expression 6.40.   
"occupational health and safety" with "labour safety". Russia notes that it is making this request 
even though it did n ot challenge the translation that Ukraine provided of Exhibit UKR -2 (CS FRT 
01-96). 
Ukraine considers that Russia's suggestion is not appropriate. Ukraine considers that the 6.41.   
term "occupational health and safety" used in the English translation of Exhibit U KR-2 is more 
appropriate in the context of "work environment" and "safety of working conditions", while the 
term "labour safety" proposed by Russia is more generally used in the context of social protection.  
The Panel considers that there is no essential d ifference between the two expressions. In 6.42.   
the light of this, we accept Russia's preference, noting also that the translation concerns a Russian 
legal instrument. We therefore made the appropriate change to paragraph 7.233.  
Regarding paragraph 7.236, Russia  requests that the Panel correct the information 6.43.   
contained in Table 4 regarding the schemes under which certain certificates were suspended 
through two instructions [[xxx]]. According to Russia, contrary to what is set out in Table 4, not all 
certificates were issued under scheme 3a. Some were issued under scheme 5, which also requires 
on-site inspections. In support of its request, Russia submits two new exhibits (Exhibit RUS -100 
and Exhibit RUS -101). Russia notes that it fully understands that the new exh ibits have been 
submitted at a late stage of the proceedings, after the opportunity to submit evidence lapsed. 
However, Russia submits that this evidence is not aimed to reargue the case or to make additional 
arguments, but rather to correct a factual mist ake. Russia further submits that correcting this 
factual mistake would not change Russia's arguments, nor would it change the Panel's findings.  
Ukraine objects to Russia's request because the interim review is not the appropriate stage 6.44.   
to submit new evide nce. Moreover, Ukraine considers that Russia had ample opportunity to 
comment on the content of the exhibits on which the Panel based its findings.  
The Panel recalls that the Appellate Body and previous panels have found that, according to 6.45.   
Article 15 of t he DSU, interim review is limited to verifying precise aspects of the panel report, and 
that this does not include assessing new and unanswered evidence.11 We further observe that 
requests to correct factual errors in the Interim Report should be supported by reference to the 
evidence on record, since the Panel must make findings based on the evidence on record.  
As Russia notes, the information contained in Table 4 is based on exhibits submitted by 6.46.   
Ukraine. Russia did not challenge the exhibits submitted by  Ukraine insofar as they relate to the 
schemes under which certain certificates were suspended, nor did it submit counter -evidence at an 
earlier stage of the proceedings. Russia may be correct in pointing to the factual error that appears 
in Table 4. Howev er, in view of the limited scope of interim review and the late stage at which it 
takes place, we do not consider it appropriate to take into account new evidence at this late stage. 
We therefore decline Russia's request.  
                                                
11 Appellate Body Report, EC – Sardines, para. 301. See also Appellate Body Report, EC – Selected 
Customs Matters , para. 259; and Panel Report, Russia – Pigs (EU) , paras. 6.13 -6.16. WT/DS499/ R 
 
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  6.4.2    Consistency of the suspensions wi th Article 5.1.1 of the TBT Agreement  
Regarding footnote 20 2 (footnote 200 in the Interim Report); paragraphs 7.255 and 7.276; 6.47.   
footnote 258 (footnote 255 in the Interim Report); and footnote 260 ( footnote 257 in the Interim 
Report); Ukraine requests that the Panel make certain changes to reflect more accurately 
Ukraine's position in respect of the matters dealt with in those paragraphs.  
The Panel made appropriate changes to footnote 20 2 (footnote 200 in the Interim Report)  6.48.   
and to paragraphs 7.255 and 7.276. We also made appropriate changes to footnote 25 8 
(footnote  255 in the Interim Report) and to footnote 260 (footnote 257 in the  Interim  Report).  
Regarding paragraph 7.310, Ukraine requests that the Panel make certain change s to better 6.49.   
reflect Russia's position.  
The Panel does not consider it appropriate to make the changes requested by Ukraine, 6.50.   
because the summary contained in paragraph 7.310 adequately reflects Russia's position. 
However, we corrected a linguistic error in paragraph 7.310.  
Regarding paragraph 7.312, Ukraine requests that the Panel include references to the third - 6.51.   
party submissions to which Ukraine referred in its second written submission.  
Russia objects to Ukraine's request and considers it inappropriate be cause the paragraphs 6.52.   
to which Ukraine refers to do not support its position.  
The Panel made appropriate changes to footnote 2 50 (247 in the Interim Report) to reflect 6.53.   
that Ukraine, in its submissions, referred to certain third -parties' submissions.  
Regardi ng paragraph 7.316, Ukraine requests that the Panel make certain changes to better 6.54.   
reflect Russia's position. In particular, Ukraine requests that the Panel refer to Russia's view 
regarding the impossibility of conducting certain forms of inspection contro l due to the size of the 
products to be inspected or tested.  
Russia objects to Ukraine's request. Russia considers that it submitted its comments 6.55.   
regarding the applicable certification scheme and product size only in the context of discussing the 
physical characteristics criterion for determining whether two products are "like". Russia considers 
that the additions suggested by Ukraine are irrelevant for this part of the Report.  
The Panel notes that although in its second written submission Russia referred t o the 6.56.   
impossibility of conducting certain forms of inspection control due to the size of the products, we 
understand Russia did not pursue this earlier line of argumentation at later stages of the 
proceedings. We consider that Russia's more updated view on  this matter is reflected in Russia's 
opening statement at the second meeting, specifically in paragraphs 35 and 43. This is further 
confirmed by Russia's position in the responses to which Ukraine refers in its request for review. 
On this basis, we do not  consider it necessary to reflect Russia's earlier views on the relevance of 
the size of the product for the purpose of undertaking off -site inspection. We therefore decline 
Ukraine's request.  
 Regarding paragraph 7.329, Ukraine requests that the Panel ref lect more accurately the 6.57.   
content of the exhibit referred to by the Panel.  
Russia objects to Ukraine's request because Exhibit RUS -56 properly supports the fact that 6.58.   
protesters took control of that city.  
The Panel made appropriate changes to paragraph 7.32 9. 6.59.   
Regarding paragraph 7.331, Ukraine requests that the Panel include a reference to 6.60.   
demonstrations occurring "for and against" Russian intervention in Ukraine, and not only "against", 
to reflect more accurately the content of the exhibit referred to by th e Panel.  WT/DS499/ R 
 
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  Russia objects to Ukraine's request because Exhibit RUS -58 demonstrates that rallies and 6.61.   
demonstrations were against Russian intervention in Ukraine and there is no evidence supporting 
the existence of riots, clashes, or demonstrations in support  of Russia or calling for Russia's 
intervention in Ukraine.  
The Panel made appropriate changes to paragraph 7.331.  6.62.   
Regarding paragraph 7.332, Ukraine requests that the Panel change the reference to there 6.63.   
being 42 deaths and replace it with a reference to 3 1 deaths, to reflect more accurately the 
content of the exhibits referred to by the Panel.  
Russia objects to Ukraine's request because Exhibit RUS -34 refers to 43 deaths. Russia 6.64.   
requests that the Panel replace the number of 42 deaths with 43 deaths.  
The P anel added more details in footnote 268  (footnote 265 in the Interim Report)  on the 6.65.   
content of the exhibits referred to in that paragraph.  
Regarding paragraph 7.333, Ukraine requests that the Panel refer to "right wing protesters 6.66.   
breaking windows and ransa cking two Russian banks" rather than to "attacks on two Russian 
banks" and that the Panel include a reference to peaceful demonstrations occurring at the same 
time, to reflect more accurately the content of the exhibit referred to by the Panel.  
Russia obje cts to Ukraine's request because it considers that this request is an attempt to 6.67.   
tone down the information contained in the relevant exhibits.  
The Panel made appropriate changes to paragraph 7.333 and added footnote 26 9. 6.68.   
Regarding paragraph 7.335, Ukraine requests that the Panel make a change to reflect more 6.69.   
accurately the content of the exhibit referred to by the Panel.  
The Panel made appropriate changes to paragraph 7.335.  6.70.   
Regarding paragraphs 7.329 to 7.336, Ukraine requests that the Panel reconsider it s use of 6.71.   
the terms "civil unrest", "armed confrontation" and "anti -Russian sentiment", which are terms 
used in media reports submitted as exhibits by Russia. According to Ukraine, the Panel should take 
into account that those terms as used by the media mig ht not be an accurate description of the 
factual circumstances at issue.  
The Panel is mindful of the fact that the sources for using those terms are media reports. 6.72.   
We note, however, that throughout these proceedings Ukraine did not contest the content of such 
media reports, nor did it submit other factual evidence that would cast doubt on the accuracy of 
the description of events contained in the exhibits submitted by Russia. We therefore made 
appropriate changes to footnote 26 4 (footnote 261 in the Interi m Report).  
Regarding paragraph 7.336, Ukraine requests that the Panel make various changes 6.73.   
concerning the dates covered by the evidence discussed therein, the areas where events described 
therein took place, and the type of incidents described therein, to better reflect the factual 
conclusions drawn from the evidence submitted by Russia.  
Russia objects to Ukraine's request because it would lead to unfounded revisions that are 6.74.   
not based on the facts of the dispute and would misrepresent the relevant factual situation. Russia 
refers to relevant evidence in support of its view that the modifications requested by Ukraine are 
unfounded.  
The Panel made appropriate changes to paragraph 7.336.  6.75.   
Regarding paragraph 7.338, Ukraine requests that the Panel make certain changes to reflect 6.76.   
more accurately the time -frame covered by the information on entry of Russian citizens in 2017.  WT/DS499/ R 
 
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  The Panel made appropriate changes to paragraph 7.338 and footnote 27 4 (footnote 270 in 6.77.   
the Interim Report).  
Regarding paragraph 7.360, Ukrai ne requests that the Panel complete the reference to 6.78.   
Ukraine's Criminal Code.  
The Panel made the appropriate change to paragraph 7.360.  6.79.   
Regarding paragraph 7.378, Ukraine requests that the Panel include a reference to the 6.80.   
relevant time -period to which the  evidence refers, which Ukraine submits is January to May 2014.  
Russia objects to Ukraine's request because the evidence that it has submitted covers the 6.81.   
time-period from January 2014 to May 2017. Russia considers that Ukraine's suggested change 
does not r eflect the factual situation.  
The Panel made appropriate changes to paragraph 7.378.  6.82.   
Regarding paragraph 7.379, Ukraine requests that the Panel clarify that the incidents 6.83.   
referred to by the Panel took place in K yiv, where none of the producers concerned ar e located. 
Moreover, Ukraine requests that the Panel clarify that events described in Exhibit RUS -36 refer to 
attacks against the office of a Ukrainian pro -Russian politician and not against the person.  
Russia objects to Ukraine's request. Russia consider s that Ukraine's request is baseless and 6.84.   
refers to evidence indicating that the incidents referred to in this paragraph occurred not only in 
Kyiv, but elsewhere in Ukraine.  
The Panel made appropriate changes to paragraph 7.379.  6.85.   
Regarding the sections incl uded under headings 7.3.2.2.5 and 7.4.2.3.3 (concerning the 6.86.   
"like products" analysis), Ukraine requests that the Panel make the necessary factual findings in 
these sections that, should this become relevant, would assist the Appellate Body in completing 
the legal analysis concerning the "like products" issue.  
Russia objects to Ukraine's request. According to Russia, the Panel justifiably decided to 6.87.   
exercise judicial economy and the findings requested by Ukraine are not necessary to resolve this 
dispute. Rus sia also considers that the interim review stage is not the appropriate opportunity to 
challenge the Panel's choice to exercise judicial economy.  
The Panel does not consider it necessary to accept Ukraine's request. As we have explained 6.88.   
at paragraph  7.251 , an inconsistency with Article 5.1.1 of the TBT Agreement can arise only if 
each of three separate elements is demonstrated. In the present dispute, we found that Ukraine 
failed to establish one of these three elements both in respect of suspension instructions and in 
respect of the rejection decisions. In the light of these findings, it was not necessary to proceed 
with the analysis before reaching a conclusion on Ukraine's claims under Article 5.1.1. Moreover, 
we note that Ukraine in any event did not identify which specific factual findings it requests that 
the Panel make. We also observe that were we to make entirely new factual findings at this late 
stage, Russi a would be deprived of an opportunity to request that the Panel review aspects of such 
findings, if appropriate. For these reasons, we decline Ukraine's request.  
6.4.3   Consistency of the suspensions with Article 5.1.2 of the TBT Agreement  
6.89.   Regarding paragraph 7.4 25, Ukraine requests that the Panel amend the summary of 
Ukraine's position on the allocation of the burden of proof under Article 5.1.2 of the 
TBT Agreement. Ukraine also requests that the Panel add a reference to the jurisprudence on 
which it relies in s upport of its position in footnote 34 5 (footnote 34 1 in the Interim Report).  
6.90.   The Panel made an appropriate change to paragraph 7.425.  WT/DS499/ R 
 
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  6.91.   Regarding paragraph 7.445, Ukraine requests that the Panel complement Ukraine's 
summary of arguments to reflect Ukraine's  view on Russia's level of confidence regarding large 
size products.  
6.92.   The Panel declines Ukraine's request. We consider that the summary of Ukraine's argument 
included in this paragraph sufficiently summarizes Ukraine's views on the matter under 
considerat ion in that section of the Report and that it is not necessary to add other views 
expressed by Ukraine on unrelated matters. However, the Panel made editorial changes to this 
paragraph.  
6.93.   Regarding paragraphs 7.454 and the last sentence of paragraph 7.539, U kraine requests 
that the Panel delete the statement that suspension of certificates is not the strictest manner in 
which the FBO could apply its conformity assessment procedure. According to Ukraine, the FBO 
could not have withdrawn the certificates in the  circumstances of this dispute because withdrawal 
of certificates would be possible only if the FBO determines that the product does not comply with 
the relevant requirements and any non -conformities cannot be remedied within an acceptable 
time-period. Ukr aine argues that Ukraine's claims concern a situation where the FBO did not make 
any determinations regarding conformity of the relevant products. Ukraine considers that 
suspension of certificates was therefore the strictest manner in which the FBO could a pply its 
conformity assessment procedure.  
6.94.   Russia objects to Ukraine's request and notes that the FBO could have withdrawn the 
relevant certificates and, therefore, the suspension of certificates was a less strict manner in which 
the FBO applied its conform ity assessment procedure.  
6.95.   The Panel disagrees with Ukraine's view, because, as explained in footnote  366 
(footnote  362 in the Interim Report), under Russia's relevant legal framework the FBO had the 
power to suspend or withdraw certificates. Moreover, par agraph 7.454 is not concerned with 
whether in the relevant cases the FBO could have justifiably withdrawn the certificates under 
Russian law. Rather, in keeping with its duty to make an objective assessment, the Panel at 
paragraph 7.454 simply provides an indication of the relative strictness of the FBO's chosen 
manner of application by comparing it to the strictness of another manner of application 
(withdrawal of certificates) that Russia's relevant legislation provides for. We therefore decline 
Ukraine's request.  
6.96.   Regarding paragraph 7.455, Ukraine requests that the Panel add to its summary of 
Ukraine's arguments references to Ukraine's views on the level of confidence sought by Russia.  
6.97.   The Panel declines Ukraine's request because the suggested additions d o not relate to the 
issue discussed in that section of the Report, which concerns the risks that non -conformity would 
create.  
6.98.   Regarding paragraph 7.494, Ukraine requests that the Panel delete the reference to the 
letter of 1 August 2014 in which the FBO r efers to relevant conditions for the conduct of remote 
inspections. Ukraine notes that the letter of 1 August 2014 makes no reference to Article 7.4.1.  
6.99.   Russia considers that the letter of 1 August 2014 specifically listed the conditions for remote 
inspecti ons. Therefore, Russia suggests a change to that sentence to clarify that the conditions set 
out in Article  7.4.1 were quoted but not cited.  
6.100.   The Panel made appropriate changes to paragraph 7.494.  
6.101.   Regarding paragraph 7.506, Russia requests that the Panel amend the third sentence of 
the paragraph to better reflect Russia's views on the meaning of Article  7.4.1 of PC -FZT 08 -2013.  
6.102.   The Panel made appropriate changes to paragraph 7.506. In view of these changes, we 
also made consequential changes to the next pa ragraph (paragraph 7.507 in the Interim Report), 
which we deleted.  WT/DS499/ R 
 
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  6.103.   Regarding paragraphs 7.5 09 and 7.51 8 (paragraphs 7.510 and 7.519 in the Interim 
Report) , Russia requests that the Panel not attribute to Russia the view expressed therein 
regarding the ava ilability of off -site inspections.  
6.104.   Ukraine objects to Russia's request because paragraph 7.5 09 (paragraph 7.510 in the 
Interim Report)  is not a summary of parties' arguments, but sets out a possible interpretation of 
Article 7.4.1 as part of the reasoning  of the Panel. Ukraine suggests deletion of the second 
sentence in paragraph 7.510 to address the concern raised by Russia.  
6.105.   The Panel made appropriate changes to paragraphs 7.5 09 and 7.51 8 (paragraphs 7.5 10 
and 7.519  in the Interim Report) .  
6.106.   Regarding par agraph 7.516 (paragraph 7.517 in the Interim Report) , Ukraine requests that 
the Panel address an imbalance in the presentation of each party's position by adding to footnote 
406 (footnote 402 in the Interim Report) the arguments and evidence submitted by U kraine in 
relation to the availability of off -site inspections.  
6.107.   The Panel made appropriate changes to footnote 40 6 (footnote 402 in the Interim Report).  
6.108.   Regarding paragraph 7.52 1 (paragraph 7.52 2 in the Interim Report) , Ukraine requests that 
the Panel pr ovide additional clarification in relation to the basis for its conclusion in the last 
sentence of that paragraph .  
6.109.   The Panel made appropriate changes to paragraph 7.52 1 (paragraph 7.52 2 in the Interim 
Report) .  
6.110.   Also regarding paragraph 7.52 1 (paragraph 7.522 in the Interim Report) , Russia requests 
that the Panel change its reasoning with regard to one certificate [[ xxx]]. Russia comments that 
Exhibit RUS -62(BCI)  shows that inconsistencies had been identified in respect of the quality 
management system fo r the product at issue.   
6.111.   Ukraine objects to Russia's request, noting that the inspection act of 18 April 2013 
contained in Exhibit RUS -62(BCI)  refers to a certificate for the quality management system 
different from the one on the basis of which the relev ant certificate [[xxx]] was issued. Moreover, 
Ukraine considers that the inconsistencies identified in the inspection act of 18 April 2013 concern 
quality management, and that no explanation is provided in the document as to which products 
are affected by such inconsistencies. Ukraine further notes that the reports contained in Exhibit 
RUS-62(BCI)  show that the relevant producer is noted to generally function effectively and that 
the inconsistencies had been eliminated.  
6.112.   The Panel made appropriate changes t o paragraph 7.52 1 (paragraph 7.52 2 in the Interim 
Report) . We note that, as explained in footnote 4 10 (406 in the Interim Report), the inspection act 
dated 18 April 2013 contained in Exhibit RUS -62(BCI)  is incomplete. We therefore cannot verify 
whether the  inconsistencies referred to therein concern the products covered by the relevant 
certificates.  
6.113.   Regarding paragraphs 7.528 to 7.534 (paragraphs 7.529 to 7.535  in the Interim Report) , 
Russia requests that the Panel amend these paragraphs to reflect Russia' s arguments and 
evidence regarding consumer complaints with respect to the products of the producers mentioned 
in Exhibit RUS -66(BCI) , Exhibit RUS -69(BCI)  and Exhibit RUS -70(BCI) .  
6.114.   Ukraine objects to Russia's request. Ukraine notes that the Panel has summa rized Russia's 
arguments that off -site inspections were not available under Article 7.4.1 and that Russia's 
exhibits and their content are mentioned in two footnotes.  
The Panel declines Russia's request because the arguments referred to by Russia are 6.115.   
reflected in the summary of Russia's arguments in paragraph 7.493. In addition, we assess the 
evidence cited by Russia in paragraphs 7.528 to 7.534 (paragraphs 7.529 to 7.535  in the Interim 
Report) , including in footnotes 406 and 419 to 421 (paragraphs 402 and  415 to 417 in the  Interim  
Report).  WT/DS499/ R 
 
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  6.4.4   Consistency of the suspensions with Article 5.2.2 of the TBT Agreement  
Regarding the heading of section 7.3.4.2, Ukraine requests that the Panel delete an 6.116.   
unnecessary reference to the second obligation in Article 5.2.2.    
The Panel made the requested deletion.  6.117.   
6.5  Claims concerning the rejections of applications for new certificates  
6.5.1   Consistency of the rejections with Article 5.1.2 of the TBT Agreement  
Regarding paragraph  7.592 (paragraph  7.593  in the Interim Report) , Ukraine requests that 6.118.   
the Panel make a change to reflect the actual date of entry into force of the CU Technical 
Regulations, 2 August 2014.  
Russia agrees with Ukraine's request.  6.119.   
The Panel made the requested change.  6.120.   
6.121.   Regarding paragraph  7.596  (paragraph 7.597  in the Interim Report) , concerning 
application A3 [[ xxx]], Russia requests that the Panel amend Table 6 to more accurately reflect 
the goods that are the subject of that application.  
6.122.   The Panel made the requested changes to Table 6.  
6.123.   Regarding paragraph  7.647  (paragraph 7.648  in the Interim Report) , Russia requests that 
the Panel amend the summary of Russia's arguments to clarify its position on the need to 
undertake inspection of production and testing of samples, in respect of certain Ukrainian 
producers, at the producer's facilities in Ukraine.  
6.124.   The Panel made appropriate changes to paragraph 7.647 (paragraph 7.648  in the Interim 
Report) . 
6.125.   Regarding paragraph 7.648 (paragraph 7.649  in the Interim Report) , Ukraine requests that 
the Panel complement the summary o f Ukraine's arguments with arguments included in paragraph 
7.445 but not included in paragraph  7.648 (paragraph  7.649  in the Interim Report) . 
6.126.   The Panel does not consider it necessary to repeat what Ukraine said in the context of its 
claims regarding suspen sions in the context of its claims regarding rejections. However, we made 
editorial changes to this paragraph and added a cross -reference to Ukraine's arguments in 
footnote  513 (footnote  509 in the Interim Report).  
6.127.   Regarding paragraph 7.66 8 (paragraph 7.66 9 in the Interim Report) , Ukraine requests that 
the Panel amend the paragraph to better reflect Ukraine's position on the alternative measure of 
entrusting the on -site inspection of relevant Ukrainian producers to a certification body of another 
CU country . 
6.128.   The Panel made appropriate changes to paragraph  7.668 (paragraph  7.669  in the Interim 
Report) .  
6.129.   Regarding paragraph 7.670 (paragraph 7.671  in the Interim Report) , Ukraine requests that 
the Panel explicitly indicate that CU Technical Regulations enjoy dir ect effect in the CU countries.  
6.130.   The Panel made appropriate changes to paragraph  7.670 (paragraph  7.671  in the Interim 
Report) .  
6.131.   Regarding paragraph 7.696 (paragraph 7.697  in the Interim Report) , Ukraine requests that 
the Panel delete the reference to the letter of 1 August 2014 in which the FBO refers to relevant 
conditions for the conduct of remote inspections. Ukraine notes that the letter of 1 August 2014 
makes no reference to Article 7.4.1.  WT/DS499/ R 
 
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  6.132.   Russia considers that the letter of 1 August 2014 specifically  listed the conditions for 
remote inspections. Therefore, Russia suggests a change to that sentence to clarify that the 
conditions set out in Article  7.4.1 were quoted, but not cited.  
6.133.   The Panel made appropriate changes to paragraph  7.696 (paragraph  7.697  in the Interim 
Report) . 
6.134.   Regarding paragraph 7.705 (paragraph 7.706  in the Interim Report) , Russia requests that 
the Panel amend the paragraph to reflect the fact that it submitted evidence ( Exhibit RUS-62(BCI) ) 
showing that the identified non-conformities  were eliminated after the  most recent  inspection 
control took place. Russia considers this to demonstrate that the condition that there be no non -
conformity during the previous inspection control is not satisfied in respect of applications A1 and 
A2. 
6.135.   Ukraine rejects Russia's request. According to Ukraine,  the inspection act  contained in 
Exhibit RUS -62(BCI)  does not explain what the rectified non-conformities  were or  to which 
products they relate. Ukraine also argues that the  documents contained in Exhibit R US-62(BCI) , or 
any other  evidence on record , fail to  show a link between the non-conformities identified in Exhibit 
RUS-62(BCI)  and the products covered by applications A1 and A2.  
6.136.   The Panel made appropriate changes to footnote 55 6 (footnote 552 in the Int erim Report) , 
to clarify that although the non -conformities were eliminated after the most recent inspection 
control, the text of the inspection act contained in Exhibit RUS -62(BCI)  is incomplete and that 
there is therefore no evidence on the basis of whic h the Panel could determine whether such non -
conformities related to the products covered by applications A1 and A2 . 
6.137.   Regarding paragraphs 7.727, 7.728 and 7.764 (paragraphs 7.728, 7.729, and 7.765  in the 
Interim Report) , Ukraine requests that the Panel ref er to both sentences of Article 5.1.2 of the TBT 
Agreement.  
6.138.   The Panel made appropriate changes to paragraphs 7.727, 7.728 and 7.764 (paragraphs 
7.728, 7.729, and 7.765  in the Interim Report) . 
6.6  Claims concerning the non -recognition of CU certificates issued in other CU 
countries under CU Technical Regulation 001/2011  
6.139.   Regarding paragraph 7.808 (paragraph 7.809  in the Interim Report) , Ukraine requests that 
the Panel add a reference to an additional paragraph of its first written submission in the footnote.  
6.140.   The Panel made the requested change.  
6.141.   Regarding paragraph 7.814, Russia suggests that the Panel insert two abbreviations used 
later in the Interim Report.  
6.142.   The Panel does not find it appropriate to introduce these abbreviations at paragraph 7.814, 
as that parag raph refers to Ukraine's arguments. Moreover, the Panel's use of the terms 
"production condition" and "registration condition" is already addressed in footnotes 63 2 and 63 3 
and at paragraphs 7.823 and 7.824.  
6.143.   Regarding paragraph 7.842 (paragraph 7.843  in the Interim Report) , Russia requests that 
the Panel add a reference to paragraph 136 of its second written submission and Exhibit RUS -
52(BCI)  as well as Exhibit RUS -53(BCI) . 
6.144.   Ukraine considers that paragraph 7.842 (paragraph 7.843 in the Interim Report) 
appro priately reflects Russia's arguments.  
6.145.   The Panel does not find it necessary to make the requested change. Paragraphs 135 -136 
of Russia's second written submission are already referred to in footnote 647 (footnote 643 in the 
Interim Report ). Moreover, paragr aph 7.835 and footnote 645 (paragraph 7.836 and footnote  641 
in the Interim Report ) already address the content of, or refer to, Exhibit RUS -52(BCI)  and WT/DS499/ R 
 
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  Exhibit  RUS-53(BCI) . Nevertheless, in the light of Russia's comment, the Panel added footnote  654 
to reference the exhibits once more.  
6.146.   Regarding paragraph 7.844 (paragraph 7.845  in the Interim Report) , Russia requests that 
the Panel make a change to reflect that Russia does not accept the existence or authenticity of the 
February 2016 letter.  
6.147.   Ukraine note s that Russia's position is already indicated in paragraph  7.844 
(paragraph  7.845  in the Interim Report) . Ukraine further argues that the changes that Russia 
proposes to make do not concern the authenticity of the letter, but its translations.  
6.148.   The Panel ma de appropriate changes to paragraph  7.844 (paragraph  7.845  in the Interim 
Report)  and consequential changes to footnote  653 (footnote 649 in the Interim Report) .  
6.149.   Regarding paragraph 7.855 (paragraph 7.856  in the Interim Report) , Russia requests that 
the P anel include a reference to Exhibit  RUS-73(BCI) and Exhibit RUS -78(BCI) and Russia's 
arguments based on these exhibits, as reflected in Russia's response to Panel question No. 128.  
6.150.   Ukraine considers that the Panel should reject Russia's request. Ukraine notes that the 
relevant exhibits are already discussed at paragraph 7.859 (paragraph 7.860  in the Interim 
Report) .  
6.151.   The Panel does not find it necessary to refer to Exhibit RUS -73(BCI ) and Exhibit RUS -
78(BCI) in paragraph 7.855 (paragraph 7.856  in the Interim Report) . As Russia notes in its 
comments on the interim report, we address the relevant evidence at paragraph  7.859 (paragraph  
7.860  in the Interim Report) . As this evidence relat es to the situation after the Panel's 
establishment, we address it together with all such evidence submitted by the parties. Also, 
Russia's response to Panel question No. 128 is already referenced in footnote 664 (footnote 659 in 
the Interim Report) . For c ompleteness, however, we included a further reference to it in footnote 
660 (footnote 655 in the Interim Report) . Also, we made appropriate changes to paragraphs 7.855 
and 7.859 (paragraphs 7.856 and 7.860  in the Interim Report)  to further clarify the structure of 
the analysis.  
6.152.   Regarding paragraph 7.868 (paragraph 7.869  in the Interim Report) , Ukraine requests that 
the Panel supplement the summary of its arguments.  
6.153.   The Panel supplemented Ukraine's argument summary.  
6.154.   Regarding par agraph 7.880  in the Interim Report , Ukraine requests that the Panel make a 
change to reflect more accurately one of Ukraine's arguments. Ukraine contends that it did not 
make a general statement, but focused on the relation between CU Technical Regulation 001/2011 
and the third measure at issue.  
6.155.   The Panel notes that paragraph 85 of Ukraine's opening statement at the first meeting of 
the Panel is worded in a way that suggests a general proposition. Nevertheless, in the light of 
Ukraine's comment, we deleted paragraph 7.880 of  the Interim Report.  
6.156.   Regarding paragra ph 7.904 (paragraph  7.906 in the Interim Report) , Ukraine requests that 
the Panel clarify to which specific sources of evidence submitted by Ukraine the Panel refers.  
6.157.   The Panel made an appropriate c larification.  
6.158.   Regarding paragraph 7.932 (paragraph 7.934  in the Interim Report) , Russia requests that 
the Panel supplement its summary of Russia's arguments.  
6.159.   Ukraine considers that the current wording of the paragraph accurately reflects Russia's 
arguments .  
6.160.   The Panel made appropriate changes to paragraph 7.932 (paragraph 7.934  in the Interim 
Report) . WT/DS499/ R 
 
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  6.7  Claims concerning the alleged systematic import prevention  
6.161.   Regarding paragraph 7.952 (paragraph 7.954  in the Interim Report) , Russia requests that 
the Panel m ake certain changes to better reflect the parties' divergent views on the number of 
certificates suspended and rejected.  
6.162.   Ukraine objects to Russia's request. According to Ukraine, this change is unnecessary as 
the parties' disagreement on the specific numb er of certificates suspended and rejected is reflected 
in the footnotes to Table 8.  
6.163.   The Panel made appropriate changes to paragraph  7.952 (paragraph  7.954  in the Interim 
Report) . 
6.164.   Regarding paragraph 7.956 (paragraph 7.958  in the Interim Report) , Ukraine r equests that 
the Panel change Ukraine's description of the challenged measure. In particular, Ukraine requests 
changing the Panel's reference to the measure being applied "by way of three components" to the 
measure being "achieved by different means". Ukra ine also requests that the Panel list the 
evidence submitted by Ukraine in support of the existence of the challenged measure.  
6.165.   The Panel notes that paragraph 7.956 (paragraph 7.958  in the Interim Report)  provides 
our understanding of how Ukraine described the challenged measure. We recall that Ukraine, in its 
panel request and in various places in its submissions, referred to this measure as "the systematic 
prevention of Ukrainian producers from exporting their railway products to [Russia] by way of 
suspens ion of their valid conformity assessment certificates, refusal to issue new conformity 
assessment certificates and the non -recognition of conformity assessment certificates issued by 
the competent authorities of other members of the CU [,] namely the Republ ic of Belarus and the 
Republic of Kazakhstan". Moreover, the evidence submitted by Ukraine is assessed in subsequent 
paragraphs in that section of the Report.  Finally, we note that paragraph s 7.950 and 7.951 
(paragraphs  7.952 and 7.953  in the Interim Repor t) provide a summary of Ukraine's arguments. 
Having said this, we made appropriate changes to paragraphs  7.950 and 7.956 (paragraphs  7.952 
and 7.958  in the Interim Report) . 
6.166.   Regarding paragraphs 7.957 and 7.958 (paragraphs 7.959 and 7.960  in the Interim 
Report), Ukraine requests that the Panel make certain changes to clarify Ukraine's position that 
the alleged systematic import prevention took place not only through the individual FBO 
instructions and decisions. Ukraine also requests that the Panel make it c lear that Ukraine did not 
use the word components when referring to the evidence that it provided in support of the alleged 
systematic import prevention.  
6.167.   The Panel made appropriate changes to paragraphs  7.957, 7.958, 7.964, 7.990 and 7.991 
(paragraphs  7.959, 7.960, 7.966, 7.991, and 7.992  in the Interim Report) , as well as to heading 
7.6.1.2.1, and added paragraph 7.989.  
6.168.   Regarding paragraph 7.960 (paragraph 7.962  in the Interim Report) , Russia requests that 
the Panel make certain changes to complement Russ ia's arguments that the FBO issued 
certificates under CU Technical Regulations to certain producers located in eastern Ukraine 
because in those cases there were no non -conformities identified with regard to the products at 
issue in the course of the previo us inspection control.  
6.169.   Ukraine considers that paragraph 7.960 (paragraph 7.962  in the Interim Report)  
sufficiently reflects Russia's arguments and suggests that the Panel, instead of making the change 
proposed by Russia, add a reference to the responses to  Panel question No. 156 in footnote 743 
(footnote 739 in the Interim Report). Ukraine further requests that the Panel reflect Ukraine's 
position that the evidence provided by Russia is insufficient to establish that there has been no 
issue of non -conformit y regarding the quality of the certified products.  
6.170.   The Panel made appropriate changes to paragraph  7.960 (paragraph  7.962  in the Interim 
Report) . WT/DS499/ R 
 
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  6.171.   Regarding paragraph  7.966 (paragraph  7.968  in the Interim Report) , Ukraine requests that 
the Panel change the reference to the location of the producer referred therein, to clarify that it is 
located in central Ukraine. Moreover, Ukraine requests that the Panel include Ukraine's explanation 
concerning the limitation on the use of the certificates held by the producer between 2014 and 
2016.  
6.172.   Russia objects to Ukraine's request. According to Russia, Ukraine is attempting to re -argue 
its case. Russia considers that it has fully addressed Ukraine's views in its comments on U kraine's 
response to Panel question No. 115 and paragraph 28 of Russia's opening statement at the second 
meeting of the Panel.  
6.173.   The Panel made appropriate changes to paragraph  7.966 (paragraph  7.968  in the Interim 
Report) . 
6.174.   Regarding paragraph  7.967 (paragr aph 7.969  in the Interim Report) , Ukraine requests that 
the Panel make certain changes to clarify that Ukraine's argument regarding substantial repetition 
as evidence of the systematic nature of the challenged measure is based on the panel's findings in 
Russia – Tariff Treatment  and that Ukraine also relied on the substantial decrease in the number of 
producers holding certificates.  
6.175.   The Panel made appropriate changes to paragraph  7.967 (paragraph  7.969  in the Interim 
Report) .  
6.176.   Regarding Table 8 in paragrap h 7.968 (paragraph 7.970  in the Interim Report) , Ukraine 
requests that the Panel change the figure in the column corresponding to the certificates held by 
Ukrainian producers in April 2017. According to Ukraine, the correct figure is 30 and not 40, as it 
appears in Table 8.  
6.177.   The Panel added footnote 7 60 in Table 8 to explain Ukraine's position in this respect.  
6.178.   Regarding paragraph  7.970  (paragraph 7.972  in the Interim Report) , Ukraine requests that 
the Panel make changes to complement Ukraine's view that the existence of a system is shown by 
the fact that the reason invoked by the FBO for suspending certificates and rejecting applications 
for new certificates is repetitively t he same. Ukraine also requests that the Panel further elaborate 
on the scope and purpose of the last sentence of this paragraph.  
6.179.   Russia objects to Ukraine's request because contrary to Ukraine's view, the fact that the 
basis for most of the suspensions an d rejections is the same (i.e. that FBO employees were not in 
a position to conduct inspections in Ukraine) is not proof of Russia undertaking an organized effort 
to prevent the importation of Ukrainian railway products. Moreover, Russia submits that not a ll the 
suspensions and rejections were based on the same reason; at least one rejection is based on the 
fact that the application was submitted without the required documents.  
6.180.   The Panel considers that it is unnecessary to address this argument raised by Uk raine 
because, as indicated in paragraphs 7.959 and 7.970 (paragraphs 7.961 and 7.972  in the Interim 
Report) , we found that the FBO had justified reasons to suspend certificates. However, we made 
appropriate changes to clarify the last sentence of paragrap h 7.970 (paragraph  7.972  in the 
Interim Report) . 
6.181.   Regarding paragraph  7.985 (paragraph 7.987  in the Interim Report) , Ukraine requests that 
the Panel add Ukraine's explanation on why the imports of Ukrainian railway products into 
Kazakhstan and Belarus decre ased.  
6.182.   The Panel made appropriate changes to paragraphs 7.979 and 7.985 (paragraphs 7.981 
and 7.987  in the Interim Report) . WT/DS499/ R 
 
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  7  FINDINGS  
7.1  Preliminary matters  
7.1.1   Panel's preliminary ruling  
7.1.  On 3 April 2017, Russia submitted to the Panel a preliminary ruling request concerning the 
consistency of Ukraine's panel request with Article 6.2 of the DSU.  
7.2.  Russia's preliminary ruling request raises two main issues. As explained in more detail below, 
these concern whether the panel request fails to provide the legal basis of Uk raine's complaint to 
present the problem clearly and whether the panel request expands the scope of the dispute.  
7.3.  Article 6.2 provides as follows:  
The request for the establishment of a panel shall be in writing. It shall indicate 
whether consultations were  held, identify the specific measures at issue and provide a 
brief summary of the legal basis of the complaint sufficient to present the problem 
clearly. In case the applicant requests the establishment of a panel with other than 
the standard terms of refe rence, the written request shall include the proposed text of 
special terms of reference.  
7.4.  On 13 April 2017, Ukraine submitted to the Panel a response to Russia's preliminary ruling 
request. On 18 May 2017, Russia submitted to the Panel its comments on Ukra ine's response. On 
30 May 2017, Ukraine comment ed on Russia's comments. On 8  June 2017, the third parties 
submitted their views on Russia's preliminary ruling request.  
7.5.  On 30 June 2017, the Panel sent questions on Russia's preliminary ruling request in adv ance 
of the first meeting. The Panel invited both parties to provide oral answers to those questions 
during the meeting. At the end of the first substantive meeting the Panel indicated that the parties 
could submit written answers to the questions concerni ng Russia's preliminary ruling request by 
14 July 2017. On 14 July 2017, Ukraine and Russia provided written answers to the Panel's 
advance questions concerning Russia's preliminary ruling request.  
7.6.  The Panel issued its conclusions on Russia's request to th e parties on 17 July 2017.12 The 
Panel concluded that Ukraine's panel request was not inconsistent with Article 6.2 and therefore it 
rejected Russia's claims in this respect. The Panel indicated that it would provide detailed reasons 
in support of its concl usions at a later date, and at the latest in the Interim Report.  
7.7.  The Panel's conclusions as sent to the parties (and the third parties for information) are 
reproduced in Annex A to this Report. As foreseen in those conclusions, th is Report contains the 
Panel's detailed reasons for its conclusions on Russia's request. The conclusions circulated to the 
parties on 17 July 2017 are an integral part of this Report.  
7.8.  In preparing these detailed reasons, the Panel has followed, to the extent  possible, the 
structure used in its conclusions. Consequently, reasons are given in support of two separate 
conclusions. Where the conclusions were subdivided, we provide an explanation of our detailed 
reasoning in respect of each sub -issue.  
7.1.1.1   Issue 1: Whet her Ukraine's panel request fails to "present the problem clearly"  
7.9.  Issue 1 comprises six independent claims. According to Russia, Ukraine's panel request fails 
to present the problem clearly by:  
a. Failing to provide the legal basis sufficient to present the problem clearly (i.e. in section 
IV of the panel request);  
                                                
12 On 17 July 2017, t he Panel's conclusions were also circulated to third parties, for their information.  WT/DS499/ R 
 
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  b. failing to identify the specific measures at issue;  
c. failing to identify the like domestic products or the like products from any other country 
in respect of the claims raised under Articles 2.1 and  5.1.1 of the TBT Agreement and 
Articles I:1, III:4, X:3(a) , and XIII:1 of the GATT  1994. 
7.10.   Russia included under issue 1, three additional claims concerning aspects of the panel 
request that do not refer to whether it presents the problem clearly:  
d. The panel  request calls upon the Panel to look beyond the covered agreements;  
e. in describing the measure that appears in point three  of section II, the panel request 
fails to identify the specific measure at issue;  
f. only section II of the panel request contains the  measures challenged.  
7.1.1.1.1   Issue 1(a)  
7.11.   As noted above, the essence of Russia's first claim is that the panel request does not meet 
the requirements of Article 6.2 because section IV, which lists the claims, falls short of providing a 
summary of the legal basis t o present the problem clearly. Russia's claim concerns all the 
measures and all the claims identified in the panel request.  
7.12.   Russia argues that a panel request must identify the legal basis of the compliant, by plainly 
connecting the challenged measure(s) w ith the provision(s) of the covered agreements claimed to 
have been infringed, so that the respond ing party is aware of the basis for the alleged nullification 
or impairment of the complaining party's benefits. According to Russia, Ukraine's panel request 
fails to meet this requirement insofar as "the covered agreements allegedly being violated are 
listed in Section IV 'Legal Basis for the Complaint' without any reference to the measures 
challenged".13  
7.13.   Russia considers that the measures identified in the su bparagraphs of section II of Ukraine's 
panel request are "different in their nature" as well as "distinct and absolutely different from each 
other". In Russia's view, even taking account  of the differences amongst the challenged measures, 
the panel request  lacks a link between each distinct measure described in section II of the panel 
request and the corresponding provision of the covered agreement being challenged. Russia 
considers that "mere listing of the legal bases in Section IV" of the panel request w ithout any 
explanation of how each challenged measure is allegedly inconsistent with the relevant WTO 
provisions precludes Russia from understanding the case it has to answer.14 
7.14.   Ukraine agrees with Russia that Article 6.2 of the DSU requires a panel request  to provide a 
brief summary of the legal basis of the complaint in a manner that present s the problem clearly. 
However, Ukraine argues that its panel request plainly connects the challenged measures with the 
WTO provisions allegedly infringed.15  
7.15.   Ukraine co nsiders that section IV of the panel request lists the specific WTO provisions 
allegedly infringed and provides an explanation on why the measures at issue breach the relevant 
WTO provision. Ukraine argues this clearly indicates what case Russia must answe r. Moreover, 
Ukraine considers Russia to be reading section IV in isolation of the rest of the panel request, 
which runs against a panel's obligation to examine the panel request as  a whole.16  
7.16.   Ukraine further considers that the reference to section II in t he introductory paragraph of 
section IV of the panel request is clear in indicating that those two sections should be read 
together in determining the link between each measure at issue and the WTO provision allegedly 
                                                
13 Russia's preliminary ruling request, paras. 12 (citing Appellate Body Report, US – Oil Country Tubular 
Goods Sunset Reviews , para. 162) and  15. 
14 Russia's preliminary r uling request, paras. 16 and 17.  
15 Ukraine's response to Russia's preliminary ruling request, paras. 38 -44 and 64.  
16 Ukraine's response to Russia's preliminary ruling request, paras. 65 -68. WT/DS499/ R 
 
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  infringed. Ukraine submits that the de scription of the measures at issue in section II of the panel 
request consists of both the narrative paragraphs and the identification of the measures at issue in 
the three numbered points  in section II. In particular, Ukraine considers that (a) claims rai sed 
under Articles 5.1.1 and 5.1.2 of the TBT Agreement refer to the application of conformity 
assessment procedures and thus concern  the specific measures  affecting the application of the 
conformity assessment procedures identified  in the second and third  numbered points of section II 
of the panel request , (b) claims raised under Article 5.2.2 of the TBT Agreement focus on the 
completeness of documentation and  the prompt transmission of the results of a conformity 
assessment procedure, which refer to the a pplication of conformity assessment procedures, and 
thus concern  also the  measures described in points two and three of section II of the panel 
request , (c) while the claim under Article 5.2.3 of the TBT Agreement is limited to information 
requirements for conformity assessment procedures, which concern only the measure described in 
point three of section II of the panel request, Ukraine abandoned the cla im made under Article 
5.2.3 , (d) claims under Article 2.1 of the TBT  Agreement , which relates to the preparation, 
adoption, and application of technical regulations,  refer to the non -discrimination obligation in 
respect of technical regulations and thus co ncern the measure described in point three  of section II 
of the panel request  (whereas the measures identified in points one and two concern, respectively, 
restrictions on importation and conformity assessment procedures) , (e) claims under Article I:1 of 
the GATT  1994 refer to the broad scope of application of this provision and  there is nothing in the 
text of Article I:1 to suggest that one or more of the measures identified in points one to three of 
section II of the panel request  would fall outside the s cope of that provision , (f) claims under 
Article  III:4 of the GATT 1994 refer to laws, regulations and requirements affecting the internal 
sale of imported products and thus  can concern only measures described in points two and three 
of section II of the p anel request  taking into account that point one expressly refers to restrictions 
on importation and thus would appear to  fall outside the scope of Article III:4 , (g) claims under 
Article X:3(a) of the GATT 1994 refer broadly to the administration of all la ws, regulations, 
decisions and rulings and thus concern the measures described in section II of the panel request , 
and (h) claims under Articles XI:1 and XIII:1 of the GATT 1994 refer to , respectively,  quantitative 
restrictions and  their non -discriminatory  administration and  thus concern only the measure 
described in point one of section II of the panel request  taking into account that there is nothing in 
the wording of the identification of the other specific measures at issue to suggest that those 
measure s concern Russia's acts or omissions regarding importation . Ukraine also rejects Russia's 
argument that the fact that Ukraine did not challenge certain measures under certain provisions 
confirms the panel request's lack of clarity.17 
7.17.   Russia further argues t hat the situation with Ukraine's panel request is very similar to that 
in China – Raw Materials , where the Appellate Body found that section III of the complain ing 
parties ' panel requests failed to satisfy the requirement in Article 6.2 of the DSU to provi de a "brief 
summary of the legal basis of the complaint sufficient to present the problem clearly". In support 
of this view, Russia considers that like in China – Raw Materials  (a) from the wording of section IV 
of the panel request it is impossible to dis cern which measure caused which alleged violation, 
(b) the WTO provisions listed in section IV of the panel request contain a wide array of dissimilar 
obligations, and (c)  the narrative paragraphs in section IV of the panel request fail to explain how 
each of the challenged measures allegedly violate specific provisions of the WTO agreements.18 
7.18.   Ukraine rejects the parallels drawn by Russia between Ukraine's panel request and the 
complain ing parties ' panel request in China – Raw Materials . In particular, Ukra ine considers that 
(a) unlike section III of the panel requests in China – Raw Materials , the specific measures at issue 
identified in  Ukraine's panel request  have a precise and well -defined scope and all concern directly 
or indirectly conformity assessmen t procedures for railway products; moreover, unlike the 
complain ing part ies in China – Raw Materials , Ukraine does not challenge an entire code or charter 
regulating all foreign trade between Russia and third countries , (b) Ukraine's panel request 
identifies the specific measures at issue, describing both the acts and omissions attributable to 
Russia and the sources and evidence of those measures and with respect to each of the covered 
agreements that it claims to have been v iolated,  and (c)  with respect to each of the specific 
measures at issue, Ukraine has offered an explanation in section IV of the legal basis for the 
                                                
17 Ukraine's response to Russia's preliminary ruling request, paras . 68-85; and comments on Russia's 
comments on Ukraine's response to Russia's preliminary ruling request, paras. 17 -26. 
18 Russia's comments on Ukraine's response to Russia's preliminary ruling request, paras. 8 -12. WT/DS499/ R 
 
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  complaint and reading the panel request  as a whole  shows that the panel request links the  legal 
claims with  the specific measures at issue .19 
7.19.   Russia disagrees with the explanations provided in Ukraine's response to Russia's 
preliminary ruling request, on how the panel request could be read to demonstrate the link 
between the challenged measures and the WTO provi sions allegedly infringed. In particular, Russia 
considers that (a)  measures II and III do not constitute conformity assessment procedures and 
thus do not relate to Articles 5.1.1 and 5.1.2 of the TBT Agreement , (b) Ukraine did not raise in its 
first writt en submission claims under Article 5.2.2 of the TBT Agreement against measures II and 
III and the panel request does not include a reference to problems with the completeness of 
documentation , (c) Ukraine argues that measure III concerns the application of  conformity 
assessment procedures and also a technical regulation subject to Article 2.1 of the 
TBT Agreement, thus making it impossible to understand which is the challenged measure , (d) in 
its first written submission Ukraine raises claims under Article I:1 of the GATT 1994 only in respect 
of measures I and III, thus confirming the lack of clarity in the panel request , (e) despite Ukraine's 
assertion that all measures could be subject to Article III:4 of the GATT 1994, it is unclear how 
import restriction s described in the first element of measure II and measure I could  fall under 
Article III:4 and Ukraine only challenged measure III under this provision , (f) similarly it is unclear 
how all challenged measures could be subject to Article X:3 of the GATT 19 94 and Ukraine only 
raises claim s under this provisions with respect to measure III , and (g)  despite Ukraine's assertion 
that all measures could be subject to Articles XI:1 and XIII:1  of the GATT 1994 , the description of 
measure I in the panel request does  not deal with matters covered by this provision. Russia notes 
that its references to Ukraine raising claims only with respect to certain measures , is not directed 
at questioning  Ukraine's  ability  to abandon claims but rather to the lack of clarity in Ukra ine's 
panel request.20 Moreover, Russia considers that failures in the panel request cannot be cured 
through the explanations provided by Ukraine in subsequent communications.21 
7.20.   Russia therefore requests the Panel to "adjudge and declare that [measures] list ed in 
Section II of the Panel Request challenged by Ukraine are outside the Panels terms of reference 
and to dismiss Ukraine's claims".22 
7.21.   The Panel recall s that pursuant to Article 6.2  of the DSU , a panel request must "provide a 
brief summary of the legal b asis of the complaint sufficient to present the problem clearly" . 
7.22.   According to the Appellate Body, "Article 6.2 of the DSU calls for sufficient clarity with 
respect to the legal basis of the complaint … [because a] defending party is entitled to know what 
case it has to answer, and what violations have been alleged so that it can begin preparing its 
defence".23 More specifically, the legal basis of a claim must be set out in a way that is "sufficient 
to present the problem clearly".24 The Appellate Body has explained that  "in order to 'present the 
problem clearly', within the meaning of Article 6.2, a panel request must 'plainly connect' the 
challenged measure(s) with the provision(s) claimed to have been infringed so that a respondent 
can 'know what case it has to answer, and … begin preparing its defence'".25 
7.23.   In the light of the broad nature of Russia's first claim, we begin with a detailed examination 
of Ukraine's  panel request.   
7.24.   Ukraine's panel request is structured in four sections. The  first provides an overview of the 
background of the dispute. The second describes the measures at issue. The third describes 
                                                
19 Ukraine's comments on Russia's comments on Ukraine's response to Russia's preliminary ruling 
request, paras. 8 -15. 
20 Russia's comments on Ukraine's response to Russia's preliminary ruling request, para. 21.  
21 Russia's comments on Ukraine's response to Russia's preliminary ruling request, para. 1 3-22. 
22 Russia's preliminary ruling request, para. 18.  
23 Appellate Body Report, Thailand – H-Beams , para. 88.  
24 Appellate Body Report, EC – Selected Customs Matters , para. 168.  
25 Appellate Body Report s, Argentina – Import Measures , para. 5.39 (quoting Appellate Body Report, US 
– Countervailing and Anti -Dumping Measures (China) , para. 4.8 (in turn quoting Appellate Body Report, US – 
Oil Country Tubular Goods Sunset Reviews , para. 162) ).  WT/DS499/ R 
 
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  Russia's relevant legal framework. The fourth provides the legal basis of the complaint.26 
7.25.   Section II of the panel request contains  three narrative paragraphs describing the measures 
at issue, followed by a numbered list of the measures,  which includes references to Annexes I -III 
of the panel request. This section ends with a concluding paragraph describing the trade effects of 
the ch allenged measures.27 
7.26.   Section II of the panel request describes three measures. To have the appropriate basis to 
provide our analysis of Russia's first objection, we briefly refer to our understanding on each of the 
challenged measures. We provide additional  explanations on why we consider these to be the 
measures identified in the panel request when assessing Russia's objections concerning the 
identification of the measures .  
7.27.   Measure one is described as the "systematic prevention of Ukrainian producers from 
exporting their railway products" to Russia by way of the suspensions of valid certificates of 
conformity held by Ukrainian producers of railway products, the rejections of applications for new 
certificates of conformity submitted by Ukrainian producers of railway products, and the non -
recognition of certificates of conformity issued in other CU countries . This measure is described in 
the first numbered point of section II.  
7.28.   Measure two refers to three separate components that concern Ukrainian producers. First, 
to "suspensions of conformity assessment certificates" as mentioned in Annex I. Second, to 
"rejections of new applications for conformity assessment certificates" as me ntioned in Annex II. 
Third, to "refusals to recognize valid conformity assessment certificates issued by other 
CU countries" as mentioned in Annex III. The description of measure two, through its components, 
appear s in the first two narrative paragraphs an d in the second numbered point of section II.  
7.29.   The third measure is described in the third narrative paragraph and in the third numbered 
point of section II. Measure three relates to the non-recognition by Russia  of certificates issued in 
other CU countries  if the certified products were not produced in a CU country.  
7.30.   Section IV of the panel request begins with an introductory paragraph that reads: "the 
measures described in section II are inconsistent with [Russia's] obligations under the following 
provision s of the GATT 1994 and the TBT Agreement." This introductory paragraph is followed by a 
list of 10 provisions, five of the TBT Agreement and five of the GATT 1994, each of which contains 
a brief description of how that provision is being breached.28 
7.31.   We turn  to examine each point of section IV of the panel request, bearing in mind the 
description of the three measures at issue in section II of the panel request, to determine whether 
the panel request links the challenged measures with the ten WTO provisions a llegedly infringed. 
In pursuing this task, we note that we are not adjudicating on the merits of the claims raised by 
Ukraine. Our focus is on whether the links are sufficient for Russia to have understood what 
problem Ukraine raised and what case it had t o defend.  
7.32.   Points one and two of section IV of the panel request contain Ukraine's claims on application 
of Russia's conformity assessment procedure  under Articles 5.1.1 and 5.1.2 of the TBT Agreement. 
These claims concern, on the one hand, the discriminatory application of conformity assessment 
procedures, and on the other hand, the unnecessary trade restrictiveness of the ir application. The 
three me asures described above could relate both to the alleged discriminatory application of 
Russia's conformity assessment procedures  and its unnecessary trade restrictiveness, because the 
three of them could concern the application of Russia's conformity assess ment procedures  for 
railway products. This includes the general import prevention , inasmuch as  the two other 
measures, which concern the application of Russia's conformity assessment procedures  for railway 
products , appear to serve as  evidence of the latte r's existence. We thus consider that the general 
import prevention could relate to the application of Russia's conformity assessment procedures for 
                                                
26 WT/DS499/2.  
27 WT/DS499/2, p. 2.  
28 WT/DS499/2, p. 3.  WT/DS499/ R 
 
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  railway products . We thus consider that there is a link between Ukraine's claims under Articles 
5.1.1 and 5. 1.2 and the challenged measures.  
7.33.   Point three  of section IV of the panel  request  contains Ukraine's claims under Article 5.2.2 of 
the TBT Agreement. These claims concern the manner in which Russian authorities processed the 
conformity assessment procedures . In particular, Ukraine's claims  relate to (a)  the prompt 
examination of the completeness of applicants'  documentation, (b)  informing applicants of all 
deficiencies in the applications, and (c)  transmitting the results of the conformity assessment as 
soon as possible and in a precise and complete manner. The wording of the explanation provided 
in point three refers to two  situations . One concerns  "producers applying for conformity 
assessment certificates" , and the other concerns the transmissions of results  of conformity 
assessment to applicants . Thus, a measure that concerns  an application for a conformity 
assessment certificate  or the transmission of results of conformity assessment  is excluded from 
this claim. The suspensions of valid certificates of conf ormity held by Ukrainian producers, a 
component of measure two, is described in section II of the panel request as referring to the 
verification of the conditions  of conformity  for a certificate already issued.  This measure thus 
entails the assessment of c onformity, but not the request for a conformity assessment certificate.  
Therefore, this component of measure two is linked to  letter (c) above, and not to letters (a) and 
(b). In contrast, the other components of measure two (rejections of new applications  and refusals 
to recognize valid conformity assessment certificates issued by other CU countries) relate to an 
application triggering a conformity assessment procedure . The rejections of the new applications 
could relate to the three aspects ((a) through ( c) above) of the claims  raised under Article 5.2.2. 
The refusals to recognize certificates of conformity issued by other CU countries could relate to 
point (a) above, because section II of the panel request suggests that the reason to refuse to 
recognize t he CU certificates could relate to the lack of examination of the relevant documents. 
However, this component of measure two does not seem to relate to points (b) and (c) above, 
because the panel request appears to acknowledge that the refusals were  commun icated  to the 
applicants within a reasonable period of time. We thus consider that there is a link between 
Ukraine's claims under Article  5.2.2 and the  suspensions of valid certificates, the  rejections of 
application for certificates of conformity, the non -recognition of certificates issued by other 
CU countries (only regarding the prompt examination of the completeness of documentation), and 
the general import prevention , inasmuch as the suspensions, the rejections and the non -
recognition appear to serve as evidence of the latter's existence .  
7.34.   Point four of section IV of the panel request contains Ukraine's claims under Article 5.2.3 of 
the TBT Agreement. These claims concern unnecessary information requirements throughout the 
conformity assessment procedu re. The suspensions of valid certificates of conformity held by 
Ukrainian producers do not seem to be linked to this claim because the panel request does not 
provide an indication that the assessment of the continued conformity of the products was 
somehow related to the request of unnecessary information. The problem presented by this 
component of measure two seems linked to the reasons supporting the inability to perform on -site 
inspections. The rejections of applications for certificates of conformity cou ld relate to the 
imposition by Russian authorities of additional requirements, as such rejections could have been 
the result of unnecessary information requirements. However, this claim could not extend to those 
applications that, as described in section I I of the panel request, were "returned without 
consideration"; because this would imply  that the Russian authorities did not make any 
information requirement. The refusals to recognize certificates of conformity issued by other 
CU countries could relate to  unnecessary information requirements, because the Russian 
authorities could be asking for additional information than that considered sufficient by the 
relevant authorities of other CU countries. However, this would not be the case in respect of 
measures one and three, due to their nature of a systematic measure and a general requirement. 
We thus consider that there is a link between Ukraine's claims under Article 5.2.3 and two 
components of measure two , the rejections of applications for certificates of c onformity (excluding 
the applications returned without consideration) and the refusals to recognize conformity 
assessment certificates issued by other CU countries. We do not consider there is a link between 
Ukraine's claims under Article 5.2.3 and measure  one, a component of measure two (the WT/DS499/ R 
 
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  suspensions of valid certificates of conformity held by Ukrainian producers), and measure three.29 
7.35.   Point five of section IV of the panel request contains Ukraine's claims under Article 2.1 of 
the TBT Agreement. These cl aims concern the discriminatory effects of the application of technical 
regulations. The panel request challenge s the discriminatory application of certain technical 
requirements through the three measures at issue. Therefore,  the three measures could rela te to 
this alleged discrimination.  We thus consider that there is a link between Ukraine's claims under 
Article 2.1 and the challenged measures.  
7.36.   Points six and seven  of section IV of the panel request contain Ukraine's claims under 
Articles I:1 and III:4 o f the GATT 1994. These claims concern alleged discriminatory treatment 
against Ukrainian railway products as compared, on the one hand, with the treatment provided to 
products from other countries, and, on the other hand, with the treatment provided to dom estic 
products. The panel request underlines that the challenged measures are only applied to Ukrainian 
railway products, which could lead to discriminatory treatment in favour of railway products from 
other countries and in favour o f domestic products. We  thus consider that there is a link between 
Ukraine's claims under Articles I:1 and III:4 and the challenged measures.  
7.37.   Point eight of section IV of the panel request contains Ukraine's claims under Article X:3(a) 
of the GATT 1994. These claims concern the uniform, impartial, and reasonable administration of 
laws, regulations, and decisions of a general application. Measure one and measure three are 
measures of general application which could fall under the purview of Article X:3(a). This, 
however, is not th e case for the three components of measure two, all of which refer to individual 
instances of application. We thus consider that there is a link between Ukraine's claims under 
Article X:3(a) and measures one and three. We also consider that there is no lin k between 
Ukraine's claims under Article X:3(a) and measure two.  
7.38.   Points nine and ten of section IV of the panel request contains Ukraine's claims under 
Articles XI:1 and XIII:1 of the GATT 1994. These claims concern the imposition and administration 
of import restrictions or prohibitions on the imports of Ukrainian railway products. The challenged 
measures could be alleged to constitute an import restriction. In particular, it is clear that measure 
one would fall under this category. Moreover, measure  one could have been administered in a 
discriminatory manner. We thus consider that there is a link between Ukraine's claims under 
Articles XI:1 and XIII:1 and the challenged measures.  
7.39.   On the basis of the foregoing, we consider that Ukraine's claims, as described in section IV 
of the panel request, read together with section II, pertain to the following measures:  
Table 1 - Link between the claims raised by Ukraine and the measures at issue  
Measures  Related claims  
One: Systematic p revention of 
exports  Articles 5.1.1, 5.1.2, and 2.1 of the TBT  Agreement.  
Articles I:1, III:4, X:3(a), XI:1, and XIII:1  of the GATT 1994 . 
Two: Suspensions of valid 
certificates of conformity 
held by Ukrainian 
producers  Articles 5.1.1, 5.1.2, 5.2.2, and 2.1 of the TBT Agreement.  
Articles I:1, III:4, XI:1, and XIII:1  of the GATT 1994 . 
Rejections of applications 
for certificates of 
conformity  Articles 5.1.1, 5.1.2, 5.2.2, 5.2.3 (excluding applications 
returned without co nsideration), and 2.1 of the TBT 
Agreement.  
Articles I:1, III:4, XI:1, and XIII:1  of the GATT 1994 . 
Refusals to recognize 
certificates of conformity 
issued by other CU 
countries  Articles 5.1.1, 5.1.2, 5.2.2, and 2.1 of the TBT Agreement.  
Articles I:1,  III:4, XI:1, and XIII:1  of the GATT 1994 . 
                                                
29 We note that, subsequently in these proceedings, Ukraine did not raise claims under Article 5.2.3 of 
the TBT Agreement.  WT/DS499/ R 
 
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  Measures  Related claims  
Three: non-recognition of  
certificates of conformity issued 
by other CU countries  Articles 5.1.1, 5.1.2, and 2.1 of the TBT Agreement.  
Articles I:1, III:4, X:3(a), XI:1, and XIII:1  of the GATT 1994 . 
 
7.40.   We disagree with the so-called parallels drawn by Russia between the panel request at issue 
and the panel requests in China – Raw Materials . The Appellate Body in China – Raw Materials  was 
confronted with whether section III of the panel requests in that di spute provided a "brief 
summary of the legal basis of the complaint sufficient to present the problem clearly."30 After 
examining the relevant aspects of the consultations requests in China – Raw Materials , the 
Appellate Body concluded that they violated Ar ticle 6.2 because "the complainants did not, in 
either the narrative paragraphs or in the final listing of the provisions of the covered agreements 
alleged to have been violated, provide the basis on which the Panel and China could determine 
with sufficien t clarity what 'problem' or 'problems' were alleged to have been caused by which 
measures".31 
7.41.   There are two differences between the panel requests in China – Raw Materials  and the 
panel request at issue. First, the narrative paragraphs of section II of the panel requests in China – 
Raw Materials  referred to several distinct types of measures (other restraints on the exportation of 
the materials; administers its measures in a manner that is not uniform, impartial, and 
reasonable; imposes excessive fees and fo rmalities on exportation; and does not publish certain 
measures pertaining to requirements, restrictions, or prohibitions on exports) and to several 
allegations of violations (relating to the administration of export quotas; allocation of export 
quotas; pu blication of export quota amounts and application procedures; export licensing 
requirements; minimum export price requirements; and fees and formalities).32 Following the 
narrative paragraphs, the panel requests include a list of at least  37 legal instruments that range 
from entire codes or charters to specific administrative measures, without referring to specific 
sections or provisions of any of the listed instruments.33 In brief, the narrative paragraphs include 
a brief description of diffe rent allegations of violation relating to different types of restraints but 
they do not link them to the myriad of legal instruments listed in the subsequent section. In 
contrast, the narrative paragraphs in section II of Ukraine's panel request identify t hree measures 
at issue and provide a description that allows the nature of each  to be discern ed. In particular, the 
third narrative paragraph of section II, where the non -recognition of other CU certificates is 
described, provides a clear indication of the  legal instruments concerned by that measure 
(e.g. CU Technical Regulation 001/2011). In addition, the legal instruments described in section III 
of the panel request is limited to nine instruments, the first five of which clearly relate to the 
challenged measures described in section II, and the other four refer to the background on the 
legal framework applicable to Russia's CAPs.34 
7.42.   Second, the final paragraph of section III of the panel requests in China – Raw Materials  
provides a list of 13 WTO provisions  allegedly infringed, without indicating how any of the 
measures at issue caused  any of the alleged violations. The narrative paragraphs, however, did 
provide explanations.35 In contrast, as explained above, section  IV of Ukraine's panel request 
contains a list of the ten  WTO provisions allegedly infringed, together with an explanation of why 
Ukraine deems each provision inconsistent  with the measures at issue.36 
7.43.   We consider that Ukraine's panel request, a s explained above  and when read as a whole, 
provides s ufficient clarity as to plainly connect the WTO provisions allegedly infringed with the 
measures at issue. Such connection is sufficient for Russia to have known which case it had to 
defend. We therefore reject Russia's request.  
                                                
30 Appellate Body Report s, China – Raw Materials , para. 226.  
31 Appellate Body Report s, China – Raw Materials , para. 231.  
32 Appellate Bod y Report s, China – Raw Materials , paras. 222 -223. 
33 Appellate Body Report s, China – Raw Materials , para. 224.  
34 See WT/DS499/2, pp. 2 -3. 
35 See WT/DS394/7, pp. 6 -9; WT/DS395/7, pp. 6 -9; and, WT/DS398/6, pp. 6 -9. 
36 See WT/DS499/2, pp. 3 -4. WT/DS499/ R 
 
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  7.1.1.1.2   Issue 1(b)  
7.44.   The essence of R ussia's second claim is that the panel request fails to present the problem 
clearly by failing to identify the specific measures at issue. Russia argues that Ukraine's panel 
request fails to identify the specific measures at issue because it fails to ident ify the specific 
products at issue, and thus it is impossible for Russia to discern the specific measures at issue.  
7.45.   Russia submits that Article 6.2 of the DSU does not require a panel request to identify the 
products to which the specific measure at issue  applies. However, Russia considers  that for  certain 
WTO obligations, it may be necessary to identify the products subject to the measures in dispute 
to be able to identify the specific measures at issue. In Russia's view,  it was necessary for Ukraine 
to identify the products at issue so that Russia could  identify the specific measures at issue.37 
7.46.   According to Russia, the reference in Ukraine's panel request to "railway products" fails to 
identify the products at issue in a manner that provides certainty of the measures being 
challenged, thus preventing Russia from understanding the product coverage of the dispute. 
Russia considers that the reference to "railway products" is too vague. In support of this view 
Russia indicates that the harmonized system of nom enclature of goods does not refer to any goods 
or group of goods as "railway products", but rather to specific types of products (e.g. railway or 
tramway locomotives, rolling stock and part thereof, etc.). Russia further argues that there is no 
dictionary definition of the term "railway products" and that this term is not a commercial term 
readily understandable in the trade.38  
7.47.   Moreover, Russia considers that the definition of railway products provided in the first 
paragraph of the panel request does not ad d any clarity. First, Russia considers that the term 
"other railroad equipment" is equally vague as to what qualifies as railway products. Russia 
considers that "other railroad equipment" is similarly not listed as a type of product in the 
harmonized syste m nor is it a commercial term. Second, this is also true of the term "parts 
thereof". Russia also considers that this definition provides an open -ended list of products at issue, 
which runs counter to the security and predictability of the WTO dispute settlement system as 
required by Article 3.2 of the DSU.39 
7.48.   Ukraine  also states that  the DSU does not require the identification of the products at issu e 
in the panel request. Ukraine considers that Article  6.2 contemplate s that the identification of the 
products must flow from the specific measures identified in the panel request. Ukraine considers 
that it is only necessary for  certain WTO obligations to  identify the products at issue in order to 
identify the measures at issue.40 
7.49.   Ukraine argues that Russia failed to explain why, pursuant to Article 6.2, Ukraine was 
required, because of the WTO obligations at issue, to identify the products at issue in orde r to 
identify the challenged measures. Ukraine considers that this  reason alone is sufficient  for 
reject ing Russia's claim.  In any event,  Ukraine  argues that its panel request has identified and 
defined the products at issue .41 
7.50.   Ukraine claims  that Russia is  asking the Panel to find that the products at issue not only 
need to be identified in the panel request, but  that they must also be defined using headings under 
the harmonized system, definitions used in authoritative dictionaries, and commercial terms 
readily understandable in trade. According to Ukraine the definition of the products at issue in the 
                                                
37 Russia's prelimi nary ruling request, para. 19 (citing to Appellate Body Report, EC – Computer 
Equipment , paras. 67 -68, 70); and comments on Ukraine's response to Russia's preliminary ruling request, 
paras. 25, 26 and 28.  
38 Russia's preliminary ruling request, paras. 20 -24; and comments on Ukraine's response to Russia's 
preliminary ruling request, para. 24 and 27.  
39 Russia's preliminary ruling request, paras. 25 -27; and comments on Ukraine's response to Russia's 
preliminary ruling request, paras. 30 -31. 
40 Ukraine's response  to Russia's preliminary ruling request, para. 90 (citing Appellate Body Report, EC 
– Chicken Cuts , para. 165).  
41 Ukraine's response to Russia's preliminary ruling request, paras. 91 -92; and comments on Russia's 
comments on Ukraine's response to Russia's preliminary ruling request, paras. 29 -37. WT/DS499/ R 
 
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  panel request is not open ended and does not permit an expansion of the list of products at 
issue.42 
7.51.   With reference to Ukraine's first written submission, Rus sia further submits that Ukraine 
inadmissibly expands the scope of the dispute by providing a new definition of railway products. 
Russia refers to the inclusion of the phrase, "that are subject to mandatory certification under the 
relevant applicable legis lation in the Russian Federation", to the definition of railway products. 
Russia considers that this addition demonstrates the lack of clari ty in the definition provided in the 
panel request, and that the panel request cannot be cured through subsequent su bmission s. 
Russia thus requests the Panel to disregard this new definition of the products at issue.43  
7.52.   In addition, Russia submits, arguendo , that if this new definition is accepted it fails to add 
sufficient clarity for the identification of the products at issue. First, because under the relevant 
regulations there are dozens of railway products subject to mandatory certification. Second, not all 
products subject to mandatory certificat ion are mentioned in the panel request, and therefore this 
addition wou ld expand the scope of the dispute. Third, Ukraine's first written submission contains 
reference s to products not included in the definition of railway product, e.g. pickers and fastening 
elements, railway freight wagons, side frames and bolsters, railway tank cars, capacitor equipment 
and tanks for liquid gas, and railway transport.44 
7.53.   Ukraine rejects Russia's argument that in its first written submission Ukraine expands the 
scope of the dispute by providing a new definition of the products at issue. Ukraine  argues that the 
definition of the products at issue provided in its first written submission mirrors that included in 
the first paragraph of the panel request as developed in the subsequent sections of the panel 
request. Ukraine considers that the referen ce to products subject to mandatory certification in 
Russia is present in the panel request, as the measures at issue, the relevant legal instruments, 
and the WTO provisions included in the panel request, make it clear that the problem raised by 
Ukraine co ncerns the mandatory conformity assessment procedures.45 
7.54.   Ukraine also rejects Russia's argument that Ukraine's references in its first written 
submission to pickers and fastening elements, railway freight wagons, side frames and bolsters, 
railway tank cars,  capacitor equipment and tanks for liquid gas, and railway transport expand the 
scope of the dispute. Ukraine considers that Russia has not explained why those products do not 
fall within the description of the products at issue.46  
7.55.   On the basis of the fore going, Russia submits that the panel request failed to identify the 
specific measures at issue and requests the Panel to  find that the measures listed in section II of 
the panel request are outside the Panel 's terms of reference.47 Ukraine asks the Panel to reject 
Russia's claim.48 
7.56.   The Panel considers that Russia is alleging  that the definition of the products at issue, i.e. 
railway products, in  the first  paragraph of the panel request is too vague. According to Russia the 
consequence of this vagueness is that Russia cannot discern the measures at issue and therefore 
the panel request fails to present the problem clearly. However, this challenge relates  to the 
                                                
42 Ukraine's response to Russia's preliminary ruling request, paras. 93 -97; and comments on Russia's 
comments on Ukraine's response to Russia's preliminary ruling request, paras. 38 -40. 
43 Russia's comments on Ukrain e's response to Russia's preliminary ruling request, para. 32 (citing 
Ukraine's first written submission, para. 24).  
44 Russia's comments on Ukraine's response to Russia's preliminary ruling request, paras. 33 -37 
(referring to Ukraine's first written submis sion, paras. 82, 92, 102, 105, and 113).  
45 Ukraine's comments on Russia's comments on Ukraine's response to Russia's preliminary ruling 
request, paras. 41 -44. 
46 Ukraine's comments on Russia's comments on Ukraine's response to Russia's preliminary ruling 
request, para. 45.  
47 Russia's preliminary ruling request, paras. 28 -30; and comments on Ukraine's response to Russia's 
preliminary ruling request, para. 38.  
48 Ukraine's response to Russia's preliminary ruling request, para. 98;  and comments on Russia's 
comme nts on Ukraine's response to Russia's preliminary ruling request, para. 46.  WT/DS499/ R 
 
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  requirement set out in Article 6.2 of the DSU that the  panel request must identify the specific 
measure or measures at issue, rather than to the requirement to present the problem clearly.49 
7.57.   The Appellate Body found that for a panel request to satisfy this requirement, such 
measures must be identified with suf ficient precision so that what is referred to adjudication may 
be discerned from the panel request.50 According to t he Appellate Body this could be achieved by 
identifying the measure(s) at issue "with sufficient particularity so as to indicate the nature o f the 
measure and the gist of what is at issue".51 
7.58.   The requirement imposed by Article 6.2 is to identify the specific measure at issue, and not 
the products governed or affected by that measure.52 However, there may be cases where the 
nature of the allegedly  infringed WTO provision (e.g. a claim that a tariff binding has been 
exceeded) may require the identification of the products at issue to identify the measure at 
issue.53  
7.59.   We thus need to determine whether Russia has demonstrated that because of the nature  of 
the claims raised by Ukraine, the definition of the products at issue in the panel request is 
insufficient to identify the measures at issue. Paragraph 1 of the panel request indicates that this 
dispute concerns certain measures imposed on the importat ion of " railway rolling stock, railroad 
switches, other railroad equipment, and parts thereof ('railway products') from Ukraine". Sections 
I, II, and III of the panel request include references to "railway products" when discussing the 
background, the meas ures at issue, and the underlying legal instruments. Despite being general, 
this definition provides a specific group of products  that the challenged measures  affected. This is 
further reinforced , through the references in section II of the panel request t o Annexes I, II and 
III, which list a series of instructions and decisions from Russian authorities. Those instructions 
and decisions, through which conformity assessment certificates were suspended, applications for 
new certificates were rejected, or othe r CU certificates were not recognized, concern specific 
railway products.  
7.60.   As already noted above, section II of the panel request provides a clear description of the 
challenged measures, which comprise  measure one (the systematic prevention of exports), 
measure two and its three components (the suspensions of valid certificates of conformity held by 
Ukrainian producers, the rejections of applications for certificates of conformity, and the refusals to 
recognize valid certificates of conformity issued by ot her CU countries), and measure three (the 
non-recognition of  certificates of conformity issued by other CU countries). From the description 
provided in section II of the panel request it is clear that those measures apply to railway 
products. It is thus un clear how the panel request fail s, by virtue of the definition of the products 
at issue, to identify the specific measures at issue.  
7.61.   Moreover, we consider that Russia did not develop arguments explaining why the claims 
raised by Ukraine, which concern ten different WTO provisions, required a more detailed 
identification of the products at issue. In this regard we note that Russia raises an alternative 
claim concerning the impact of the definition of the products at issue on presenting the problem 
clearly w ith respect to certain WTO provisions allegedly infringed, which we understand to be 
separate from this general claim.  
7.62.   We recall that according to Russia the general nature of the definition of the products at 
issue amounts to an open -ended list which is c ontrary to Article 3.2 of the DSU. Russia relies on 
                                                
49 Regarding the requirement in Article 6.2 that the panel request must identify the specific measures at 
issue, see: Appellate Body Reports, Dominican Republic – Import and Sale of  Cigarettes , para. 120 ; and EC 
and certain member States – Large Civil Aircraft , para. 790.  
50 Appellate Body Report, US – Continued Zeroing , para. 168.  
51 Appellate Body Report, US – Continued Zeroing , para. 169.  
52 Appellate Body Reports, EC – Computer Equipment , para. 67;  and EC – Chicken Cuts , para. 165.  
53 Appellate Body Report, EC – Computer Equipment , para. 67 (where the Appellate Body concluded that 
Article 6.2 does not explicitly require the identification of the products at issue, and went on to find that the 
general reference to "LAN equipment" and "PCs with multimedia capacity" did not affect the  European 
Communities' rights of defence). See also Appellate Body Report, EC – Chicken Cuts , para. 167 (where the 
Appellate Body found that in circumstances where a series of decisions of customs authorities are under 
challenge, it may be necessary to ide ntify the products at issue in order to identify the measures at issue).  WT/DS499/ R 
 
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  the preliminary ruling of the panel in China – Raw Materials , where the panel found that the 
complain ing parties  were barred from including additional measures other than those listed and 
identified in the bullet points in the panel request. This finding related to the reference to "among 
others" in the section of the panel requests where measures at issue were desc ribed.54 We agree 
with Ukraine that Russia's reliance  on the decision of the panel in China – Raw Materials  is 
misplaced, as it concerns a textual reference to "among others", which is not included in Ukraine's 
panel request.  
7.63.   We are not persuaded by Russia' s position that Ukraine expands the scope of the dispute by 
the manner in which it describes the products at issue in its first written submission. It is clear that 
the products at issue are railway products, as defined in the panel request. Ukraine's desc ription of 
the products at issue in its first written submission, as those subject to mandatory certification 
pursuant to the relevant laws in Russia, refers to the specific situation that concerns Ukraine. Such 
a reference can therefore not be interpreted  as an expansion of the scope of the dispute. 
Moreover, the references to pickers and fastening elements, railway freight wagons, side frames 
and bolsters, railway tank cars, capacitor equipment and tanks for liquid gas, and railway 
transport, were made in  explaining what type of products each of the Ukrainian producers 
concerned produced . Russia has not linked those descriptions to Ukraine's legal claims or to any of 
the specific measures at issue, which suggests that Ukraine is not expanding the dispute t hrough 
those references. In addition, as Ukraine notes, Russia has not explained how any of those 
products is not within the definition of railway products provided in the panel request.  
7.64.   We consider that the manner in which the products at issue are defin ed in the panel request 
does not affect Russia's  ability to discern the measures at issue. We therefore reject Russia's 
request.   
7.1.1.1.3   Issue 1(c)  
7.65.   The essence of Russia's third claim is that the panel request fails to provide a brief summary 
of the legal basis sufficient to present the problem clearly with respect to claims raised under 
Articles 2.1 and 5.1.1 of the TBT Agreement and Articles I:1, III:4, X:3(a), and XIII:1 of the 
GATT  1994, because it fails to identify the like domestic products or the like produ cts from any 
other country. This claim concerns all the measures identified in the panel request. Russia raises 
this claim in the alternative in the event that the Panel rejects Russia's second claim. Having 
rejected Russia's second claim, we turn to asses s the parties' arguments in respect of Russia's 
third claim.  
7.66.   Russia argues that the identification of the specific products in a panel request, including the 
imported and the domestic products, may be necessary, in certain instances, to provide a brief 
summary of the legal basis of the complaint. In support of this view, Russia relies on the panel's 
findings in US – Clove Cigarettes .55  
7.67.   Russia argues that Ukraine's panel request should have identified the like domestic and like 
imported products against whic h Ukrainian railway products would be compared. Russia considers 
that by not indicating the relevant like domestic products and like imported products with respect 
to claims raised under  Articles 2.1 and 5.1.1 of the TBT Agreement and Articles I:1, III:4, X:3(a), 
and XIII:1 of the GATT 1994, the panel request fails to provide a brief summary sufficient to 
present the problem clearly. Russia further considers that Ukraine's responses to its claim 
demonstrate that this requirement is clearly not fulfilled in the panel request.56  
7.68.   As a consequence, Russia requests the Panel to find that the panel request failed to present 
the problem clearly with respect to claims regarding measures described in section II of the panel 
                                                
54 See WT/DS394/9, WT/DS395/9 , and WT/DS398/8, paras. 10 -13. 
55 Russia's preliminary ruling request, para. 31 (citing Panel Report, US – Clove Cigarettes , 
para. 7.139).  
56 Russia's prel iminary ruling request, paras. 32 -38; and comments on Ukraine's response to Russia's 
preliminary ruling request, paras. 39 -43.  WT/DS499/ R 
 
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  request under Articles 2.1 and 5.1.1 of the  TBT Agreement and Articles I:1, III:4, X:3(a), XIII:1 of 
the GATT 1994, and that these claims consequently fall outside the Panel’s terms of reference.57 
7.69.   Ukraine asks the Panel to reject  Russia's claim. Ukraine argues that Russia misunderstood 
the panel report in US – Clove Cigarettes . Ukraine considers that the panel in US – Clove 
Cigarettes addressed the impact of limiting the products at issue in the panel request in the 
likeness analy sis, concluding that although there is no requirement for a panel request to identify 
the products at issue, when the panel request specifies the products at issue, this indication should 
not be devoid of meaning. Ukraine refers to the Appellate Body's con clusion in US – Clove 
Cigarettes that in determining the relevant like products, a panel is not bound by its terms of 
reference to limit its analysis to those products identified by the complaining Member in the panel 
request. Ukraine argues that on this b asis, Russia's claim lacks any legal ground.58 
7.70.   Ukraine also argues that, when read as a whole, the panel request identifies the products at 
issue. In particular, Ukraine considers that the references throughout sections II and IV of the 
panel request to rai lway products should be understood in the light of the definition of that term in 
the first paragraph of the panel request. On that basis, Ukraine considers that the products at 
issue are railway rolling stock, railroad switches, other railroad equipment, and parts thereof, 
generally referred to as railway products. In addition, Ukraine considers that by identifying the 
products at issue as railway products in its panel request, Ukraine informed Russia that Ukraine's 
claims that require d assessing the liken ess of imported and domestic products with those of 
different WTO Members pertain ed to such products of Russian origin and those  originating in other 
WTO Members.59 
7.71.   The Panel recalls that Article 6.2 requires a panel request to "provide a brief summary of t he 
legal basis of the complaint sufficient to present the problem clearly". To satisfy this requirement a 
panel request must plainly connect the challenged measures with the allegedly infringed 
WTO provisions.  
7.72.   Russia's argument implies that for a panel re quest to present the problem clearly when 
raising claims of discrimination, it should indicate the specific like domestic products and like 
imported products with which the products from the complain ing party  should be compared. 
Russia supports this argume nt by reference to the panel's findings in US – Clove Cigarettes .  
7.73.   We consider that Russia's reading of the panel's findings in US – Clove Cigarettes is 
misplaced. We agree with Ukraine that  the panel in US – Clove Cigarettes  was not discussing 
whether the  identification of the like domestic products in the panel request was necessary to fulfil 
the requirements of Article  6.2. Rather, that panel was assessing whether its "like products" 
assessment should be limited to considering the like domestic products identified by the 
complai ning party  in its panel request.60 
7.74.   In an analogous situation to the one raised by Russia, the panel in India – Agricultural 
Products  examined whether the complain ing party  ought to have identified in its panel request the 
legal inst rument that it later challenged (in the first written submission) as providing better 
treatment to like domestic products, when raising a claim of discrimination under Article 2.3 of the 
SPS Agreement. That panel, drawing on the distinction between claims  and arguments , found that 
Article 6.2 did not require the identification of the legal instrument that provided the more 
favourable treatment to like domestic products, especially when the complain ing party  did not 
consider the instrument providing more fa vourable treatment as a challenged measure, but rather 
as evidence of the alleged discriminatory treatment to imported products.61  
                                                
57 Russia's preliminary ruling request, para. 39;  and comments on Ukraine's response to Russia's 
preliminary ruling request, para . 44. 
58 Ukraine's response to Russia's preliminary ruling request, paras. 104 -107 (citing Panel Report, US – 
Clove Cigarettes , paras. 7.137 and 7.141; and Appellate Body Report, US – Clove Cigarettes , para. 191); and  
comments on Russia's comments on Ukrai ne's response to Russia's preliminary ruling request, paras. 49 -51. 
59 Ukraine's response to Russia's preliminary ruling request, paras. 108 -122; and comments on Russia's 
comments on Ukraine's response to Russia's preliminary ruling request, para. 50.  
60 Panel Report, US – Clove Cigarettes , paras. 7.134 -7.148.  
61 Panel Report, India – Agricultural Products , paras. 7.45 -7.55. WT/DS499/ R 
 
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  7.75.   We do not find support in previous panel or Appellate Body reports for Russia's position that 
Ukraine's panel request should have identified the like domestic products and the like imported 
products to have presented the problem clearly. As explained in detail in section 1.2.1  above, we 
consider that Ukraine's panel request provides a brief summary of the legal basis of the complaint 
sufficient to present the problem clearly. We consider that the lack of identification of the products 
of Russian origin and the products from  other WTO Members alleged to be like Ukrainian railway 
products does not prevent the panel request from presenting the problem clearly and does not 
affect Russia's ability to know which case it had to defend. We therefore reject Russia's request.  
7.1.1.1.4   Issue 1( d) 
7.76.   Russia's fourth claim is that the claims raised in the panel request with respect to  measure  
three are outside the Panel's terms of reference, because they require  the Panel to rule on issues 
that go beyond the covered agreements.  
7.77.   Russia first asks the Panel to confirm that the scope of the measures described in point 
three of section II is limited to "Technical Regulation No. 001/2011 'On safety of railway rolling 
stock'". Russia argues that the reference to "when read together" in point three of sectio n II 
means that the other documents referred to therein are not measures but rather evidence or 
arguments raised by Ukraine in the panel request.62  
7.78.   Russia argues that, if the Panel disagrees with this understanding, the measure described in 
point three is outside the Panel's terms of reference. Russia considers that a challenge against a 
decision by the Russian authorities that Technical Regulation 001/2011 is applicable only to goods 
produced in the CU countries is one against the manner in which Russia ap plied the provisions of 
the CU Technical Regulation. Russia argues that this raises  a claim of the consistency of Russia's 
actions with the relevant CU regulation.63  
7.79.   Ukraine argues that there is no basis for Russia's limited reading of point three of secti on II 
of the panel request and that the challenged measure, as set out in point three and the third 
narrative paragraph of section II of the panel request, is Russia's decision not to accept in its 
territory the validity of the conformity assessment certif icates issued to Ukrainian producers in 
other CU countries and not to register such producers for operation in its territory.64  
7.80.   Ukraine considers that Russia wrongly argues that through its challenge to measure three 
Ukraine is requesting the Panel to make  findings on the consistency of this measure with relevant 
CU regulations. Ukraine argues that Russia does not identify any obligation under the CU legal 
framework with respect to which Ukraine requests the Panel to make findings and 
recommendations.65 
7.81.   Russia argues that in its response to Russia's preliminary ruling request Ukraine changes 
the nature of the measure challenged. Russia considers that in the panel request, Ukraine only 
referred to Technical Regulation 001/2011 and not to actions of Russian aut horities.  In contrast, 
according to Russia,  in its response to Russia's preliminary ruling request Ukraine describes the 
measure at issue as Russia's decision not to accept in its territory the validity of conformity 
assessment certificates issued to Ukrai nian producers in other CU countries and not to register 
such producers for operation in its territory.66 
7.82.   Ukraine rejects Russia's argument that in its response to Russia's preliminary ruling request 
Ukraine changed the nature of the challenged measures. Ac cording to Ukraine, its response to 
Russia's preliminary ruling request is limited to explaining how section II of the panel request 
describes the challenged measure as Russia's decision not to recognize the validity of other 
CU certificates issued to Ukrainian producers. Ukraine also rejects Russia's reading of section II of 
                                                
62 Russia's preliminary ruling request, paras. 41 -43. 
63 Russia's preliminary ruling request, paras. 44 -48; and comments on Ukraine's response to Russia's 
preliminary ruling request, paras. 52 -54. 
64 Ukraine's response to Russia's preliminary ruling request, paras. 125 -131. 
65 Ukraine's response to Russia's preliminary ruling request, paras. 132 -134; and comments on Russia's 
comments on Ukraine's response to Russia's preliminary ruling request, para. 65.  
66 Russia's comments on Ukraine's response to Russia's preliminary ruling request, paras. 45 -50. WT/DS499/ R 
 
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  the panel request, according to which the challenged measure is only CU Technical Regulation 
001/2011.67 
7.83.   Russia accordingly  requests  that the  Panel find that measure three is outside the Panel's 
terms of reference.68 In contrast, Ukraine opposes  Russia's request .69 
7.84.   The Panel notes that Russia's claim is twofold. First, Russia requests the Panel to confirm its 
understanding of the challenged measure. Second, Russi a requests the Panel to find that, if the 
measure includes anything beyond Technical Regulation 001/2011, it is outside the Panel's terms 
of reference because it calls on the Panel to make findings on issues that go beyond the covered 
agreements.  
7.85.   In our view, the first aspect of Russia's claim is not about Ukraine's panel request being 
inconsistent with Article 6.2 of the DSU. Russia does not seek a ruling that any measure or 
measures identified in the panel request are outside  the Panel's terms of referenc e. Rather, Russia 
seeks the Panel's confirmation that measure three is circumscribed to what Russia understands it 
to be, namely, CU Technical Regulation 001/2011. Russia seems to present this request as the 
basis for the second part of its claim. In the l ight of the fact that Russia is not raising a challenge 
under Article 6.2, we cannot, and do not, make any findings in respect of this aspect of Russia's 
request.  
7.86.   Regarding the second aspect  of Russia's claim, we note that  it is correct that a panel would 
not have jurisdiction to make findings on the consistency of Russia's measures with CU law. 
However, Ukraine's panel request does not include claims concerning Russia's non -compliance with 
provisions of the Treaty on the establishment of the Eurasian Econo mic Union (EAEU) or 
EAEU  secondary law. In other words, the panel request does not identify the EAEU Treaty or the 
identified CU Technical Regulations as the legal basis for its claims. The panel request, in 
section  II, appears to suggest that Ukraine disa grees with Russia's interpretation of the relevant 
CU Technical Regulations. However, section IV of the panel request also indicates that the 
measures at issue give rise to an inconsistency with Russia's obligations under specific 
WTO provisions. Ukraine's  panel request is thus limited to claims under the covered agreements. 
We therefore reject Russia's request.  
7.1.1.1.5   Issue 1(e)  
7.87.   Russia's fifth claim is that in respect of measure three, Ukraine's panel request does not 
satisfy the requirement of Article 6.2 to ide ntify the specific measure at issue.  
7.88.   Russia argues that Article 6.2 requires a panel request to identify the specific measures with 
sufficient particularity, so as to indicate the nature of the measure and the gist of what is at issue. 
Russia considers tha t the refer ence to Technical Regulation  001/2011 and to other documents in 
point three of section II of the panel request is too broad and fails to clearly identify the measure 
at issue. Russia argues that the documents mentioned in point three are lengthy and cover several 
issues, thus making it impossible to identify the challenged measures. Russia considers that 
Ukraine also failed to specify the particular parts of the instructions mentioned in Annex III that 
pertain to measure three. Russia bases its claim on the findings of the panel repor t in Australia – 
Apples , where the panel found that the broad reference in New Zealand's panel request to certain 
measures failed to satisfy the requirement of sufficient clarity in the identification of the measures 
at issue set forth in Article 6.2 of th e DSU. In consequence, Russia requests the Panel to find that 
measure three is outside the Panel's terms of reference.70 
                                                
67 Ukraine's comments on Russia's comments on Ukraine's response to Rus sia's preliminary ruling 
request, paras. 55 -64. 
68 Russia's preliminary ruling request, para. 49; and comments on Ukraine's response to Russia's 
preliminary ruling request, para. 55.  
69 Ukraine's response to Russia's preliminary ruling request, para. 135; and comments on Russia's 
comments on Ukraine's response to Russia's preliminary ruling request, para. 66.  
70 Russia's preliminary ruling request, paras. 50 -55; and comments on Ukraine's response to Russia's 
preliminary ruling request, para. 58 (citing Panel R eport, Australia – Apples , para. 7.1449).  WT/DS499/ R 
 
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  7.89.   Ukraine rejects Russia's request  in respect of Issue 1(e) . Ukraine argues that Article 6.2 
does not require a panel request to identify the specific provisions of specific legal instruments 
through which the measures at issue operate or are applied. Ukraine considers that Russia fails to 
distinguish between the concept of measures at issue and the legal instrument through which 
those measu res operate or are applied. Moreover, Ukraine considers that the measure at issue is 
sufficiently identified in section II of the panel request. Ukraine also argues that the panel's 
findings in Australia – Apples do not support the view that a panel reques t must identify the 
articles in the legal instruments underlying the challenged measures, because that panel found 
that 17 measures identified in New Zealand's panel request were within its terms of reference.71  
7.90.   The Panel begins by recalling that the text of Article 6.2 makes clear that a panel request 
must, inter alia , identify the specific measure or measures at issue. Measures not properly 
identified fall outside a panel's terms of reference, and cannot be the subject of panel findings or 
recommendations .72  
7.91.   According to the Appellate Body, "the determination of whether a panel request satisfies the 
requirements of Articles [ sic] 6.2 must be based on an examination of the panel request on its face 
as it existed at the time of its filing".73 Previous dispute s also indicate that "[t]he task of assessing 
the sufficiency of a panel request for the purposes of Article 6.2 may be undertaken on a case -by-
case basis, in consideration of the panel request as a whole, and in the light of the attendant 
circumstances".74 In respect of the requirement to identify the specific measures at issue, the 
Appellate Body has explained that "the measures at issue must be identified with sufficient 
precision so that what is referred to adjudication may be discerned from the panel re quest".75 
A panel request will satisfy this requirement where it identifies the measure(s) at issue "with 
sufficient particularity so as to indicate the nature of the measure and the gist of what is at 
issue".76  
7.92.   We also recall that, according to the Appella te Body, "there may be circumstances in which 
a party describes a measure in a more generic way, which nonetheless allows the measure to be 
discerned"77, and "[a]n assessment of whether a complaining party has identified the specific 
measures at issue may d epend on the particular context in which those measures exist and 
operate".78 These statements suggest to us that there is no single way in which a challenged 
measure must invariably be identified.  
7.93.   As explained above, section II of the panel request provide s a narrative description of the 
measures at issue, followed by a numbered list of the measures at issue. Section II also contains 
references to Annexes I -III to the panel request. A careful reading of the panel request reveals 
that the third measure at is sue is addressed in the third narrative paragraph, the three numbered 
points and Annex III. These various references must be read together.79  
7.94.   The third narrative paragraph indicates that Ukraine is challenging  Russia's alleged non-
recognition  of certificat es issued to Ukrainian producers in other CU countries (Belarus and 
Kazakhstan). It further clarifies that the non -recognition is the "consequence" of, or is based on, 
a "decision" by Russia, including its Ministry of Transport, that CU Technical Regulatio n 001/2011 
is applicable only to goods produced in CU countries.  
                                                
71 Ukraine's response to Russia's preliminary ruling request, paras. 138 -142; and comments on Russia's 
comments on Ukraine's response to Russia's preliminary ruling request, paras. 68 -75. 
72 Appellate Body Reports, Dominican Republic – Import and Sale of Cigarettes , para. 120 ; and EC and 
certain member States – Large Civil Aircraft , para. 790.  
73 Appellate Body Report s, Argentina – Import Measures , para. 5.48.  
74 Panel Report, US – FSC (Article 21.5 – EC II) , para. 7.74 . See also Appellate Body Reports, Canada – 
Wheat Exports and Grain Imports , para. 206 ; EC and certain member States – Large Civil Aircraft , para.  787; 
and Panel Report, China – Publications and Audiovisual Products , para. 7.104.  
75 Appellate Body Report, US – Continued Zeroing , para. 168.  
76 Appellate Body Report, US – Continued Zeroing , para. 169.  
77 Appellate Body Report, US – Zeroing (Japan) (Article 21.5 – Japan) , para. 116.  
78 Appellate Body Report, EC and certain member States – Large Civil Aircraft , para. 641.  
79 See the text of section II of the panel request in Table 2 below.  WT/DS499/ R 
 
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  7.95.   The first numbered point concerns the first measure. It identifies "non -recognition" of 
certificates as one of several ways in which Russia allegedly prevented imports of Ukrainian railway 
products.  
7.96.   The second numbered point refers to the second measure and its components. The second 
point of section II contains a reference to the "refusals to recognize" valid certificates issued to 
Ukrainian producers as mentioned in Annex III. It also refers  to suspensions of certificates and 
rejections of new applications, which are mentioned in Annexes I and II. As these three categories 
(refusals to recognize, suspensions and rejections) are grouped together in the second point and 
reference is made to "re fusals", in the plural, and to Annex III containing "instructions", it can be 
inferred that Ukraine seeks to identify these individual instructions as separate components of 
measure two, in the same way that individual suspensions and rejections are separa te components 
of measure two,  in respect of which Ukraine has raised claims .80 
7.97.   The third numbered point identifies CU Technical Regulation 001/2011, read together with 
the Protocol of the Ministry of Transport and instructions mentioned in Annex III. Readin g the third 
point together with the narrative description of the measures at issue, it can be seen that 
CU Technical Regulation 001/2011 and the Ministry of Transport are identified only once, in the 
third narrative paragraph, which deals with the non -recognition of certificates. This indicates that, 
like the second numbered point, the third point relates to the non -recognition of certificates. 
As the third point is separate from, and  comes after, the second point,  this suggests  that the third 
point is not about individual non -recognition instructions.  
7.98.   To better understand the third measure,  it is instructive to look to the third narrative 
paragraph in section II. It says that the relevant Russian authorities concluded that certificates 
issued in other CU co untries were not valid in Russia's territory and that the products concerned 
could not be imported or registered. In other words, according to Ukraine, Russia's authorities 
concluded that these certificates could not be recognized. The third narrative para graph further 
says that this conclusion resulted from the authorities' view that CU Technical 
Regulation  001/20 11 was applicable only to products produced in CU countries.  
7.99.   Thus, contextual interpretation supports the view that Ukraine's third measure seeks to 
challenge an alleged requirement that Russia's authorities consider to flow from CU Technical 
Regulation 001/2011. Under that alleged requirement, Russia's authorities must not recognize 
certificates issued to Ukrainian producers in other CU count ries if the certified products were not 
produced in a CU country. This understanding is consistent with the description of the relevant 
component of the second measure, which is about the individual "refusals" mentioned in Annex III 
that result from the ap plication of the alleged non -recognition requirement. The third numbered 
point indicates the source of the non -recognition requirement, i.e. CU Technical 
Regulation  001/2011 as read and applied by Russia in the Protocol of the Ministry of Transport and 
the instructions mentioned in Annex III.  
7.100.   Moreover, we disagree with Russia's position that it could not understand the problem at 
issue without precise references to the relevant sections of the documents listed in point three of 
section II of the panel requ est. We recall that the panel in EC – Trademarks and Geographical 
Indications (Australia) found that provided that the measure at issue is adequately identified, 
Article 6.2 of the DSU does not require an identification of specific aspects of the specific measures 
at issue.81 We agree with this view and consider that Ukraine's panel request sufficiently identifies 
the measure at issue as the alleged requirement that Russia's authorities must not recognize  
certificates issued in other CU countries if the cert ified railway products were not produced in a 
CU country.  
7.101.   We are also not persuaded by Russia's argument that the panel report in Australia – 
Apples  supports its conclusion that the panel request failed to sufficiently identify measure three. 
                                                
80 See the first and third numbered points of section II of the panel request, WT/DS499/2, p. 2. It 
should be noted, however, that, during the panel proceedings, Ukraine has stated that while it seeks findings 
from the Panel on each of the individual instructions and decisions contained in Annexes I and II to the panel 
request, it does not seek findings on the individual refusals mentioned in Annex III to the panel request. 
Ukraine's response to Panel question No. 7(a), (b), and (c).  
81 Panel Report, EC – Trademarks and Geographical Indications (Australia) , para. 7.2.26.  WT/DS499/ R 
 
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  Russia fails to explain the relevance of the differences between the situation examined by the 
panel in Australia – Apples  and the alleged flaws in Ukraine's panel request.  In Australia – Apples , 
New Zealand's panel request contained a broad reference to the measures a s specified in the Final 
import risk analysis report for apples from New Zealand of November 2006 (the FIRA) and then a 
list of 17 specific measures listed in the FIRA.82 In that panel's view, the identification of the 17 
items of the FIRA was sufficiently precise in identifying the specific measures at issue, with respect 
to those 17 items, pursuant to Article 6.2 of the DSU. The panel further found that due to the 
length and complexity of the FIRA, the broad reference to it as a measure at issue did not sa tisfy 
the requirement for specific identification of the measure in Article 6.2.83  
7.102.   We see important differences between Ukraine's panel request in this dispute and New 
Zealand's panel request in Australia – Apples . As already explained, Ukraine's panel request 
identifies the measure at issue, in different parts of section II. The panel request does so with 
sufficiently clarity to allow a reader to discern that the measure is the alleged requirement that 
Russia's authorities must not recognize certificate s issued in other CU countries if the certified 
products were not produced in a CU country. In contrast, New Zealand attempted to describe the 
measure at issue as the FIRA, a complex and lengthy legal instrument. As explained above, 
Ukraine's references to  CU Technical Regulation 001/2011 and  the Protocol of the Ministry of 
Transport in certain parts of the panel request seem intended to signal the legal instruments from 
which the challenged measure flows. This again is an important difference with New Zeal and's 
panel request.  
7.103.   It follows from our analysis of the panel request that the measure at issue identified in the 
panel request as measure three is the alleged requirement that Russia's authorities must not 
recognize certificates issued in other CU count ries if the certified railway products were not 
produced in a CU country.  
7.104.   In brief, we consi der that Ukraine's panel request identifies the challenged measure in a 
manner that satisfie s the requirements of Article 6.2 of the DSU. We therefore reject Russia 's 
request.  
7.1.1.1.6   Issue 1( f) 
7.105.   Russia's sixth claim is that the measures at issue are contained only in section II of the 
panel request.  
7.106.   Russia requests the Panel to confirm that only the numbered points in section II of the 
panel request contain the measures at  issue. Russia considers that section I, section II and the 
narrative paragraphs in section II of the panel request do not contain measures challenged by 
Ukraine. Moreover, Russia argues that any attempt to expand or alter the scope of the challenged 
measu res through references to sections other than section II of the panel request, would be 
inconsistent with Article 6.2 of the DSU.84 
7.107.   Ukraine asks the Panel to reject Russia's request. Ukraine considers that the purpose of a 
preliminary ruling request is to s eek a panel decision,  preliminary to the issuance of the panel 
report, on the alleged inconsistency of the panel request with the requirements of Article 6.2 of the 
DSU. According to Ukraine, neither Article 6.2 of the DSU nor any other provision of the DSU offers 
a legal basis to seek a decision from a panel on the interpretation of a panel request in the 
absence of a dispute.85  
7.108.   The Panel considers that this aspect of Russia's preliminary ruling request does not raise a 
claim that Ukraine's panel request  is inconsistent with Article 6.2 of the DSU. Indeed, Russia does 
not seek a ruling that any measure or measures identified in the panel request are outside  the 
                                                
82 Panel Report, Australia – Apples , para. 7.1446.  
83 Panel Report, Australia – Apples , para. 7.1449.  
84 Russia's preliminary ruling request, para. 56; and comments on Ukraine's response to Russia's 
preliminary ruling request, para. 60.  
85 Ukraine's response to Russia's preliminary rul ing request, paras. 143 -147; and comments on Russia's 
comments on Ukraine's response to Russia's preliminary ruling request, paras. 76 -77. WT/DS499/ R 
 
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  Panel's terms of reference. We recall that pursuant to Article 11 of the DSU our task is to mak e an 
objective assessment of the matter before us. In our view, this does not encompass confirming, in 
response to a preliminary ruling request, the parties' understanding of a panel request.  
7.109.   Moreover, Russia's argument that any attempt to expand or alter  the scope of the 
challenged measures through references to sections other than section II of the panel request 
would be inconsistent with Article 6.2 of the DSU is misplaced. As explained above, an examination 
of the consistency of a panel request with th e requirements set out in Article 6.2 of the DSU 
demands a panel to undertake an examination of the panel request as a whole. Russia's argument 
is in direct contradiction of this guideline.  
7.110.   In the light of this, we cannot, and do not, make any findings un der Article 6.2 in respect 
of this aspect of Russia's request.  
Issue 2: Whether Ukraine's panel request expands the scope of the dispute  7.1.1.2   
7.111.   Issue 2 comprises three independent claims. According to Russia, Ukraine's panel request 
expands the scope of the dispu te because:  
a. Measures one and two expand the scope of the dispute;  
b. Measure one, taken alone, expands the scope of the dispute;  
c. Certain aspects of measure two, taken alone, expand the scope of the dispute.  
7.1.1.2.1   Issue 2(a)  
7.112.   The essence of Russia's claim is that me asures one and two expand the scope of the 
dispute by changing the essence of the dispute, as set out in the request for consultations.  
7.113.   Russia argues that a complaining party  must refrain from expanding the scope of, or 
changing the essence of a dispute i n its panel request as compared to its consultations request. 
Russia considers that this requirement prevents a complaining party  from including in a panel 
request measures that were not referred to in the consultations request, where such measures are 
separate and legally distinct from those referred to in the consultations request. Moreover, Russia 
considers that a complaining party may only add to the panel request those new provisions that 
may reasonably be said to have evolved from the legal basis  of the measure(s) that formed the 
subject of consultations.86 
7.114.   Russia argues that the structure and text of Ukraine's consultations request reveals that 
the measures at issue are identified only in section II, entitled "measures at issue". According to 
Russia, t hat section contains a list of 11 documents that encompass the measures at issue. Russia 
argues that, in contrast, the measures at issue are identified in paragraph 4 of section II of 
Ukraine's panel request. Russia considers that only th ree (CU Technical Regulation  001/2011, 
Protocol No. A -4-3 of 20 January 2015 and Letter [[xxx]] of 9 February 2015) of the 11 documents 
listed in section II of the consultations request are included in the panel request. Russia argues 
that measures one and two are distinct in nature and substance from any other documents set out 
in section II of the consultations request. Moreover, Russia considers that it entered into 
consultations with the understanding that the measures at issue are the legal instruments listed in 
section  II of the consultations request.87  
                                                
86 Russia's preliminary ruling request, paras. 61 -64 (referring to Appellate Body Reports, US – Upland 
Cotton , para. 2 93; Argentina – Import Measures, para. 5.13; and Mexico – Anti-Dumping Measures on Rice , 
paras. 137 and 138).  
87 Russia's preliminary ruling request, paras. 66 -72; and comments on Ukraine's response to Russia's 
preliminary ruling request, paras. 62 -66. WT/DS499/ R 
 
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  7.115.   In consequence, Russia considers that the panel request expanded the scope of the 
dispute and dramatically changed its essence and therefore requests the Panel to find that 
measures one and two are outside the Panel's te rms of reference.88  
7.116.   Ukraine rejects Russia's request  in respect of Issue 2(a) . Ukraine argues that Russia 
wrongly considers that the measures at issue are the legal instruments described in section II of 
the consultations request. Ukraine argues that Russi a improperly describes the content of the 
consultations request, because, despite the confusion that  could arise from the fact that  the 
headings of the consultations request do not reflect the distinction made  in the panel request 
between section II ("the measures at issue") and section III ("legal framework in [Russia]") , the 
measures at issue are not only described in section II of the consultations request. Ukraine 
considers that the acts and omissions of Russian authorities described in section I of the  
consultations request, entitled "background", reflect the measures at issue. Ukraine considers that 
section II of the consultations request provides an indication of the legal instruments through 
which the measures at issue described in section I were imp osed and administered. According to 
Ukraine, the inclusion of the legal instruments in section II of the consultations request is aimed at 
providing the source of the measures at issue, and is thus an integral part of their description.89  
7.117.   Moreover, Ukraine  considers that the measures at issue described in section I of the 
consultations request are identical to those included, albeit through a different presentation, in 
section II of the panel request. Ukraine argues that a careful comparison of the section II of the 
consultations request with section III, entitled "legal framework in the Russian Federation", and 
the Annexes to the panel request shows that the 11 legal instruments identified in the 
consultations request are contained in the panel request.90  
7.118.   The Panel begins its analysis by noting that Article 6.2 of the DSU requires that a Member 
indicate in its request for the establishment of a panel "whether consultations were held". 
However, the DSU does not explicitly address the issue presented by Russia 's preliminary ruling 
request, which is whether, and to what extent, the scope of a dispute is limited to the measures 
explicitly referred to in the request for consultations.91 
7.119.   We find guidance on this issue in the Appellate Body's jurisprudence. In partic ular, we note 
the Appellate Body's clarification that Article 6.2 does not "require a precise and exact  identity 
between the specific measures that were the subject of consultations and the specific measures 
identified in the request for the establishment of a panel".92 The Appellate Body has thus cautioned 
panels against imposing "too rigid a standard for the 'precise and exact identity' between the 
scope of consultations and the request for the establishment of a panel".93 According to the 
Appellate Body, " the requirement under Article 4.4 to identify the measure at issue cannot be too 
onerous at this initial step in the proceedings"94, because "this would substitute the request for 
consultations for the panel request"95, and give undue emphasis to what is "bu t the first step in 
the WTO dispute settlement process".96 The Appellate Body also noted that replacing the panel 
request with the consultations request " would also undermine the stipulation in Article  7 of the 
DSU that, unless the parties agree otherwise, it is the request for the establishment of a panel that 
governs the panel's terms of reference."97  
                                                
88 Russia's preliminary ruling request, para. 73; and comments on Ukraine's response to Russia's 
preliminary ruling request, para. 67.  
89 Ukraine's response to Russia's preliminary ruling request, paras. 149 -165. 
90 Ukraine's response to Russia's preliminary r uling request, paras. 155 and 161 -164. 
91 We refer to the consultations request because the Appellate Body indicated that in determining the 
scope of consultations held in a dispute, panels should look to the text of the consultations request and need 
not seek to establish what was actually discussed during any consultations meetings between the parties. 
Appellate Body Report, US – Upland Cotton , para. 287.  
92 Appellate Body Report, Brazil – Aircraft , para. 132 (emphasis original).  
93 Appellate Body Report, US – Upland Cotton , para. 293.  
94 Appellate Body Report s, Argentina – Import Measures , para. 5.12.  
95 Appellate Body Report, US – Upland Cotton , para. 293.  
96 Appellate Body Report, US – Upland Cotton , para. 293.  
97 Appellate Body Report s, Argentina – Import Mea sures , para. 5.13  WT/DS499/ R 
 
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  7.120.   Having said that, the Appellate Body has also made clear that the language used in a 
consultations request should "sufficiently alert []"98 the responding party to the "nature and object 
of the challenge raised by the complainant".99 In addition, according to the Appellate Body, 
provided that a complaining party does not "expand the scope"100 or "change the essence" of the 
dispute101 in its panel request , the panel request governs the panel's terms of reference.102 
Whether the inclusion of a measure in a panel request has expanded the scope of a dispute must 
be determined "on a case -by-case basis"103 and "involves scrutinizing the extent to which the 
identified measure at issue … ha[s] evolved or changed from the consultations request to the 
panel request".104 A measure identified in a panel request may fall outside a panel's terms of 
reference if it "is separate and legally distinct" from the measures id entified in the consultations 
request.105 
7.121.   In addition, the Appellate Body has provided guidance on the extent to which the "legal 
basis" of a complaint, as distinct from the identified measure(s), must be consistent across a 
complaining party's consultations  and panel requests. According to the Appellate Body, "it is not 
necessary that the provisions [of the covered agreements] referred to in the request for 
consultations be identical to those set out in the panel request", provided that the inclusion of any 
additional provisions in the panel request "may reasonably be said to have evolved from … the 
subject of consultations"106, and provided also that the addition of new legal claims does not 
"change the essence" of the dispute.107 We note that subsequently the A ppellate Body has applied 
the "change the essence" test also in cases where the inclusion of additional measures in a panel 
request has been challenged under Article 6.2.108  
7.122.   With these considerations in mind we turn to examine Russia's claim. Russia's argum ents 
focus on the lack of correspondence between the measures at issue as described in Ukraine's 
consultations request and in Ukraine's panel request. We thus turn to examine Ukraine's 
consultations request so as to  compare it against the panel request.  
7.123.   Ukraine's consultations request begins with an introductory paragraph and continues with 
three sections. The first, entitled "background", contains nine narrative paragraphs, which provide 
a description of the problems raised by Ukraine. The second, entitle d "measures at issue", begins 
with an introductory paragraph stating that the section contains the legal instruments through 
which Russia imposes and administers the above -mentioned measures, which are subsequently 
listed. The second section concludes with  a final paragraph stating that the consultations request 
covers certain instruments concerning the challenged measures. The third section, entitled "legal 
basis for the complaint", lists the WTO provisions allegedly infringed together with a brief 
explana tion of why the measures appear to be inconsistent with each of those provisions.  
7.124.   We recall that a panel should examine a panel request as a whole when assessing its 
compliance with the requirements of Article 6.2 of the DSU. In our view, a panel should d o the 
same when examining a consultations request.  
7.125.   We agree with Ukraine that, when read as a whole, it is clear that sections I and II of the 
consultations request describe the measures at issue. Ukraine chose to use "Background" as the 
heading for secti on I while using "Measures at issue" as the heading for section II. This could lead 
to confusion, if each section is examined in isolation. However, when scrutinized, it becomes clear 
that the nine narrative paragraphs in section I  do describ e the differen t measures giving rise to the 
problems Ukraine complain s about. Despite  being labelled "measures at issue", section II provides 
                                                
98 Appellate Body Report, US – Zeroing (Japan) , para. 95.  
99 Appellate Body Report s, Argentina – Import Measures , para. 5.12.  
100 Appellate Body Report, US – Upland Cotton , para. 293.  
101 Appellate Body Report, Mexico – Anti-Dumping Measures on  Rice, paras.  137 and 138.  
102 Appellate Body Report s, Argentina – Import Measures , para. 5.13.  
103 Appellate Body Reports, US – Shrimp (Thailand)  / US – Customs Bond Directive , para. 293.  
104 Appellate Body Report s, Argentina – Import Measures , para. 5.13.  
105 Appellate Body Report s, Argentina – Import Measures , para. 5.13.  
106 Appellate Body Report, Mexico – Anti-dumping Measures on Rice , para. 138.  
107 Appellate Body Report, Mexico – Anti-dumping Measures on Rice , para. 138.  
108 Appellate Body Reports, Argentina – Import Measures , para. 5.30; and US – Shrimp (Thailand)  / US 
– Customs Bond Directive , para. 293.  WT/DS499/ R 
 
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  a list of certain legal instruments through which Russia imposes and administers the measures 
described in section I. This concl usion  is also supported  from the text of the introductory 
paragraph of section II, which reads "[t] he legal instruments through which the Russian Federation 
imposes and administers the above -mentioned measures in a manner that affects Ukraine's rights 
under the WTO are the following".  
7.126.   On this basis, we disagree with  Russia's assertion that the measures  at issue are described 
only in section II of the consultations request. We consider the measures at issue to be described 
in sections I and II of the consultations request. Accordingly, Russia's first claim that the panel 
request expands the scope or chan ges the nature of the dispute by describing measures not 
identified as such in the consultations request is misplaced.  
7.127.   Moreover, we note that  nine of the 11 legal instruments described in section II of the 
consultations request are listed either in sectio n II or in Annexes I, II and III of the panel request. 
This further confirms that the panel request, read as a whole, does not expand or change the 
essence of the consultations request, also read as a whole.  
7.128.   We therefore reject Russia's claim that section II of the panel request expands the scope 
of the consultations request by identifying measures different from those described in section II of 
the consultations request.  
7.1.1.2.2   Issue 2(b)  
7.129.   The essence of Russia's claim is that if the Panel considers that measure one is within the 
scope of the dispute  then, in the alternative, that measure is outside the panel's terms of 
reference. Russia's main argument in support of this claim is that the discrepancies between how 
this measure is described in the consultations re quest as compared to the panel request are such 
that the latter expands the scope of the dispute.  
7.130.   Russia argues that the description of measure one in point one of section II of the panel 
request includes references to measures not described in the consult ations request. In particular, 
Russia considers this to be the case with the reference to the "refusal to issue new conformity 
assessment certificates".109  
7.131.   Russia also  considers that the reference to a "systematic prevention of Ukrainian producers 
from expo rting their railway products to" Russia by way of suspension of certificates, refusal to 
issue new certificates and the non -recognition of certificates is not referred to in the consultations 
request. According to Russia, the consultations request refers t o specific suspensions of valid 
certificates of conformity held by Ukrainian producers and rejections of applications for certificates 
of conformity submitted by Ukrainian producers, and does not include a general reference to such 
type of actions by Russi an authorities.110  
7.132.   Ukraine argues that Russia's interpretation of Articles  4.4 and 6.2 of the DSU risks 
substituting the requirements for consultations requests with those for panel requests. Ukraine 
considers that it is well established that there does not  need to be a precise and exact identi ty 
between the measures identified in the consultations request and in the panel request.111 
7.133.   Ukraine argues that the seventh and eighth narrative paragraphs of section I of the 
consultations request refer to applications  for conformity assessment certificates being rejected by 
Russia and the impediment to apply for new certificates. Ukraine considers that these references, 
although worded differently, were made to Russia's refusal to issue new certificates, described in 
the panel request.112  
                                                
109 Russia's preliminary ruling request, paras. 76 -77; and comments on Ukraine's response to Russia's 
preliminary ruling request, paras. 68 -70. 
110 Russia's preliminary ruling request, paras. 78 -80. 
111 Ukraine's response to Russia's preliminary ruling request, para. 172.  
112 Ukraine's response to Russia's preliminary ruling request, paras. 167 -168; and comments on 
Russia's comments on Ukraine's response  to Russia's preliminary ruling request, paras. 85 -86. WT/DS499/ R 
 
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  7.134.   Ukraine submits that both the consultations request and the panel request refer to the 
refusal to issue new certificates, the suspension of valid certificates for conformity held by 
Ukrainian producers, and to the non -recognition of CU certificates operating to the effect of 
restricting exports of Ukrainian railway products to Russia. According to Ukraine, the addition of 
the adjective "systematic" to the description of this measure in the panel request, as compared to 
the consultations request, is insufficient to conclude that the panel request impermissibly expands 
the scope of the dispute, because the measure is clearly identified in both documents. Ukraine 
considers that the addition of the adjective "systematic" is a natural evolutio n of the consultations 
process.113  
7.135.   In response , Russia submits that the addition of the adjective "systematic" to the 
description of the challenged measure is not merely a natural evolution of the consultations 
process, because  this adjective has a particul ar meaning in WTO dispute settlement for a particular 
type of measure.114 
7.136.   However, a ccording to Ukraine, the use of the adjective "systematic" concerns the 
description of the measure and not the claims raised in respect of that measure. Moreover, 
Ukraine arg ues that whether a panel request expands the consultations request does not depend 
on the findings and recommendations that may be made by a panel in the exercise of its 
jurisdiction.115 
7.137.   Russia requests the Panel to find that the measure described in  the fir st numbered  point of 
section II of the panel request impermissibly expands the scope of the dispute and is therefore 
outside the Panel's terms of reference.116 Ukraine rejects Russia's request  in respect of Issue 
2(b).117 
7.138.   The Panel considers that the question raised by Russia's claim is whether the description of 
the alleged general import prevention in the panel request impermissibly expands the scope of the 
dispute. We turn to examine Russia's claim, bearing in mind the Appellate Body 's guidance on the 
required correspondence between the consultations request and the panel request.  
7.139.   To compare the text of the consultations request against the panel request, we find it 
helpful to reproduce the relevant sections of each document. The following table co ntains the 
wording of the narrative paragraphs of section I of the consultations request, in the left column, 
and the wording of section II of the panel request, in the right column.  
  
                                                
113 Ukraine's response to Russia's preliminary ruling request, paras. 169 -171. 
114 Russia's comments on Ukraine's response to Russia's preliminary ruling request, paras. 71 -72. 
115 Ukraine's comments on Russ ia's comments on Ukraine's response to Russia's preliminary ruling 
request, paras. 91 -92. 
116 Russia's preliminary ruling request, paras. 75 and 80.  
117 Ukraine's response to Russia's preliminary ruling request, para. 173; and comments on Russia's 
comments on Ukraine's response to Russia's preliminary ruling request, para. 93.  WT/DS499/ R 
 
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  Table 2 - Text of the relevant parts of the con sultations and the panel request118 
Consultations request  Panel request  
I. Background  
 
1. As a result of several measures undertaken 
by the Russian Federation with regard to 
importation of certain railway products, 
Ukrainian producers have been effectively  
banned from exporting to the Russian 
Federation. Consequently, exports of railway 
products from Ukraine to the Russian 
Federation reached USD 1,7 billion in 2013, 
decreased significantly in 2014 (USD 600 
million) and continue to decrease further: the 
value of exports amounted to only USD 51 
million during the first half of 2015.  
 
2. On 15 July 2011 the Commission of the 
Customs Union of Belarus, Kazakhstan and 
Russian Federation ("CU") adopted Decision 
No.710 concerning Technical Regulations 
No.01/2011, No .002/2011, and No.003/2011 
("Technical Regulations") setting safety and 
technical requirements for placing into the 
market of "railway rolling stock", "high -speed 
railway" and "rail transportation infrastructure" 
(the "Decision No.710"). According to the 
Decision No.710, the new Technical Regulations 
entered into force 3 years after their adoption, 
i.e. on 2 August 2014, and since that date all 
conformity assessment certificates for railway 
products have to be registered with the Federal 
Budgetary Organizat ion "Register of 
Certification on the Federal Railway Transport" 
(FBO "RC FRT") in accordance with the new 
procedures set forth in the Technical 
Regulations.  
 
3. The Decision No.710 was then amended by 
Decision of the CU No.285 of 2 December 2013 
"On Amend ment of the Decision of the 
Commission of the CU No.710 of 15 July 2011" 
allowing for a transitional period of application, 
i.e. until 1 August 2016, of the conformity 
assessment certificates issued to producers of 
railway products prior to entry into forc e of the 
above -mentioned Technical Regulations. The 
amendment also established a transitional 
period until 1 August 2016 for the railway 
products which were not previously subject to 
mandatory conformity assessment procedures.  
 
4. Importantly, the conformi ty assessment 
certificates previously registered with the FBO 
"RCFRT" to Ukrainian producers of railway 
products started being suspended as of late 
2013. The suspension was justified by the II. The measures at issue  
 
1. Since 2014, the conformity assessment 
certificates issued by the Federal Budgetary 
Organization "Register of Certification on the 
Federal Railway Transport" (FBO "RC FRT") to 
Ukrainian producers of railway products prior to 
the entry into force of the T echnical Regulations 
have systematically been suspended.  
2. Moreover, Ukrainian producers have not been 
able to obtain new conformity assessment 
certificates based on the Technical Regulations 
from the certification bodies in the Russian 
Federation. The a pplications submitted by 
Ukrainian producers to the FBO "RC FRT" have 
systematically been rejected or returned 
without consideration.  
3. Furthermore, the conformity assessment 
certificates issued by the authorities in the 
Republic of Belarus and in the Rep ublic of 
Kazakhstan have not been recognized by the 
authorities of the Russian Federation. In fact, 
the relevant authorities of the Russian 
Federation, including its Ministry of Transport 
and the Federal Agency for Railway Transport, 
decided that Technical  Regulation No.  001/2011 
is applicable only to goods produced in the CU 
countries. Consequently, the authorities of the 
Russian Federation concluded that the 
conformity assessment certificates issued to 
Ukrainian producers in other CU countries were 
not va lid in the territory of the Russian 
Federation and that the railway products of 
these producers could neither be imported nor 
registered for operation in the territory of the 
Russian Federation.  
4. The measures at issue covered in this panel 
request are:  
1) The systematic prevention of 
Ukrainian producers from exporting 
their railway products to the Russian 
Federation by way of suspension of 
their valid conformity assessment 
certificates, refusal to issue new 
conformity assessment certificates 
and the non -recognition of conformity 
assessment certificates issued by the 
competent authorities of other 
members of the CU namely the 
Republic of Belarus and the Republic 
of Kazakhstan. This practice is 
                                                
118 For the benefit of the reader this table includes paragraph numbers before each paragraph, which do 
not appear in the original documents. Footnotes are omitted from the originals.  WT/DS499/ R 
 
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  Consultations request  Panel request  
Russian Federation authorities as "technical 
issues" and "absence of appropriate conditions 
for the performance of [the required yearly] 
inspections" of the production facilities of the 
Ukrainian producers. In spite of the repeated 
requests, no reasonable explanations for these 
unwarranted suspensions of the certificates  
have been provided by the Russian Federation 
authorities to Ukrainian exporters and to the 
Ukrainian authorities.  
 
5. It is further submitted that the difficulties 
with obtaining the certificates does not occur in 
other countries of the CU. Indeed, with r espect 
to the railway rolling stock products, the 
conformity assessment bodies of the CU located 
in the Republic of Belarus and in the Republic of 
Kazakhstan have already issued the conformity 
assessment certificates based on the CU 
Technical Regulation 00 1/2011 to Ukrainian 
producers of railway rolling stock products.  
 
6. However, these certificates were considered 
not valid by the authorities of the Russian 
Federation. These authorities also determined 
that the product at stake could not be 
registered for  operation in the territory of the 
Russian Federation.  
 
7. As far as the railway transport infrastructure 
products are concerned, the Ukrainian 
producers of railroad switches affected by the 
suspension of their conformity assessment 
certificates, have submitted in December 2014 
new applications for certificates pursuant to the 
new procedures set forth in the CU Technical 
Regulation 003/2011. However, in February 
2015 these applications of the Ukrainian 
producers have been rejected by the Russian 
Federat ion authorities also without any 
reasonable explanation for the grounds of the 
rejection.  
 
8. As a result of the above -mentioned 
suspensions of conformity assessment 
certificates and the impediment to apply for 
new certificates pursuant to the newly adopte d 
CU Technical Regulations, the Ukrainian 
producers can no longer export their railroad 
products to the Russian Federation.  
 
9. Ukraine has addressed on several occasions 
its concerns with regard to this matter in the 
WTO Committee of Technical Barriers t o Trade 
as well as bilaterally with the Russian 
Federation. However, its efforts to resolve this 
matter failed to reach a mutually agreed 
solution.  
 evidenced by instructions of the 
authorities of the Russian Federat ion 
listed in Annexes I, II and III.  
2) The suspensions of conformity 
assessment certificates, the rejections 
of new applications for conformity 
assessment certificates and the 
refusals to recognize valid conformity 
assessment certificates issued by 
other CU countries with regard to 
Ukrainian producers as mentioned in 
Annexes I, II and III.  
3) Technical Regulation No. 001/2011 
"On safety of railway rolling stock", 
read together with the Protocol of the 
Ministry of Transport of the Russian 
Federation regarding is suance by 
certification authority of the Customs 
Union of the certificates of conformity 
for products manufactured by third -
countries No. A 4 -3 adopted on 20 
January 2015 and the instructions 
mentioned in Annex III.  
5. As a result of the measures described  above, 
certain Ukrainian producers have been 
effectively banned from exporting railway 
products to the Russian Federation. Following 
the implementation of the measures at issue, 
exports of such products from Ukraine to the 
Russian Federation, which had re ached USD 1.7 
billion in 2013, decreased to USD 600 million in 
2014 and to only USD 110 million in 2015.  
 WT/DS499/ R 
 
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  7.140.   We consider that,  on its face, Ukraine's consultations request describes four different 
measures. The first is described in the fourth paragraph of the consultations request as the 
suspensions of conformity assessment certificates previously granted to Ukrainian producers of 
railway products. The second is described in the fifth and sixth paragraphs as Russia 's authorities 
not considering the validity of certificates issued in other CU countries (e.g. Belarus and 
Kazakhstan) to Ukrainian producers of railway products in Rus sia's territory. The third is described 
in the seventh paragraph as Russia's rejections of applications for new certificates submitted by 
Ukrainian producers of railway products. The fourth is described in the eighth paragraph as 
Ukrainian producers no lon ger being able to export their railroad products to the Russian 
Federation as a result of the suspensions of existing certificates and the impediment to apply for 
new certificates pursuant to the newly adopted CU Technical Regulations.  
7.141.   These measures are similarly described in section II of the panel request. As explained 
above, section II of the panel request describes three distinct measures. First, the systematic 
prevention of Ukrainian producers from exporting their railway products to Russia by way of  the 
components of the second measure. Second, the suspension  of conformity assessment certificates 
held by Ukrainian producers, the rejection of  new applications for conformity assessment 
certificates, and the refusal  to recognize valid conformity assessm ent certificates issued by other 
CU countries. Third, the alleged requirement that Russia's authorities  must not recognize 
certificates issued in other CU countries if the certified products were not pro duced in a 
CU country.  
7.142.   As explained above, Russia rai ses two grounds in support of its claim that the measure 
described in point one of section II of the panel request expands the scope of the dispute. We first 
address Russia's argument that the consultations request did not refer to the "refusal to issue ne w 
conformity assessment certificates", and that this part of the measure described in point one of 
section II of the panel request therefore expands the scope of the dispute.  
7.143.   Comparing the consultations request and the panel request, the panel request doe s not 
contain the exact wording used in the consultations request, i.e. "refusal to issue new conformity 
assessment certificates". We recall the Appellate Body's conclusion that a precise and exact 
identity  between the specific measures that were the subje ct of consultations and the specific 
measures identified in the request for the establishment of a panel is not required .119 We agree 
with Ukraine that the seventh and eighth paragraphs of the consultations request describe what is 
referred to in the panel r equest as the "refusal to issue new conformity assessment certificates".  
7.144.   The second paragraph in section II of the panel request closely resembles the description 
contained in the seventh paragraph of section I of the consultations request, summari zed in the 
eighth paragraph of the consultations request. The gist of the measure described in those 
paragraphs is that Russian authorities have "rejected" applications for new certificates made 
pursuant to the relevant CU Technical Regulations. Ukraine could hav e used the same wording in 
point one of section II of the panel request, as it did in point two of section II of the panel request. 
However, we consider that changing the description of the measure from using the verb "rejected" 
to the noun "refusal" does not make any significant change in the measure being described. 
"Refusal" is defined in the dictionary as  "the action or act of refusing; a denial or rejection of 
something demanded, or offered"120, whereas "reject" is defined as to "refuse to recognize, 
acquiesce in,  or adopt (a command, practice, etc.)  ".121 It is thus clear that in th is context, these 
terms are synonyms . We thus disagree  with Russia's view that the use of "refusal to issue new 
conformity assessment certificates" was a reference to a measu re different from application s of 
Ukrainian producers having been "rejected by" Russia's authorities.  
7.145.   We now turn to Russia's second ground, i.e. that the reference to a "systematic prevention 
of Ukrainian producers from exporting their railway products to " Russia (measure one) in point one 
of section II of the panel request expands the scope of the dispute.  
                                                
119 Appellate Body Report s, Argentina – Import Measures , para. 5.13 . (emphasis added)  
120 The Shorter Oxford English Dictionary , 6th edn, A Stevenson (ed) (Oxford University Press, 2007), 
Vol. 2, p. 2509.   
121 The Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), 
Vol. 2, p. 2517.  WT/DS499/ R 
 
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  7.146.   We disagree with Russia that the systematic import prevention is a new measure, not 
described in the consultations request. In our view, a version of this measure is described in the 
eighth paragraph of the consultations request. This paragraph refers  to Ukrainian producers no 
longer being able to export their railroad products to Russia as a result of the "above -mentioned 
suspensions of the conformity assessment certificates and the impediment to apply for new 
certificates pursuant to the newly adopted CU Technical  Regulations". This paragraph is describing 
a measure, rather than the effect of the other measures it refers to. The effect of the different  
measures challenged by Ukraine is described in paragraph 1 of the consultations request, which 
contains a reference to the monetary impact of the challenged measures on Ukrainian exports.  
7.147.   We now turn to compare the description of this measure in the cons ultations request with 
the panel request. We acknowledge that the panel request contains additional language that does 
not appear in the consultations request, i.e. "systematic prevention".  The question , however,  is 
whether this difference is such that the  panel request expands the scope of or changes the 
essence of the measure described in the consultations request. We consider that this is not the 
case. The eighth paragraph of section I of the consultations request, when read together with the 
other parag raphs of that section, makes it clear that Ukraine is referring to Russia imposing a 
number of measures, since 2013, which led to a significant decrease in the exports of railway 
products from Ukraine to Russia. Moreover, the legal instruments described in  section II of the 
consultations request support the view that Ukraine is referring both to individual decisions and 
instruction s that support the existence of the measure that prevents Ukrainian railroad producers 
from exporting to Russia. The fact that U kraine did not include the phrasing "systematic 
prevention" in the eighth paragraph of the consultations request could be explained by such terms 
evolving  from the consultations request. The additional language in the panel request is a refined 
description  of the measure at issue, rather than an expansion of the scope of the dispute.  
7.148.   We therefore reject Russia's claim that point one of section II of the panel request expands 
the scope of the consultations request by identifying a measure not described in se ction II of the 
consultations request.  
7.1.1.2.3   Issue 2(c)  
7.149.   The essence of Russia's claim is that if the Panel considers that measure two is within the 
scope of the dispute  then, in the alternative, certain aspects of this measure expand the scope of 
the dispute.  
7.150.   Russia argues that certain aspects of measure two expand the scope of the dispute and are 
therefore outside the Panel's terms of reference. Russia divides its observations between 
(a) documents dealing with suspension of valid certificates of conformity, (b)  documents dealing 
with rejection of certificates issued in other CU countries, and (c) documents dealing with rejection 
of applications.122  
7.151.   Regarding documents dealing with suspension of certificates of conformity, Russia argues 
that the consultations requ est does not refer to specific instructions, thus Russia is denied  an 
opportunity to prepare for the consultations and prejudicing its ability to defend itself. Russia 
considers that due to the volume of instructions of Russia's FBO , Russia could not have been 
reasonably expected to deduce either from the consultations request or  from the consultations the 
16 instructions listed in the panel request, which therefore expand the scope of the dispute .123 
7.152.   Ukraine rejects Russia's request  in respect of Issue 2 (c). According to Ukraine, Russia is 
confusing the concepts of measures at issue and their underlying legal instruments. Ukraine 
considers Russia's argument to requir e a precise identification of the legal instruments at issue in 
the consultations request, whi ch Ukraine argues is not required by Article 4.4 of the DSU. Ukraine 
argues that the measures described in the consultations request correspond to those identified in 
the panel request, and therefore, references to different legal instrument cannot be cons idered to 
                                                
122 Russia's preliminary ruling request, para. 82; and comments on Ukraine's response to Russia's 
preliminary ruling request, para. 82.  
123 Russia's preliminary ruling request, para s. 83-84; comments on Ukraine's response to Russia's 
preliminary ruling request, paras. 78 -79; and response to Panel question No. 1.  WT/DS499/ R 
 
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  expand the scope of the dispute. In particular, Ukraine considers that because of the general 
reference in section II of the consultations request refers to "Instructions of  the [FBO] concerning 
the suspensions of certificates of Ukrainian produc ers", the reference to 16 specific instructions 
narrows, rather than expands, the scope of the dispute. Ukraine considers that the more specific 
references are a natural evolution of the consultation process, rather than the identification of a 
new measure .124 
7.153.   The Panel begins by recalling that the panel's terms of reference will be determined by the 
panel request, unless such request expands the scope or changes the essence of the dispute. We 
recall that determining whether a panel request expands the scope or changes the essence of a 
dispute concerns (a) the identification of the challenged measures, and (b) the identification of the 
legal basis of the complaint. Russia's claims concern (a), that is, whether the measures identified 
in the consultations reque st correspond with those identified in the panel request.  
7.154.   In comparing the consultations request and the panel request, we acknowledge that the 
consultations request does not include a reference to any instruction issued by the relevant 
Russian authorities  suspending conformity assessment certificates held by Ukrainian producers of 
railway products. However, when the fourth paragraph of section I and the ninth point of section II 
of the consultations request  are read together , it becomes clear that the measures at issue are the 
"Instructions of  the [FBO] concerning the suspensions of certificates of Ukrainian producers." The 
measure identified in the panel request corresponds, in similar terms, to this measure. This 
measure is described in the first para graph and in points one and two of section II of the panel 
request as the suspensions of conformity assessment certificates issued by the FBO to Ukrainian 
producers of railway products. This suggests that the panel request is not expanding or changing 
the essence of the dispute.  
7.155.   Moreover, as explained by Ukraine in response to a Panel question  Russia's Register for 
Certificates for the Federal Railway Transportation works as a data base of all certificates and 
declarations issued by the FBO. Ukraine has pro vided convincing evidence that Russia was in a 
position to identify the instructions at issue through this database , on the basis of the information 
provided in the consultations request, i.e. the (a) author of the instruction (Russia's FBO) , 
(b) subject m atter of the instructions (suspension of certificates of conformity) , (c) nationality of 
the producers (Ukrainian producers) , (d) products at issue (railway products) , and (e)  period 
during which those decisions were adopted (as of late 2013).125 
7.156.   In addition , we do not consider that the 16 instructions included in Annex I to the panel 
request are separate and legally distinct from the measure identified in the consultations request. 
As explained above, the consultations request provides a broad reference to i nstructions issued by 
the FBO. Such reference is clearly limited to a category of legal instruments, that is, the 
instructions issued by the FBO through which certificates of conformity held by Ukrainian 
producers of railway products were suspended.  
7.157.   Althou gh it would be desirable for a consultations request to provide the most 
comprehensive information available to a Member when preparing it, for the reasons set out 
above , we disagree with Russia  that the reference to 16 specific instructions in the panel r equest 
expands the scope of the dispute.  
7.158.   Regarding documents dealing with rejection of certificates issued in other CU countries, 
Russia argues that the consultations request did not include a reference to the Protocol of the 61st 
Meeting of the Commissio n of the Rolling Stock of 22 -24 March 2016 and the annexed Dissenting 
opinion, and including it in the Panel's terms of reference would prejudice Russia's right to know 
the case it has to answer. Russia also considers that this protocol does not contain an y reference 
to the rejection of the validity of certificates issued in other CU countries. Moreover, Russia 
considers that the second document listed in Annex III to the panel request is not sufficiently 
identified, it lacks a date and letter number, thus making it impossible for Russia to identify and 
locate the challenged communication. Russia therefore considers that the inclusion of these two 
                                                
124 Ukraine's response to Russia's preliminary ruling request, paras. 184 -191; and comments on 
Russia's comments on Ukraine's  response to Russia's preliminary ruling request, paras. 100 -102. 
125 Ukraine's response to Panel question No. 1.  WT/DS499/ R 
 
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  documents in the panel request expands the scope of the dispute and that the second document in 
Annex III fails to meet the requirement of Article 6.2 of the DSU to identify the specific measure at 
issue.126  
7.159.   Ukraine rejects Russia's argument . Ukraine argues that the description of the second 
document listed in Annex III to the panel request was sufficient to identify  the relevant 
communication. Ukraine considers that Russia's argument that not including the number and date 
of the letter prevented Russia from identifying it lacks any credibility. Ukraine refers to 
Exhibit  UKR-48(BCI) as evidence of the letter listed un der item two in Annex III being the cover 
letter of Protocol No. A 4 -3, which is listed both in the consultations request and in the panel 
request. Moreover, Ukraine considers that by including the Protocol of the 61st Meeting of the 
Commission of the Roll ing Stock of 22 -24 March 2016 in the panel request it is narrowing down 
the specific legal instruments underlying the challenged measure identified in the consultations 
request. Lastly, Ukraine considers that whether the Protocol of the 61st Meeting relate s to the 
non-recognition of certificates from other CU countries is not a matter to be considered under 
Article 6.2 of the DSU.127  
7.160.   The Panel note s that a comparison of the consultations request and the panel request 
shows that the consultations  request cont ains no reference to the three documents listed in 
Annex  III to the panel request. However, when the fifth and sixth paragraphs of section I and the 
tenth point of section II of the consultations request  are read together , it becomes clear that the 
measure s at issue are the decisions of the relevant Russian authorities not to acknowledge the 
validity in Russia's territory of conformity assessment certificates issued by other CU countries to 
Ukrainian producers of railway products. The measures identified in  the panel request correspond, 
in similar terms, to this measure.  Point two of section II of the panel request refer s to the refusals 
to recognize valid certificates of conformity issued by other CU countries as mentioned in 
Annex  III.  
7.161.   Moreover, the tenth  point of section II of the consultations request refers to the " Protocol 
of the Ministry of Transport of the Russian Federation No. ATS -3 adopted on 20  January 2015 
concerning invalidation of the certificates issued to certain railroad products of Ukraini an origin". In 
their response to Panel question No. 2 both parties confirmed that the reference to No.  ATS-3 
should be understood as made to Protocol No. A -4-3.128 Similarly, Annex III contains a reference 
to the letter through which Protocol No. A -4-3 was t ransmitted to the company seeking recognition 
of the validity of a certificate issued to a Ukrainian producer in Belarus. This suggests that the 
panel request is not expanding or changing the essence of the dispute.  
7.162.   Protocol No. A -4-3 of 20 January 2015, r eferred to in the consultations request, contains 
the minutes of "the meeting of the Deputy Minister of Transport of the Russian Federation 
Tsydenov A.S. regarding issuance by certification authority of the Customs Union of the certificates 
of conformity f or products manufactured by third -countries". These minutes concern the 
application of a company [[xxx]] for the registration and operation in Russia of certain Ukrainian 
railway products ,hopper car for grain transportation manufactured by the Ukrainian P JSC [[xxx]]. 
This application sought the recognition of a conformity assessment certificate issued to a Ukrainian 
company, PJSC [[xxx]] on 30  December 2014 by the Belarusian certification authority. The 
conclusion of the Deputy Minister reflected in Protocol No. A -4-3 is that the certificates issued by 
the Belarusian certification entity are not valid in Russia because CU Technical 
Regulation  001/2011 only applies to products manufactured in the customs territory of the CU. 
The Protocol indicates that  the requirements and conformity assessment procedures for products 
produced by third countries, not members of the CU, are established in accordance with national 
laws.129 
                                                
126 Russia's preliminary ruling request, paras. 85 -87; and comments on Ukraine's response to Russia's 
preliminary ruling request, paras. 74 -77. 
127 Ukraine's response to Russia's preliminary ruling request, para s. 176-182 and 192 -194; and 
comments on Russia's comments on Ukraine's response to Russia's preliminary ruling, paras. 95 -99. 
128 Ukraine's response to Panel question No. 2 (where Ukraine explai ns that this resulted from lack of 
clarity in the numbering on the original document); and Russia's response to Panel question No. 2.  
129 Letter from the Federal Railway Transport Administration of the Ministry of Transport of the Russian 
Federation to JSC [[xxx]] accompanied to Protocol No. A -4-3 of 20 January 2015 of the Ministry of Transport of 
 WT/DS499/ R 
 
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  7.163.   We recall that Russia's claim concerns the three documents included in Annex III to t he 
panel request. We turn to examine each of them.  
7.164.   The first document listed in Annex III to the panel request is a letter from Russia's Ministry 
of Transport dated 4 February 2016, concerning an application submitted by a company [[xxx]] 
seeking recogniti on of the validity in Russia of the certificate issued by the Belarusian certification 
body for a Ukrainian railway product  , solid-rolled wheels. Through this letter, the Ministry of 
Transport informed the applicant that the certificates issued by the Bel arusian authority were not 
recognized as valid in Russia because CU Technical Regulation 001/2011 only applies to products 
produced within the customs territory of the Customs Union.130 This letter is related to 
Protocol  No. A-4-3, because although it refers  to a producer different than the one concerned by 
Protocol  No. A-4-3, it provides the same legal reasons to reject the recognition of the certificate 
issued in Belarus as those set out in Protocol No. A -4-3 to reject the recognition of a different 
certifi cate also issued in Belarus. Moreover, although this letter concerns a different product (solid -
rolled wheels), it is clear that the products covered by this letter and by Protocol  No. A-4-3 
(hopper car for grain transportation) fall under the category of the products at issue, i.e. railway 
products. With these considerations in mind, it is our view that including this letter in Annex III to 
the panel request does not expand the scope or change the essence of the dispute, because the 
nature and the type of legal instrument underlying the challenged measure remains the same.  
7.165.   The second document listed in Annex III is a "Letter from Federal Railway Transport 
Administration of the Ministry of Transport of the Russian Federation to JSC ꞋRussian RailwaysꞋ 
accompa nied to Protocol No. A -4-3 of 20.01.2015 of the Ministry of Transport of the Russian 
Federation regarding issuance by the certification authority of the Customs Union of the certificates 
of conformity for products manufactured by third -countries." Contrary  to Russia's argument, we do 
not consider that this reference is insufficient to properly identify the letter in question. Certain 
identifying elements of the letter are sufficiently clear, such as the addressee ( [[xxx]] ), the author 
of the letter (Federal  Railway Transport Administration of Russia's Ministry of Transport), and the 
document to which the letter is accompanied (Protocol No. A -4-3 of 20 January 2015). This 
information seems sufficient to understand what the letter in question is. Moreover, thi s letter is 
the cover letter of the Protocol No. A -4-3, as it clearly indicates that it is providing the results of 
the application of a company, [[ xxx]] seeking registration and operation in Russia of certain 
Ukrainian railway products, hopper car for gra in transportation produced by the Ukrainian 
PJSC [[xxx]].131 To that extent, this is not a new measure, but rather a letter that complements 
the specific example that was already mentioned in the consultations request. With these 
considerations in mind, it i s our view that including this letter in Annex III to the panel request 
does not expand the scope or change the essence of the dispute, because the nature and the type 
of legal instrument underlying the challenged measure remains the same.  
7.166.   The third docume nt is the Protocol of the 61st Meeting of the Commission of the Rolling 
Stock of 22 -24 March 2016 and the annexed Dissenting Opinion.132 The link between this 
document and the challenged measure is unclear.  However, as explained above, this is a 
document men tioned by Ukraine in its panel request as evidence of the challenged measure. 
To that extent, this document cannot be construed as a separate measure that is expanding the 
scope or changing the essence of the dispute.  
7.167.   For the reasons set out above, we disagree  with Russia that including the three documents 
listed in Annex III to the panel request expands the scope or change s the essence of the dispute. 
Moreover , we disagree with  Russia that the panel request failed to identify the specific measure at 
issue in respect of the second letter listed in Annex III to the panel request.  
                                                                                                                                                  
the Russian Federation regarding issuance by the certification authority of the Customs Union of the certificates 
of conformity for products manufactured by third -countries (Cover letter and Protocol No. A -4-3 of 20 January 
2015) , (Exhibit UKR -48)(BCI) , pp. 3 -4. 
130 Letter from the Federal Agency for Railway Transport to company  [[xxx]] – on validity of certificates, 
4 February 2016 , (Exhibit UKR -49)(BCI)(Corr.) . 
131 Cover letter and Protocol No. A -4-3 of 20 January 2015 , (Exhibit UKR -48)(BCI ), p. 2.  
132 Protocol of the 61st Meeting of the Commission of the Rolling Stock of 22 -24 March 2016 and the 
annexed Dissenting opinion ; The Railway Administration of the Russian Federation,  (Exhibit RUS -2).  WT/DS499/ R 
 
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  7.168.   Regarding documents dealing with rejections of applications, Russia argues that while the 
letter [[xxx]] dated 9 February 2015 is referred to both in the consultations request and i n the 
panel request, the other two documents listed in Annex II to the panel request were not included 
in the consultations request. Russia considers that those two letters ( [[xxx]] of 10 February 201 4 
and [[xxx]] of 23 January  2015) are new measures that impermissibly expand the scope of the 
dispute. In particular, Russia considers that the consultations request specifically referred to letters 
dealing with applications for certificates of conformity submitted pursuant to CU Technic al 
Regulation  003/2011, while the other two letters ( [[xxx]] of 10 February 2014 and [[ xxx]] of 
23 January 2015) deal with goods, certification of which is governed by a different regulation, 
namely, CU Technical Regulation 001/2011.  Thus, Russia argues th at Ukraine, in the course of the 
consultations, did not intend to challenge these measures and that they were not referred to in the 
consultations request.133 
7.169.   Ukraine however argues  that the measures described in the consultations request 
correspond to those  identified in the panel request, and therefore, references to different legal 
instruments cannot be considered to expand the scope of the dispute. In particular, Ukraine 
considers that the two letters included in Annex II to the panel request and not ment ioned in the 
consultations request are legal instruments through which the measure identified in the 
consultations request is enforced. Ukraine argues that, thus, the reference to such letters narrows 
rather than expands the scope of the dispute.134 
7.170.   The Pane l finds that comparing the consultations request and the panel request shows that 
the consultations request does not include a reference to two of the three decisions listed in 
Annex  II to the panel request. However, when the seventh paragraph of section I  and the eleventh 
point of section II of the consultations request  are read together , it becomes clear that the 
measures at issue are the Russian authorities' rejections of applications for new conformity 
assessment certificates submitted pursuant to CU Te chnical Regulation  003/2011 by Ukrainian 
producers of railway switches affected by the suspensions of their valid conformity assessment 
certificates. The measure identified in the panel request corresponds, in similar terms, to this 
measure. This measure i s described in the second narrative paragraph and in points one and two 
of section II of the panel request as the rejections of new applications for conformity assessment 
certificates submitted pursuant to the relevant Technical Regulations by Ukrainian pr oducers of 
railway products. This suggests that the panel request provides a more general description of the 
challenged measure. We thus turn to examine whether such difference results from a natural 
evolution of the consultations  request .  
7.171.   Both the panel request and the consultations request refer to the FBO's letter of 
9 February 2015 informing  of its decision to annul the applications for certification of track 
switching equipment submitted by a Ukrainian producer [[ xxx]] pursuant to CU Technical 
Regulat ion 003/2011.135 As explained in the consultations request, this letter concerns applications 
for new conformity assessment certificates submitted by Ukrainian producers for track switching 
equipment whose previously valid certificates had been suspended. Th e two new documents listed 
in Annex II refer to the same matter. The FBO's letter of 2  October 2014 informs a Ukrainian 
producer [[ xxx]] that its applications for conformity assessment certificates for certain railway 
products (two -axle bogies) submitted p ursuant to CU Technical Regulation 001/2011 were 
returned without consideration.136 Similarly, The FBO's letter of 23  January 2015 informs a 
Ukrainian producer [[ xxx]] that its applications for conformity assessment certificates for certain 
railway products (solebars and other railway products) submitted pursuant to CU Technical 
Regulation 001/2011 were returned without consideration.137 
                                                
133 Russia's preliminary ruling request, paras. 88 -90; and comments on Ukraine's response to Russia's 
preliminary ruling request, para. 81.  
134 Ukraine's response to Russia's preliminary ruling request, para. 184 -190 and 193.  
135 Letter [[ xxx]] from the FBO to PJSC [[xxx]] , 9 February 2015  (Letter [[ xxx]] from the FBO of 
9 February 2015 ), (Exhibit UKR -23)(BCI) . 
136 Letter [[ xxx]] from the FBO to PJSC [[xxx]], 2 October 2014,  (Exhibit UKR -16(BCI)  and Exhibit RUS -
3). 
137 Letter [[ xxx]] from the FBO to PJSC [[xxx]] , 23 January 2015 (BCI) , (Exhibit  UKR-32(BCI) and 
Exhibit  RUS-4). WT/DS499/ R 
 
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  7.172.   The three letters mentioned above share a number of elements. First, they all reject the 
applications for certificates of con formity submitted by Ukrainian producers. Second, all 
applications concern different products that are part of the products at issue, i.e. railway rolling 
stock and railroad products. Third, they were issued in response to applications for conformity 
asses sment certificates pursuant to CU Technical Regulations identified both in the consultations 
request and in the panel request. These similarities suggest that  the letters of 2 October 2014 and 
of 23 January 2015 listed only in the panel request are not of a different nature or type from the 
letter of 9 February 2015 listed in the consultations request. We therefore consider that the 
reformulation of the measures at issue in the panel request results from a natural evolution of the 
consultations request. In addition, the similarities in the letters support  our finding  that these are 
not separate and legally distinct from the measure identified in the consultations request.  
7.173.   Although it would be desirable for a consultations request to provide the most 
compreh ensive information available to a Member when preparing it, for the reasons set out 
above , we disagree with  Russia that the reference to the letters of 2 October 2014 and 
23 January  2015 in Annex II to the panel request expands the scope of the dispute.  
7.174.   We therefore reject Russia's claim that certain aspects of the measures described in  the 
second numbered  point of section II of the panel request expand the scope of the consultations 
request by identifying measure s not described in section II of the consultations request. We also 
reject Russia's claim that the panel request failed to identify the specific measure at issue in 
respect of the second letter listed in Annex III to the panel request . 
7.1.2   Ruling on the breach of confidentiality  
7.175.   On 14 July 2017, Russia informed the Panel that, in Russia's view, members of Ukraine's 
delegation had breached the confidentiality of the proceedings. Russia asked the Panel to request 
that Ukraine delete all publicly available statemen ts disclosing confidential information and refrain 
from making any such statements in the future.   
7.176.   On 18 July, the Panel invited Ukraine to submit its comments on Russia's request and 
promptly to take the necessary steps to prevent any continued or further  disclosure of confidential 
information. The Panel recalled the Panel's and parties' duty to maintain the confidentiality of 
these proceedings.  
7.177.    Ukraine provided its comments on Russia's request on 20 July 2017.   
7.178.   On 1 August 2017, the Panel ruled on Russia 's request. The Panel informed the parties that 
it would reflect the incidents denounced by Russia in its Final Report. For the sake of brevity, this 
section contains an abridged version of the Panel's ruling on Russia's request. The Panel first 
referred t o the obligations in WTO dispute settlement concerning the confidentiality of the 
proceedings and then turned to assess the breaches of confidential ity alleged by Russia.  
7.1.2.1   Confidential ity of information submitted  to and by the Panel  
7.179.   Article 18.2 of the DSU establishes, in relevant part, that:  
Written submissions to the panel or the Appellate Body shall be treated as 
confidential , but shall be made available to the parties to the dispute. Nothing in this 
Understanding shall preclude a party to a dispute from disclosing statements of its 
own positions to the public. Members shall treat as confidential information submitted 
by another Member to the panel or the Appellate Body which that Member has 
designated as confidential.  
7.180.   The obligations set out in Article 18 .2 are also contained in paragraph 2 of the Panel's 
Working Procedures. In addition, paragraph 4 of the Panel's Working Procedures provides, in 
relevant part, that:  
Each party  and third party shall have the responsibility for all members of its own 
delegat ion and shall ensure that each member of such delegation acts in accordance WT/DS499/ R 
 
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  with the DSU and these Working Procedures , particularly with regard to the 
confidentiality of the proceedings . 
7.181.   Article 18.2 and paragraph 2 of the Working Procedures do not state e xpressly that 
information provided to parties or third parties by a panel during the course of the panel 
proceedings is to be treated as confidential. However, panel communications may refer, directly or 
indirectly, to confidential information submitted by  a Member to the panel. Such panel 
communications would fall within the scope of Article 18.2 and paragraph 2. Moreover, paragraph 
23 of the Panel's Working Procedures makes explicit that the Interim Report and the Report are 
confidential prior to their of ficial circulation. Furthermore, it is clea r from Article  12.1 of the DSU 
read together with paragraph 2 of Appendix 3 of the DSU that "[t]he panel shall meet in closed 
session". Substantive panel meetings, including any statements and announcements made b y a 
panel during such meetings, are therefore confidential. Furthermore, Rule VII:1 of the WTO Rules 
of Conduct for the Understanding on Rules and Procedures Governing the Settlement of Disputes 
(Rules of Conduct) (WT/DSB/RC/1) stipulates that covered pers ons "shall at all times maintain the 
confidentiality of dispute settlement  deliberations and proceedings  together with any information 
identified by a party as confidential " (emphasis added). Rule IV:1 of the Rules of Conduct indicates 
that covered persons  include persons serving on a panel and members of the Secretariat assisting 
them. It would be incongruous to impose an obligation of confidentiality on covered persons, 
including in respect of confidential information provided by a panel to parties or thi rd parties, if the 
same obligation did not extend to parties and third parties. Finally, WTO dispute settlement 
practice indicates that information provided by a panel to parties or third parties has been 
generally understood to be, and been treated as, co nfidential. With regard to the obligation to 
protect the confidentiality of WTO dispute settlement proceedings, it should be recalled that 
confidentiality protection may of course be foregone by the parties at their own initiative, as in the 
case of open A ppellate Body hearings , for instance.138 
7.182.   Thus, the parties are required to treat as confidential information provided by a panel to 
parties or third parties, all the more so where such information is marked as confidential.  
7.183.   In the specific circumstances of the present panel proceedings,  the parties' obligations in 
respect of confidentiality protection are also governed by the Additional Working Procedures 
concerning Business Confidential Information (BCI Working Procedures) adopted by the Panel on 
23 March 2 017. The BCI Working Procedures apply to BCI submitted by a party to the Panel. 
According to paragraph 2 of the BCI Working Procedures, BCI is defined as:  
[A]ny information that has been designated as such by the party submitting the 
information, that is not available in the public domain, and the release of which would 
seriously prejudice an essential interest of the Member submitting the information or 
of the person or entity that supplied the information to that Member.  
7.184.   Access to BCI is limited to the a uthorized persons listed in paragraph 3 of the BCI Working 
Procedures. Paragraph 4 of the BCI Working Procedures sets out the confidentiality obligations of 
the parties and third -parties in respect of BCI:  
A party or third party having access to BCI shall treat it as confidential, i.e. shall not 
disclose that information other than to those persons authorized to have access to i t 
pursuant to these procedures.  Each party and third party shall have responsibility in 
this regard for its employees as well as an y outside advisors used fo r the purposes of 
this dispute.  BCI obtained under these procedures may be used only for the purpose 
of providing information and argumentation in this dispute  and for no other purpose.  
7.185.   The Appellate Body and previous panels have been confronted with exceptional instances 
of breach of confidentiality (e.g. unauthorized disclosure of a party's submissions139 or 
                                                
138 See Appellate Body Report, US – Continued Suspension , Annex IV, para. 11.  
139 See Appellate Body Report, Thailand H -Beams , para. 74. See also Panel Report, Brazil – Aircraft 
(Article 21.5 – Canada II) , paras. 3.1 -3.15. WT/DS499/ R 
 
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  unauthorized disclosure of the content of an interim report140). In most of these instances, the 
Appellate Body and panels have  reflected the incident in their reports and reminded the parties of 
the importance of the confidentiality of the proceedings. In at least one previous dispute, the panel 
also reported the incident to the DSB.141 
Alleged breaches of confidentiality  7.1.2.2   
7.186.   Russia's request concerns two kinds of disclosure of confidential information, namely 
(a) disclosure of certain items of the Panel's timetable, and (b) disclosure of aspects of Russia's 
position.  
7.1.2.2.1   Disclosure of parts of the Panel's timetable  
7.187.   Regarding the disclosu re of certain items of the Panel's timetable, the Panel notes that 
Russia has provided evidence that the head of Ukraine's delegation to the Panel's first substantive 
meeting with the parties disclosed through her Facebook and her Twitter account informati on 
concerning: (a) the first substantive meeting (the precise dates of the two days of the meeting), 
(b) the second substantive meeting of the Panel with the parties (the month and year when the 
meeting was scheduled to take place), and (c) the issuance to  parties of the Panel's Final Report  
(the month and year when the Panel is scheduled to issue its Final Report ).142 In addition, Russia 
submitted evidence showing that those dates were also disclosed on the website of Ukraine's 
Ministry of Economic Developme nt and Trade and in the publicati on "Eurointegration" , which 
quoted from the Facebook page of the head of Ukraine's delegation to the Panel's first meeting 
with the parties.143 
7.188.   In its communication of 20 July 2017, Ukraine acknowledges that the information i n the 
Panel's timetable is confidential. Indeed, the revised timetable adopted by the Panel on 
10 April 2017, uploaded into the E -docket in the DDSR, is marked "confidential". The cover letter 
through which the timetable and the Working Procedures were tra nsmitted to the parties was also 
marked "confidential". It should therefore have been clear to the parties that the information 
contained in the timetable was to be treated as confidential, except for any information that 
became publicly available as a res ult of an official communication by the Panel that was circulated 
to Members (e.g. notices of delay under Article 12.9 of the DSU or the Report). In this regard, the 
Panel circulated a communication under Article 12.9 of the DSU on 20 July 2017, as documen t 
WT/DS499/4. However, that document was circulated by the Panel after Ukraine had disclosed the 
target date for the issuance of the Report to the parties .144  
7.189.   In the Panel's view, it does not matter that the information made available through 
Facebook and Twitter could be accessed only by persons with an account with these services, since 
many people have such accounts and these services are commonly used to dis seminate 
information. Moreover, neither party has suggested that access to the relevant information was 
restricted to, for instance, persons who were part of Ukraine's delegation attending the substantive 
Panel meeting.  
                                                
140 See Panel Reports, India – Solar Cells , para. 6.4;  EC – Approval and Marketing of Biotech Products , 
paras. 6.183 -6.196; US – Gambling (Article 21.5 – Antigua and Barbuda) , paras. 5.3 -5.10; EC – Export 
Subsidies on Sugar (Australia) , paras. 7.86 -7.100; EC – Export Subsidies on Sugar (Brazil) , paras. 7.86 -7.100; 
EC – Export Subsidies on Sugar (Thailand) , para. 7.86 -7.100;  US – Upland Cotton , para s. 6.3-6.5; US – Steel 
Safeguards , para. 9.41 ; and  US – Underwear , para. 6.3.  
141 Panel Reports, EC – Export Subsidies on Sugar (Australia) , para. 7.99; EC – Export Subsidies on 
Sugar (Brazil) , para. 7.99; and EC – Export Subsidies on Sugar (Thailand) , para. 7.99.  
142 Facebook post of 10 July 2017 , (Exhibit R US-15); Facebook post of 11 July 2017, (Exhibit RUS -16); 
and Facebook post of 9 July 2017, (Exhibit RUS -19).  
143 Official website of Ukraine 's Ministry of Economic Development and Trade , "First meeting in the WTO 
with respect to Russia's ban on imports of U krainian railway products ", 11 July 2017, (Exhibit RUS -17); and 
Eurointegration , "Russia 's ban on imports of railway products from Ukraine will be considered in the WTO ", 10 
July 2017 , (Exhibit RUS -18). 
144 Ukraine's disclosure occurred already on 11 July 2017, as indicate d in Facebook post of 11 July 2017 , 
(Exhibit RUS -16); and Official website of Ukraine 's Ministry of Economic  Development and Trade, "First 
meeting in the WTO with respect to Russia's ban on imports of Ukrainian railway products ", 11 July 2 017, 
(Exhibit RUS -17). WT/DS499/ R 
 
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  7.190.   Additionally, Ukraine did not seek leave from the Panel to authorize the disclosure of the 
dates of the first substantive  meeting, the second substantive meeting or the estimated date of 
issuance of the Report to the parties.  
7.191.   For these reasons, we consider that  the unauthorized publication  by Ukraine of such 
confidential information amounts to a breach by Ukraine of the obligation to maintain the 
confidentiality of information that a panel provides to the parties.  
7.1.2.2.2   Disclosure of aspects  of Russia 's position  
7.192.   Regarding the disclosure of Russia 's position on the quality of Ukrainian railway products, 
Russia provided evidence that the head of Ukraine's delegation to the Panel's first substantive 
meeting with the parties disclosed on Facebook an aspect of Russia's position on the issues before 
the Panel, specifically an assertion relating to the "poor quality and non -compliance with safety 
standards" of Ukrainian railway products.145 Russia provided evidence that this position was also 
made publicly available on the website of Ukraine's Ministry of E conomic Development and 
Trade.146  
7.193.   In its communication of 20 July 2017, Ukraine indicates that "the exhibits filed by the 
Russian Federation express mostly the position of Ukraine and expectations regarding the case 
(which may be made available by Ukraine) as well as other information already in the public 
domain". Ukraine did not specify which of the information disclosed corresponds to each category 
of information.  
7.194.   Neither Ukraine nor Russia have argued or provided evidence indicating that Russia 
disclosed  to the public its position in relation to quality of Ukrainian railway products.  
7.195.   As mentioned above, Article 18.2 of the DSU, paragraph 2 of the Panel's Working 
Procedures and paragraph 4 of the Panel's BCI Working Procedures require that parties treat as  
confidential  information submitted by another Member to the Panel and designated  by that 
Member  as confidential  or as BCI. However, by virtue of Article 18.2, parties may disclose 
"statements of [their] own positions  to the public ". In addition, paragraph  4 of Panel's BCI Working 
Procedures, permits parties to use BCI information only for the purposes of litigating  the dispute.   
7.196.   In paragraph 97 of its first written submission, Russia made an assertion regarding the 
quality of Ukrainian rolling stock, referring to  derailment s of trains during 2010 -2014 and 
providing a numerical analysis of the incidence of Ukrainian rolling stock in those derailments. 
Russia marked the entire paragraph as conta ining BCI. Paragraph 29 of Russia's opening 
statement at the firs t meeting with the Panel has the same content and again is marked  in its 
entirety as containing BCI.  
7.197.   Ukraine disclosed Russia's assertion regarding the quality of Ukrainian rolling stock in quite 
general terms. It did not disclose the time -period or any o ther specific information contained in 
paragraphs 97 and 29. In the Panel's view, the general information that Ukraine disclosed does not 
meet the definition of BCI as set out in paragraph 2 of the BCI Working Procedures. However, this 
does not detract fro m Ukraine's obligation to maintain the confidentiality of Russia's position as 
expressed in its written submission and oral statement, as required under Article 18.2, and 
paragraphs 2 and 4 of the Panel's Working Procedures.  
7.198.   For these reasons, by disclosin g aspects of Russia's position, specifically with respect to 
the quality of Ukrainian rolling stock, through the Facebook and Twitter accounts of the head of 
Ukraine's delegation and the website of Ukraine's Ministry of Economic Development and Trade, 
Ukraine has breached its confidentiality obligations under Article 18.2, and paragraphs 2 and 4 of 
the Panel's Working Procedures.   
                                                
145 Facebook post of 10 July 2017 , (Exhibit RUS -15). 
146 Official website of Ukraine 's Ministry of Economic Development and Trade, "First meeting in the WTO 
with respect to Russia's ban on imports of Ukrainian railway products ", 11 July 2017, (Exhibit RUS -17). WT/DS499/ R 
 
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  7.199.   On the basis of the foregoing, the Panel concluded in its communication  of 1 August 2017  
as follows : 
22. The Panel is concerned  about,  and deplores , these breach es of confidentiality and 
the disregard of a  central  requirement imposed by the DSU and the Panel's Working 
Procedures .  
23. The Panel acknowledges and appreciates Ukraine's commitment, expressed in its 
communication of 20  July 2017, to take the necessary measures to ensure that the 
relevant information is removed from the websites appearing in Exhibits RUS -15, 
RUS-16, RUS -17 and RUS -19.  
24. The Panel is concerned, however, about Ukraine's statement in the same 
communicati on that "to the extent that such information has also been published by 
private media outlets falling outside the control of the Government of Ukraine, as 
Exhibit RUS -18 suggests, Ukraine is precluded from compelling such private entities to 
remove publish ed information from their websites". It may well be true that a 
government cannot compel private media outlets to remove published information. 
However, this does not mean that Ukraine cannot take measures directed at 
safeguarding the confidentiality of th e disclosed information. Such measures could, for 
instance, include (i) advising the relevant media outlets that the published information 
was improperly released by the government and (ii)  requesting them to follow the 
government's lead and assist it in s afeguarding the confidentiality of the information 
by refraining from continued publication of the relevant information.  
25. The Panel trusts that Ukraine will promptly take such reasonable measures as are 
available to it to ensure that the confidentiality  of information provided to or by the 
Panel, including any information that will be provided during the remainder of these 
proceedings, is safeguarded.  
26. The Panel will reflect the occurrence of these breaches of confidentiality in the […] 
Panel Report . 
7.1.3   Ruling on a request to exclude two exhibits from the record  
7.200.   On 20 July 2017, Russia requested the Panel to exclude from the record Exhibits UKR -
62(BCI) and UKR -63(BCI). On 25 July 2017, Ukraine provided its comments on Russia's request.  
7.201.   On 11 September 20 17, the Panel ruled on Russia's request. This section contains an 
abridged version of the Panel's ruling.  
7.1.3.1   Main arguments of the parties  
7.202.   Russia claims that Exhibits UKR -62(BCI) and UKR -63(BCI) contain factual errors because 
they reflect the view that Crime a is part of the territory of Ukraine. According to Russia, Crimea is 
part of Russia's territory. In Russia's view, Ukraine submitted these exhibits with the sole purpose 
of creating controversy and damaging the WTO dispute settlement process. Moreover, Ru ssia 
states that questions of a political nature, including those concerning state sovereignty over 
certain territories, cannot be the subject matter of these proceedings. On this basis, Russia 
requests that the Panel exclude Exhibits UKR -62(BCI) and UK R-63(BCI)  from the record.  
7.203.   Ukraine requests that the Panel reject Russia's request. Ukraine submits that both 
Exhibits  UKR-62(BCI) and UKR -63(BCI) were submitted for the sole purpose of substantiating 
Ukraine's arguments and responding to Russia's allegation s. Ukraine agrees with Russia that WTO 
panels are precluded from resolving  territorial  disputes between WTO Members . Nevertheless, in 
Ukraine's view, Crimea is a temporarily occupied part of the territory of Ukraine. Ukraine refers to 
United Nations Genera l Assembly Resolutions Nos. 6 8/262 and 71/205.  WT/DS499/ R 
 
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  Exclusion of evidence in WTO dispute settlement on procedural and other 7.1.3.2   
grounds  
7.204.   The DSU and the Panel's Working Procedures are silent in respect of exclusion of evidence 
submitted by a party. According to the Appellate Body, panels in their role as triers of facts must 
review and consider all the evidence that they receive from the parties.147 However, as explained 
below, the Appellate Body has confirmed that panels may exclude evidence on procedural grounds. 
In addition, panels have rejec ted evidence on other grounds.  
7.205.   The Appellate Body has in some circumstances supported the rejection of evidence by 
panels on procedural grounds. This ground was found in cases where a party submitted new 
evidence at a late stage  of the proceedings, after the opportunity to submit evidence, as provided 
in the Working Procedures, had lapsed. In particular, this was the case where a party submitted 
new evidence during the interim review stage, the purpose of which is to permit a rev iew of 
precise aspects of the interim report and not the submission of new evidence.148 
7.206.   Furthermore, in EC – Seal Products , the panel issued a preliminary ruling addressing a 
request from the European Union to remove certain exhibits from the record of those  proceedings. 
The European Union's request was based on the fact that these exhibits contained documents 
classified under European Union rules to which Canada should not have had access.149 The panel 
granted  the European Union's request.  
Assessment of Russia's request  7.1.3.3   
7.207.   Russia requests that the Panel exclude from the record "the information submitted by 
Ukraine in Exhibit UKR -62[(BCI)] and Exhibit UKR -63[(BCI)]". Russia considers that these exhibits 
reflect "factual errors" that Ukraine made "intentionall y and with [the] sole purpose of creating 
controversy and damaging the dispute settlement process. " Moreover, Russia " firmly stands on the 
position that questions of [a] political nature, including those concerning state sovereignty over 
certain territorie s, are outside the mandate of the WTO, are not and cannot be governed by the 
WTO agreements and thus cannot be  [the] subject matter of the present proceedings. " 
7.208.   The grounds submitted by Russia in support of its request do not fall within the above -
mentioned grounds accepted by the Appellate Body and previous panels for rejecting evidence. 
Russia does not argue that the two exhibits were filed late in the proceedin gs, or that they contain 
classified information to which Ukraine should not have had access. Rather, Russia's arguments, 
including that the information was filed "with the sole purpose of creating controversy and 
damaging the dispute settlement process", s uggest that Russia objects to the two exhibits 
because, in its view, they contain certain information that is of no relevance to the matter before 
the Panel.  
7.209.   Russia's request therefore appears to raise an issue as to whether a lack of relevance of 
certain  information submitted to the Panel could constitute a valid basis for a panel to reject these 
exhibits. The Panel notes that WTO dispute settlement proceedings will often be characterised by 
highly divergent views between disputing parties as to the relev ance, accuracy and value of 
evidence submitted by each side. While recognizing the disagreement between Russia and Ukraine 
in this regard, the Panel considers it unnecessary to rule on the "relevance" of Exhibits UKR -
62(BCI) and UKR -63(BCI) to the issues b efore it as a preliminary matter. The relevance of these 
exhibits is more easily analysed as part of the Panel's overall objective assessment of the case, 
which is reflected in the findings section of this Report.  
7.210.   Based on the foregoing considerations, th e Panel rules that Exhibits UKR -62(BCI) and 
UKR-63(BCI) can remain on the record. In taking this decision, the Panel emphasizes that the 
mere fact that exhibits submitted by parties may form part of the panel record in no way implies 
                                                
147 Appellate Body Report, Australia – Apples , para. 275.  
148 Appellate Body Report, EC – Sardines , para. 301. See Panel Report, Russia – Pigs (EU) , paras. 6.12 -
6.20.  
149 WT/DS400/6 and WT/DS401/7, para. 2.1. In its ruling, the panel not ed that the complaining parties 
had indicated their willingness to withdraw the exhibits in question from the record (para. 3. 1). WT/DS499/ R 
 
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  any judgment by the Pa nel on the relevance, accuracy or value of their contents to the issues 
before the Panel. It is useful to recall in this regard the specific terms of reference of this Panel, 
which are to:  
[E]xamine, in the light of the relevant provisions of the covered a greements cited by 
the parties to the dispute, the matter referred to the DSB by Ukraine  in document 
WT/DS499/2  and to make such findings as will assist the DSB in making the 
recommendations or in giving the rulings provided for in those agreements.150 
7.1.4   Desig nation of information as Business Confidential Information (BCI)  
7.211.   On 23 March 2017, the Panel adopted Additional Working Procedures Concerning Business 
Confidential Information (Additional Working Procedures on BCI). On 18 October 2017, we invited 
the parti es to express their views on the designation of information as BCI in their various 
submissions to the Panel and to propose, where appropriate, alternative terms or approaches that 
would avoid the need for redactions in the public version of the Report. Th e parties provided their 
written comments on 23 November 2017.  
7.212.   We recall that our Additional Working Procedures on BCI define business confidential 
information (BCI) as:  
[A]ny information that has been designated as such by the party submitting the 
inform ation, that is not available in the public domain, and the release of which would 
seriously prejudice an essential interest of the Member submitting the information or 
of the person or entity that supplied the information to that Member.151 
7.213.   The parties in th eir submissions have designated various types of information as BCI. In 
the confidential version of the Report, we refer to the following information designated by the 
parties as BCI: the security and safety situation in Ukraine; the producers concerned ; the products 
concerned ; the number and date of the FBO instructions and decisions at issue ; the total number 
of applications filed by the companies concerned ; and parts of the content of certain exhibits 
marked as containing BCI. As explained below, the pub lic version of the Report discloses some of 
the information designated by the parties as BCI, because that information does not meet the 
definition of BCI set out in the Additional Working Procedures on BCI.  
7.214.   Ukraine submits that (a) the names of companies , (b) the location and address of a 
company, (c) the date and number of letters, (d) the date and number of instructions, and (e)  the 
specific number of each of the certificates held by an individual company, alone or taken together, 
constitute BCI. Ukrain e justifies its view on the grounds that the release of such information would 
allow the identification of the Ukrainian companies concerned and would seriously prejudice the 
essential interests of those companies. Similarly, Ukraine considers that the tot al number of 
applications filed by a company constitutes BCI because releasing such information would seriously 
prejudice the essential interests of that company.  Ukraine also asks the Panel to designate as BCI 
all information directly quoted from exhibits  designated as BCI.152 
7.215.   In addition, Ukraine states that it has marked certain regions of the territory of Ukraine as 
well as actions in those areas as BCI on the grounds that the release of information regarding 
those regions and actions would seriously prej udice Ukraine's essential interests.153 
7.216.   Russia submits that some of the information that the parties initially designated as BCI 
may not constitute BCI. Russia considers that it is appropriate to find a solution to avoid 
unnecessary or harmful expansion of i nformation designated as BCI. Russia considers that 
information on production, purchases and sales of particular companies, their shares on relevant 
markets, including statistical information, should be marked as BCI, unless such information was 
in the pub lic domain. In Russia's view, such information constitutes BCI under the definition of 
                                                
150 WT/DS499/3.  
151 Paragraph 2 of the Additional Working Procedures on BCI.   
152 Ukraine's comments on BCI designation dated 23 November 2017, paras. 5 -6, 10 and 19.  
153 Ukraine's comments on BCI designation dated 23 November 2017, paras. 13 -15. WT/DS499/ R 
 
- 75 - 
 
 
  paragraph 2 of the Additional Working Procedures on BCI, and the disclosure of such information 
could seriously prejudice the essential interest of the entities that pro vided the information to the 
Russian government.154 
7.217.   Regarding other types of information designated as BCI in this dispute, Russia submits that 
some information designated as BCI by the parties in this dispute does not meet the definition of 
BCI, in most cas es because relevant facts, materials, and data are already publicly available.155 
7.218.   The Panel notes that in keeping with the Appellate Body's guidance, in considering the 
parties' views on what information should be designated as BCI in the public version of t he Report, 
it will strike a balance between, on the one hand, the need for protection of BCI and, on the other 
hand, the rights of third parties and other WTO Members under the DSU and the need to prepare a 
public version of the Report that is understandab le.156 
7.219.   The definition of BCI applicable in these proceedings has the following elements: 
(a) a party has designated the information as BCI; (b) the designated information is not available 
in the public domain; and (c)  the release of the information would prejudice an essential interest 
of the Member supplying the information or the entity that suppl ied it to the Member. Information 
satisfying these three elements is entitled to the special confidentiality protection afforded under 
the Additional Working Procedures on BCI.  
7.220.   The information contained in the confidential version of this Report regarding  specific 
companies consists of the name of the producers; the products concerned; the location of the 
producers; the number and date of the FBO instructions and decisions concerning products of 
these producers; the dates of letters exchanged between the FBO and the producers; the number 
of applications filed by certain producers; information about non -conformities with applicable 
technical regulations and consumer complaints about the quality of products; and certain 
information concerning the foregoing el ements and contained in exhibits designated in their 
entirety as BCI. We understand that some of this information is publicly available on the FBO's 
website, such as the name of the producer, the products concerned, the producer's address, the 
number of th e certificate, the date of issuance of the certificate, the date of any suspension of the 
certificate, and the date of the expiry of the certificate.157 As this information is in the public 
domain, it could not, alone, satisfy the definition of BCI as define d in these proceedings.  
7.221.   For the public version of this Report to  be understandable, it is appropriate, in our view, to 
disclose at least some of the information that is already publicly available, such as the products 
concerned. We also need to disclose pa rt of the content and dates of some of the FBO instructions 
and decisions at issue;  part of the content and dates of some of the letters exchanged between the 
producers and  the FBO; and the number of applications for new certificates filed by certain 
Ukrainian producers that  the FBO rejected.  
7.222.   Nevertheless, to protect the confidentiality of information that constitutes BCI and prevent 
identification of individual producers, we do not disclose in the public version of the Report the 
names of the producers an d the specific number of the instructions and decisions at issue. With 
that safeguard, we consider that the disclosure of the information referred to in the preceding 
paragraph would not prejudice an essential interest of any of the entities that provided BCI to the 
parties, or of a party.  
7.223.   The Report also contains information regarding the security and safety situation in Ukraine 
as well as references to specific regions in Ukraine. All such information is in the public domain, as 
it is based on published m edia reports and a report of the Office of the United Nations High 
Commissioner on Human Rights (OHCHR) submitted as evidence by Russia.158 Moreover, we note 
                                                
154 Russia's comments on BCI  designation  dated  23 November 2017.  
155 Russia's comments on BCI  designation  dated  23 November 2017.  
156 Appellate Body Report, US – Tuna II (Mexico) (Article 21.5 – Mexico) , para. 5.3. 
157 See Screenshots of search engine available at FBO's  website,  (Exhibit UKR -71)(BCI); and  Extract of 
the FBO 's Register, November 2017 , (Exhibit UKR -150). See also Ukraine's comments on BCI designation 
dated 23 November 2017, para. 11.  
158 Media report "Chaos grips Odessa, Ukraine's third -largest city", 2 May 2014, (Exhibit RUS -33); Media 
report "Dozens die in Odessa, rebels down Ukraine helicopters", 2 May 2014 , (Exhibit RUS -34); Media report 
 WT/DS499/ R 
 
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  that our Additional Working Procedures concern the protection of business confidential information. 
Neither party has substantiated that this information regarding the security and safety situation in 
Ukraine and specific regions in Ukraine is relevant to the protection of commercial or business 
interests of companies and hence is "business confidential" . As this information does not meet the 
definition of BCI applicable in these proceedings, we cannot accept  Ukraine's request to redact this 
information from the public version of our Report.  
7.224.   Finally, we observe that the analysis set out in certain sectio ns of the Report requires 
references to the content of certain exhibits that the submitting party has designated in their 
entirety as BCI. We do not disclose specific content of those exhibits, except if we consider that 
the relevant content does not satis fy the three definitional elements of BCI. Indeed, a document is 
not automatically BCI in its entirety merely because it has some specific content that constitutes 
BCI. Were it otherwise, a party could prevent the disclosure of information that is importan t to the 
understanding of a panel report merely by reference to one discrete piece of information that is 
business confidential.  
7.2  Overview of claims and order of the Panel's analysis  
7.225.   Before the Panel, Ukraine challenges the following three categories of mea sures:  
a. Systematic prevention of Ukrainian railway products from being imported into Russia by 
suspending valid certificates issued for railway products, by refusing to issue new 
certificates for railway products and by not recognizing certificates issued by the 
competent authorities of CU countries other than Russia, which Ukraine submits  are 
evidenced by the instructions and decisions listed in Annexes I, II and III to the panel 
request (systematic import prevention);  
b. the suspensions of certificates and the rejec tions of applications for new certificates with 
regard to Ukrainian producers of railway products, as listed in Annexes I and II to the 
panel request (suspensions and rejections); and  
c. Russia's non -recognition of certificates issued under CU Technical Regul ation 001/2011  
to Ukrainian suppliers of railway products in other CU countries found in the Protocol of 
the Ministry of Transport of the Russian Federation regarding the issuance by a 
certification authority of the Customs Union of certificates of conform ity for products 
manufactured by third countries No. A 4 -3 of 20 January 2015  and the individual 
decisions of the Federal Agency for Railway Transport listed in Annex III to the panel 
request . 
7.226.   Ukraine makes claims in relation to the TBT Agreement and the G ATT 1994 in respect of 
each of the alleged three categories of measures, as follows159: 
a. With respect to the systematic import prevention, Ukraine asks the Panel to find that 
Russia acts inconsistently with its obligations under:  
i. Article I:1 of the GATT 1994  because Russia fails to immediately and unconditionally 
grant to Ukrainian railway products the advantage it grants to like products from 
other countries;  
ii. Article XI:1 of the GATT 1994 because Russia has instituted and maintains a 
restriction on the impor tation of Ukrainian railway products; and 
                                                                                                                                                  
"How did Odessa's fire happen?", 6 May 2014 , (Exhibit RUS -35); Media report "Ukrainian protestors vandalise 
Russian bank", 22 November 2016 , (Exhibit RUS -36); Mass media report "Ukraine Political Cri sis Update: 
Russian Banks Attacked On Anniversary Of Revolution", 20 February 2016 , (Exhibit RUS -37); Media report,  20 
February 2014 , (Exhibit RUS -55); Media report , 29 January 2014 , (Exhibit RUS -56); Media report , 2 March 
2014, (Exhibit RUS -57); Media rep ort, 2 March 2014 , (Exhibit RUS -58); Media report, 3 February 2014 , 
(Exhibit RUS -59); Media report , 10 May 201 7, (Exhibit RUS -60); and Abstract from "Report on the human 
rights situation in Ukraine: 16 November 2016 to 15 February 2017 " (2017 OHCHR Report) , (Exhibit RUS -61). 
159 Ukraine's panel request, WT/DS499/2, p. 2;  Ukraine's first written submission, para. 401; and 
second written submission's, paras. 447 -449. WT/DS499/ R 
 
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  iii. Article XIII:1 of the GATT 1994 because Russia applies a restriction on the 
importation of Ukrainian railway products while the importation of like products from 
other countries is not similarly restricted.  
b. With r espect to the suspensions and the rejections, Ukraine asks the Panel to find that 
Russia acts inconsistently with its obligations under:  
i. Article 5.1.1 of the TBT Agreement because Russia applied and applies its conformity 
assessment procedures so as to gr ant access for suppliers of Ukrainian railway 
products under conditions less favourable than those accorded to suppliers of like 
Russian products and like products originating in any other country, in a comparable 
situation;  
ii. Article 5.1.2 of the TBT Agree ment because Russia applies its conformity assessment 
procedures with the effect of creating unnecessary obstacles to international trade 
and more strictly than necessary in order to give itself adequate confidence that 
Ukrainian railway products conform w ith the applicable technical regulations, in the 
light of the risk that non -conformity would create; and 
iii. Article 5.2.2 of the TBT Agreement because Russia (a) did not promptly examine the 
completeness of the documentation of Ukrainian producers applying fo r certificates 
and did not inform the applicants in a precise and complete manner of all 
deficiencies, and (b) did not transmit as soon as possible the results of the 
assessment in a precise and complete manner, so that corrective actions could be 
taken, i f necessary.  
c. With respect to non -recognition of certificates issued in other CU countries , Ukraine asks 
the Panel to find that Russia acted inconsistently with its obligations under:  
i. Article 2.1 of the TBT Agreement because in res pect of CU Technical 
Regulation  001/2011, Russia accords to Ukrainian railway products less favourable 
treatment than the treatment accorded to like Russian products and to like products 
originating in any other country;  
ii. Article 5.1.1 of the TBT Agreement because Russia applies its conformity assessment 
procedures so as to grant access for suppliers of Ukrainian railway products under 
conditions less favourable than those accorded to suppliers of like Russian products 
and like products originating in any other country, in a compa rable situation;  
iii. Article 5.1.2 of the TBT Agreement because Russia applies its conformity assessment 
procedures with the effect of creating unnecessary obstacles to international trade 
and more strictly than necessary in order to give itself adequate conf idence that 
Ukrainian railway products conform with the applicable technical regulations, in the 
light of the risk that non -conformity would create;  
iv. Article I:1 of the GATT 1994 because by not accepting in its territory the validity of 
certificates issued  to Ukrainian producers in other CU countries, Russia fails to 
immediately and unconditionally grant to Ukrainian railway products the advantage it 
grants to like products originating in other countries;  
v. Article III:4 of the GATT 1994 because by not accep ting in its territory the validity of 
certificates issued to Ukrainian producers in other CU countries, Russia accords to 
Ukrainian railway products treatment less favourable than that accorded to like 
Russian products; and 
vi. Article X:3(a) of the GATT 1994 because Russia fails to administer the non -
recognition "decision"160 in a uniform, impartial and reasonable manner.  
                                                
160 Ukraine's second written submission, para. 449.  WT/DS499/ R 
 
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  7.227.   Ukraine asks the Panel to recommend, pursuant to Article 19.1 of the DSU, that the DSB 
request s that Russia bring the contested measures into  conformity with its obligations under the 
TBT Agreement and the GATT 1994.161 
7.228.   As noted in paragraph 1.10 above, Russia made a request for a preliminary ruling pursuant 
to Article 6.2 of the DSU. Russia challenged a number of aspects of Ukraine's panel request. Russia 
requested the Panel to find that Ukraine's panel request fails to present the problem clearl y, fails 
to properly identify some of the challenged measures, and expands the scope of the dispute 
because in certain respects the panel request  does not correspond to Ukraine's consultations 
request. On this basis, Russia requested that the Panel find th at all the measures described in the 
panel request and Ukraine's associated claims are outside its terms of reference.162 The Panel's 
preliminary ruling is contained in section 7.1.1 above. As indicated therein, and communicated to 
the parties on 17 July 2017, we concluded that none of the measures or claims identified by 
Ukraine in its panel request falls outside the Panel's terms of reference. The Panel also noted th at 
this conclusion does not bear on the separate question whether the measures at issue are 
inconsistent with Russia's obligations under the WTO agreements.  
7.229.   As regards the merits of Ukraine's claims, Russia requests that the Panel dismiss all of 
Ukraine's claims and find that the challenged measures are not inconsistent with Russia's 
obligations under the WTO agreements.163   
7.230.   The Panel will first examine Ukraine's claims in relation to the suspensions and the 
rejections. It will then assess the claims concern ing non -recognition of certificates, before 
examining the alleged systematic import prevention. We address the alleged systematic import 
prevention last because  it incorporates the other two categories of measures.  
7.231.   In addressing Ukraine's claims concerning  the various measures, we will make use, as 
appropriate, of the principle of judicial economy.164 Accordingly, we will not necessarily make 
findings on all  the claims put forward by Ukraine in this dispute.  
7.3  Claims concerning the suspension of certificates  
7.3.1   Measures at issue  
Overview of Russia's legal framework on conformity assessment procedures  7.3.1.1   
7.232.   Prior to the entry into force of CU Technical Regulations 001/2011, 002/2011 and 
003/2011 , Russia's conformity assessment procedures  for railway products  were set ou t in the  
Certification System for Federal Railway Transport (CS FRT  Rules ).165 The CS FRT Rules 
established procedures for both mandat ory and voluntary certification.166 The issues raised in this 
dispute, and the subsequent discussion and analysis, concern man datory certification only.167 
7.233.   In order to be placed on the Russian market, railway products were required to undergo 
mandatory certification according to the CS FRT Rules and receive a valid certificate that attested 
to conformity with requirements pertainin g to safety of operation, labour  safety and environmental 
                                                
161 Ukraine's first written submission, para. 4 02; and second written submission, para. 450.  
162 Russia's preliminary ruling request, paras. 91 -92.  
163 Russia's first written submission, paras. 186 -190; and second written submission, paras. 195 -198. 
164 Appellate Body Reports, Argentina – Import Measures , para. 5.190 (quoting Appellate Body Reports, 
Canada – Wheat Exports and Grain Imports , para. 133; US – Wool Shirts and Blouses , p. 19, DSR 1997:I, 
p. 340; US – Tuna II (Mexico) , paras. 403 -404; US – Upland Cotton , para. 732; Australia – Salmon , 
para. 223). 
165 "Rules of the Certification System for Federal Railway Transport of the Russian Federation. General 
provisions " approved by the Ministry of Railways of the Russian Federation on 12 November 1996  (CS FRT 01 -
96), (Exhibit UKR -2). See also "Rules of the Certification System for Federal Railway Transport. Procedure for 
organizing and conducting an inspection control " (CS FRT 12 -2003) , (Exhibit UKR -3)(Corr.); and CS FRT 
31/PMG 40 -2003, 25 June 2013 ( CS FRT Rules 31/PMG 40 -2003), (Exhibit UKR -80). 
166 See generally Articles 6.5 and 3.10 of CS FRT 01 -96, (Exhibit UKR -2). 
167 Ukraine's response to Panel question No. 121, para. 26; and second written submission, 
footnote  354. WT/DS499/ R 
 
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  safety established by Russia's technical regulations and standards for railway products.168 The 
stages of mandatory certification were set out in the CS FRT Rules, including the stages before 
(certifi cation procedure) and after a certificate had been issued (inspection control).  The procedure 
started with an applicant submitting an application for mandatory certification and the FBO 
accept ing such application. The certification procedure could include both testing of samples and 
inspection of production, on the basis of which a certificate could be issued.169  
7.234.   Inspection control ( control assessment of conformity ) was carried out after a certificate 
had been issued, and establish ed that the products being sold were still in conformity with the 
requirements confirmed during certification .170 Inspection control was required to be carried out at 
least once a year throughout the period of validity o f the certificate and could include both  testing 
of samples and inspection of production.171 Inspection control was required to be carried out 
through on-site inspection (at the facilities of the certified manufacturer), or through remote  
inspection (elsewhere).172 These two modalities of inspection  control were carried out by 
FBO employees173 according to an inspection programme that would set out the grounds, main 
tasks and facilities of the inspection.174  
7.235.   The specific procedures of mandatory certification depended on the applicable certification 
scheme. The CS FRT Rules had thirteen different certification schemes, depending on the type of 
production  and the characteristics of products  and manufacturers  subject to certification.175 The 
FBO determined the certification scheme under which an application w as considered.176 The 
certificates issued to Ukrainian producers that were subsequently suspended by the FBO were 
issued under three of these thirteen different certification schemes, namely, schemes 3a, 4a, 
and 5. The following table provides an overview of  these three certification schemes.  
                                                
168 Article 4.1 of CS FRT 01 -96, (Exhibit UKR -2). See also Articles 3.9 and 9.1 of CS FRT 01 -96, (Exhibit 
UKR-2), where mandatory certification is referred to as statutory certification.  
169 Article 9 of CS FRT 01 -96, (Exhibit UKR -2). 
170 Articles 3.36 and 13.1 of CS FRT 01 -96, (Exhibit UKR -2). See also Articles 3.2 and 5.3  CS FRT 12-
2003, (Exhibit UKR -3), where inspection control is referred to as supervisory control (see Russia's response to 
Panel question No. 39(a)).  
171 Article 13 of CS FRT 01 -96, (Exhibit UKR -2) and Article 5 of CS FRT 12-2003, (Exhibit UKR -3). 
Inspection control includ es both scheduled and unscheduled inspection (see Articles 5.1 -5.4 of CS FRT 12-
2003, ( Exhibit UKR -3)). Scheduled inspection must be carried out at least once a year throughout the period of 
validity o f the certificate. Unscheduled inspection may be carrie d out, in response to claims and information 
about non -compliance, without prior notice to the inspected facility. Hereafter, we use inspection control to 
refer to scheduled inspection control.  
172 Article 5.3 of CS FRT 12-2003, (Exhibit UKR -3). 
173 Articles 9.6, 13.4 and 13.6 of CS FRT 01 -96, (Exhibit UKR -2); Articles 4.1 and 4.3 of CS FRT 12 -
2003, (Exhibit UKR -3); Articles 4.3 and 6.5 of CS FRT 31/PMG 40 -2003, (Exhibit UKR -80); and Articles 5.3 and 
7.1 of Organization Standard СTO PC -FZT 08 -2013 "Procedure of organization and implementation of 
inspection control of certified products " (PC-FZT 08 -2013), (Exhibit RUS -23). See also D ocuments of the FBO 
providing for the inconsistencies of the certified products of PJSC [[xxx]], (Exhibit RUS -62)(BCI), w here it is 
mentioned that "an inspection team of [the FBO]  " conducted a scheduled inspection control ". 
174 Article 5.6 of CS FRT 12-2003, (Exhibit UKR -3). 
175 See Annex B  to CS FRT 01 -96, (Exhibit UKR -79); and Appendix A to CS FRT 31/PMG 40 -2003, 
(Exhibit UKR -80).  
176 Article 9.17 of CS FRT 01 -96, (Exhibit UKR -2). WT/DS499/ R 
 
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  Table 3 - CS FRT certification schemes relevant for the 14 instructions challenged by 
Ukraine177 
Scheme  Applicability  Certification  procedure  Inspection  control  
3a Used for certification of 
(i) products ; (ii) stability of 
serial production which does 
not cast doubt ; and (iii) 
products for which the 
collection of  sample s at the 
seller (consumer) is hindered 
or impossible.  (i) type testing (test of 
samples)  and (ii) analysis 
of condition of product ion 
(inspection of production) . (i) periodical test of 
samples at manufacturer  
and (ii) inspection of 
production.  
 
4a Used when  strict supervisory 
control over commercial 
products is required . (i) type testing (test of 
samples)  and (ii) analysis 
of condit ion of production 
(inspection of production) . (i) periodical tests of 
samples taken from 
consumer (seller) and 
manufacturer  (before 
sending to the consumer) , 
with the same frequency  
and (ii) inspection of 
production.  
5 Used for certification of 
products, for which: (i)  sample 
size for testing  is insufficient 
for an objective assessment  of 
compliance with the 
established requirements;  (ii) 
increased requirements for 
stability of characteristics  are 
established; (iii) technological 
manufacturing processes ar e 
sensitive to external factors ; 
(iv) manufacturing subject to 
frequent change  or 
modifications ; and (v)  tests 
can only be carried out after 
installation at the consumer.  (i) type testing (test of 
samples)  and (ii) 
certification of production 
or quality ma nagement 
system (inspection of 
production) . (i) test of  production 
stability or operation  of the 
quality management 
system (inspection of 
production); and ( ii) 
periodical tests of samples 
taken from manufacturer  or 
seller  before sending to 
consumer (test o f samples 
at manufacturer  or seller ). 
 
Challenged FBO instructions  7.3.1.2   
7.236.   The following table compiles information on the 14 instructions that Ukraine challenged, 
through which the FBO suspended valid certificates. The first column contains the number of the 
instruction and an indication of the number of certificates suspended through the instruction. 
The second column contains the date of the instruction. The third column contains the products 
covered by the instruction. The fourth column refers to the scheme un der which the FBO issued 
the certificate for the relevant conformity assessment procedure, as required by the applicable 
Russian legislation.178 Each scheme is accompanied by an indication of the type of inspection 
control required. The last column reproduce s the reasons provided in the accompanying cover 
letter and in each instruction, as relevant, to suspend the certificate. Suspension  instruction s 1 and 
2 below concern producer 1 [[ xxx]]. Suspension  instruction  3 below concerns producer 2 [[ xxx]]. 
Suspensi on instruction s 4 and 5 concern producer 3 [[ xxx]]. Suspension  instruction s 6 and 7 
concern producer 4 [[ xxx]]. The remaining suspension  instruction s (8 to 14) concern 
producer  5 [[xxx]]. 
 
                                                
177 Annex B to CS FRT 01 -96, (Exhibit UKR -79); and Appendix A to CS FRT 31/PMG 40 -2003 (Exhibit 
UKR-80). 
178 See Annex B to CS FRT 01 -96, (Exhibit UKR -79); and Appendix A to CS FRT Rules 31/PMG 40 -2003, 
(Exhibit UKR -80).   
  WT/DS499/R  
 
- 81 - Table 4 - Instructions through which valid certificates were suspended  
Suspension 
instruction  Date  Products covered  Scheme  and t ype of 
Inspection  Reason s provided  to suspend  as given in the 
corresponding exhibits  
Suspension  
instruction  1 
– [[xxx]]179  
 
Concerns 
seven  
certificates  8.8.2014 (a) transversal brake bar; 
(b) four wheel bogie of [[xxx]] 
rail car; (c ) coil spring 
suspension; (d)  wheel -pairs of 
[[xxx]] wagon type; 
(e) finishing axis of [[xxx]] 
wagon type; (f)  air reservoir 
of [[xxx]] type; and 
(g) covered  hopper cars.  Scheme 5 (for the seven 
certifi cates) , which requires: 
(a) t est of production 
stability or operation of the 
quality sy stem (inspection of 
production); and (b)  
periodical tests of samples 
taken from manufacturer 
before sending to consumer  
(test of samples at 
manufacturer) . Cover Letter : "Due to military operation with involvement of 
Armed Forces on the territory of Donetsk and Lugansk regions 
conducted by the Ukrainian government, departure of our 
employees to Ukraine for inspection entails a threat to their life 
and health safety. In ad dition, the State Border Guard Service of 
Ukraine restricted the entry to the country for male citizens of 
Russian Federation in the age of 16 to 60 years. Such force 
majeure circumstances caused the lack of conditions for 
inspection.  
 
Inspection of certif icated products is possible only in case of 
termination of military operations on  the territory of Ukraine as 
well as upon removal of entry restrictions for the Russian 
Federation citizens. " 
 
Instruction : "According to the [CS FRT] rules, certificated 
products are subject to an inspection control as it is recorded in 
the conformity certificate. A deadline for the inspection control is 
April 2014. There are no conditions for inspection control up to 
the present moment."  
Suspension  
instruction  2 
- [[xxx]]180  
 
Concerns 
seven  
certificates  3.10.2014  (a) and (b) two models of 
open-top cars ; (c) cars for 
technical carbon ; (d) covered 
hopper cars for grain and 
other foods; (e) cars -
platforms for ultra -large 
container; (f) covered hopper 
cars for cement; and (g) cars  
for bitumen.  Scheme 5 (for the seven 
certifi cates) , which requires: 
(a) inspection of production; 
and (b) test  of samples at 
manufacturer . Cover Letter : "Due to a substantial change of circumstances, 
preventing the performance by [ the FBO] of the work on 
inspection control over the certified products, the conditions for 
its performance are not met. Such works may be performed only 
after termination of the aforementioned circumstances".  
 
Instruction: "According to the [CS FRT] rules, certificated 
products a re subject to  an inspection control as it is recorded in 
the conformity certificate. A deadline for the inspection control is 
September  2014. There are no conditions for inspection control 
up to the present moment. " 
                                                
179 Letter [[ xxx]] from the FBO to PJSC [[xxx]]  with instruction [[ xxx]] attached, 8 August 2014  (Letter [[xxx]] from the FBO of 8  August 2014), ( Exhibit UKR -15)(BCI). 
See also Letter [[ xxx]] from PJSC [[ xxx]], 22 September 2017, ( Exhibi t UKR -134)(BCI) for the applicable schemes.  
180 Letter [[ xxx]] from the FBO to PJSC [[xxx]]  with instruction [[ xxx]] attached, 3 October 2014 (Letter [[xxx]] from the FBO of 3  October 2014), ( Exhibit UKR -
19)(BCI)(Corr.). See also Letter [[ xxx]] from PJSC [[ xxx]], 22 September 2017, ( Exhibit UKR -134)(BCI) for the applicable schemes.   
  WT/DS49 9/R 
 
- 82 - Suspension 
instruction  Date  Products covered  Scheme  and t ype of 
Inspection  Reason s provided  to suspend  as given in the 
corresponding exhibits  
Suspension  
instruction  3 
- [[xxx]]181  
 
Concerns 22 
certificates  27.2.2015  Railroad switches  Scheme 3a (for the 22 
certificates), which requires: 
(a) inspection of production; 
and (b) test  of samples at 
manufacturer . Instruction: "Pursuant to the Rules of [CS FRT] the certified 
products are sub ject to inspection, which is mentioned in the 
certificates of conformity. The planned period for performance of 
the next inspection is January 2015. As of today, there are no 
facilities for holding the inspection.  " 
Suspension  
instruction  4 
- [[xxx]]182  
 
Concerns 
three 
certificates  16.7.2014  (a) No -turn car pads; (b) 
freight -car truck sole bars; 
and (c) truck bolsters.  Scheme 3a (for two 
certificates), which requires: 
(a) inspection of production; 
and (b) test  of samples at 
manufacturer.  
 
Scheme 4a (for one 
certificate for truck 
bolsters), which requires: 
(a) inspection of production; 
and (b) p eriodical tests of 
samples taken from 
consumer (seller) and 
manufacturer , with the 
same frequency . Cover Letter: "Due to significant changes of circumstances so 
that they prevent the performance by [the FBO] of its 
obligations under the agreements made between our 
organizations, conditions for conduct of inspectorial supervision 
of certified products are lacking. Inspection supervision 
operations may be conducted whe n the above -mentioned 
circumstances terminate. " 
 
Instruction:  "According to rules of [CS FRT], certified products 
are subject to inspectorial supervision, which fact is recorded in 
the conformity assessment certificates. The scheduled date for 
the inspecto rial supervision is May 2014. Conditions for conduct 
of the inspectorial supervision are lacking up to date.  " 
Suspension  
instruction  5 
- [[xxx]]183  
 
Concerns 
two 
certificates  11.2.2015  (a) rear draft lugs (coping 
units) of automatic coupler; 
and (b) front draft lugs 
(copings) of automatic 
coupler.  Scheme 3a (for both 
certificates), which requires: 
(a) inspection of production; 
and (b) test  of samples at 
manufacturer.  
 Instruction:  "According to rules of [CS FRT], certified products 
are subject to inspectorial supervision, which fact is recorded in 
the conformity assessment certificates. The scheduled date for 
the inspectorial supervision is December 2014. Conditions for 
conduct of th e inspectorial supervision are lacking up to date. " 
                                                
181 Letter [[ xxx]] from the FBO to PJSC [[xxx]]  with instruction [[ xxx]] attached, 27 February 2015  (Letter [[ xxx]] from the FBO of 27 February 2015), ( Exhibit UKR -
20)(BCI). See al so Letter [[ xxx]] from PJSC [[ xxx]], 21 September 2017 , (Exhibit UKR -135)(BCI) for the applicable schemes.  
182 Letter [[ xxx]] from the FBO to PJSC [[xxx]]  with instruction [[ xxx]] attached, 17 July 2014 ( Letter [[ xxx]] from the FBO of 17 July 2014 ), (Exhibit UKR -25)(BCI). See 
also Letter [[ xxx]] from PJSC [[ xxx]], 7 September 2017 , (Exhibit UKR -136)(BCI) for the applicable schemes.  
183 Letter [[ xxx]] from the FBO to PJSC [[xxx]]  with instruction [[ xxx]] attached, 11 February 2015 (Letter [[ xxx]] from the FBO of 11 February 2015 ), (Exhibit UKR -
31)(BCI). See also Letter [[ xxx]] from PJSC [[ xxx]], 7 September 2017 , (Exhibit UKR -136)(BCI) for the applicable schemes.   
  WT/DS499/R  
 
- 83 - Suspension 
instruction  Date  Products covered  Scheme  and t ype of 
Inspection  Reason s provided  to suspend  as given in the 
corresponding exhibits  
Suspension 
instruction 6 
- [[xxx]]184  
 
Concerns 
one 
certificate  27.1.2015  Oil-tank railcars for oil 
products  Scheme 3a, which requires: 
(a) inspection of production; 
and (b) test  of samples at 
manufacture r. 
 Instruction: "According to the [CS FRT] rules, certificated 
products are subject to an inspection control as it is recorded in 
the conformity certificate. A deadline for the inspection control is 
November 2014. There are no conditions for inspection co ntrol 
up to the present moment.  " 
Suspension  
instruction  7 
- [[xxx]]185  
 
Concerns 
four 
certificates  11.2.2015  Four types of oil -tank railcars 
for oil products  Scheme 3a (for the four 
certificates), which requires: 
(a) inspection of production; 
and (b) test  of samples at 
manufacturer.  Instruction: "According to the [CS FRT] rules, certificated 
products are subject to an inspection control as it is recorded in 
the conformity certificate. A deadline for the inspection control is 
December 2014. There are no con ditions for inspection control 
up to the present moment.  " 
Suspension  
instruction  8 
- [[xxx]]186  
 
Concerns six 
certificates  8.10.2014  (a) passenger -car truck 
bolsters; (b) passenger cars; 
(c) freight -car hour -wheeled 
trucks; (d) shock absorbers; 
(e) no-turn car pads; (f) 
finished car axles; and (g)  
wheel sets . Scheme 3a (for the six 
certificates), which requires: 
(a) inspection of production; 
and (b) test  of samples at 
manufacturer.  Cover Letter: "Due to significant changes of circumstances so 
that they prevent the performance by [the FBO] of its 
obligations under the agreement made between our 
organizations, conditions for conduct of inspectorial supervision 
of certified products are lacking. Inspe ction supervision 
operations may be conducted when the above -mentioned 
circumstances terminate. " 
 
Instruction:  "According to rules of [CS FRT], certified products 
are subject to inspectorial supervision, which fact is recorded in 
the conformity assessment certificates. The scheduled date for 
the inspectorial supervision is August 2014. Conditions for 
conduct of the inspectorial supervision are lacking up to date. " 
                                                
184 Letter [[ xxx]] from the FBO to PJSC [[xxx]]  with instruction [[ xxx]] attached, 27 January 2015 (Letter [[ xxx]] from the FBO of 27 January 2015 ), (Exhibit UKR -
36)(BCI). See also Letter [[ xxx]] from PJSC [[ xxx]], 25 September 2017 , (Exhibit UKR -137)(BCI) for the applicable schemes.  
185 Letter [[ xxx]] from the FBO to PJSC [[xxx]]  with instruction [[ xxx]] attached, 11 February 2015  (Letter [[ xxx]] from the FBO of 11 February 2015 ), (Exhibit UKR -
37)(BCI). See also Letter [[ xxx]] from PJSC [[ xxx]], 25 September 2017 , (Exhibit UKR -137)(BCI) for the applicable schemes.  
186 Letter [[ xxx]] from the FBO to PJSC [[xxx]]  with instruction [[ xxx]] attached, 8 October 2014 (BCI)  (Letter [[ xxx]] from the FBO of 8 October 2014), ( Exhibit UKR -
39)(BCI). See also Letter [[ xxx]] from P JSC [[xxx]], 22 September 2017, ( Exhibit UKR -138)(BCI) for the appl icable schemes.   
  WT/DS49 9/R 
 
- 84 - Suspension 
instruction  Date  Products covered  Scheme  and t ype of 
Inspection  Reason s provided  to suspend  as given in the 
corresponding exhibits  
Suspension  
instruction  9 
- [[xxx]]187  
 
Concerns 
seven 
certificates  9.10.2014  (a) rain cars; (b) bulk cars ; 
(c) flat -deck cars; and (d)  
cement tankers.  Scheme 3a (for the seven 
certificates), which requires: 
(a) inspection of production; 
and (b) test  of samples at 
manufacturer.  Cover Letter: "Due to significant changes of circumstan ces so 
that they prevent the performance by [the FBO] of its 
obligations under the agreement made between our 
organizations, conditions for conduct of inspectorial supervision 
of certified products are lacking. Inspection supervision 
operations may be cond ucted when the above -mentioned 
circumstances terminate. " 
 
Instruction:  "According to rules of [CS FRT], certified products 
are subject to inspectorial supervision, which fact is recorded in 
the conformity assessment certificates. The scheduled date for 
the inspectorial supervision is September  2014. Conditions for 
conduct of the inspectorial supervision are lacking up to date. " 
Suspension 
instruction 
10 - 
[[xxx]]188  
 
Concerns 
two 
certificates  11.2.2015  Bogie suspension spiral coil 
springs for railway rolling 
stock Scheme 3a (for both 
certificates), which requires: 
(a) inspection of production; 
and (b) test  of samples at 
manufacturer.  Instruction:  "According to rules of [CS FRT], certified products 
are subject to inspectorial supervision, which fact is recorded in 
the conformity assessment certificates. The scheduled date for 
the inspectorial supervision is December  2014. Conditions for 
conduct of the inspectorial supervision are lacking up to date. " 
Suspension 
instruction 
11 - 
[[xxx]]189  
 
Concerns 
seven  
certificates  18.5.2015  (a) air reservoir;  (b) coil 
spring suspension; (c)  
finishing axis of [[xxx]] wagon 
type; (d)  wheel -pairs of 
[[xxx]] wagon type; (e)  
passenger cars [[xxx]]; (f) 
finishing axis of [[xxx]] wagon 
type;  and (g) open-top cars . Scheme 3a (for the seven 
certificates), which requires: 
(a) inspection of production; 
and (b) test  of samples at 
manufacturer.  Instruction:  "According to the [CS FRT] rules, certificated 
products are subject to an inspection control as it is recorded in 
the conformi ty certificate. A deadline for the inspection control is 
April 2015. There are no conditions for inspection co ntrol up to 
the present moment."  
                                                
187 Letter [[ xxx]] from the FBO to PJSC [[xxx]]  with instruction [[ xxx]] attached, 9 October 2014  (Letter [[ xxx]] from the FBO of 9 October 2014 ), (Exhibit UKR -
40)(BCI). See also Letter [[ xxx]] from P JSC [[xxx]], 22 September 2017, ( Exhibit UKR-138)(BCI) for the applicable schemes.  
188 Letter [[ xxx]] from the FBO to PJSC [[xxx]]  with instruction [[ xxx]] attached, 11 February 2015  (Letter [[ xxx]] from the FBO of 11 February 2015 ), (Exhibit UKR -
42)(BCI). See also Letter [[ xxx]] from P JSC [[xxx]], 22 September 2017, ( Exhibit UKR -138)(BCI) for the applicable schemes.  
189 Letter [[ xxx]] from the FBO to PJSC [[xxx]]  with instruction [[ xxx]] attached, 18 May 2015  (Letter [[ xxx]] from the FBO of 18 May 2015 ), (Exhibit UKR -43)(BCI). See 
also Letter [[xxx]] from P JSC [[xxx]], 22 September 2017, ( Exhibit UKR -138)(BCI) for the applicable schemes.   
  WT/DS499/R  
 
- 85 - Suspension 
instruction  Date  Products covered  Scheme  and t ype of 
Inspection  Reason s provided  to suspend  as given in the 
corresponding exhibits  
Suspension  
instruction  
12 - 
[[xxx]]190  
 
Concerns 
three 
certificates  8.6.2015  (a) tank cars; (b) boxcars; (c) 
freight bogie transversal 
brakes.  Scheme 3a (for the three 
certificates), which requires: 
(a) inspection of production; 
and (b) test  of samples at 
manufacturer.  Instruction: "According to rules of [CS FRT], certified products 
are subject to inspectorial supervision, which fact is recorded in 
the conformity assessment certificates. The scheduled date for 
the inspectorial supervision is May 2015. Conditions for conduct 
of the inspectorial supervision are lacking up to date. " 
Suspension 
instruction 
13 - 
[[xxx]]191  
 
Concerns 
one 
certificate  6.7.2015  Boxcars  Scheme 3a, which requires: 
(a) inspection of production; 
and (b) test  of samples at 
manufacturer.  Instruction: "According to rules of [CS FRT], certified products 
are subject to inspectorial supervision, wh ich fact is recorded in 
the conformity assessment certificates. The scheduled date for 
the inspectorial supervision is June 2015. Conditions for conduct 
of the inspectorial supervision are lacking up to date.  " 
Suspension 
instruction 
14 - 
[[xxx]]192  
 
Concerns 
one 
certificate  7.9.2015  Cars for cement  Scheme 3a, which requires: 
(a) inspection of production; 
and (b) test  of samples at 
manufacturer.  Instruction:  "According to the [CS FRT] rules, certificated 
products are subject to an inspection control as it is recorded in 
the conformity certificate. A deadline for the inspection control is 
August 2015. There are no conditions for inspection control up to 
the present moment.  " 
 
 
 
                                                
190 Letter [[ xxx]] from the FBO to PJSC [[xxx]]  with instruction [[ xxx]] attached, 8 June 2015 (Letter [[ xxx]] from the FBO of 8 June 2015 ), (Exhibit UKR -
45)(BCI)(Corr.). See also Letter [[ xxx]] from PJSC [[ xxx]], 22 September 2017 , (Exhibit UKR -138)(BCI) for the applicable schemes.  
191 Letter [[ xxx]] from the FBO to PJSC [[xxx]]  with instruction [[ xxx]] attached, 6 July 2015  (Letter [[ xxx]] from the FBO of 6 July 2015 ), (Exhibit UKR -46)(BCI). See 
also Letter [[ xxx]] from PJSC [[ xxx]], 22 September 2017 , (Exhibit UKR -138)(BCI) for the applicable schemes.  
192 Letter [[ xxx]] from the FBO to PJSC [[xxx]]  with instruction [[ xxx]] attached, 7 September 2015 (Letter [[ xxx]] from the FBO of 7 September 2015 ), (Exhibit UKR -
47)(BCI). See also Letter [[ xxx]] from PJSC [[ xxx]], 22 September 2017 , (Exhibit UKR -138)(BCI) for the applicable schemes.  WT/DS499/ R 
 
- 86 - 
 
 
  Panel's terms of reference  7.3.1.3   
7.237.   Ukraine challenges , under Article s 5.1.1, 5.1.2, and 5.2.2,  14 instructions through which 
the FBO suspended valid certificates of conformity held by Ukrainian producers of railway products.  
Ukraine requests findings from the Panel on each of the 14 instructions.193 
7.238.   Russia submits that in the relevant parts of Ukraine's  panel request there is no indication 
that Ukraine requests findings from the Panel on each of  the 14 instructions by  Russia's 
authorities. Russia argues that in the absence of such request, findings  by the Panel  on the 
14 instructions by  Russia's authorities would be outside the terms of reference.194 
7.239.   The Panel considers that contrary to Russ ia's view, the terms of the panel request indicate 
that each of the instructions through which the FBO suspended valid certificates of conformity held 
by Ukrainian producers of railway products  is a measure at issue . Point two of section II of the 
panel request describe s the measure at issue as the "suspensions of conformity assessment 
certificates … as mentioned in Anne[x] I".195 In turn, Annex I include s a list of 16 instructions 
through which the FBO suspended certificates of conformity held by Ukrainian  producers of railway 
products. It is thus clear that Ukraine's panel request identifie s, as challenged measures, 
16 instructions issued by the FBO. We note that in subsequent communications Ukraine clarified 
that it had narrowed its challenge to only 14 o f those  16 instructions.196 On this basis, we consider 
that the 14 instructions challenged by Ukraine are properly within our terms of reference  and that 
we can, and indeed must , make specific findings in respect of each . 
7.3.2   Consistency of the suspensions with Article 5.1.1 of the TBT Agreement  
7.240.   We now turn to examine Ukraine's claim s of violation  under Article 5.1.1 of the 
TBT Agreement. The heading and the text of Articles 5.1 and 5.1.1 provide as follows:  
Article 5: Procedures for Assessment of Conformity by C entral Government Bodies  
5.1     Members shall ensure that, in cases where a positive assurance of conformity 
with technical regulations or standards is required, their central government bodies 
apply the following provisions to products originating in the  territories of other 
Members:  
5.1.1  conformity assessment procedures are prepared, adopted and 
applied so as to grant access for suppliers of like products originating in 
the territories of other Members under conditions no less favourable than 
those acc orded to suppliers of like products of national origin or 
originating in any other country, in a comparable situation; access entails 
suppliers' right to an assessment of conformity under the rules of the 
procedure, including, when foreseen by this procedu re, the possibility to 
have conformity assessment activities undertaken at the site of facilities 
and to receive the mark of the system;  
7.241.   In addition, Annex 1.3 of the TBT Agreement defines conformity assessment procedures as 
follows:  
Any procedure used, di rectly or indirectly, to determine that relevant requirements in 
technical regulations or standards are fulfilled.  
                                                
193 Ukraine's first written submission, para. 181; response s to Panel question Nos. 7(a) and 10(a), 
paras.  1 and 7 -8; and opening statement at the first meeting of the Panel, para. 37.  
194 Russia's opening statement at the first meeting of the Panel, para. 21.  
195 WT/DS499/2, p. 2.  
196 Ukraine's first written submission,  para. 181; response s to Panel question Nos. 7(a) and 10(a), 
paras.  1 and 7 -8; and opening statement at the first meeting of the Panel, para. 38.  WT/DS499/ R 
 
- 87 - 
 
  Explanatory note  
Conformity assessment procedures include, inter alia , procedures for 
sampling, testing and inspection; evaluation, verification and assurance of 
conformity; registration, accreditation and approval as well as their 
combinations.  
7.242.   Ukraine requests that the Panel find  that each of the 14 instructions through which the 
FBO suspended valid certificates of conformity held by Ukrainian producers of railway products are 
inconsistent with Article 5.1.1. Ukraine argues that Russia suspended certificates held by Ukrainian 
producers of railway products without conducting inspect ion control of the products concerned, 
while maintaining the validity of certificates held by Russian producers of railway products  and by 
producers of railway products  from other countries after having conducted inspection control s. 
Ukraine considers that  Russia has  thus applied its conformity assessment procedure on railway 
products so as to grant access for suppliers of Ukrainian railway products under conditions less 
favourable than those granted to suppliers of Russian railway products and suppliers of  railway 
products from other countries, in a comparable situation.197 
7.243.   Russia argues that the 14 instructions challenged by Ukraine are not inconsistent with 
Article 5.1.1. Russia submits that it was for Ukraine to demonstrate that the Ukrainian products at 
issue are like Russian products or products from other countries. Russia also maintains that, due 
to the security situation in Ukraine, the situation of suppliers of Ukrainian railway products cannot 
be compared with the situation of suppliers of Russian ra ilway products and of railway products 
from other countries.198 
Interpretation  7.3.2.1   
7.244.   The Panel will first address the interpretation of Article 5.1.1. We note that this provision 
has not been interpreted by the Appellate Body or previous panels.  
7.245.   Ukraine submits th at the introductory paragraph  of Article 5.1 sets out the general scope 
of the obligations contained therein, which refer to "cases where a positive assurance of 
conformity with technical regulations or standards is required".199  
7.246.   Ukraine considers that thre e elements need to be demonstrated to establish a violation of 
Article  5.1.1, namely, (a)  that the measure at issue is a conformity assessment procedure, as 
defined in Annex 1.3; (b)  that the products of suppliers concerned are like domestic products or 
products from other countries, and (c)  that those suppliers are granted access under conditions 
less favourable than those accorded to suppliers of like domestic products and suppliers of like 
products originating in any other country, in a comparable situat ion.200  
7.247.   Russia agrees with Ukraine that those three elements need to be demonstrated to 
establish a violation of Article 5.1.1.201 
7.248.   The Panel notes that Article 5.1.1 establishes obligations to provide national treatment and 
most favoured nation treatment (her eafter, for simplicity, non -discrimination obligations) with 
regard to access for suppliers from other Members to covered conformity assessment procedures  
of importing Members.  
7.249.   There are two requirements for a conformity assessment procedure  to fall withi n the scope 
of Article  5.1.1. The first is found in the title and in the introductory paragraph of Article 5.1. They 
make clear that this provision concerns procedures for the assessment of conformity by central 
government bodies . The second requirement, w hich is also found in the introductory paragraph of 
                                                
197 Ukraine's first written submission, paras. 253 -256; and second written submission, para. 149.  
198 Russia's fir st written submission, paras. 73 -78; and second written submission, para. 87.  
199 Ukraine's first written submission, para. 250; and second written submission, para.  84. 
200 Ukraine's first written submission, paras. 251; and second written submission, paras.  85-87. See 
also Ukraine's first written submission, paras. 241 -242, referring to the definition of a conformity assessment 
procedure.  
201 Russia's first written submission, para. 72.  WT/DS499/ R 
 
- 88 - 
 
  Article 5.1, is that this provision applies in cases where a positive assurance of conformity  with 
technical regulations or standards is required . Thus, Article 5.1.1 applies to mandatory conformity 
asses sment procedures and not voluntary conformity assessment procedures.202  
7.250.   Article 5.1.1 provides that importing Members must "prepare", "adopt" and "apply" its 
conformity assessment procedures  "so as to" grant no less favourable access conditions for 
supplier s of like products originating in other Members, in a comparable situation. It is therefore 
clear that a violation of Article 5.1.1 may result from the preparation or adoption of a conformity 
assessment procedure, as such, or from its application.  
7.251.   In our view, an importing Member acts inconsistently with one of the non -discrimination 
obligations in Article 5.1.1 in respect of a covered conformity assessment procedure if three 
elements are established:  
a. The suppliers of another Member who have been granted l ess favourable access are  
suppliers of products that are like the products of domestic suppliers or suppliers from 
any other country who have been granted more favourable access ; 
b. the importing Member (through the preparation, adoption or application of a c overed 
conformity assessment procedure ) grant s access  for suppliers of products from another 
Member under conditions less favourable  than those accorded to suppliers of domestic 
products or products from any other country203; and   
c. the importing Member grants  access under conditions  less favourable  for suppliers of like 
products in a comparable situation . 
7.252.   We turn to examine each of these elements in more detail.  
7.3.2.1.1   Like products  
7.253.   Regarding the first element, the "like products" analysis, the parties and  certain  third 
parties agree that for a measure to be inconsistent with Article 5.1.1, it has to apply to suppliers of 
products originating in the territor y of another Member that are like domestic products or like 
products originating in any other country.204 
7.254.   The Pane l notes that the text of Article 5.1.1 defines the product scope of the non -
discrimination obligations in Article 5.1.1. The obligation to grant access under conditions no less 
favourable is  limited to suppliers of such products originating in the territor ies of other Members as 
are "like" domestic products or "like" products originating in any other country. In our view, the 
same criteria that are applied for determining whether products are "like" in the context of 
Article  2.1 of the TBT Agreement are app licable in the context of Article 5.1.1. As discussed below, 
when addressing Ukraine's claims under Article 5.1.1, the parties have different views on how to 
establish that products are "like" in this dispute.  
7.3.2.1.2   The importing Member grants access  for supplie rs of products from another 
Member under conditions less favourable  
7.255.   Regarding the second element, Ukraine  argues that access is defined, inter alia , as the 
"the right or opportunity to benefit from or use a system or service".205 Ukraine also refers to the 
fact that the second sentence of Article 5.1.1  confirms that access entails the suppliers' right to an 
assessment of conformity under the rules of the procedure which includes, where foreseen by that 
                                                
202  Along similar lines, Ukraine submits that mandatory certification means that a positive assurance of 
conformity with technical regulations is required. Ukraine's second written submission, paras. 84 and 106. See 
also United States' third -party submission, paras. 19 -21. 
203 We recall that pursuant to the text of Article 5.1.1 of the TBT Agreement the relevant treatment 
concerns the "conditions" of access granted to suppliers from Members.  
204 Ukraine's first written submission, para. 251; Ukraine's second written submission, para.  87; Russia's 
first written submission, para. 72; Eur opean Union's third -party submission, paras. 37 -41; and United States' 
third-party submission, para s. 27 and 29.  
205 Ukraine's second written submission, para. 87.  WT/DS499/ R 
 
- 89 - 
 
  procedure, the possibility to  have conformity assessment activities undertaken at the site of 
facilities and receive the mark of the system.206 
7.256.   Ukraine also submits that Article 5.1.1 is concerned with the "conditions" of "access" 
granted to suppliers of like products that are in a comp arable situation and not with the 
modification of the conditions of competition vis-à-vis like products. In Ukraine's view, Article 5.1.1 
prevents Members from imposing conditions, e.g. limitations or restrictions, on access to a 
conformity assessment proc edure  that are detrimental to suppliers of products from one or more 
WTO Members.207 
7.257.   The Panel notes that the second sentence of Article  5.1.1 clarifies the meaning of the term 
"access". Thus, access entails "suppliers' right to an assessment of conformity u nder the rules of 
the procedure, including, when foreseen by this procedure, the possibility to have conformity 
assessment activities undertaken at the site of facilities and to receive the mark of the system". 
This clarification indicates that the access to be examined in an Article 5.1.1 analysis relates to the  
conditions under which suppliers have been given the right to have the conformity of their 
products assessed under the rules of the relevant conformity assessment procedure .208 
7.258.   We next turn to the ph rase "conditions no less favourable". To us, this phrase indicates 
that there is a need to undertake a comparative analysis of the conditions of access granted to 
suppliers of products from the complaining Member, on the one hand, and suppliers of like 
domestic products, or of like products from any other country, on the other hand. If this 
assessment reveals a difference in the access conditions  granted to suppliers of the complaining 
Member, the issue arises whether that difference amounts to granting acc ess under "less 
favourable" conditions.209  
7.259.   The Appellate Body and panels have interpreted the phrase "less favourable treatment" in 
the context of other provisions of the covered agreements governing trade in goods. Under those 
provisions, measures are cons idered to accord "less favourable treatment" if they adversely modify 
the conditions of competition of products imported from the complaining Member vis-à-vis like 
products of domestic origin or like products originating in any other country.210  
7.260.   Article 5.1 .1 does not concern the manner in which a Member treats imported products 
from another Member. Rather, Article 5.1.1 focuses on suppliers and their conditions of access to a 
conformity assessment procedure . In our view, this is an important difference. How ever, similar to 
the situation in the context of less favourable treatment regarding imported products, it is clear to 
us that a mere difference in access conditions  granted to suppliers of the complaining Member and 
other suppliers is not necessarily suff icient to conclude that access was granted under conditions 
less favourable.211 In our view, differential access conditions  are relevant under Article 5.1.1 if 
they modify the conditions of competition, or competitive opportunities, among relevant suppliers 
of like products  to the detriment of suppliers of the complaining Member. We note in this regard 
that suppliers of like products compete for prompt and unconditional access to the importing 
Member's market and that Article 5.1 applies in cases where the im porting Member requires a 
positive assurance of conformity with technical regulations or standards before the product can be 
placed on the importing Member's market.  
                                                
206 Ukraine's first written submission, paras. 241 -242 and 251; and second written submission, 
paras.  87-88.  
207 Ukraine's second written submission, paras. 95 -98. 
208 An analysis under Article 5.1.1 also includes assessing whether suppliers have been given the 
possibility to have the conformity of their products assessed under the rules of the relevan t conformity 
assessment procedure. Also relevant to an analysis under Article 5.1.1 is whether suppliers are able to exercise 
the right or possibility to have the conformity of their products assessed under the rules of the relevant 
conformity assessment p rocedure. United States' third -party submission, para. 30.  
209 Japan's third -party submission, para. 25.  
210 Appellate Body Report s, US – Tuna II (Mexico) (Article 21.5 – Mexico) , paras. 7.26 (regarding 
Article  2.1 of the TBT Agreement)  and 7.278 (regarding Articles I:1 and III:4 of the GATT 1994); and EC – 
Seal Products , para. 5.116.   
211 Appellate Body Report, Korea – Various Measures on Beef,  para. 137. See Japan's third -party 
submission, para. 25.  WT/DS499/ R 
 
- 90 - 
 
  7.261.   We recall that Ukraine is challenging in this dispute, not the preparation or adoption of  a 
conformity assessment procedure (i.e. not a conformity assessment procedure as such), but the 
application of a conformity assessment procedure to particular Ukrainian suppliers (i.e. individual 
instances of application of the procedure). In the case of a challenge to the application of a 
conformity assessment procedure, less favourable access conditions would in our view exist where 
the importing Member denies or limits the right or possibility of a supplier of another Member to  
have conformity assessmen t activities undertaken under the rules of the applicable conformity 
assessment procedure, either in respect of the entire conformity assessment procedure or any of 
its relevant parts, but does not deny or limit the right or possibility of access of anothe r supplier of 
a like product from the importing Member or any other country.212 Where  the importing Member 
limits the right or possibility of two suppliers of like products  to have conformity assessment 
activities undertaken, but in different ways, it would need to be examined further whether the 
difference confers a competitive advantage to one or other supplier. If that were the case, the 
disadvantaged supplier would have b een granted access under conditions less favourable.   
7.262.   We note that the parties and certain third parties provided additional views on how a panel 
should determine whether a Member grants access under conditions less favourable.  Those 
additional views conce rn whether in the context of Article 5.1.1 it is necessary to apply the test 
developed by the Appellate Body for determining the existence of less favourable  treatment under 
Article  2.1 of the TBT Agreement.  
7.263.   Article 2 of the TBT Agreement concerns the prep aration, adoption and application of 
technical regulations by central government bodies. Article 2.1 establishes Members' obligation to:  
[E]nsure that in respect of technical regulations, products imported from the territory 
of any Member shall be accorded  treatment no less favourable than that accorded to 
like products of national origin and to like products originating in any other country.  
7.264.   A complaining party must demonstrate three elements to establish that a measure is 
inconsistent with Article 2.1: (a ) that the measure at issue is a "technical regulation"; (b) that the 
relevant products are "like products"; and (c) that the measure at issue accords less favourable 
treatment to the imported products than to the relevant group of like products.213 
7.265.   The Appe llate Body identified a two -step analysis to be followed in examining the third 
element, that is, whether a technical regulation accords less favourable treatment to imported 
products under Article 2.1 of the TBT Agreement. The first step focuses on whethe r the technical 
regulation at issue modifies the conditions of competition to the detriment of such imported 
products vis-à-vis like products of domestic origin or like products originating in any other country. 
According to the Appellate Body, a finding t hat the measure at issue modifies the conditions of 
competition to the detriment of imported products is not sufficient to demonstrate less favourable 
treatment under Article 2.1. Hence, the second step focuses on whether the detrimental impact on 
imports stems exclusively from a legitimate regulatory distinction rather than reflecting 
discrimination against the group of imported products . The Appellate Body determined that where 
the detrimental impact caused by a technical regulation stems exclusively from  a legitimate 
regulatory distinction, such technical regulation does not accord less favourable treatment to 
imported products within the meaning of Article 2.1.214 
7.266.   Ukraine argues that the second step of the non -discrimination test developed by the 
Appellate  Body in the context of Article 2.1, i.e. whether the detrimental impact stems from a 
legitimate regulatory distinction, should be adjusted to the particularities of Article 5.1.1. Ukraine 
considers that unlike technical regulations, conformity assessment procedures  do not, by their 
nature, establish distinctions between products. Rather, conformity assessment procedures  seek to 
                                                
212 As Ukraine has not put forward an " as such" challenge, we do not need to address in this dispute 
whether in the case of a challenge to a conformity assessment procedure as such it would be necessary to 
undertake an analysis of the access granted for suppliers of the group of like products o riginating in the 
territory of the complaining Member compared to the access granted for suppliers of the group of like products 
originating in the territory of the importing Member or any other countries. See Appellate Body Report, US – 
Tuna II (Mexico) ( Article 21.5 – Mexico) , para. 7.281, which involved a challenge under Articles I:1 and III:4 of 
the GATT 1994 to the amended United States tuna measure as such.   
213 Appellate Body Report, US – Tuna II (Mexico) (Article 21.5 – Mexico) , para. 7.25. 
214 Appellate Body Report, US – Tuna II (Mexico) (Article 21.5 – Mexico) , para. 7.26. WT/DS499/ R 
 
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  ensure that products conform to technical regulations or standards. Ukraine submits that while 
technical regulations may pursue le gitimate objectives including those identified in Article 2.2 of 
the TBT Agreement and the sixth recital of the TBT Agreement, conformity assessment procedures  
have the sole objective of determining "that relevant requirements in technical regulations or 
standards are fulfilled". Ukraine therefore considers that an assessment of whether any difference 
in the conditions of access stems from a legitimate regulatory distinction should be limited to 
claims of de facto discrimination and should be limited to the  objective pursued by conformity 
assessment procedures . Ukraine suggests that this assessment would require establishing a 
rational connection between the difference in the access conditions  and the objective of ensuring 
conformity with the technical regul ation.215 
7.267.   Russia considers that there should be no automatic transposition of the legal test 
developed under Article 2.1 into the context of Article 5.1.1. In Russia's view, account must be 
taken of the differences in the text of these provisions and their o bject and purpose. Russia 
submits that the terms " in a comparable situation " in Article 5.1.1  are functionally equivalent to 
the terms "between countries where the same conditions prevail " in the chapeau  of Article XX of 
the GATT 1994, and to the legitimat e regulatory distinction prong of the less favourable treatment 
test under Article  2.1. Russia argues that t he purpose of each of these clauses is to clarify that the 
existence of differences in treatment is not sufficient for there to be less favourable t reatment , 
because a Member is only required to provide treatment no less favourable where a situation is 
comparable.216 However, Russia considers that in cases of claims of de facto discrimination under 
Article  5.1.1, a complaining party needs to demonstrate  that the different treatment of a Member's 
producers in comparison to those of other origin does not stem from a legitimate regulatory 
distinction.217 
7.268.   Canada, the European Union and Japan consider that claims of de facto  discrimination 
under Article  5.1.1 r equire an assessment of whether the detrimental impact stems from a 
legitimate regulatory distinction.218 The United States, however, considers that such an analysis is 
inappropriate, given the significant differences in text and structure between Article 5. 1.1 and 
Article 2.1.219 
7.269.   The question therefore arises whether before reaching a conclusion on whether the 
importing Member has granted access under less favourable conditions, a panel must examine 
whether the identified difference in the conditions of access  to a conformity assessment procedure 
stems from a legitimate regulatory distinction.  
7.270.   The Appellate Body has stated that the specific context provided by other provisions of the 
TBT Agreement is instructive in understanding the expression "treatment no less favourable" in 
Article 2.1. According to the Appellate Body, the specific context provided by, in particular, 
Annex  1.1, Article 2.2 and the second, fifth and sixth recitals of the preamble, supports a reading 
that Article 2.1 does not operate to proh ibit a priori  any restriction on international trade. On this 
basis, the Appellate Body concluded that a detrimental impact may not constitute less favourable 
treatment under Article 2.1 where it stems exclusively from a legitimate regulatory distinction.220 
7.271.   At the outset, we note that there are textual differences between Articles 2.1 and 5.1.1. 
The first sentence of Article 5.1.1 provides for most -favoured nation and national treatment 
obligations regarding the access for suppliers of like products to the i mporting Member's 
conformity assessment procedure . Unlike Article 2.1, the text of Article 5.1.1 qualifies these 
obligations by including the phrase "in a comparable situation".   
                                                
215 Ukraine's second written submission, paras. 89 -105. See also response to Panel question No. 28; 
and opening statement at the second meeting of the Panel, para. 57.  
216 Russia's first written submission, para. 72; response to Panel question No. 28; and opening 
statement at the second meeting of the Panel, para. 34.  
217 Russia's second written submission, para. 102.  
218 Canada's third -party statement, paras. 11 -13; Canada's third -party response to Panel question 
No. 14, paras. 54 -60; European Union's third -party submission, para. 66; European Union's third -party 
statement, para. 5; European Union's third-party response to Panel question No. 14 (referred to by the 
European Union as q uestion No. 12),  paras. 30 -32; Japan's third -party submission, paras.  21-22 and 28 -34; 
and Japan's third -party statement,  paras.  12-17.  
219 United States' third -party statement, paras. 6 -9; and third -party response to Panel question No. 14.  
220 Appellate Body Report, US – Tuna II (Mexico) (Article 21.5 – Mexico) , para.7.30.  WT/DS499/ R 
 
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  7.272.   The inclusion of the phrase "in a comparable situation" confirms that Article  5.1.1 permits 
differential access conditions where they concern situations that are not comparable. Herein lies an 
important difference with Article 2.1, which does not contain the phrase "in a comparable 
situation". The phrase "in  a comparable situation"  preserves a degree of flexibility for the 
importing Member to design and apply its conformity assessment procedures  in a situation -
appropriate manner.   
7.273.   We are therefore not persuaded that there is a need to import into Article  5.1.1 the test 
developed by the Appellate Body in the different context of Article 2.1.  
7.274.   On the basis of the foregoing, we consider that it is not necessary to determine whether 
any differential conditions of access stem from a legitimate regulatory distinction, before reaching 
a conc lusion on whether the differential access conditions amount to granting access under "less 
favourable" conditions. However, as indicated in the text of Article 5.1.1, even where the 
conclusion is that less favourable access cond itions have been granted, it  would still be necessary 
to go on to determine whether less favourable access was granted in a comparable situation.  
7.3.2.1.3   The importing Member grants less favourable access conditions for suppliers 
of like products, " in a comparable situation"  
7.275.   Regarding the t hird element, both the parties and certain third parties have submitted 
arguments regarding the qualifier "in a comparable situation".  
7.276.   Ukraine submits that the phrase  "in a comparable situation" was included in Article  5.1.1 
because the comparison under that provision is  to be  made between "suppliers " of like products. 
Ukraine considers that the terms "in a comparable situation" reflect the idea that the non -
discrimination test can only be carried out when things are comparable. In Ukraine's view, 
previou s Appellate Body findings made in the context of other agreements are useful to interpret 
the term "comparable" in Article 5.1.1. Ukraine considers those findings to support the view that if 
the situation of suppliers in one country presents common element s and is not "totally" different 
from the situation of suppliers in another country, they are to be regarded as "comparable" under 
Article 5.1.1. Ukraine further submits that the term "situation" is defined as "the condition or state 
of a thing", and that under Article 5.1.1 the relevant situation is that of the suppliers as it relates 
to the conformity assessment procedure . Ukraine also argues that the assessment of such 
"comparability" needs to be supplier -specific.221 
7.277.   Russia likewise underscores that the o bligation in Article 5.1.1 applies in a comparable 
situation. Russia considers that circumstances such as war or civil unrest may objectively make it 
impossible, for example, for on -site inspection to take place in a given country and moment in 
time. Russi a submits that such circumstances could entail that the country concerned would not be 
in a situation "comparable" to that of other countries that are not afflicted by war or civil unrest. 
Russia argues that the term "in a comparable situation" should be i nterpreted by reference to the 
phrase "countries where the same conditions prevail" in the preamble of the TBT Agreement.222  
7.278.   Canada considers that although the phrase "in a comparable situation" qualifies the scope 
of the obligation in Article 5.1.1, it sho uld be interpreted in favour of granting access to conformity 
assessment procedures to as wide a variety of potential suppliers as is possible, taking into 
consideration the legitimate policy goals of the importing Member. Canada submits that in 
assessing whether suppliers from the countries in question are "in a comparable situation", the 
Panel should thus focus its inquiry on factors relevant to the issue of "access" to the relevant 
conformity assessment procedure. According to Canada, there may be many s ituational differences 
between countries that do not pertain to access to conformity assessment procedures. Canada  
                                                
221 Ukraine's opening statement at the first meeting of the Panel, paras. 44 -45; second written 
submission, paras. 90 -93 (citing Appellate Body Reports, EC – Tariff Preferences , para. 153, US – Anti-
Dumping and Countervailing Duties (China) , para. 476; and EC – Hormones , para. 217) and 94 (citing from 
the online version of the Oxford English Dictionary).  
222 Russia's opening statement at the first meeting of the Panel, para. 26; s econd written submission, 
paras. 95 -96 (referring to European Union's third -party submission, para. 42; European Union's third -party 
response to Panel question No. 4; Canada's third -party response to Panel question No. 14; and Japan's third -
party response to Panel question No. 4); and opening statement at the second meeting of the Panel, para. 34.  WT/DS499/ R 
 
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  submits that the extent to which, for instance, the security "conditions" in the country where a 
product is produced are relevant to the "sit uation" of a supplier depends on the particular product 
and the specific requirements of the conformity assessment procedure at issue. Moreover, Canada 
considers that the term "situation" may include the security situation in the relevant Member; 
however, such considerations are relevant only to the extent that the "supplier" or the conduct of 
a conformity assessment procedure is affected by that situation .223 
7.279.   Japan submits that Article 5.1.1 only applies when discrimination occurs between suppliers 
"in a com parable situation". According to Japan, a "comparable situation" under Article 5.1.1 is one 
that is capable of being compared, and thus covers a broad range of situations. Japan considers 
that suppliers need not have to be in an identical situation for the  situations to be "comparable".224 
7.280.   The European Union considers that the terms "in a comparable situation" refer to the 
suppliers and perform a similar role as the term "like" in respect of products, in that they 
circumscribe the scope of the comparison to b e performed under Article 5.1.1. The European Union 
submits that circumstances such as war or civil unrest could entail that the country concerned 
would not be in a situation comparable to that of other countries which are not afflicted by war or 
civil unr est.225  
7.281.   The United States submits that Article 5.1.1 requires an assessment of whether the 
"conditions" are "comparable" between the suppliers of products of different Members accorded 
different access to the conformity assessment procedure. According to the United States, the 
definition of the word "comparable" suggests that two things are of the same type, such that they 
can be compared, and that they are "similar" or equal. The United States considers that the 
question whether there is "a comparable sit uation" should not be posed as a free -standing 
assessment of whether suppliers of like products are in a comparable situation. Rather, the United 
States argues that such question should be framed as whether the suppliers of foreign products 
are given equal  rights to access to a conformity assessment procedure as suppliers of products of 
other Members, in a comparable situation.226 
7.282.   The Panel notes that the phrase "in a comparable situation" qualifies the preceding part of 
the first sentence of Article 5.1.1, t hat is, the requirement to grant access under no less favourable 
conditions.227 Thus, this phrase warrants a comparison of differential conditions of access with a 
view to determining whether the less favourable conditions of access are being granted despite  the 
situation being comparable.  
7.283.   To determine whether the situation is comparable, such that no less favourable access 
conditions must be granted, it is necessary to identify relevant factors that render a situation 
comparable or not .228 The relevant contex t, as is clear from the second sentence of Article 5.1.1, is 
that of assessing conformity under the rules of the procedure and conducting conformity 
assessment activities. We also consider that Articles  5.1.2  and 5.2.7 of the TBT Agreement provide 
useful c ontext in this regard. They indicate that conformity assessment procedures must not be 
applied more strictly than necessary to give "the importing Member adequate confidence that 
products conform with the applicable technical regulations or standards" (Art icle 5.1.2) and that 
they serve  to "determine whether adequate confidence exists that the product … meets the 
                                                
223 Canada's third -party statement, paras. 14 -15; and third -party response s to Panel question Nos. 4, 
14 and 15, paras. 15 -17, 53, 63 and 69.  
224 Japan's third -party submission, paras. 26-27; third -party statement, para. 15; and response to Panel 
question No. 4 , para. 7 .  
225 European Union's third -party submission, para. 42; third-party statement, para. 5; and third -party 
response s to Panel question Nos. 4, 14 (referred  to by the European Union as question 12) and 15 (referred to 
by the European Union as question 13), paras. 6 -7, 31 and 35.  
226 United States' third -party submission, para. 31; third party statement, para. 8; and third -party 
response s to Panel  question Nos. 4 and 15, paras. 11 -13 and 34 -35. 
227 We note that the equivalent phrase to "in a comparable situation" in the Spanish (" en una situación 
comparable ") and the French (" dans une situation comparable ") versions of Article 5.1.1, qualify the preceding 
part of the sentence that refers to the obligation not to prepare, adopt, or apply conformity assessment 
procedures so as to grant access under less favourable conditions.  
228 The adjective "comparable" is defined in the dictionary as "[a]ble to be compared  " or "[w ]orthy of 
comparison; fit to be compared".  The Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford 
University Press, 2007), Vol. 1, p. 469.  WT/DS499/ R 
 
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  [applicable] technical regulations or standards concerned" (Article 5.2.7). This is confirmed by the 
definition of conformity assessment proc edures in Annex 1.3 to the TBT Agreement. A conformity 
assessment procedure is "any procedure used directly or indirectly, to determine that relevant 
requirements in technical regulations or standards are fulfilled". Accordingly, aspects of a situation  
that have a bearing on, for instance, the ability of the importing Member to undertake such 
activities under the rules of the procedure with adequate confidence would, in principle, seem to 
be relevant. In our view, the relevant aspects of a situation would includ e aspects specific to the 
suppliers who are claimed to have been granted access under less favourable conditions  or to the 
location of the suppliers' facilities. In all events, whether a situation is comparable must be 
assessed on a case -by-case basis and in the light of the relevant rules of the  conformity 
assessment  procedure and other evidence on record.  
7.284.   Article 5.1.1 does not specify what might render a situation no longer comparable. We 
need not, and do not, opine on that in the abstract. In this dispu te, Russia has argued that the 
security situation in Ukraine and restrictions on the entry of Russian citizens to Ukraine rendered 
the situation no longer comparable for the purposes of on -site inspection control. This was 
allegedly due to the risk to life  or health of Russian inspectors and is the focus of our assessment.   
7.285.   On the basis of these considerations, we now turn to examine Ukraine's claim s that the 
14 instructions through which the FBO suspended previously valid certificates issued to Ukrainian 
producers of railway products are inconsistent with Article 5.1.1.  
Application  7.3.2.2   
7.3.2.2.1   Nature of the claim s 
7.286.   Ukraine challenges , under Article 5.1.1 , 14 instructions through which the FBO suspended 
valid certificates of conformity held by Ukrainian producers of rail way products. Ukraine frames its 
claims as claims  concerning the discriminatory application of a conformity assessment procedure  in 
the 14 instructions.229  
7.287.   The Panel considers that Ukraine therefore has the burden of demonstrating that Russia 
applied its conformity assessment procedure for railway products so as to grant access for 
suppliers of like products originating in Ukraine under conditions less favour able than those 
accorded to suppliers of like Russian products or like products from other countries, in a 
comparable situation. Thus, we will focus our assessment on the manner in which Russia applied 
its conformity assessment procedure for railway produc ts in the 14 instructions through which the 
FBO suspended valid certificates held by Ukrainian producers of railway products.  
7.288.   Ukraine has submitted general arguments in support of its claims of violation of Article 
5.1.1 for the 14 instructions, without pr oviding specific arguments in respect of each of those 
instructions. Similarly, Russia responds to Ukraine's claims without addressing each of the 
14 instructions suspending valid certificates of conformity challenged by Ukraine. We therefore 
conduct our a nalysis at the general level of the arguments advanced by the parties, bearing in 
mind that Ukraine is challenging the 14 instructions individually. Moreover, we will make specific 
findings in respect of the 14 instructions challenged by Ukraine.  
7.3.2.2.2   Applicabi lity of Article 5.1.1 and order of analysis  
7.289.   It is uncontested between  the parties that the 14 instructions challenged by Ukraine 
concern (a) conformity assessment by a central government body and (b) a mandatory conformity 
assessment procedure.230 We conside r that the evidence on record confirms that Article 5.1.1 is 
applicable to the 14 instructions.  
7.290.   First, the 14 instructions were issued by the FBO. According to the evidence on record, the 
FBO is the entity in charge of certification of railway transport in  Russia. The FBO acts under the 
                                                
229 Ukraine's first written submission, paras. 181, 238 and 248; response s to Panel question Nos. 7 (a) 
and 10(a), paras.  1 and 7 -8; and opening statement at the first meeting of the Panel, para. 37.  
230 Ukraine's response to Panel question No. 64, paras. 129 -130; and Ukraine's second written 
submission, para. 106. Russia's first written submission, para. 73. WT/DS499/ R 
 
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  jurisdiction of the Federal Agency of Railway Transport  of Russia's Ministry of Transport.231 It is 
thus clear that the FBO is a  central government  entity. Moreover, the instructions were based on 
Russia's conformity assessmen t procedure  for railway products, the CS FRT Rules, which were 
adopted by the Directive of the Russian Ministry of Railways, a central government body of 
Russia.232 We, therefore, consider that the instructions at issue concern conformity assessment by 
a cen tral government body.  
7.291.   Second, the 14 instructions were issued to suspend certificates of conformity for railway 
products held by Ukrainian producers. Conformity certificates are defined as documents "issued 
under the Rules of [CS FRT] to confirm the confor mity of the certified [railway transport facility] 
with the applicable requirements".233 Railway products can only be circulated within Russia if they 
have obtained a certificate.234 Thus, it is clear that the challenged instructions concern a 
mandatory confor mity assessment procedure . 
7.292.   We now turn to examine the elements necessary to demonstrate an inconsistency with 
Article 5.1.1. We will first examine whether through the application of its conformity assessment 
procedure, Russia has granted access to such con formity assessment procedure to each of the five 
relevant suppliers of Ukrainian railway products (to whom the 14 instructions were addressed) 
under conditions less favourable than those accorded to suppliers of Russian railway products or to 
suppliers of railway products from any other country. For the purposes of that examination, we will 
assume that the relevant Ukrainian suppliers are suppliers of railway products "like" those of the 
Russian and other foreign suppliers whom Ukraine alleges to enjoy bett er access conditions. We 
will then examine whether each of the relevant suppliers of Ukrainian railway products have been 
granted differential access conditions to Russia's conformity assessment procedures, "in a 
comparable situation", before turning to wh ether the products of the suppliers compared are "like".  
7.3.2.2.3   Whether Russia has granted access  for specific suppliers of products from 
another Member under conditions less favourable  
7.293.   Ukraine submits that the FBO suspended 73 certificates held by five Ukrainian producers of 
railway products based on the alleged impossibility to carry out inspection control of the certified 
products. Ukraine further argues that the instructions through which those certificates w ere 
suspended did not adequately  specify the reasons behind the alleged "impossibility", nor did they 
indicate what steps should be taken by the affected producers to allow or facilitate the inspections. 
Ukraine further submits  that the FBO rejected or ign ored the suggestions submitted by some of 
the affected producers to provide arrangements for conducting inspection control visits in Ukraine. 
On this basis, Ukraine argues that the FBO refused access to the conformity assessment procedure  
for railway produ cts, in the form of inspection control, to Ukrainian producers of railway 
products.235 
7.294.   Ukraine argues that the FBO did not take similar decisions regarding Russian suppliers  or 
suppliers  from other Members, which, according to Ukraine, have continued to enjo y unrestricted 
access to Russia's conformity assessment procedure  for railway products. Ukraine supports this 
statement with evidence of certificates issued under CS FRT Rules. Ukraine asserts that producers 
in Russia and in the European Union still hold, 609 and 190 such certificates, respectively. 
According to Ukraine, given that CS FRT Rules require a yearly inspection control of the certified 
products, the fact that products in those countries still hold valid certificates demonstrates that 
inspections took place with regard to those producers. Ukraine further argues that this 
demonstrates  that while certain Ukrainian producers of railway products have been denied access 
to Russia's conformity assessment procedure for  railway products, this has not been the case for 
suppliers of Russian railway products and suppliers of railway products from other countries.236 
                                                
231 Extract from the FBO's website , (Exhibit UKR -81). 
232 CS FRT 01 -96, (Exhibit UKR -2). 
233 Article 3.6 of CS FRT 01 -96, (Exhibit UKR -2). 
234 Article 9.1 of CS FRT 01 -96, (Exhibit UKR -2); and Article 29 of the Federal Law No. 184 -FZ "On 
Technical Regulation " of 27 December 2002  (Law No. 184 "On Technical Regulation"),  (Exhibit UKR -1). 
235 Ukraine's first written submission, paras. 253 -254. 
236 Ukraine's firs t written submission, para. 255; and  response to Panel question No. 85.  WT/DS499/ R 
 
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  7.295.   Ukraine submits that it follows that by refusing to carry out the inspections and by 
suspending the certificates on this basis, Russia applied its conformity assessment procedure  for 
railway products to suppliers of Ukrainian railway products in a less favourable manner than that 
accorded to suppliers of Russian railway products and of railway products from other countries.237 
7.296.   Russia submits that the ac cess conditions to Russia's conformity assessment procedure for  
railway products for suppliers of railway products are the same, irrespective of their origin and 
Ukraine failed to prove the contrary. Russia argues that the access conditions are established  in 
the relevant technical regulations.238 
7.297.   Russia further submits that, contrary to what Ukraine argues, the FBO suspended 
certificates issued to Ukrainian producers as well as certificates issued to other Members . Russia 
also submits that there are certific ates issued to Ukrainian producers which have not been 
suspended. Moreover, Russia argues that the conduct of the conformity assessment procedure  
may depend on the characteristics of the products subject to the instructions challenged by 
Ukraine. In Russia 's view, the foregoing demonstrates that the suspension of certificates does not 
reflect discrimination against Ukrainian products.239 
7.298.   The Panel observes that Russia's conformity assessment procedure  for railway products 
includes, amongst its different stages, the conduct of inspection control.240 Inspection control is 
defined as the "control assessment of conformity" that is carried out in order to establish that the 
products being sold are still in co nformity with the requirements confirmed during certification. 
Inspection control is to be carried out at least once a year throughout the period of validity of the 
certificate.241 In our view , although inspection control happens after products have been iss ued 
certificates, it is part of a conformity assessment procedure for the purposes of the 
TBT Agreement. Inspection control is a requirement for verifying the continued conformity of the 
products at issue with the applicable technical requirements. We cons ider that it falls within  the 
definition of "conformity assessment procedures " in Annex 1.3 to the TBT Agreement, which  in the 
explanatory note  refers, inter alia , to "inspection" and "verification and assurance of conformity".  
7.299.   Ukraine's claims concern Russia's alleged denial of access for five identified Ukrainian 
suppliers to one specific part of Russia's conformity assessment procedure, inspection control. In 
support of its claims, Ukraine provides compilations of publicly ava ilable information from the 
FBO's public register and from the CU's Unified Register. Ukraine submits this information as 
indirect evidence of the fact that the FBO conducted inspection control in respect of certificates of 
conformity for railway products held by Russian  and European  producers. Ukraine's argument is 
that if those certificates remained valid, the FBO must have conducted inspection control. Ukraine 
considers that suppliers of Russian  and European  railway products had access to a part of Russi a's 
conformity assessment procedure for railway products, while the relevant suppliers of Ukrainian 
railway products did not.242  
                                                
237 Ukraine's first written submissio n, para. 256.  
238 Russia's first written submission, para. 76; and second written submission, para. 92.  
239 Russia's second written submission, paras. 90 -91; and opening statement at the second meeting of 
the Panel, para. 32.  
240 Article 13 of CS FRT 01 -96, (Exh ibit UKR -2).  
241 Articles 3.36 and 13.1 of CS FRT 01 -96, (Exhibit UKR -2). See also Articles 3.2 and 5.3  CS FRT 12-
2003, (Exhibit UKR -3), where inspection control is referred to as supervisory control (see Russia's response to 
Panel question No. 39(a)).  
242 Ukraine's first written submission, para. 255 (referring to Extract of the FBO's Register , (Exhibit UKR -
12), concerning Ukrainian producers; Extract of Unified Register of Issued Certificates of Conformity and 
Registered Declarations of Conformity  (Extract o f Unified Register) , (Exhibit UKR -13), concerning applications 
submitted by Russian companies on behalf of Ukrainian producers; Extract of the FBO's Register concerning 
European producers , (Exhibit UKR -53); and Extract of the FBO's Register concerning Russ ian producers , 
(Exhibit UKR -60)). In subsequent submissions, Ukraine provided additional evidence concerning the suspension 
of certificates held by Ukrainian producers through the following exhibits : List of produce rs holding certificates 
in 2013 and 2017, (Exhibit UKR -62)(BCI); and Extract of the FBO's Register indicating reasons for suspension , 
(Exhibit UKR -82). WT/DS499/ R 
 
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  7.300.   Russia submits evidence demonstrating that the FBO suspended certificates held by 
Ukrainian producers as well as by European, Ru ssian, Kazakh, and Swiss producers . Russia also 
submit s evidence that the FBO did not suspend certificates held by certain Ukrainian producers.243 
7.301.   We note that the evidence demonstrates that, through the 14 instructions, the FBO 
suspended valid certificates held by the five affected suppliers of Ukrainian railway products. 
The evidence also demonstrates that the reason given for why the 14 instructions at issue 
suspended valid certificates was that the conditions for inspection control were not present at the  
time of issuance of the corresponding instruction.244 In our view, this evidence proves that, in the 
case of the 14 instructions at issue, the FBO did not grant the affected suppliers of Ukrainian 
railway products access to inspection control, which is part  of Russia's conformity assessment 
procedure for railway products.   
7.302.   Ukraine submits evidence demonstrating that suppliers of Russian  and European  railway 
products held certificates issued by the FBO under the CS FRT Rules.245 As discussed above, 
certificates  subject to yearly inspection control would remain valid only if the FBO examined their 
continued conformity. The fact that yearly inspection control had been carried out could be 
demonstrated directly through copies of the certificates or the inspection c ontrol acts. Ukraine  
instead  relies  on the FBO's Register , which  indicat es that certain producers hold valid certificates. 
We note that the evidence  that Ukraine submits  is not direct evidence that suppliers of European 
or Russian railway products had access to inspection control in order to maintain the validity of the 
certificates. However, we agree with Ukraine that a presumption arises from the continued validity 
of these certificates that the certificates held by suppliers of Russian  and European  railway 
products that were subject to yearly inspection control remained valid because the FBO conducted 
the necessary yearly inspection control. The evidence submitted by Uk raine includes certificates 
that remain valid and were issued to Russian and European suppliers who were subject to yearly 
inspection control. We consider this evidence to be sufficient to demonstrate that the FBO granted 
suppliers of Russian and European  railway products access to inspection control, which is part of 
Russia's conformity assessment procedure  for railway products . 
7.303.   There is also evidence on record indicating that the FBO suspended certificates held by 
suppliers of European, Belarusian, Kazakh , and Swiss railway products. It appears that these 
certificates were suspended for reasons other than the FBO's inability to conduct the inspection 
control, such as the failure of a holder of a certificate to conclude a contract with the certification 
body to conduct an inspection.246 The evidence on record thus supports the view  that the FBO 
denied only Ukrainian suppliers of railway products access to an assessment of continued 
conformity due to the impossibility to conduct inspection control. Also, we not e that the fact that 
some European suppliers' certificates were also suspended does not alter the fact that other 
Russian and European suppliers' certificates were not suspended, as Ukraine notes. Ukraine does 
not need to show that all supplier s of like pr oducts from Russia or any other country w ere granted 
more favourable access conditions.   
7.304.   On the basis of the evidence on record, we consider that Ukraine has demonstrated that, 
through each of the 14 instructions, the FBO denied suppliers of Ukrainian rail way products access 
to a part of Russia's conformity assessment procedure for railway products (inspection control) 
                                                
243 Russia's second written submission, para. 90 (referring to  Extract of the FBO's Register with respect 
to the suspended certificates , (Exhibit RUS-5); and Extract of the FBO's Register , (Exhibit UKR -12). See also 
Extract of the FBO's Register with respect to the suspended certificates (dates of suspension and reasons for 
suspension) , (Exhibit RUS -85)(BCI).  
244 This is evidenced in each of the 14 in structions challenged by Ukraine (see Table 4 above ). See also 
Extract of the FBO's Register , (Exhibit UKR -12); and Extract of the FBO's Register indicating reasons for 
suspension , (Exhibit UKR -82). 
245 Extract of the FBO's Register concerning European producers , (Exhibit UKR -53); and Extract of the 
FBO's Register concerning Russian producers , (Exhibit UKR -60). See also the following exhibit s regarding 
certificates held by producers from Belarus and Kazakhstan: Extract of the FBO's Register concerning 
Belarusian producers , (Exhibit UKR -57); and Extract of the FBO's Register concerning Kazakh producers , 
(Exhibit UKR -55). 
246 Extract of the FBO's Register with respect to the suspended certificates (dates of suspension and 
reasons for suspension) , (Exhibit RUS -85)(BCI ). See Russia's response s to Panel question Nos. 16, 134(a) and 
160. WT/DS499/ R 
 
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  while at the same time granting some suppliers of Russian  and European  railway products access 
to that same part of Russia's conformity assessment procedure for railway products.  
7.305.   The FBO's denial of access to inspection control resulted in the five relevant suppliers of 
Ukrainian railway products not being able to have acce ss to an assessment of continued 
conformity under Russia's conformity assessment procedure for railway products. This prevented 
these suppliers of Ukrainian railway products from maintaining valid certificates, which, in turn, 
prevented them from entering the Russian market. The same has not been true for suppliers of 
Russian  and European  railway products that maintained valid certificates, as a result of their 
products maintaining access to inspection control. Consequently, this is a case where the Ukraini an 
suppliers affected by the 14 instructions have not been given the possibility to have certain 
conformity assessment activities (inspection control) undertaken, whereas Russian and European 
suppliers have been given that possibility. It is clear to us, t herefore, that this difference modifies 
the conditions of competition for access to Russia's conformity assessment procedure for railway 
products to the detriment of each of the affected Ukrainian suppliers. We consider that this 
difference in access to a part of Russia's conformity assessment procedure amounts to Russia 
applying its conformity assessment procedure to the five relevant suppliers of Ukrainian railway 
products under conditions less favourable than those accorded to suppliers of Russian and 
European railway products. We consider that this conclusion is not affected by the fact that the 
FBO did not suspend all certificates held by suppliers of Ukrainian railway products. Ukraine is 
challenging each of the 14 identified instances of application o f Russia's conformity assessment 
procedure (the 14 instructions through which the FBO suspended valid certificates), not the 
conformity assessment procedure as such. The fact that some suppliers of Ukrainian railway 
products did not have their certificates  suspended does not alter the fact that Russia applied its 
conformity assessment procedure to deny access for the five Ukrainian suppliers to whom the 
14 instructions are addressed.247 
7.306.   On the basis of the foregoing, we find that Russia, by issuing the 14 cha llenged 
instructions, applied its conformity assessment procedure so as to grant access for the relevant 
suppliers of Ukrainian railway products under conditions less favourable than those accorded to 
suppliers of Russian and European railway products. We now turn to examine whether Russia 
granted these Ukrainian suppliers access under less favourable conditions "in a comparable 
situation", before turning to assess whether the affected Ukrainian suppliers are suppliers of 
railway products that are "like" th ose of the Russian and European suppliers who enjoy better 
access conditions.  
7.3.2.2.4   Whether Russia has granted less favourable access conditions for specific 
suppliers of products, " in a comparable situation"  
7.307.   Ukraine submits that suppliers of Ukrainian railway p roducts are in a comparable situation 
to suppliers of Russian and European  railway products.  
7.308.   Russia argues that the security and safety situation in Ukraine and the existence of entry 
restrictions on Russian nationals imposed by Ukraine places suppliers of  Ukrainian railway products 
in a situation that is not comparable to that of suppliers of Russian  and European  railway products.  
7.309.   The Panel will examine the parties' arguments with a view to determining whether access 
was granted under less favourable condi tions, despite the situation being "comparable".  
7.3.2.2.4.1   Horizontal considerations  
7.310.   Russia submits that Ukraine failed to address the element of "in a comparable situation" 
under Article 5.1.1. Russia argues that the situation in Ukraine can hardly be compared to t he 
situation in any other country supplying railway products to Russia. Russia considers that the FBO 
issued the 14 instructions suspending the certificates held by suppliers of Ukrainian railway 
products because it was impossible to carry out the inspecti on control of the certified products. 
Russia contends  that this was due to certain activities in Ukraine, in particular, military actions 
within the territory of Ukraine that posed a threat to the lives and health of FBO employees. Russia 
                                                
247 See also Panel Reports, Argentina – Hides and Leather , para. 11.260; and US – Gasoline , para. 6.14.   WT/DS499/ R 
 
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  also indicated th at FBO employees could not conduct inspections in Ukraine due to the existence of 
restrictions on the entry of Russian citizens into Ukraine.248  
7.311.   Ukraine argues that Russia's arguments on this matter have been a moving target. 
According to Ukraine, Russia fi rst argued that the situation was not comparable because of the 
security situation in Ukraine, which posed a threat to the lives and health of FBO employees, and 
later added that it was also due to travel related requirements introduced by Ukraine that 
precluded FBO employees entering Ukraine to conduct inspections there. According to Ukraine, 
Russia has not been clear in indicating why the situation in Ukraine is not comparable.249  
7.312.   Ukraine submits that the explanations provided by Russia to support that the  situation of 
suppliers of Ukrainian railway products was not comparable to that of suppliers of railway products 
from other countries have been provided ex post , in the course of these proceedings. Ukraine 
notes that only one of the 14 instructions referr ed explicitly to the security situation in Ukraine and 
to entry restrictions on Russian citizens entering Ukraine. According to Ukraine, the ex post nature 
of such explanations casts doubts on whether the FBO's instructions were truly motivated by those 
concerns.250 Ukraine considers that the standard of review applicable under Article 5.1.1 requires 
the Panel to make an objective assessment of the facts presented by both parties.251  
7.313.   Russia submits that the evidence on record on the security and safety concern s is 
contemporaneous and originates from independent sources. Russia thus submits that the evidence 
is highly relevant for the Panel's disposition of Ukraine's claims.252 
7.314.   The Panel will examine the reasons provided by Russia in support of its view that the 
situation of suppliers of Ukrainian railway products is not comparable to that of suppliers of 
Russian railway products and of suppliers of railway products from other countries. In our view, 
conducting an objective assessment of the matter entails reviewin g the explanations provided both 
in the challenged instructions and by Russia in these proceedings. We will conduct such an 
assessment on the basis of the evidence on record.  
7.315.   Ukraine considers that if the reason for the failure to carry out inspection con trol is the 
alleged general unsafe and insecure situation in Ukraine, such considerations should affect all 
suppliers in Ukraine. However, as recognized by Russia, nine Ukrainian producers located in the 
eastern part of the country were allowed to keep the ir certificates as a result of inspection control 
being conducted without on -site inspection. Ukraine considers that this fact demonstrates that 
security is not the true reason for refusing to complete the conformity assessment procedure , 
since the FBO cou ld have similarly used a method other than on -site inspection to complete the 
certification procedure rather than invoking the impossibility of carrying  out inspection control.253 
7.316.   Russia argues that the absence of inspections carried out in Ukraine is the consequence of 
the low safety conditions in Ukraine, additional travel -related requirements for Russian citizens 
introduced by Ukraine , and measures imposed by Ukraine concerning t he possibility of prosecution  
of Russian citizens  due to  their prior entry into Crimea . According to Russia, these factors 
precluded employees from Russian certification bodies from travelling to Ukraine to conduct 
inspections there. Russia also refers to the existence of anti -Russian movements promoting an 
anti-Russian sentiment in Ukraine as a reason affecting the safety and security of FBO employees 
traveling to Ukraine. Moreover, Russia argues that it was possible to conduct inspection control 
without v isiting the production site for some producers in eastern  Ukraine because  the conditions 
                                                
248 Russia's first written submission, paras. 77 -79 and 81; opening statement at the first meeting of the 
Panel, para. 23 and 25; and opening statement at the second meeting of the Panel, para. 35.  
249 Ukraine's second written submission, para. 119.  
250 Ukraine's second written submission, para. 120 ( referring to Letter [[xxx]] from the FBO of 8 August 
2014,  (Exhibit UKR -15)(BCI) ; and also to the European Union's third -party submission (para. 43); and Japan's 
third-party submission (para. 17)) . 
251 Ukraine's second written submission, paras. 123 -127. 
252 Russia's opening statement at the second meeting of the Panel, para. 36.  
253 Ukraine's second written submission, para. 121. See Ukraine's opening statement at the first 
meeting of the Panel, paras. 49 and 51.  WT/DS499/ R 
 
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  for off -site inspection were satisfied in respect of those producers, but not for those Ukrainian 
producers whose certificates were suspended.254 
7.317.   In view of the diametri cally opposed positions of the parties, we must examine in detail the 
evidence that both parties have submitted. We will first examine the evidence relat ed to the 
alleged uncertainty with respect to safety and security conditions in Ukraine, including the alleged 
anti-Russian sentiment. We then turn to examine the evidence regarding the alleged restrictions 
on the entry of Russian citizens to Ukraine. We will then conduct an examination of the totality of 
the evidence with a view to making an overall assess ment of the situation.  
7.3.2.2.4.2   Uncertainty with respect to the safety and security of FBO employees 
travelling to Ukraine to conduct inspections  
7.318.   Russia submits that the suspensions of certificates are due to uncertainty with respect to 
safety and security conditio ns within the territory of Ukraine that make it impossible for Russian 
inspectors to conduct conformity assessment procedures at the site of Ukrainian  producers'  
facilities. Russia submits that such safety and security conditions include anti -Russian senti ment in 
Ukraine. Russia argues that the unsafe and dangerous conditions in Ukraine are evidenced by 
multiple publicly available sources.255 
7.319.   Ukraine considers that Russia's assertions about an alleged unsafe and insecure situation 
in Ukraine lack any basis. U kraine argues that there is no evidence that the situation in Ukraine, as 
a whole, was dangerous for Russian citizens. Ukraine submits that it was safe for Russian 
inspectors to travel to Ukraine to conduct the required inspections between 2014 and 2017.256  
7.320.   The Panel notes that the parties provided evidence with respect to several aspects that 
they consider relevant for the Panel's assessment of the situation in Ukraine. We turn to examine  
the parties' arguments and evidence submitted in support of their assertions regarding the safety 
and security situation in Ukraine.  
Incidents in several places in Ukraine and anti -Russian sentiment  
7.321.   Russia submits that beginning in 2014 several incidents o ccurred in Ukraine based on the 
attitude towards Russian nationals. Russia refers the Panel to press articles indicating that such 
incidents included demonstrations that led to street fights and riots, violent confrontations in 
streets between "pro - and an ti-Russian groups" that led to the death of dozens of people, and 
attacks against Russian banks in K yiv.257  
7.322.   Ukraine argues that the press articles on which Russia relies concern events taking place in 
the Ukrainian city of Odes sa, where none of the producer s affected by the 14 instructions are 
located. Moreover, Ukraine considers that there is no evidence that the situation in the whole of 
Ukraine was dangerous for Russian citizens .258 
7.323.   Russia further argues that incidents also occurred throughout different reg ions of Ukraine, 
including those where the producers whose certificates were suspended are located.259  
7.324.   Ukraine responds that the evidence submitted by Russia referring to incidents in places 
other than Odes sa does not correspond to the relevant time -frame f or this dispute. According to 
Ukraine such time -frame corresponds to the dates during which the FBO adopted the instructions 
                                                
254 Russia's  first written submission, paras. 78 -84; and  response s to Panel question No s. 15, 102, and 
156. 
255 Russia's first written submission, para. 80;  responses to Panel question Nos. 15 and 102;  and 
opening stateme nt at the second meeting, para. 32.  
256 Ukraine's opening statement at the first meeting of the Panel, para. 47; response to Panel question 
No. 53; and second written submission, paras. 128 -129. 
257 Russia's first written submission, para. 80.  See Russia's res ponse to Panel question No. 46.  
258 Ukraine's opening statement at the first meeting of the Panel, para. 47; and second written 
submission, paras. 129 and 132.  
259 Russia's opening statement at the second meeting of the Panel, para. 38 . WT/DS499/ R 
 
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  suspending certificates and the decisions rejecting applications for new certificates, that is, 
between 17 July 2014 and 7 Septembe r 2015.260  
7.325.   Ukraine also considers that the existence of anti-Russian  sentiment  would  not be relevant 
to the issue of inspection controls, because the se are requested by companies that wish to obtain 
the certificate and would seek to ensure a smooth and peaceful conduct of the inspection. Ukraine 
further argues that Russian inspectors are not required to perform publicly any of their functions 
and, thus, Ukraine fails to see how they could be exposed to anti -Russian sentiment while 
inspecting Ukrainian co mpanies.261 
7.326.   Ukraine further submits that an assessment of "comparability" under Article 5.1.1 must be 
supplier -specific, meaning that authorities cannot generally refer to the alleged political situation of 
the country where suppliers are located without exa mining the situation of each specific 
supplier.262  
7.327.   Russia counters that it did not refer to the "political situation" to justify the challenged 
suspensions, but rather to the security situation in Ukraine.263 
7.328.   The Panel notes that Russia submitted various exhi bits as evidence of the safety and 
security situation in Ukraine. We understand that through some of these exhibits Russia purports 
to demonstrate the existence of anti -Russian sentiment in Ukraine that affects the security of 
Russian citizens visiting Ukr aine. Moreover , Russia submitted these exhibits as evidence of 
uncertainty about the safety of FBO employees visiting Ukraine to conduct inspections. The 
exhibits submitted by Russia consist mainly of news reports from international and national media 
outlets and refer to events that took place in Ukraine in January, February, March, and May 2014; 
February and November 2016; and May 2017.264  
7.329.   The January 2014 exhibit is a news report from online media regarding an incident in 
Ukraine. The report, dated 29  January 2014, refers to protesters occupying  a city in Ukraine where 
one of the producers whose certificate was suspended by the FBO is located.265  
7.330.   Russia submitted two exhibits regarding incidents in Ukraine during February 2014. One is 
an international news report. That report refers to incidents that took place during the first half of 
February, which included the taking of government offices by protesters, actions against 
government officials, and manifestations of anti -government sentiment, in different ci ties around 
Ukraine,  including  one where one of the producers whose certificate was suspended by the FBO is 
located . The other exhibit is a monitoring report on the human rights situation in Ukraine 
published by an NGO. This report, dated 3 February 2014, refers to demonstrations taking place in 
different regions of Ukraine, including two where producers affected by the suspensions of 
certificates are located. The report indicates that the rallies and demonstrations  were sometimes 
accompanied by acts of vio lence, which led to arrests and prosecution of people allegedly involved 
in the protests.266 
7.331.   The two exhibits regarding incidents in Ukraine during March 2014 are news reports. Both 
exhibits reported that there were rallies and demonstrations for and against  Russian "intervention 
                                                
260 Ukraine's opening statement at the first meeting of the Panel, para. 47; second written submission, 
para. 132; response to Panel question No. 114; and comments on Russia's responses to Panel question Nos. 
116, 124, and 131. See also Ukraine's first writte n submission, paras. 70, 82, 92, 105 and 113 (regarding the 
location of the companies whose certificates were suspended by the FBO).  
261 Ukraine's response to Panel question No. 63, para. 127.  
262 Ukraine's opening statement at the first meeting of the Panel, para. 45.  
263 Russia's second written submission, paras. 94 -97. 
264 We note that in its submissions and statements Ukraine has not commented on the accuracy of the 
information reported in the evidence submitted by Russia.  We further note that Ukraine has not p rovided 
additional evidence that would cast doubt  on the description of the events reported in the exhibits  submitted 
by Russia.  
265 Media report , 29 January 2014 , (Exhibit RUS -56).  
266 Media report,  20 February 2014,  (Exhibit RUS -55); and Media  report, 3 Feb ruary 2014 , (Exhibit RUS -
59). WT/DS499/ R 
 
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  in Ukraine" in certain cities throughout Ukraine. At least one of those incidents occurred in  a city 
where some of the producers affected by the suspensions are located.267 
7.332.   The three exhibits from May 2014 are international news report s referring to incidents in 
Odessa that month . One of the reports referred to a n incident where pro -Russian activists died in a 
fire resulting from a confrontation with anti -Russian groups . The reports also referred to 
confrontation between pro - and anti -Russian groups  in Ukraine.268 
7.333.   The exhibit referring to an incident in Ukraine during February 2016 is an international 
news report. This report states that "groups of protesters … attacked two major Russian banks in 
Central Kiev as thousands of others marked the second anniversary of one of the most violent 
days of Ukraine's 2014 revolution" .269 The report also referred to continued conflict in the east of 
Ukraine, 9,000 deaths since the beginning of the conflict in March 2014, and 1.4 million displaced 
people as a result of the confrontation between the Ukrainian government and rebels  in the 
eastern parts of the country.270  
7.334.   The exhibit referring to an incident taking place in Ukraine during November 2016 is an 
international press report. This report referred to a ttacks in K yiv against a Russian bank in K yiv, 
which had been subject to attacks in February 2016, and the office of a Ukrainian politician. The 
Ukrainian politician  is reported to be known for having ties with senior officials in the Russian 
government.271  
7.335.   The exhibit referring to an incident taking place  on 9 May 2017  in a city of  Ukraine is a 
press report from a Ukrainian media outlet. This report referred to confrontations  between 
representatives of Ukraine's  Socialist Party and activists.  At least one p roducer affected by the 
FBO's suspensions of certificates is located  in the city where the events took place .272  
7.336.   We consider that  the above -mentioned evidence  is probative of the following aspects. First, 
starting in January 2014, civil unrest broke out in various areas of Ukraine, and this continued 
during the rest of th at year. As part of that civil unrest , during the first half of 2014, there were 
incidents where people  and police officers  were injured and property was damaged, including in 
areas close to  the location of producers whose certificates of conformity the FBO suspended. 
Second, subsequent to the first half of 2014, an armed confrontation  erupted  in the eastern 
regions  of Ukraine. Third, from the beginning of 2014, anti -Russian sentiment was expressed at 
rallies and during protests in various places in Ukraine , until at least (based on the evidence before 
us) early May 2017 . 
Russian citizens visiting Ukraine between 2013 and 2016  
7.337.   Ukraine submits in rebuttal that millions of Russian citizens vi sited Ukraine between 2013 
and 2016. Ukraine argues that Russian visitors to Ukraine included Russian citizens travelling for 
"official, business and diplomatic" purposes. Ukraine also argues that Ukraine remained amongst 
the favourite destinations for Russian travellers .273  
7.338.   The Panel notes that Ukraine submitted evidence in respect of (a) the number of Russian 
visitors that entered Ukraine between 2013 and 2016 and (b) Ukraine as a top destination for 
                                                
267 Media report , 2 March 2014 , (Exhibit RUS -57); and Media report , 2 March 2014 , (Exhibit RUS -58).  
268 Media report, 2 May 2014,  (Exhibit RUS -33); Media report, 2 May 2014,  (Exhibit RUS -34); and Media 
report, 6 May 2014,  (Exhibit RUS -35). The Media report of 6 May 2014 (Exhibit RUS -35) refers to "forty -two 
people trapped by a fire … suffocated or jumped to their deaths". According to the Media report of 2 May 2014 
(Exhibit RUS -33) "police said at least 31 people were dead ". The Media Report of 2 May 2014 (Exhibit RUS -34) 
states that "[p]olice said three people were shot dead and dozens of others wounded in running battles 
between people backing Kiev and pro -Russian activists in the port city [of Odessa]. Another man died l ater and 
a further 31 people were killed when a trade union building was set on fire as fighting continued into the 
evening, police said. … The total death toll in Odessa later reached 43, Interfax -Ukraine reported".  
269 Media report, 20 February 2016,  (Exhibit RUS -37). 
270 Media report, 20 February 2016,  (Exhibit RUS -37). 
271 Media report, 22 November 2016,  (Exhibit RUS -36).  
272 Media report, 10 May 2017,  (Exhibit RUS -60). 
273 Ukraine's second written submission, para. 137. See also Ukraine's responses to Panel que stion 
Nos. 52, 91 , and 114 (para. 15) . WT/DS499/ R 
 
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  Russian travellers. The statistics submitted by Ukraine concerning Russian visitors to Ukraine 
shows that there is a stark decline in the number of Russian citizens who entered Ukraine annually 
between 2013 and 2017. In 2013, a total of 10,284,782 Russian citizens entered Ukraine. The 
total number of Russian ci tizens visiting Ukraine fell to 2,349,736 in 2014 and to 1,196,029 in 
2015. It then rose to 1,401,889 in 2016 and  by the end of June 2017  fell to its lowest level at 
695,575.274 Similarly, the number of Russian citizens visiting Ukraine for "official, diplom atic and 
business" purposes fell from 55,224 in 2013 to 8,196 in 2014, 3,823 in 2015 and 3,622 in 2016.275 
In absolute terms, it is clear that between 2013 and 2017 a large number of Russian citizens 
entered Ukraine each year. However, the decline in the num ber of Russian citizens travelling to 
Ukraine between 2013 and 2017 is significant . Moreover, there was a very steep decline in 2014, 
after which the yearly visitor numbers declined further and began fluctuating at a sustained low 
level. The numbers for of ficial, diplomatic and business Russian travellers followed a very similar 
path. 
7.339.   The evidence submitted by Ukraine in support of its statement that Ukraine is among the 
top destinations for Russian  travellers shows the following. First, for Russian custome rs of two 
private Russian travel  agents  the most popular foreign destination, during the winter of 2016, was 
Kyiv.276 Second, there was a general decline in the number of Russian travellers abroad between 
2014 and 2016; however, the number of trips by Russia n citizens to Ukraine increased by about 
150,000 in 2016 as compared to 2015.277 Third, between 2014 and 2016 Ukraine was among the 
top ten destinations for Russian citizens travelling abroad.278 This evidence suggests that Russian 
tourists continued travellin g to Ukraine between 2014 and 2016. However, we understand that the 
statistics provided by Ukraine on Russian visitors to Ukraine include tourists. If so, this would 
suggest that the numbers of Russian tourists travelling to Ukraine before the year 2014 we re likely 
much higher.   
Report of the Office of the United Nations High Commissioner for Human Rights  
7.340.   Russia for its part refers the Panel to a report by the OHCHR  concerning the human rights 
situation in Ukraine between 16 November 2016 and 15 February 20 17. According  to that report, 
between mid -April 2014 and 15 February 2017, "OHCHR recorded 33,146 casualties in the conflict 
area in eastern  Ukraine , among civilians, Ukrainian armed forces and members of the armed 
groups" .279 Russia submits that in total th ere were 9,900 people killed and 23,246 injured.280  
7.341.   Ukraine responds that Russia has failed to submit evidence supporting the number of 
casualties in Ukraine referred to in the report of the OHCHR. Moreover, Ukraine argues that the 
number of casualties amon g Ukraine's population cannot be used as evidence of a safety risk for 
Russian nationals, including FBO employees.281 
7.342.   The Panel considers that the information contained in the abstract of the report on the 
human rights situation in Ukraine from the OHCHR, su bmitted by Russia, is relevant to 
understanding the overall context of the security situation in Ukraine. The report highlights the 
negative effect of the "ongoing conflict"282 in the eastern parts of Ukraine on the human rights of 
the population. In additio n, the report refers to the number of Ukrainian casualties among civilians 
                                                
274 The latest numbers provided to the Panel are from the end of June 2017.  Letter of the State Border 
Service of Ukraine dated  29 June 2017; extract from the website of the State Statistics Service of Ukraine 
(Letter of Ukraine's State Border Service of 29 June 2017),  (Exhibit UKR -88). 
275 Statistics "On the number of Russian citizens that travelled to Ukraine for 'official, business and 
diplomatic ' purposes in 2014 -2016", (Exhibit UKR -92); and Letter of Ukraine's State Border Service of 29 June 
2017,  (Exhibit UKR -88). 
276 Gazeta.ru , "The most popular foreign city of winter was Kyiv", 1 June 2016, (Exhibit UKR -107); and 
LentaRu , "Ukraine enters the top 5 popular foreign country destinations for Russians ", 25 July 2016  , (Exhibit 
UKR-109).  
277 RBC, "Russian tourists in 2016 became less likely to travel abroad ", 16 March 2016 , (Exhibit UKR -
108).  
278 Statistics on most popular destinations for Russian citizens in 2014 –2016, (Exhibit UKR -110).  
279 2017 OHCHR Report,  (Exhibit RUS -61) p ara. 3.  
280 Russia's first written submission, para. 80; opening statement at the first meeting of the Panel, 
para. 23; and opening statement at the second meeting of the Panel, para. 39, (referring to 2017 OCHCHR 
Report, (Exhibit RUS -61) para. 6).  
281 Ukraine 's second written submission, para. 139.  
282 2017 OHCHR Report , (Exhibit RUS -61), para. 5.  WT/DS499/ R 
 
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  and armed forces and groups in the conflict area in eastern Ukraine between mid -April 2014 and 
15 February 2017.283 According to the report, "[s]pikes in hostilities in November and D ecember 
2016, and the drastic escalation over a very short time span at the end of January through the 
beginning of February 2017 caused damage to critical civilian infrastructure, including schools and 
medical facilities, further endangering civilians".284 Thus, the report evidences the continued 
existence of a conflict in eastern parts of Ukraine, which has had a serious impact on the 
population of those areas.  
Visits to Ukraine by inspectors from other countries between 2014 and 2017  
7.343.   Ukraine submits, in addition, that between 2014 and 2017 inspectors from other countries 
visited Ukraine and successfully conducted relevant inspections, both in respect of conformity 
assessment of railway products and data verification for anti -dumping investigations.285 
Speci fically, Ukraine submitted two certificates of conformity issued to Ukrainian producers of 
railway products: one issued by a Belarusian certification body on the basis of an inspection 
conducted in Ukraine on 6  November  2014, and another issued by a Kazakh  certification body on 
the basis of an inspection conducted in Ukraine on 12  January  2015.286 Ukraine also submitted 
evidence of verification actions conducted in Ukraine, as part of anti -dumping investigations. These 
verifications were carried out by offici als from (a) the European Union in Odes sa in March  2015 
and in Zaporizhstal and K yiv in September 2016; (b) Pakistan in July 2016; and (c) India in the 
first quarter of 2017.287 
7.344.   Russia dismisses Ukraine's argument about on -site verification conducted by anti-dumping 
authorities of third countries in Ukraine, saying these visits are irrelevant. Russia considers that, 
between 2014 and 2016, government officials from other countries, including from Belarus and 
Kazakhstan, were not subject to the specific ent ry restrictions and general uncertainty with respect 
to safety conditions within the territory of Ukraine that affected Russian nationals.288 
7.345.   The Panel considers that the evidence submitted by Ukraine demonstrates that officials 
from Belarus, Kazakhstan, the  European Union, Pakistan and India carried out inspections in 
different locations in Ukraine, including K yiv and Odes sa, between November 2014 and the first 
quarter of 2017. They did so despite the above -noted evidence of unrest, rallies and protests in 
various parts of Ukraine, and despite the armed conflict in eastern Ukraine. It must be noted, 
however, that there is no evidence on the record indicating that there was any hostile sentiment 
against nationals of these countries.  
Russia's Ministry of Foreig n Affairs travel advice on Ukraine  
7.346.   Russia submits  as additional relevant evidence about  the unsafe situation in Ukraine the 
travel advice issued by Russia's Ministry of Foreign Affairs. According to the travel advice provided 
by Russia, " [d]ue to the inter nal political crisis in Ukraine the risks associated with armed 
confrontations in the southern -eastern regions of the country shall be taken into account… Stay in 
the most regions of Ukraine can be very unsafe due to the anti -Russian attitude of the popula tion 
encouraged by the present government, as well as increased initiative of ultranationalists ".289 
Russia also asserts that other governments issued recommendations to exercise a high degree of 
                                                
283 2017 OHCHR Report,  (Exhibit RUS -61), paras. 3, 5, and 6.  
284 2017 OHCHR Report,  (Exhibit RUS -61), para. 4.  
285 Ukraine's response to Panel question No. 53 ; second written submission, para. 138; and responses 
to Panel question Nos. 114 and 147.  
286 Certificate of compliance [[ xxx]] issued to PJSC [[xxx]] , (Exhibit UKR -89)(BCI) (Corr.); and 
Certificate of compliance [[ xxx]] issued to PJSC [[xxx]] , (Exhibit UKR -90)(BCI).  
287 EU Commission Implementing Regulation 2016/90 imposing an anti -dumping duty on imports of 
steel ropes and cables from, inter alia , Ukraine,  (Exhibit UKR -124) recital 12; Pakistan's Tariff Commission 
Report on anti -dumping duties on cold rolled co ils/sheets from China and Ukraine,  (Exhibit UKR -125) 
para. 16.3; and India's Department of Commerce Final Findings on an anti -dumping investigation concerning 
"cold-rolled flat products of alloy or non -alloy steel" from, inter alia , Ukraine , (Exhibit UKR -126) para. 4(q). 
See also Ukraine's response to Panel question No. 53.  
288 Russia's comments on Ukraine's response to Panel question No. 114.  
289 Direct quote from the English version submitted by Russia of the Travel  advice of the Department of 
the Situation and Crisis Center of the Ministry of Foreign Affairs of Russia  (Russia's Travel Advice),  
(Exhibit  RUS-32). WT/DS499/ R 
 
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  caution when traveling to Ukraine ; however, Russia did not submit any such recommendations  
from other governments to the Pane l.290 
7.347.   Ukraine questions the probative value of  the travel advice issued by the Russian Ministry of 
Foreign Affairs, on the basis that it may constitute a self -serving comment by a government 
attempting to justify a measure.291 
7.348.   The Panel notes that Russia  has submitted evidence of the Russian Ministry of Foreign 
Affairs' position with respect to the safety of travelling to Ukraine. According to Russia, this 
evidence provides the Ministry's view fr om mid -2014 until early 2017. The information that Russia 
submits as reflecting the Ministry's view in mid -2014 was published on the Ministry's website. We 
note, however, that this  document refers to events occurring in the first half of 2015.292  
7.349.   Between th e second half of 2015 and early 2017, the Ministry of Foreign Affairs published 
information concerning different aspects of the security situation in Ukraine. The information 
provided related to: (a) risks associated with armed confrontation in the south e astern part of 
Ukraine; (b) potentially "very unsafe" conditions for Russian citizens staying in Ukraine "due to the 
anti-Russian attitude of the population encouraged by the present government, as well as the 
increased initiative of ultranationalists"; an d (c) the frequent commission of "robbery, theft, 
extortion (in some cases by representatives of local law enforcement agencies ), various financial 
frauds". The Ministry also issued a recommendation to avoid "places where military actions have 
been or are being conducted" as well as being present at "various kinds of demonstrations, in 
places of mass concentrations of people, where riots and clashes are possible".293 
7.350.   We note that governments around the world issue travel advice to warn their citizens 
against risks they may incur by travelling to different parts of the world, and citizens rely on such 
advice in organizing their travel. We therefore cannot accept Ukraine's assertion that the travel 
advice that Russia issued was self -serving and that it therefore  lacks probative value.  We further 
observe that the official advice that a government gives to its citizens should, in principle, also 
apply to its government officials. There are, however, certain caveats. For instance, in the case of 
some government empl oyees who need to travel abroad, including  but not limited to  members of 
search and rescue forces, health experts or peacekeeping forces, their professional duties may 
expose them to greater risks than ordinary citizens would typically be willing to incur.  Also, 
governments may be able to prepare or assist their employees for their missions abroad in a way 
that substantially mitigates any risks. Thus, there is not necessarily a contradiction if a 
government advises against citizen travel to certain countrie s or regions, even as it sends some of 
its own officials to those countries or regions.  
Declaration from FBO employees refusing to visit Ukraine  
7.351.   Russia submits a document from May 2017 in which 12 FBO employees confirm that they 
refused a request by the FBO's management to  visit Ukraine to conduct inspections, citing 
concerns about risks to the life and health of government officials of Russia visiting Ukraine, 
possible inability to perform their duties due to intimidation, and the risk of criminal prosecution 
                                                
290 Russia's first written submission, para. 80. See Russia's Travel Advice,  (Exhibit RUS -32), which 
accordi ng to Russia was issued in mid -2014 (Russia's response to Panel question No. 60). See also News on 
the web -site of Russian Ministry of Foreign Affairs "On changing of the order of trips of Russian citizens to 
Ukraine" , (Exhibit RUS -45); News on the web -site of Russian Ministry of Foreign Affairs "On changing of the 
order of trips of Russian citizens to Ukraine" , (Exhibit RUS -46), and News on the web -site of Russian Ministry 
of Foreign Affairs "Statement of the Russian Ministry of Foreign Affairs in connecti on with the new restrictions 
of the Ukrainian authorities against Russian citizens" , (Exhibit RUS -47). 
291 Ukraine's opening statement at the first meeting of the Panel, para. 47; second written submission, 
para. 131 (citing Panel Report, Chile – Alcoholic B everages , para. 7.119); and response to Panel question 
No. 114. 
292 Russia's Travel Advice, (Exhibit RUS -32).  
293 Russia's Travel Advice, (Exhibit RUS -32); News on the web -site of Russian Ministry of Foreign Affairs 
"On changing of the order of trips of Russi an citizens to Ukraine ", (Exhibit UKR -45)(BCI); News on the web -site 
of Russian Ministry of Foreign Affairs "On changing of the order of trips of Russian citizens to Ukraine ",  
(Exhibit  UKR-46)(BCI); and News on the web -site of Russian Ministry of Foreign Affairs "Statement of the 
Russian Ministry of Foreign Affairs in connection with the new restrictions of the Ukrainian authorities against 
Russian citizens ", (Exhibit UKR -47)(BCI).  WT/DS499/ R 
 
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  linked to the  status of being Russian government officials. Russia states that there was no 
consequence resulting from the employees' decision not to travel. Russia further states that under 
Russia's Labour Code, it is the employer's responsibility to ensure the safety  of its employees, and 
that where an employee refuses to perform duties due to a threat to life or health, the employer 
must confer on the employee other duties until the threat has been eliminated.294 
7.352.   Ukraine questions the probative value of the declaration  of FBO employees. Ukraine 
considers that this declaration is an unreliable ex post  explanation that offers unsubstantiated 
speculation as to what could have happened to FBO employees in Ukraine. Moreover, according to 
Ukraine, this evidence actually confi rms that the FBO's management deemed it safe to visit 
Ukraine in order to carry out inspections there.295  
7.353.   The Panel considers that the declaration of FBO employees has limited probative value. 
The declaration addresses the internal FBO decision -making proce ss prior to issuance of the 
instructions challenged by Ukraine. It suggests that the FBO's management at least initially 
requested its inspectors to travel to Ukraine. It is submitted to indicate the sentiment shared by 12 
FBO employees that certain condit ions in Ukraine created uncertainty as to their safety and ability 
to perform their duties if they had to conduct inspections in Ukraine. However, we observe that the 
FBO's final and official position is reflected in the various instructions at issue.  
Comm unications from Ukrainian producers to the FBO offering enhanced security 
conditions  
7.354.   Russia submits, finally, that Ukrainian producers seeking inspections sent letters to the 
FBO offering to ensure the safety of FBO employees are evidence that there was un certainty with 
respect to the safety of FBO employees when travelling to Ukraine.296 
7.355.   Ukraine submits that the fact that Ukrainian companies sent letters offering to ensure the 
safety of FBO employees does not prove, as Russia claims, that those producers rec ognized that 
there was uncertainty with respect to the safety of FBO employees. Ukraine considers that those 
letters were sent in response to the instructions suspending the certificates and, therefore, they do 
not constitute evidence of the recognition of  risks to the safety of FBO inspectors.297 
7.356.   The Panel considers that, contrary to Russia's argument, the letters sent by Ukrainian 
producers to the FBO offering enhanced security arrangements are not probative of uncertainty 
about the safety of FBO employees visiting Ukraine. Such letters were an attempt by Ukrainian 
producers to convince the FBO to send its employees to their production sites for inspection 
control. Faced with the possibility  of being unable to continue serving the Russian market, it was in 
the Ukrainian producers' commercial interest to offer special arrangements even if they were of 
the view that such arrangements were objectively unwarranted.298  
7.3.2.2.4.3   Restrictions on Russian citizens entering Ukraine  
7.357.   Russia asserts that there are two restrictions on the entry of Russian citizens into Ukraine.  
                                                
294 Declaration of FBO  employees, ( Exhibit RUS -6)(BCI); Russia's first writte n submission, para. 82 ; 
opening statement at the first meeting of the Panel, para. 24; response to Panel question No. 61; and 
comments on Ukraine's response to Panel question No. 147.  
295 Ukraine's opening statement at the first meeting of the Panel, para. 4 8; second written submission, 
para. 133;  and response to Panel question  No. 114 . 
296 Russia's first written submission, para. 82.  
297 Ukraine's opening statement at the first meeting of the Panel, para. 52; response to Panel question 
Nos. 51 and 54; second written submission, para. 135; and response to Panel question No. 114.  
298 Letter [[ xxx]] from PJSC [[xxx]] to the FBO, 13 March 2015,  (Exhibit UKR -21)(BCI); and Letter 
[[xxx]] from PJSC [[xxx]]  to the FBO, 10 October 2014 , (Exhibit UKR -41)(BCI). See also Letter [[ xxx]] from 
PJSC [[xxx]]  to the FBO, 12 May 2014 , (Exhibit UKR -17)(BCI); and Letter [[ xxx]] from PJSC [[xxx]]  to the 
FBO, (Exhibit UKR -18)(BCI)(Corr.) . WT/DS499/ R 
 
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  Automatic prosecution in Ukraine of Russian citizens who visited Crimea after April 
2014  
7.358.   First, Russia argues that, according to Ukrainian legislation, persons who visited Crimea 
after April 2014 without foll owing the procedure established by Ukraine in June 2015 shall be 
prosecuted by Ukrainian authorities. Russia argues that this poses a threat of unjustified 
prosecution to Russian citizens attempting to enter Ukraine, including FBO employees, if they have 
travelled to Crimea not in accordance with Ukrainian legislation adopted in June 2015.299  
7.359.   Ukraine submits that Russia has failed to demonstrate that, as a result of 
Resolution  No. 367 of the Cabinet of Ministers of Ukraine, Russian citizens who travelled to Crimea 
after March 2014 would face up to 8 years of imprisonment, practically automatically. According to 
Ukraine, Resolution  No. 367 does not concern the conditions for imprisonment, but rather the 
conditions for crossing the administrative border with Crimea.300 Moreover , Ukraine argues that it 
has demonstrated that Resolution  No. 367, read together with Ukraine's Criminal Code, does not 
provide for prosecution by Ukrainian authorities of persons visiting Crimea.301 
7.360.   The Panel considers that the evidence submitted by the parties demonstrates that Ukraine 
has in place a regulation governing the "Approval of the Procedure for Entry into and Exit from the 
Temporarily Occupied Territory of Ukraine". In addition, Article 332 -1 of Ukraine's Criminal Code 
establi shes three criminal offences linked to "violating the  procedure of entry in the temporarily 
occupied territory of Ukraine and exit therefrom ". The first offence is violating the procedure with 
"the aim of causing damage to interests of the state ". Whoever commits this offence shall be 
"restricted of liberty" or imprisoned for up to three years. The second offence is violating the 
procedure " repeatedly or by a group of people in prior conspiracy, or by an official person using his 
or her official position ". Whoever commits this offence shall be imprisoned  for a term of three to 
five years and "debarred from holding certain office or engaging in certain activity" for a term of 
up to three years. The third offence arises where either of the two other offences i s committed by 
"an organized group". Whoever commits this offence shall be imprisoned for a term of five to eight 
years and "debarred from holding certain office or engaging in certain activity" for a term of up to 
three years.302  
7.361.   The existence of the above -mentioned criminal offences in Ukraine's Criminal Code 
confirms that there is a possibility of prosecution if a Russian citizen commits any of those criminal 
offences. However, there is no evidence demonstrating that a simple violation of the procedure to  
enter and exit the territory in question, that is, a violation that does not meet the conditions for 
any of the three aforementioned criminal offences, would lead to an automatic prosecution, or 
even any prosecution.  
Restriction on the entry to Ukraine o f Russian male citizens aged between 
16 and 60 
7.362.   Second, Russia submits that Ukraine imposed a restriction on the entry into Ukraine of 
Russian male citizens aged between 16 and 60. Russia asserts the existence of this restriction on 
the basis of, inter alia , a Protocol  of the State Border Service  of Ukraine , Border Department  of 
Odessa, dated 17 April 2014 . According to Russia, FBO employees considered those restrictions to 
constitute a prohibition on the entry of Russian male citizens into Ukraine. Russia considers that 
this is also confirmed by the fact that 15,000 Russian citizens were denied entry into U kraine in 
                                                
299 Russia's first written submission, para. 81 . See Russia's responses to Panel question Nos. 15 and 46; 
and opening statement at the second meeting of the Panel, para. 37.  
300 These conditions include submitting the required documentation and crossing through specific check 
points ( Resolution No. 367 of the Cabinet of Ministers of Ukraine "On Approval of the Procedure for Entry into 
and Exit from the Temporarily Occupied Territ ory of Ukraine, "4 June 2015  (Resolution No. 367),  (Exhibit UKR -
127 and Exhibit RUS -38). See Ukraine's response to Panel question No. 55; and second written submission, 
para. 134.  
301 Ukraine's opening statement at the first meeting of the Panel, para. 50; re sponse to Panel question 
No. 55; second written submission, paras. 134  and 143; and responses to Panel question Nos. 114 and 148.  
302 Abstract from the Criminal Code of Ukraine  (Ukraine's Criminal Code ), (Exhibit RUS -22).  WT/DS499/ R 
 
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  2014 and that Ukrainian border authorities regularly report the denial of entry into Ukraine to 
Russian citizens.303  
7.363.   Ukraine submits that it has demonstrated that the Administration of State Border Service 
of Ukraine did not send any orders to the  Border Department of Odes sa regarding the restrictions 
on the entry of male Russian citizens between 16 and 60. Ukraine further submits that FBO 
employees could in any event have entered Ukraine by presenting notarized originals of 
invitations, which are typically granted to inspectors at the request of the producer to be 
inspected. Moreover, Ukraine considers that the number of Russian citizens who were refused 
entry represents 0.7% of the total number of Russian citizens who entered Ukraine in 2014.304 
7.364.   The Panel considers that Russia submitted evidence that suggests that officials of the State 
border service for Odes sa airport considered, in April 2014, that the Administration of State Border 
Service of Ukraine and the head of the Border Department of Odes sa had put in place a restriction 
on the entry of certain Russian citizens into Ukraine ; with the aim of preventing entry of 
"extremists "305 into Ukraine. Such restriction notably included a suspension of the entry of Russian 
male citizens between 16 and 60 t hrough the state border. The evidence also indicates that entry 
of this category of Russians into Ukraine could exceptionally be allowed in urgent situations. This 
evidence consists of a protocol of a meeting of 17 April 2014 between local State border ser vice 
officials, airport administrators and representatives of various international and Russian airlines. 
The protocol indicates that it was decided, inter alia , that the competent services and airlines 
would implement measures aimed at providing timely an d reliable information about international 
flights and passengers travelling on those flights.306 The Russian  Ministry of Foreign Affairs 
published a statement on this meeting, referring to information provided by the Odes sa border 
service to Russian air car riers about "new" restrictions that Ukraine was imposing on Russian 
citizens.  The statement also refers to similar information  being provided to Russian air carriers in 
other airports, including K yiv, Donetsk, Dnepropetrovsk and Kharkov.307  
7.365.   Ukraine seeks to  rebut this evidence through the submission of different types of evidence. 
First, Ukraine submit ted a communication from Ukraine's Administration of State Border Service to 
a Ukrainian pro ducer  seeking "clarification of the existing restrictions on entry of male nationals of 
the Russian  Federation aged 16 to 60 into Ukraine", dated 8 August 2014 . The communication 
advises the producer that "the law does not provide for restrictions on crossing t he border of 
Ukraine by the male citizens aged 16 to 60".308 Second, Ukraine submitted communications from 
Ukraine's Administration of State Border Service and Odes sa's Border Department to Ukraine's 
Ministry of Economic Development and Trade that were prepa red for the purposes of these 
proceedings. Through those communications, Ukrainian authorities deny  the existence of entry 
restrictions and refer to the requirements applicable to foreigners seeking to enter Ukraine.309 
Third,  Ukraine submitted certain regul ations governing the entry into Ukraine of foreigners, 
including Russian citizens.310 Ukraine also refers to the number of Russian visitors having entered 
                                                
303 Russia's second written submission, paras. 98 -99; and responses to Panel question Nos. 15 and 118. 
See also Russia's comments on Ukraine's response to Panel question No. 114; and Protocol of the State Border 
Service of Ukraine, Border Department of Odes sa, 17 April 2014  (Border Service Protocol) , (Exhibit RUS -14). 
304 Ukraine's responses to Panel question Nos. 15, 98 , 99 and 100 ; second written submission, 
paras.  141 and 144 -145 and 147; opening statement at the second meeting of the Panel, para. 51; and 
responses to Panel question Nos. 114 and 153. See also response to Panel question No. 52; and comments on 
Russia's response to Panel question No. 118 . 
305 Border Service Protocol,  (Exhibit RUS -14). 
306 Border Service Protocol,  (Exhibit RUS -14).  
307 News on the web -site of Russian Ministry of Foreign Affairs "Statement of the Russian Ministry of 
Foreign Affairs in connection with the new restrictions of the Ukrainian authorities against Russian citizens ", 
(Exhibit RUS -47a and b).  
308 Letter from State Border Service of Ukraine to PJSC [[xxx]],  (Exhibit UKR -30)(BCI) (Corr.). 
309 Letter No. 4422 -05/26901 -03 from the Administration of State Border Service of Ukraine to the 
Ministry of Economic Development and Trade of Ukraine, 3 August 2017 , (Exhibit UKR-72); and Letter from 
Border Department of Odes sa, 13 December 2017 (Exhibit UKR -147).  
310 The following exhibits contain regulations governing requirements for entry into Ukraine of 
foreigners : Ukraine's Law  "On Border Control ", (Exhibit UKR-114); Ukraine's Law  "On the legal status of 
foreigners and stateless persons ", (Exhibit  UKR-115); Ukraine's Law  No 1207 -VII "On Securing the Rights and 
Freedoms of Citizens and the Legal Regime on the Temporarily Occupied Territory of Ukraine ", 15 April 2014 , 
(Exhibit  UKR-116); Resolution No. 86 of the Cabinet of Ministers of Ukraine "On certain issues of the state 
border of Ukraine crossing ", 4 March 2015 , (Exhibit  UKR-117); Resolution No. 884 of the Cabinet of Ministers 
 WT/DS499/ R 
 
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  Ukraine between 2013 and 2017 as evidence of the non -existence of the alleged entry 
restrictions.311  
7.366.   We note that the communications from Ukraine's Administration of State Border Service 
indicate that Ukrain e's legal framework does not provide for entry restrictions of Russian male 
citizens between 16 and 60. These communications refer to the requirements, p rescribed in 
Ukraine's law, applicable to foreigners, including Russian citizens, who wish to enter into Ukrai ne. 
These include: (a) holding a valid passport; (b) absence of a previous decision prohibiting the 
entry into the country;  (c) indicating and sub mitting evidence (e.g. an  invitation letter) of the 
purpose of the visit; and (d) demonstrating sufficiency of funds. The regulations governing the 
entry of foreigners submitted by Ukraine also suggest that there are no  entry restrictions  on 
Russian males . Additionally, t he letters sent to the Ministry of Economic Development and Trade 
indicate that Ukraine's Administration of State Border Service did not issue any orders restricting 
the entry of Russian citizens into Ukraine. Moreover, the Odes sa Border Gu ard indicated that it did 
not have in its records the minutes of the meeting of 17 April 2014, submitted by Russia as 
Exhibit  RUS-14.  
7.367.   We find it difficult to reconcile the parties' contrasting views and conflicting evidence on 
this matter. As mentioned , there is no indication in the official regulations submitted by Ukraine 
that Ukraine imposed a general prohibition or restriction on the entry of Russian male citizens 
aged between 16 and 60 into Ukraine.312 And as we have seen above, many Russians continued to 
travel to Ukraine between 2014 and 2017. It is implausible, given the absolute figures involved 
and the fact that they cover tourism and thus families, that no Russian males aged between 16 
and 60 were part of the Russian travellers visiting Ukraine. At  the same time, it is also undisputed 
that Ukraine refused entry to some Russian citizens , even if the percentage of those affected may 
have been small. Russia argues that 15,500 Russian citizens were refused entry in 2014313, which 
compares to over two mill ion Russian citizens who entered Ukraine during that same year. We also 
note in this respect that we lack evidence of the reasons for refusing entry. It is therefore not clear 
that these refusals targeted Russian males aged between 16 and 60.  
7.368.   As regards t he protocol of the April 2014 meeting convened by the State border service at 
Odessa airport, and the Russian Ministry of Foreign Affairs' statement suggesting that the entry of 
Russian males would be suspended also at other airports, we note that there is  no evidence before 
us indicating that the measures that were announced were implemented, or if they were, whether 
they remained in place. The travel advice of the Russian Foreign Ministry from sometime after 
February 2015 referred to Ukraine having announ ced, in April 2014, restrictions on entry for 
Russian males  from 16 to 60 years of age.314 In contrast, in a statement about conditions for entry 
into Ukraine from February 2015, Russia's Ministry of Foreign Affairs made no mention of any 
restrictions for Ru ssian males aged between 16 and 60.  
7.369.   In sum, the evidence before us does not support the conclusion that Ukraine ever 
enforced, or systematically enforced, a general restriction on entry for males aged between 16 and 
                                                                                                                                                  
of Ukraine "On approval of the Proced ure of sufficient funds proof for foreigners and apartheids for entry into, 
stay in, transit through and leaving the territory of Ukraine and of calculation of such funds ", 4 December 
2013, (Exhibit  UKR-118); and The Order of Administration of the State Bo rder Service of Ukraine "On approval 
of Regulation on the State Border Protection Agency of the State Border Service of Ukraine, (Exhibit  UKR-155) 
(Corr.) . The following exhibits contain regulations o n the entry into Ukraine of Russian citizens: Agreement 
between Ukraine and Russia  on visa -free travels for citizens of Russia  and Ukraine, 16 January 1997 , 
(Exhibit  UKR-119); Resolution of the Cabinet of Ministers of Ukraine No. 23 "On suspension of validity of 
certain provisions of the Agreement between the G overnment of Ukraine and Government of the Russian 
Federation on visa -free travels for citizens of the Russian Federation and Ukraine ", 30 January 2015 , 
(Exhibit  UKR-120); and Agreement between Ukraine and Russia  on the procedure of crossing Ukraine -Russian 
state border by citizens living in the border regions of Ukraine and Russia,  (Exhibit  UKR-123). 
311 Ukraine's comments on Russia's responses to Panel question No. 118.  
312 Resolution No. 86 of the Cabinet of Minist ers of Ukraine "On certain issues of the state border of 
Ukraine crossing ", 4 March 2015 , (Exhibit UKR -117) suggests that Ukraine restricted the entry of Russian 
citizens residing in border areas through certain crossing points since 4 March 2015. See News  on the web -site 
of Russian Ministry of Foreign Affairs "On changing of the order of trips of Russian citizens to Ukraine ", 
(Exhibit  RUS-46). 
313 Report on the governmental portal of Ukraine "Citizens of the Russian Federation to enter Ukraine on 
foreign pas sports, PM on the Government 's decision ", (Exhibit RUS -43). 
314 Russia's Travel Advice  (Exhibit RUS -32). WT/DS499/ R 
 
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  60. However, the Odes sa meeting protocol , as well as the communication from the Administration 
of State Border Service to a Ukrainian  producer seeking clarification , confirm that in 2014 Ukraine 
created uncertainty on the part of Russia regarding the existence of any entry restrictions. It is no t 
clear from the evidence before us whether this uncertainty persisted in the following years.  
7.370.   On the basis of the evidence examined above, we now turn to make an overall assessment 
of the evidence submitted by the parties.  
7.3.2.2.4.4   Overall assessment of the evide nce submitted by the parties  
7.371.   We recall that according to Russia, entry restrictions and uncertainty with respect to safety 
and security conditions in Ukraine, including anti -Russian sentiment,  made it impossible for 
Russian inspectors to conduct conformity  assessment procedures at the site of Ukrainian  
producers'  facilities. Russia also submits that no similar entry restrictions or uncertainty with 
respect to safety conditions exist in Russia or in other countries.  
7.372.   Russia's arguments require us to examine whether the situation in which it is denying 
access to inspection control to suppliers of Ukrainian railway products is comparable to those 
situations in which it is granting access to inspection control to suppliers of Russian railway 
products and supplie rs of railway products from other countries. Russia has identified the 
uncertainty of the safety and security situation as being the relevant aspect distinguishing these 
situations.  
7.373.   As we have noted, assessing whether the situation of Ukrainian suppliers i s or is not 
comparable due to the safety and security conditions in Ukraine must be done on a case -by-case 
basis, through an examination of the totality of the evidence on record .315 
7.374.   We also note that Article 5.1.1 is to be applied by the competent body of t he importing 
Member. The certification body of the importing Member must make a determination whether the 
situation is comparable, such that no less favourable access conditions must be extended to 
suppliers of like imported products. We underscore in this  respect the importance of importing 
Members complying with their WTO obligations as a fundamental condition for the proper 
functioning of the multilateral trading system.316 As is clear from the facts of this dispute, if FBO 
inspectors did not conduct inspections in Ukraine, suppliers of Ukrainian railway products sooner or 
later lost access to Russia's market, because the FBO proceeded to suspend their certificates of 
confor mity. In our view, importing Members should not be lightly allowed to invoke an inability to 
carry out parts of their conformity assessment procedure, as this could undermine market access 
commitments.  
7.375.   Equally, however, we note that this dispute illustrat es that inspections are often carried 
out abroad by government officials of the importing Member. In some situations, their life or 
health may be at risk if they had to carry out inspections regardless of the situation prevailing 
abroad. We think that resp onsive and responsible governments can and may take such vital 
interests of their citizens into account when determining whether their government officials can 
carry out inspections abroad. We recall that the Appellate Body and previous panels have 
acknowl edged the importance of protecting human life and health.317  
7.376.   It thus emerges that, in the specific circumstances of a dispute such as ours, the importing 
Member in applying Article 5.1.1 may confront the need to weigh and balance the interests of 
suppliers of products originating in the territories of other Members in an assessment of conformity 
against its interest in safeguarding the life or health of its employees when undertaking conformity 
assessment activities, such as inspections, abroad. As noted, th e protection of human life and 
health is a vital interest. However, there must be a rational relationship between the need to 
protect the life and health of inspectors travelling abroad and the situation prevailing in the 
                                                
315 See paragraph 7.283  above.  
316 See Article XVI:4 of the Marrakesh Agreement Establishing the WTO; and Appellate Body Report, EC 
– Sardines , para. 213.  
317 For instance, in the context of Article XX(b) of the GATT 19 94, the Appellate Body has found that the 
preservation of human life and health is a vital value and important in the highest degree (Appellate Body 
Report, EC – Asbestos , para. 172).  WT/DS499/ R 
 
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  country where inspections are to b e carried out. In our view, the importing Member in principle 
benefits from a margin of discretion in carrying out such a weighing and balancing of interests, as 
appropriate to the circumstances, which include the importance of the interests at stake.   
7.377.   In our overall assessment of the evidence before us, we need to bear in mind the relevant 
time-period. The beginning of the relevant time -period is determined by the dates on which 
inspections were scheduled, as referred to in the 14 instructions suspending t he certificates, that is 
April 2014 to  August 2015.318 Moreover, we note that there is no evidence before us that up until 
the date of the Panel's establishment on 16  December 2016, the FBO issued instructions 
determining that the conditions for suspending t he certificates were no longer present. We infer 
from this that in the FBO's view continued suspension of certificates held by Ukrainian producers 
was warranted because the conditions for conducting inspection control in Ukraine were still not 
satisfied.319 As the challenged suspensions were still in place on the date of the Panel's 
establishment, we consider that the time -period relevant to our assessment ends on 16 December 
2016.  
7.378.   Looking at the evidence on record with that time -period in mind, we note that  there was 
indeed uncertainty as to the security situation in Ukraine. There were protests and demonstrations 
against the Ukrainian government taking place in different parts of the country,  including  civil 
unrest , during the initial part of the relevant t ime-period . Moreover, there were reports that during 
the relevant time -period there ha d been armed confrontations between Ukraine 's armed forces 
and rebels in the east of Ukraine.  
7.379.   The evidence on record also shows that there existed anti -Russian sentiment in several 
places in Ukraine, including areas where the suppliers  affected by the 14 instructions challenged 
by Ukraine are located. In those  areas, anti-Russian sentiment manifested itself during 
demonstrations against Russian intervention in Ukraine in M arch 2014 and in confrontations 
between the Ukrainian Socialist Party and activists in May 2017. In other areas,  anti-Russian 
sentiment manifested itself  through instances of violence against the property of Russian 
companies , and the office of a pro-Russian Ukrainian politician .  
7.380.   Based on the evidence before us, we consider that the FBO could be justifiably concerned 
about the life or health of any employees that it would send to Ukraine to carry out inspections. It 
is not clear that FBO employees were  necessarily  likely to go to places where protests or 
demonstrations were held or where civil unrest erupted.  But the situation during the relevant time -
period was marked by instability and unpredictability, and this was also reflected in the travel 
advice tha t Russia's Ministry of Foreign Affairs issued for the benefit of its own citizens. From the 
FBO's vantage point, it was therefore not readily apparent whether a given area of the country was 
sufficiently safe, or would remain so, to proceed with an inspect ion visit.  Moreover, we believe that 
the evidence about anti -Russian sentiment supports the FBO's concerns about the life or health of 
its employees.  
7.381.   Against this background, we find it relevant and instructive to take into account the sharp 
drop in 2014, and the subsequent sustained low level up until 2016,  both in the number of Russian 
citizens travelling to Ukraine and Russian citizens visiting Ukrai ne for official, diplomatic and 
business purposes. This suggests that a large number of Russian citizens decided autonomously in 
pursuit of their own interests, or their employers decided for them, that the situation in Ukraine 
changed in 2014 as it was no  longer advisable to continue travelling there. In the light of this, it 
seems to us reasonable that FBO employees, and the FBO's management, could reach the same 
conclusion.  
7.382.   We recognize that large numbers of Russian citizens continued to travel to Ukrain e in 2014 
and thereafter. However, the fact remains that only a minority of those Russian citizens who 
travelled to Ukraine in 2013 continued travelling to Ukraine afterwards. Thus, the evidence on 
record suggests that the FBO's decision to suspend its ins pection activities in Ukraine during the 
relevant time -period was in keeping with the decision of a very large number of ordinary Russian 
                                                
318 See Table 4 above.  
319 We note that according to Article 8.4(a) of PC-FZT 08 -2013, (Exhibit RUS -23), the FBO may suspend 
a certificate in case of absence of conditions for inspection control, "until there are conditions f or … 
implementation [of inspection control]".  WT/DS499/ R 
 
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  citizens who decided to abstain from travel to Ukraine. To that extent, and recalling the other 
evidence on the record , the FBO's decision to consider the possible risk of sending government 
officials to Ukraine on official business  does not appear to us as unreasonable  in the specific 
circumstances and time -frame .  
7.383.   We recall that the competent body of the importing Membe rs must bear in mind the 
legitimate interests of suppliers of products originating in the territories of other Members in an 
assessment of conformity, and the significant adverse impact on trade that the failure to carry out 
certain conformity assessment a ctivities, such as inspection control, may have. We note in this 
respect that the FBO in this dispute opted for suspensions rather than the stricter withdrawals  or 
cancellation  of the relevant certificates of conformity. Moreover, the FBO needed to balance  
Ukrainian suppliers' interests against the interests of FBO inspectors, which in this dispute are 
vital, since they concern the life or health of employees under the responsibility of the FBO.  
7.384.   In sum, during the relevant time -period, the FBO did not act outside its margin of 
discretion  by balancing the interests of Ukrainian suppliers and FBO employees and then erring on 
the side of ensuring the safety of the latter and determining that the conditions for carrying out 
inspection control in Ukraine were no t satisfied.   
7.385.   The other aspects of the situation in Ukraine that w ere discussed  by the parties  relate to 
the evidence concerning entry restrictions and the risk of prosecution. Regarding the former, we 
have already indicated that to the extent that there w as any uncertainty about the existence or 
otherwise of a limitation on the entry of Russian male citizens, this does not appear to be a 
sufficient reason not to carry out inspections in Ukraine. The evidence indicates that many 
Russians continued travellin g to Ukraine . This should have created sufficient doubt about the 
correctness of the assumed limitation on entry of Russian male citizens.  
7.386.   As concerns the risk of prosecution of those who entered Crimea in contravention of 
Ukraine's regulation on the entr y into that territory, we recall that prosecution is provided for in 
respect of three specific criminal offences that cover narrowly circumscribed circumstances. We 
recall that, as we understand the evidence, there is no basis for assuming that ordinary pe rsons, 
such as FBO employees called upon to travel to Ukraine  on official business,  seeking to enter 
Ukraine after having visited Crimea in contravention of Ukraine's entry regulation would be 
prosecuted, let alone that prosecution would be automatic. We n ote in this connection that FBO 
officials would have been travelling to Ukraine in order to undertake conformity assessment 
activities that were necessary for Ukrainian suppliers to maintain their certificates, which in turn 
were needed to continue exporti ng to Russia. Accordingly, we are not persuaded that the alleged 
risk of prosecution provided a sufficient reason for the FBO to decide that it was not appropriate to 
carry out inspection control in Ukraine.  
7.387.   On the basis of the foregoing overall assessment  of the evidence on record, we consider 
that in this instance related to risks to life and health of FBO inspectors, over the time -frame 
examined above, the situation in Ukraine was not comparable to other countries. We therefore find 
that, between April 2 014 and December 2016, Ukrainian suppliers of railway products were denied 
no less favourable access in a situation that was not comparable to the situation in which Russia 
granted access to suppliers of Russian railway products and suppliers of railway pr oducts from 
other countries. This finding covers each of the 14 instructions challenged by Ukraine.  
7.388.   We underscore that our finding that  the situation was not comparable relates to the 
specific time -period at issue. We note that developments subsequent to a panel's finding that a 
situation is not comparable could render a situation comparable, with the consequence that the 
importing Member  would have to make a change in the access conditions granted for it to continue 
to act consistently with Article 5.1.1.  
7.3.2.2.5   Like product analysis  
7.389.   Ukraine argues that Russia is granting access to Ukrainian suppliers of railway products 
under conditions less favourable than those accorded to suppliers of like Russian products and like 
products from other countries. According to Ukraine, likeness can b e presumed when a measure 
distinguishes between products solely on the basis of a criterion unrelated to the products per se . WT/DS499/ R 
 
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  Ukraine submits that such criteria may include whether a particular product is definitively imported 
or sold domestically as well as the characteristics of the seller or purchaser of the product.320  
7.390.   Ukraine argues that the 14 instructions suspending valid certificates do not distinguish 
between products based on such traditional likeness criteria as the physical characteristics or end -
uses of the products per se , but rather based on the location of the producer concerned, and thus 
the origin of the products. Ukraine submits that in the present dispute, likeness can therefore be 
presumed. Ukraine further considers that the fact that the FBO did not suspend certificates held by 
certain Ukrainian producers does not imply that the measures do not distinguish on the basis of 
the origin of the products. Ukraine argues that the origin distinction need not encompass all 
products originating in the territory of one Member versus all products originating in the territory 
of another Member. Moreover, Ukraine submits that in the case of the 14 instructions, the origin -
based distinction constitutes at the same time a de jure distinction.321 
7.391.   Russia resp onds that Ukraine failed to provide any analysis of the railway products at issue 
and explain how those railway products are like domestic railway products and railway products 
from other countries. Russia argues that when Ukraine compares the certificates  issued to Russian, 
European, Belarusian and Kazakh producers with those suspended to Ukrainian producers, Ukraine 
ignores that all these certificates are issued with respect to different railway products. Russia 
further submits that the presumption of lik eness referred to by Ukraine will typically be permissible 
only in the case of measures involving a de jure  distinction between products of different origin.322  
7.392.   Russia submits that Ukraine failed to identify a specific provision in Russian legislation that 
mandates a distinction based on  the origin of the products. Russia further considers that the fact 
that certain Ukrainian producers hold no  valid certificates cannot serve as evidence of an origin -
based requirement, because there are other Ukrainian produc ers who hold such valid certificates. 
Russia argues that the likeness of the products at issue cannot, therefore, be presumed, but rather 
has to be demonstrated. Russia highlights in this respect that Ukraine did not provide any specific 
support for why, i n its view, the Ukrainian products at issue are like Russian products or products 
from other countries.323 
7.393.   The Pa nel recalls its finding above that Russia has granted less favourable access for 
Ukrainian  the five relevant  suppliers, but that it has done so i n a situation that is not comparable 
to the situation in which Russia granted access to suppliers of Russian and European railway 
products. In the light of that  finding , it is not necessary to make additional findings on whether the 
railway products suppli ed by these Ukrainian suppliers are like Russian or European railway 
products whose suppliers have been granted more favourable access . 
7.3.2.2.6   Conclusion  
7.394.   On the basis of the foregoing, the Panel concludes  that Ukraine has failed to establish, in 
respect of each o f the 14 instructions at issue, that Russia has acted inconsistently with its 
obligations under Article 5.1.1 of the TBT Agreement.  
                                                
320 Ukraine's first written submission, para. 195 (referring to Panel Reports, US – Poultry (China) , 
paras.  7.431 -7.432; and Colombia – Ports of Entry , para. 7.357); opening statement at the first meeting of the  
Panel, para. 41 (referring to Panel Report Colombia – Ports of Entry , paras. 7.183 -7.184); responses to Panel 
question Nos. 14, 65 and 97 (referring to Panel Reports, Argentina – Hides and Leather , paras. 11.168 -11.170; 
and China – Publications and Audiov isual Products , paras. 7.1446 and 7.1447); and second written submission, 
para. 109.  
321 Ukraine's responses to Panel question Nos. 14 and 65; second written submission, paras. 110 -113 
and 115; and opening statement at the second meeting of the Panel, paras. 47 -48. 
322 Russia's first written submission, paras. 74 -75; opening statement at the fi rst meeting of the Panel, 
para. 13; response to Panel question No. 14 (referring to Appellate Body Report, Argentina – Financial 
Services , para. 6.36); and second written submission, para. 89. See also second written submission, 
paras.  57-61. 
323 Russia's op ening statement at the first meeting of the Panel, para. 14; response to Panel question 
No. 14; and second written submission, paras. 88 -91. WT/DS499/ R 
 
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  7.3.3   Consistency of the suspensions with Article 5.1.2 of the TBT Agreement  
7.395.   The Panel now turns to examine Ukraine's claim s of violation under Article 5.1.2 of the 
TBT Agreement. The texts of Articles 5.1 and 5.1.2 provide as follows:  
5.1     Members shall ensure that, in cases where a positive assurance of conformity 
with technical regulations or standards is required, their centra l government bodies 
apply the following provisions to products originating in the territories of other 
Members:  
… 
5.1.2 conformity assessment procedures are not prepared, adopted or 
applied with a view to or with the effect of creating unnecessary obstacles 
to international trade. This means, inter alia , that conformity assessment 
procedures shall not be more strict or be ap plied more strictly than is 
necessary to give the importing Member adequate confidence that 
products conform with the applicable technical regulations or standards, 
taking account of the risks non -conformity would create.  
7.396.   Ukraine claims  that each of the 14  instructions through which the FBO suspended 
certificates held by Ukrainian producers of railway products is inconsistent with Article 5.1. 2. 
Ukraine submits that th ese inconsistencies arise from Russia applying its conformity assessment 
procedures with t he effect of creating unnecessary obstacles to international trade . According to 
Ukraine , unnecessary obstacles to international trade exist because Russia applies its conformity 
assessment  procedures more strictly than necessary to give itself adequate co nfidence that 
Ukrainian railway products conform with the applicable technical regulations, in the light of the risk 
non-conformity would create.324  
7.397.   Russia claims that the 14 instructions challenged by Ukraine are not inconsistent with 
Article  5.1.2. Russia  argues that Ukraine failed to demonstrate how the alternative manners  of 
application of the conformity assessment procedure that Ukraine identified make an equivalent 
contribution to giving Russia positive assurance that the relevant requirements of the t echnical 
regulations are fulfilled, at the level of protection sought by Russia.325 
7.398.   The Panel notes that Ukraine's claims are circumscribed to the application of Russia's 
conformity assessment procedure in the 14 identified instances and do not concern the p reparation 
or adoption of the procedure. In other words, Ukraine has not raised any "as such" claim in respect 
of Russia's conformity assessment procedure  but only claims in respect of the manner in which 
Russia applied its conformity assessment procedure in each of the challenged instructions.  
Interpretation  7.3.3.1   
7.399.   We will first address the interpretation of Article 5.1.2.326  
7.400.   Ukraine argues that pursuant to the introductory paragraph of Article 5.1, Article 5.1.2 
applies in circumstances where a Member requires "a  positive assurance of conformity with 
technical regulations". Ukraine submits that Article 5.1.2 consists of general obligations laid down 
in the first sentence, and an example of such obligations laid down in the second sentence. 
Ukraine relies on both s entences in order to establish that Russia acted inconsistently with its 
obligations under Article 5.1.2.327 
                                                
324 Ukraine's first written submission, para. 260; opening statement at the first meeting of the Panel, 
para. 55; and  second written submission, para. 150.  
325 Russia's first written submission, para. 94; and second written submission, para. 115.  
326 We note that this provision was interpreted by the panel in EC – Seal Products . However, the 
Appellate Body found the panel's  findings under Article 5.1.2 to be moot and of no legal effect. Appellate Body 
Report, EC – Seal Products , para. 5.70.  
327 Ukraine's first written submission, para. 262; and second written submission, paras. 153 -155. WT/DS499/ R 
 
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  7.401.   Russia submits that by virtue of Article 5.1.2, Members must not prepare, adopt or apply 
their conformity assessment procedures with a view to or wit h the effect of creating unnecessary 
obstacles to international trade.328 
7.402.   The Panel notes that Article 5.1.2 stipulates, in its first sentence, a general obligation not 
to prepare, adopt or apply conformity assessment procedures with a view to or with the ef fect of 
creating unnecessary obstacles to international trade. An example of a situation where an 
inconsistency with that general obligation would arise is set out in the second sentence of 
Article  5.1.2.  
7.403.   There are two requirements for a conformity assess ment procedure to fall within the scope 
of Article  5.1.2. The first is found in the title and in the introductory paragraph of Article 5.1. They 
make clear that Article 5.1 concerns procedures for the assessment of conformity by central 
government bodies . The second requirement, which is also found in the introductory paragraph of 
Article 5.1, is that this provision applies in cases where a positive assurance of conformity  with 
technical regulations or standards is required . Thus, Article 5.1.2 applies to m andatory conformity 
assessment procedures by central government bodies and not voluntary conformity assessment 
procedures.  
7.404.   We turn to examine the manner in which both parties suggest that the Panel should 
interpret Article 5.1.2, first sentence. We then tu rn to interpret Article 5.1.2, second sentence.  
7.3.3.1.1   Article 5.1.2, first sentence  
7.405.   Ukraine considers that the obligation in the first sentence of Article 5.1.2 applies to the 
preparation, adoption, or application of conformity assessment procedures. According to Ukraine, 
the word "obstacle" in the first sentence is defined as a "hindrance" or an "obstruction". Ukraine 
notes that in Article 5.1.2 the word "obstacle" is qualified by the term "unnecessary". Ukraine 
submits that conformity assessment procedures tha t obstruct or hinder international trade more 
than necessary will therefore violate Article 5.1.2. Ukraine considers that this obligation is not 
limited to a situation in which the measures intend to create unnecessary obstacles to international 
trade but also those that have the effect of creating such obstacles.329 
7.406.   Ukraine submits that the phrase "with a view to or with the effect of creating unnecessary 
obstacles to international trade" in Article 5.1.2 may be interpreted on the basis of the Appellate 
Body's interpretation of the similar phrase in the first sentence of Article 2.2 of the 
TBT Agreement. According to Ukraine, the Appellate Body's guidance suggests that the Panel 
should assess the necessity of the obstacles to international trade resulting fro m the application of 
Russia's conformity assessment procedures by considering: (a) the degree of contribution made by 
the measure to the objective of achieving positive assurance of conformity with the relevant 
requirements of a technical regulation or sta ndard; (b) the trade -restrictiveness of the measure; 
(c) the nature of the risks at issue and the gravity of consequences that would arise from not 
providing a positive assurance of conformity. Ukraine considers that in addition, as a conceptual 
tool, the Panel may also compare the measure with possible alternative, reasonably available, 
measures that are less trade -restrictive and would make an equivalent contribution to achieving a 
positive assurance of conformity, taking into account the risks non -fulfilment would create.330 
7.407.   Ukraine submits that the second sentence of Article 5.1.2 explains the meaning of the 
general obligation through a situation where a conformity assessment procedure may be found 
inconsistent with the first sentence. Ukraine considers th at it is therefore not necessary for a 
complaining party to show an inconsistency with the requirements in both sentences in order for a 
panel to find a measure to be inconsistent with Article 5.1.2.  Ukraine argues that an inconsistency 
with the first sentence could be established by demonstrating that a given conformity assessment 
procedure has the effect of creating unnecessary obstacles to international trade or by showing a 
breach of the specific requirement in the second sentence.331 
                                                
328 Russia's first written submission, par a. 89; and second written submission, para. 109.  
329 Ukraine's first written submission, para. 263; and second written submission, para. 157.  
330 Ukraine's second written submission, paras. 158 -162. 
331 Ukraine's first written submission, para. 264; and second written submission, paras. 164 -165. WT/DS499/ R 
 
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  7.408.   Russia  considers tha t in order to establish a violation of Article 5.1.2, a complaining party 
has to show that there were alternative measures reasonably available to the responding party, 
capable of making an equivalent contribution to the achievement of the objective at the  level of 
protection sought.332 
7.409.   The Panel recalls that the first sentence of Article 5.1.2 requires Members to ensure that 
their conformity assessment procedures are not prepared, adopted, or applied with a view to or 
with the effect of creating unnecessary obstacles to international trade.  
7.410.   The Appellate Body has found that the phrase "unnecessary obstacles to international 
trade" in the first sentence of Article 2.2 refers to the notion of "necessity". Article 2.2 of the TBT 
Agreement provides in relevant p art:  
Members shall ensure that technical regulations are not prepared, adopted or applied 
with a view to or with the effect of creating unnecessary obstacles to international 
trade. For this purpose, technical regulations shall not be more trade -restricti ve than 
necessary to fulfil a legitimate objective, taking account of the risks non -fulfilment 
would create.  
7.411.   The Appellate Body has indicated that in the context of Article 2.2, the second sentence 
qualifies the terms of the first sentence. Moreover, the A ppellate Body considers that in the 
context of Article 2.2, the assessment of "necessity" involves a relational analysis of the trade -
restrictiveness of the measure, its degree of contribution to the achievement of the relevant 
objective, and the risks non -fulfilment would create.333 
7.412.   We note that Article 2.2 concerns the preparation, adoption, and application of technical 
regulations by central government bodies. Similarly, Article 5.1.2 governs the preparation, 
adoption, and application of conformity assessm ent procedur es by central government bodies.334 
Thus, the texts of both provisions have certain common elements. One such element is the 
reference, in the first sentence of both provisions, to "unnecessary obstacles to international 
trade". Following the App ellate Body's guidance, we consider that the reference in Article 5.1.2 to 
"unnecessary obstacles to international trade" refers to the notion of "necessity".335 
7.413.   We note that there is a difference between Article 5.1.2 and Article 2.2 in respect of the 
relationship between the first and the second sentence of these two provisions. Unlike Article  2.2, 
the second sentence of Article 5.1.2 does not qualify the terms of the first sentence; the term 
"inter alia " at the beginning of the second sentence of Article 5 .1.2 indicates that it rather provides 
an illustration of a situation where a conformity assessment procedure would be prepared, 
adopted, or applied in a manner inconsistent with the first sentence. To that extent, we consider 
that a finding of inconsisten cy with the first sentence of Article 5.1.2 may rest entirely on findings 
made in respect of the second sentence of Article 5.1.2. Therefore, a complaining party may 
establish an inconsistency with the first sentence either by demonstrating that the confor mity 
assessment procedure is applied with a view to or with the effect of creating an unnecessary 
restriction to international trade or through the specific means illustrated in the second sentence.  
7.3.3.1.2   Article 5.1.2, second sentence  
7.414.   According to Ukraine, the analysis under the second sentence of Article 5.1.2 entails 
weighing and balancing (a) the trade -restrictiveness of the measure , (b) the degree of its 
contribution to the relevant objective , and (c) possible less trade -restrictive alternative measures. 
Ukraine argues that the only relevant objective in the context of the second sentence of 
Article  5.1.2 is that of giving the importing Member adequate confidence that products conform 
                                                
332 Russia's first written submission, para. 93; and second written submission, paras. 112 -114. 
333 Appellate Body Report, US – Tuna II (Mexico) , para. 318. 
334 We rec all that pursuant to the definition provided in Annex 1.3 to the TBT Agreement, conformity 
assessment procedures are used to determine, directly or indirectly, that relevant requirements in technical 
regulations or standards are fulfilled.  
335 In discussing the second sentence of Article 5.1.2, we further develop the elements that need to be 
examined also when determining whether a conformity assessment procedure creates unnecessary obstacles 
to international trade.  WT/DS499/ R 
 
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  with the applicable technical regulations or standards, taking account of t he risks non -conformity 
would create. Ukraine submits that the relevant standard of confidence is "positive" and 
"adequate", which limit the level of confidence that Members may seek as regards the risk that 
goods might not satisfy the relevant requirement s in technical regulations or standards.336 
7.415.   Ukraine submits that it is necessary for a panel assessing a claim under Article 5.1.2, 
second sentence, to examine whether by preparing, adopting or applying a conformity assessment 
procedure a Member is seeking t o obtain adequate confidence of conformity. Ukraine submits that 
in making such a determination, a panel must carefully examine what is the objective pursued by 
the measure at issue. According to Ukraine, a panel must also examine whether a Member is, in 
fact, using the measure as a vehicle to discriminate arbitrarily or otherwise restrict trade in order 
to achieve an objective not authori zed under Article 5.1.2. Ukraine considers that a Member 
suspending certificates or rejecting applications for new certi ficates on grounds other than lack of 
conformity of the products concerned or other imperative conditions without which conformity may 
not be reviewed (such as collection of information, payment of a fee, the selection of a sample, the 
siting of a facility ) is thus applying its conformity assessment procedure inconsistently with Article 
5.1.2.337  
7.416.   Russia  considers that to establish if a measure is inconsistent with Article 5.1.2, second 
sentence, it is necessary to weigh and balance a measure's trade restrict iveness, the degree of its 
contribution to the relevant objective, and possible less trade -restrictive alternative measures. 
Russia submits that under Article 5.1.2 the only relevant objective is that of giving  a positive 
assurance that the relevant requir ements of the technical regulation are fulfilled. Russia agrees 
that conformity assessment procedures must not be applied more strictly than necessary to give 
Russia adequate confidence that products conform with the applicable technical standards.338 
7.417.   The Pa nel recalls that according to the second sentence of Article 5.1.2, Members must 
ensure that their conformity assessment procedures are not more strict, or are not applied more 
strictly, than necessary to give them adequate confidence of conformity, taking  account of the 
risks non -conformity would create.  
7.418.   There are similarities and differences between the second sentence of Article 5.1.2 and the 
second sentence of Article 2.2 of the TBT Agreement. Focusing on the similarities, we consider that 
both provisio ns concern the notion of "necessity". To that extent, we consider it useful to refer to 
the Appellate Body's guidance on the meaning of the second sentence of Article 2.2.  
7.419.   The Appellate Body and previous panels have interpreted the concept of "more trade -
restrictive than necessary" in the context of Article 2.2 of the TBT Agreement. According to the 
Appellate Body, the task of a panel under Article 2.2 is to determine whether the technical 
regulation at issue restricts international trade beyond what is nec essary for that technical 
regulation to achieve the degree of contribution that it makes to the achievement of a legitimate 
objective. The Appellate Body has found that to make such a determination a panel should 
undertake a holistic weighing and balancing  of several factors: (a) the degree of contribution made 
by the measure to the legitimate objective at issue; (b) the trade -restrictiveness of the measure; 
and (c) the nature of the risks at issue as well as the gravity of the consequences that would arise  
from non -fulfilment of the objective pursued by the Member through the measure. In addition, 
except where the measure is not trade -restrictive or does not contribute to achieving the relevant 
objective, a panel should compare the challenged measure agains t possible alternative measures. 
Such comparison requires examining the following aspects of the proposed alternative: (a) its 
trade -restrictiveness ; (b) whether it would make an equivalent contribution to the relevant 
objective, taking account of the risk s non -fulfilment would create; and (c)  whether it is reasonably 
available to the importing Member.339 
7.420.   These considerations provide useful guidance for interpreting the second sentence of 
Article  5.1.2. A relevant difference between the second sentence of Art icle 2.2 and that in 
                                                
336 Ukraine's first written submission, paras . 264-265; opening statement at the first meeting of the 
Panel, paras. 59 -61; and second written submission, paras. 166 -167 and 172 -180. 
337 Ukraine's second written submission, paras. 168 -170. 
338 Russia's first written submission, para. 91.  
339 Appellate Body Reports, US – COOL (Article 21.5 – Canada and Mexico) , paras. 5.197 -5.198.  WT/DS499/ R 
 
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  Article  5.1.2 is that while the former uses the phrase "necessary to fulfil a legitimate objective", 
the latter uses the phrase "necessary to give the importing Member adequate confidence that the 
products conform with the applicable t echnical regulations or standards". In our view, this textual 
difference indicates that the only relevant objective for an examination under the second sentence 
of Article 5.1.2 is that of giving the importing Member adequate confidence of conformity.  
7.421.   We observe that the reference to "adequate" confidence acts as a limit on the type or level 
of confidence that an importing Member may seek to achieve through its conformity assessment 
procedures or their application.340 The immediate context indicates that wha t is "adequate" 
confidence depends on "the risks [that] nonconformity would create". Thus, more confidence 
might be required, for instance, in situations where the likelihood of the risks materializing is 
higher or where the risks to be controlled concern very important legitimate objectives . Moreover, 
more confidence could be achieved depending on the applicable conformity assessment 
procedures . However, a type or level of  confidence that is more than "adequate", taking account of 
the risks that may result  from non -conformity with the underlying technical regulations or 
standards, could not be enforced consistently with the second sentence of Article 5.1.2.  
7.422.   Another difference between the second sentence of Article 2.2 and that in Article  5.1.2 is 
that the f ormer uses the concept of "trade -restrictiveness", whereas the latter uses the concept of 
"strictness" or "strict application". As we see it, a conformity assessment procedure that is more 
trade -restrictive than necessary, or is applied in a more trade -restrictive manner than is 
necessary, would constitute a conformity assessment procedure that is more strict than necessary, 
or a conformity assessment procedure that is applied more strictly than necessary. This is so 
because the first sentence of Article 5. 1.2 prohibits Members from "creating unnecessary obstacles 
to international trade" and the second sentence indicates that "[t]his means" that a conformity 
assessment procedure must not be more strict, or be applied more strictly, than necessary. 
However, t here may be other ways (not involving the restriction of trade per se ) in which a 
conformity assessment procedure could be more strict, or could be applied more strictly, than 
necessary and could thus fall foul of the second sentence of Article 5.1.2.  
7.423.    On the basis of the foregoing, we will undertake a holistic weighing and balancing of the 
following factors to determine whether Russia applies its conformity assessment procedure 
consistently with the second sentence of Article 5.1.2. First, we will examine the contribution of 
Russia's application of its conformity assessment procedure to the objective of giving Russia 
adequate confidence that Ukrainian railway products conform with the relevant technical 
regulations.341 Second, we will examine the strictness o f the manner in which Russia applies its 
conformity assessment procedure, which includes its trade restrictiveness. Third, we will examine 
the nature and gravity of the risks that non -conformity would create. After having examined those 
elements, we will c ompare the manner of applying the procedure chosen by Russia against the 
alternative manners of applying Russia's conformity assessment procedure suggested by Ukraine, 
except if the manner of applying the procedure chosen by Russia does not contribute to g iving 
Russia adequate confidence of conformity. We will determine for the identified alternative manners 
of applying Russia's procedure whether they (a) are less strict; (b) provide an equivalent 
contribution to giving Russia adequate confidence of conform ity; and (c) are reasonably available 
to Russia.  
7.424.   Regarding the reasonable availability of an alternative manner of applying Russia's 
procedure, we consider that this element would be satisfied if the alternative option is not merely 
theoretical in nature,  the importing Member is capable of utili zing it, and it does not impose an 
                                                
340 United States' third -party submission, para. 38; and response to Panel question No. 19, para. 45.  
341 The parties have in a number of instances referred to the contribution that Russia's manner of 
applying its conformity assessment procedure makes to the objective of achieving "positive assurance of 
conformity" of railway products with the applicable tech nical regulations. We note that in accordance with 
Article 5.1 and 5.2, Article 5.1.2 applies to conformity assessment procedures that require "a positive 
assurance of conformity" with technical regulations or standards, i.e. to mandatory conformity assess ment 
procedures. However, Article 5.1.2, second sentence, refers to "giv[ing] the importing Member adequate 
confidence that products conform with the applicable technical regulations or standards". Therefore, what 
needs to be examined under Article 5.1.2 i s the contribution that a challenged manner of applying a conformity 
assessment procedure makes to the objective of giving the importing Member adequate confidence that 
products conform with the applicable technical regulations or standards.  WT/DS499/ R 
 
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  undue burden on the importing Member, such as prohibitive costs.342 In the specific context of a 
challenge concerning exclusively the "application" of a conformity assessment procedu re (and not 
the procedure as such), it is clear to us that the competent body has to operate within the 
constraints of the domestic law in force at the time and cannot apply the conformity assessment 
procedure in a manner that the domestic law does not aut horize.343 We therefore consider that an 
alternative manner of applying a conformity assessment procedure that is not permissible under 
the applicable domestic law should not be considered reasonably available  to the importing 
Member .344 Before turning to examine Ukraine's claims in respect of the challenged measures, we 
address how the burden of proof should be allocated under Article 5.1.2.  
7.3.3.1.3   Burden of proof  
7.425.   Ukraine  argues that, under Article 5.1.2, the complain ing party  carries the burde n of 
proving that the measure at issue creates unnecessary obstacles to trade and therefore is 
inconsistent with Article 5.1.2. Ukraine submits that in satisfying that burden and thus making a 
prima facie case, a complaining party may seek to identify less  trade -restrictive alternative 
measures that are reasonably available and make an equivalent contribution to providing a 
positive assurance of conformity. According to Ukraine, where a complaining party identifies an 
alternative measure, it need not demons trate that the proposed alternative measure  makes an 
identical contribution  to the level of confidence of conformity , nor does it need to provide detailed 
information on the specific implementation of the  proposed alternative  measure . Ukraine submits 
that once the complaining party identifies alternatives that are reasonably available and make an 
equivalent contribution to the relevant objective, the burden shifts to the responding  party to  
demonstrate that the challenged measure is not more trade restricti ve than necessary and, if 
relevant, that the proposed alternatives are not reasonably available alternatives.345 
7.426.   Russia  considers that in order to establish an inconsistency with Article 5.1.2 a complaining 
party has to show that there were alternative measu res reasonably available to the responding 
party, capable of making an equivalent contribution to the achievement of the objective at the 
level of protection sought.346 
7.427.   The Panel recalls that Article 5.1.2 , second sentence,  contains an obligation to apply 
conformity assessment procedures no  more strictly than necessary. To make a prima facie  case 
that the importing Member has applied its conformity assessment procedure inconsistently with 
Article 5.1.2, second sentence, the complaining party needs to demons trate that the importing 
Member's chosen manner of applying its conformity assessment procedure is more strict than 
necessary to give the importing Member adequate confidence of conformity. The complaining party 
can meet this burden by demonstrating, for i nstance, that the manner of applying the conformity 
assessment procedure chosen by the importing Member does not contribute to giving the 
importing Member adequate confidence of conformity. Alternatively, the complaining party can 
meet this burden by refer ence to alternative manners of applying the conformity assessment 
procedure. Under this second approach, the issue arises as to what the complaining party needs to 
demonstrate in respect of any identified alternative manners of application.  
7.428.   In considering  this issue, we recall that Article 2.2, second sentence, of the TBT Agreement 
has a similar structure and text to that of Article 5.1.2, second sentence. Although we are mindful 
of the differences with regard to the type of measure subject to each provisi on and the objectives 
to be fulfilled by covered measures, we consider it appropriate to look at how the Appellate Body 
and a previous panel have allocated the burden of proof under Article 2.2.  
                                                
342 See also Ap pellate Body Report , US – COOL (Article 21.5 – Canada and Mexico) , para. 5.330.  
343 In this context, we note that the domestic law in force at the time includes the rules governing the 
conformity assessment procedure as well as any other general or specific applicable rules that govern the 
competent body.  
344 We note that any concern on the part of a complaining party about certain alternative manner s of 
applying a conformity assessment procedure not being permissible under the applicable domestic law  of the 
responding party could be pursued by the complaining party through a claim that a conformity assessment 
procedure as such is inconsistent with Article 5.1.2.  
345 Ukraine's second written submission, para. 163. 
346 Russia's first written submission, para. 93; and  second written submission, paras. 112 -114. WT/DS499/ R 
 
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  7.429.   According  to the Appellate Body, under the second sentence of  Article 2.2, a complaining 
party may make its prima facie case that a technical regulation is more trade -restrictive than 
necessary by identifying an alternative measure that is (a) less trade -restrictive, (b) makes an 
equivalent contribution to the relevant objective, and (c) is reasonably available . The Appellate 
Body has also found that a complain ing party  need not  demonstrate that its proposed alternative 
measure achieves a degree of contribution identical  to that achieved by the challenged measur e in 
order for it to be found to achieve an equivalent  degree. Rather, there is a margin of appreciation 
in the assessment of whether a proposed alternative measure achieves an equivalent degree of 
contribution, the contours of which may vary from case -to-case. The Appellate Body further found 
that under Article 2.2, a complaining party must make a prima facie  case that its proposed 
alternative measure is indeed available.347  
7.430.   A previous panel similarly found that under Article 2.2, a complaining party has th e burden 
to identify the specific alternative measure, and make a prima facie case that such alternative is 
less trade restrictive, makes an equivalent contribution to the relevant objective, and is reasonably 
available.348  
7.431.   In considering whether the same a pproach would be appropriate in the context of 
Article  5.1.2, second sentence, we note that the complaining party has full control of whether it 
seeks to establish a breach of that provision by focusing on the manner of applying the relevant 
conformity ass essment procedure chosen by the importing Member, or by raising an alternative 
manner of appl ying the procedure . If the complaining party  chooses to raise one (or more) less 
strict alternative manners of application , it seems to us appropriate that it  assume the burden of 
establishing , prima facie , that the less strict option is reasonably available to the importing 
Member and makes an equivalent contribution to giving the importing Member adequate 
confidence of conformity.  
7.432.   We recall that a prima facie  case is one which, "in the absence of effective refutation by 
the [responding] party, requires a panel, as a matter of law, to rule in favour of the complaining 
party".349 If the complaining party could limit itself to identifying one or more less strict altern ative 
manners of applying the conformity assessment procedure, without discharging any burden with 
regard to whether the alternative manners make an equivalent contribution and are reasonably 
available, the complaining party would in effect be relieved of its burden to make a prima facie  
case. Or to put it differently, in our view identification of a less strict manner of application is not 
sufficient alone to require or justify a panel to rule, as a matter of law, that the importing 
Member's manner of appl ying its conformity assessment procedure is more strict than necessary 
to give that Member adequate confidence of conformity.  
7.433.   We therefore  consider that if a complaining party seeks to establish an inconsistency with 
the second sentence of  Article 5.1.2, by raising an alternative manner of applying a conformity 
assessment procedure , it needs to first identify any alternative manner of appl ying a conformity 
assessment procedure  that in its view is less strict . In addition, the complaining party needs to  
make a prima facie case that  this alternative manner of application is  (a) less strict,  (b) makes an 
equivalent contribution to the objective of providing the importing Member adequate confidence of 
conformity , and (c) is reasonably available to the importing  Member . 
7.434.   If the complaining party satisfies that burden, the responding party then needs to r ebut 
the complaining party's arguments  and evidence, for example by showing that the alternative 
proposed manner of application is not less strict , does not make a n equivalent contribution  to 
providing adequate confidence of conformity , or is not reasonably available  to the responding 
party . 
7.435.   In the present dispute , Ukraine  consequently  has the burden of making a prima facie  case. 
Ukraine can meet this burden by providing evidence and argumentation supporting its claim that  
for each of the 14 challenged instructions  the chosen manner of applying the conformity 
assessment procedure is more strict than necessary because there are alternative manners of 
                                                
347 Appellate Body Reports, US – COOL (Article 21.5 – Canada and Mexico) , paras. 5.213, 5.215 and 
5.338.  
348 Panel Reports, US – COOL (Article 21.5 – Canada and Mexico) , para. 7.437.  
349 Appellate Body Report, EC – Hormones , para. 104.  WT/DS499/ R 
 
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  applying the proc edure  that a re less strict,  make  an equivalent contribution to providing Russia 
adequate confidence of conformity , and are reasonably available to Russia . 
Application  7.3.3.2   
7.3.3.2.1   Nature of the claims  
7.436.   Ukraine challenges , under Article 5.1. 2, 14 instructions through which the FBO suspended 
certificates held by Ukrainian producers of railway products.350 Ukraine  claim s that by issuing the 
14 instructions, Russia in each case applied  its conformity assessment procedures with the effect 
of creating  unnecessary obstacles to international trade .351 Ukraine therefore has the burden of 
demonstrating that Russia applied its conformity assessment procedure  for railway products with 
the effect of creating unnecessary obstacles to international trade . We will, therefore,  need to  
assess  whether Russia applied its conformity assessment procedure  with the effect of creating 
unnecessary obstacles to international trade  when it  suspend ed, through the 14 instructions,  
numerous certificates held by Ukrainian producer s of railway products.  
7.437.   Ukraine initially submit ted arguments in support of its claims under  Article 5.1. 2 at a 
general level. Subsequently, in response to Russia's arguments, it submitted arguments in respect 
of each of the 14 instructions.  Similarly, Russ ia responds to Ukraine's general arguments and 
address es each of the 14 instructions challenged by Ukraine.  We therefore begin  our analysis with 
the general arguments advanced by the parties  and then address the specific arguments and 
evidence in respect o f each instruction . We recall that Ukraine raises claims against each of the 14 
instructions and that we found such claims to be within our terms of reference. We will, therefore,  
make specific findings in respect of each of the 14 instructions challenged by Ukraine.  
7.438.   Moreover, Ukraine is not challenging the WTO -consistency of Russia's conformity 
assessment procedure as such . Thus,  only those less strict manners of applying Russia's 
conformity assessment procedure that the FBO had the power to apply under th e then existing 
Russian domestic law can in our view be considered alternatives that were reasonably available to 
Russia.  
7.3.3.2.2   Applicability of Article 5.1.2 and order of analysis  
7.439.   We recall that in section 7.3.2.2.2  above, we concluded that each of the 14 instructions 
challenged by Ukraine concerns (a) conformity assessment by a central government body and (b) 
a mandatory conformity assessment procedure.352 On that basis, we consider that Article 5.1.2 is 
applicable to the 14 instructions challenged by Ukraine.  
7.440.   Based on the arguments put forward by Ukraine, w e first address the elements relevant to 
establishing an inconsistency with Article  5.1.2, second se ntence. We then turn, as necessary, to 
examine the elements required  to establish an inconsistency with Article 5.1.2, first sentence.  
7.3.3.2.3   Article 5.1.2, second sentence  
7.441.   We recall that in order to establish that a measure is inconsistent with the second senten ce 
of Article 5.1.2, we need to weigh and balance (a) the contribution that the challenged manner of 
applying Russia's conformity assessment procedure makes to giving Russia adequate confidence 
that Ukrainian railway products conform to the underlying tech nical regulations , (b) the trade 
restrictiveness of Russia's manner of applying its conformity assessment procedure , and (c) the 
risks that non -conformity with the underlying technical regulations would create. Furthermore, we 
need to consider the alternat ive manners of applying the conformity assessment procedure raised 
by Ukraine. We examine each of these elements in turn.  
                                                
350 Ukraine's first written submission, para. 181;  opening statement at the first meeting of the Panel, 
para. 37; and  response s to Panel question Nos. 7 (a) and 10(a) . 
351 Ukraine's first written submission, paras. 238 , 260, and 266 . 
352 Ukraine' views on the applicability of Article 5.1.2 to the 14 instructions challenged by Ukraine can be 
found in Ukraine's second written submission, paras. 182 -184. WT/DS499/ R 
 
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  7.3.3.2.3.1   Contribution to giving Russia adequate confidence that the products 
conform to the technical regulations  
7.442.   Ukraine does not dispute that  Russia's mandatory certification procedure, including 
periodic inspection control, contributes to ensuring that railway products comply with the 
applicable technical regulations. Ukraine considers , however, that the manner in which Russia 
applied its conf ormity assessment procedures in the case of the 14 instructions is more strict than 
necessary to ensure conformity.353 
7.443.   Ukraine considers that in the present case, Russia suspended certificates on grounds that 
are not related to the conformity of products wit h the applicable technical regulations or to 
"imperative conditions"354 without which conformity may not be reviewed. According to Ukraine, 
the objective of the instructions is not to achieve positive assurance of conformity of Ukrainian 
railway products wit h the applicable technical regulations. Ukraine submits that the challenged 
measures are, instead, disguised restrictions on importation of Ukrainian railway products. Ukraine 
considers that in the absence of evidence showing that, throughout the territory  of Ukraine, there 
were safety and security concerns precluding FBO inspectors from conducting on -site inspections, 
Russia's suspensions did not aim to achieve a positive assurance of conformity. In Ukraine's view, 
the suspensions therefore result in the c reation of unnecessary obstacles to international trade.355 
7.444.   Russia submits that through the CS FRT Rules it seeks to, inter alia , (a) ensure the safety 
of the federal railway transport network, (b) protect the environment, (c)  protect property of 
individuals  and legal entities, and (d)  prevent deceptive practices. Russia thus contends that the 
objectives it seeks to protect notably include the life and health of humans, animals and plants by 
ensuring compliance with the relevant technical regulations. Russia also observes that, given the 
characteristics and end uses of the railway products at issue, it seeks the highest possible level of 
assurance of conformity. Russia asserts that its certification bodies require the same level of 
confidence in respect of con formity regardless of the procedure adopted to verify conformity. 
Russia submits that, in the present dispute, the level of protection that it sought called for the 
conduct of on -site inspections in Ukraine of the products produced by the Ukrainian produce rs 
whose certificates were suspended.356  
7.445.   Ukraine considers that Russia improperly uses the concept of the "level of protection" in 
the context of Article 5.1.2. In Ukraine's view, this concept is not relevant in the context of 
conformity assessment procedur es, because the sole objective of such procedures  is to provide 
adequate confidence that products conform with the applicable technical regulations. Ukraine notes 
that Article 5.1.2 contains the phrase "adequate confidence". According to Ukraine, that conc ept 
refers to a degree of confidence that is "sufficient" or "satisfactory". Ukraine submits that 
Article  5.1.2 thus limits the discretion of the importing Member in setting its desired "level of 
confidence". Ukraine further  argues that the alternative man ners of application that it identified 
would make a contribution  that is equivalent to that which  the suspensions  made  to giving Russia  
adequate confidence that Ukrainian railway products conform with the applicable technical 
regulations. Moreover, Ukraine  argues in this respect  that Russia has failed to explain  why the 
different forms of yearly inspection control  provided for in the CS  FRT Rules could  not provide the 
same level of confidence of conformity  in the present dispute . Ukraine  querie s why it would not be 
possible for Russia to get an adequate level of confidence through alternative manners of applying 
its conformity assessment procedures.357 
7.446.   The Panel notes that through its technical regulations  for railway products , the CS FRT 
Rules, Ru ssia seeks to protect, inter alia , the environment as well as the life and health of humans, 
animals , and plants  against risks arising from train derailments due to low quality equipment . 
All of these values and interests are important.   
                                                
353 Ukraine's first written submission, para. 274; and second written submission, para. 18 8-190. 
354 Ukraine's second written submission, para. 192 and 199.  
355 Ukraine's second written submission, paras. 197 -202; and opening statement at the second meeting 
of the Panel, para. 62.  
356 Russia's responses to Panel question Nos. 19, 104, 108, 116, and 1 37.  
357 Ukraine's opening statement at the first meeting of the Panel, paras. 58 -61; and comments on 
Russia's responses to Panel question Nos. 116, 124, and 131.  WT/DS499/ R 
 
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  7.447.   We recall that Rus sia submits that it "seeks the highest possible level of assurance of 
conformity with the relevant safety requirements".358 The evidence supports that Russia seeks a 
high level of conformity. Russia's general Law on Technical Regulations provides that the sa fety of 
products and related production processes "shall mean a condition in which there is no 
unacceptable risk associated with causing harm to life or health of citizens, property of individuals 
or legal entities, state or municipal property, environment , life or health of animals".359 To ensure 
such safety, Russian technical regulations shall contain rules on conformity assessment which are 
to be determined taking into account the degree of risk.360  
7.448.   Regarding railway products, CS FRT Rules establish conformity assessment procedures 
through which conformity with the established safety requirements are verified. Such procedures 
rely on methods for testing and for assessing conformity that enable the FBO to verify aspects 
such as the identity of the producer facilities , the products, the origin, and compliance with safety 
requirements.361 CS FRT Rules also provide for the verification of continued conformity through 
different means of inspection control.362 Russia's conformity assessment procedures require 
applica nts to submit a number of documents, including test results, and undergo different forms of 
inspection, all aimed at verifying conformity. As further discussed below, the CS FRT Rules include 
provisio ns governing the conditions under which inspections may be carried on -site or off -site. The 
existence of these rules demonstrates that Russia indeed seeks a high level of conformity.  
7.449.   Moreover, there is evidence that Russia has enforced the rules governing its conformity 
assessment procedures, thus supporting the view that Russia seeks a high level of conformity.363 
7.450.   Russia's suspension of certificates held by the five relevant Ukrainian producers of railway 
products ensured that the certified products, for whi ch scheduled on -site inspections in Ukraine 
could not be carried out, would not enter Russia's market. We consider that this manner of 
applying the conformity assessment procedure gives Russia a high level of assurance that any 
non-conforming products cove red by the suspensions would not enter its market. We therefore 
conclude  that the suspension, as Russia's chosen manner of applying its conformity assessment 
procedure  in the 14 instances at issue , contributes substantially to the objective of giving Russi a 
adequate confidence of continued conformity of the Ukrainian railway products covered by the 
certificates that were suspended  through the 14 challenged instructions . 
7.3.3.2.3.2   Strictness of the manner of applying the conformity assessment procedure  
7.451.   Ukraine  submits that the suspensions have a severe restrictive effect on imports of railway 
products originating in Ukraine , as suspending certificates results in the  impossibility of placing 
such products on the  Russian market.364  
7.452.   Russia submits that contrary to what Ukraine suggests, the evidence on record regarding 
the entry restrictions and uncertainty with respect to safety and security conditions in Ukraine 
establish that the suspensions were neither mere pretexts nor an unnecessary obstacle to 
international trade. Russia submits that due to the impossibility of conducting  annual on -site 
inspections, certificates formerly issued to Ukrainian producers no longer provided  adequate 
assurance of conformity.365 
                                                
358 Russia's response to Panel question No. 116.  
359 Article 2 of Law No. 184 -FZ "On Technical Regulation ", (Exhibit UKR -1).  
360 Article 7.3 of Law No. 184 -FZ "On Technical Regulation ", (Exhibit UKR -1). 
361 Article 9 of CS FRT 01 -96, (Exhibit UKR -2); and Article 3.11 of CS FRT Rules 31/PMG 40 -2003, 
(Exhibit UKR -80).  
362 Article 13 of CS FRT 01 -96, (Exhi bit UKR -2); and Article 7 of CS FRT Rules 31/PMG 40 -2003, 
(Exhibit  UKR-80).  
363 See for instance references to certificates suspended in respect of producers from different countries 
in Extract of the FBO's Register with respect to the suspended certificate s, (Exhibit RUS -5); Extract of the 
FBO's Register with respect to the suspended certificates (dates of suspension and reasons for suspension) , 
(Exhibit RUS -85)(BCI); Extract of the FBO's Register concerning Kazakh producers , (Exhibit RUS -93)(BCI);  
Extract of the FBO's Register concerning Belarusian  producers , (Exhibit RUS -94)(BCI); and Extract of the 
FBO's Register concerning European producers  (Exhibit RUS -95)(BCI).  
364 Ukraine's first written submission, para. 273; and second written submission, pa ra. 187.  
365 Russia's opening statement at the second meeting of the Panel, paras. 41 -42. WT/DS499/ R 
 
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  7.453.   The Panel notes that the suspension of certificates lead s to the loss of access to the 
Russian market, for the duration of any period of suspension, because without a certificate, 
Ukrainian railway products cannot enter the Russian market. We therefore consider that the 
suspension of certificates substantially restricts trade, and can be considered as a strict manner of 
application.  
7.454.   We also note, however, that suspension is not the strictest manner of applying the 
conformity assessment procedure provided for in Russia's relevant technical regulations. The 
strictest manner provided for in Russia's legislation would be to withdraw (terminate) the 
certificates altogether.366 
7.3.3.2.3.3   Risks that non -conformity would create  
7.455.   Ukraine considers that the risk of non -conformity is that railway products enter Russia's 
market without s atisfying the relevant technical regulations, thus depriving such regulations of 
their effect.367 
7.456.   Russia submits that the risks of non -conformity are that goods of insufficient quality would 
enter Russia's market. According to Russia, such low quality equipm ent can lead to train 
derailments, which would undermine the objectives of the technical regulations, inter alia , of 
protecting the life and health of humans, animals and plants. Russia considers that given the 
serious threat of harm to human life and heal th, the environment, property of individuals and legal 
entities, the risks of non -conformity are grave.368 
7.457.   The Panel notes that both parties seem to agree that there are high risks arising from non -
conformity. In particular, non -conforming railway products m ay lead to accidents, including train 
derailments, which in turn may cause great harm, including to human, animal, and plant life and 
health. We consider that in view of the products concerned (certain railway rolling stock, railroad 
switches, other railro ad equipment, and parts thereof , covered by the suspended certificates ), the 
consequences of a failure of any of such products, due to non -conformity with the underlying 
technical regulations, could reasonably be expected to create substantial risks for hu man, animal, 
and plant life or health as well as the environment.  
7.458.   We note that the parties disagree on whether different methods of assessing continued 
conformity would have an impact on providing Russia adequate confidence of conformity. In our 
view, such  disagreement concerns the availability of less -trade restrictive manners of application, 
which we turn to examine next.  
7.3.3.2.3.4   Less trade -restrictive manners of application  
7.459.   Ukraine  argues that the  suspen sion of  certificates , due to the inability to conduct on -site 
inspections , was a more strict application of Russia's conformity assessment procedures, than 
necessary to provide Russia adequate confidence that  the relevant  Ukrainian railway products 
conform to the relevant technical regulations. Ukraine submits tha t other , less trade -restrictive 
manners of applying Russia's conformity assessment procedure  were available  to Russia . 
Specifically, Ukraine identified the following alternatives: (a) additional communications with the 
relevant Ukrainian producers; (b) ent rusting on -site inspections in Ukraine to the competent 
authorities from Kazakhstan and Belarus; (c)  accrediting non -Russian inspectors, either experts or 
organizations, to conduct inspections in Ukraine; and (d) off -site inspections.369 Ukraine submits 
                                                
366 Article 26.2 of Law No. 184 -FZ "On Technical Regulation ", (Exhibit UKR -1); Article 13.7 of CS FRT 
01-96, (Exhibit UKR -2) provides that "[b] ased on the results of insp ection control, the accreditation certificate 
or the certificate of conformity may be suspended or withdrawn by the issuing authorities ". Article 7.2 of CS 
FRT 12-2003, (Exhibit UKR -3) provides that if deficiencies (non -conformities) are found in an inspec tion 
control, the FBO may (a) suspend the certificate or (b) revoke the certificate.  
367 Ukraine's second written submission, para. 209.  
368 Russia's response to Panel question No. 104; second written submission, para. 102; and response to 
Panel question No. 1 16. 
369 Ukraine, in its submissions, described this alternative as "remote" inspections. We prefer to use the 
term "off -site inspections" because that term is used in the translation of Article 7.4.1 of PC -FZT 08 -2013, 
(Exhibit RUS -23).We note that the trans lation of other provisions, such as Article 5.3 of CS FRT 12 -2003, 
 WT/DS499/ R 
 
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  that these are less strict manners of applying Russia's conformity assessment procedure that make 
an equivalent contribution to giving Russia adequate confidence of conformity, and are available to 
Russia.370 
7.460.   Russia responds that Ukraine failed to demonstrate th at any of these alternative manners 
of application are reasonably available to Russia, and that they make an equivalent contribution  to 
giving Russia adequate confidence that Ukrainian railway products conform with the applicable 
technical regulations .371  
7.461.   The Panel turns to provide a detailed examination of the parties' arguments in respect of 
each of the alternative manners of application identified by Ukraine in connection with the 
14 challenged instructions . 
Communicating with Ukrainian producers  
7.462.   The fir st alternative identified by Ukraine is for Russian authorities to communicate with 
Ukrainian producers.  
7.463.   Ukraine submits that the FBO could have communicated with the relevant producers in 
order to create, if and where necessary, the conditions for carryin g out the inspections and the 
certification procedure in general. According to Ukraine, this measure is less trade -restrictive than 
suspending certificates. Ukraine asserts that this measure was reasonably available to Russian 
authorities. Ukraine observes  that, in fact, the FBO had been contacted by the Ukrainian producers 
requesting that inspection control take place and expressing their readiness to facilitate the FBO's 
work. Ukraine considers that this measure would make an equivalent contribution to gi ving Russia 
adequate confidence of conformity as it would allow the FBO to carry out the conformity 
assessment procedures.372 
7.464.   Russia argues that FBO employees communicated by telephone with the relevant Ukrainian 
producers. According to Russia, however, the conditions for carrying out the procedures could not 
be ensured as a result of these communications. Russia considers that the relevant producers, as 
private entities, were not in a position to ensure the safety of FBO officials in Ukraine. Moreover, 
Russi a argues that conformity assessment procedures cannot be substituted by communication 
with the relevant producers.373 
7.465.   Ukraine responds that Russia did not provide any evidence of the alleged telephone 
communications that the FBO had with Ukrainian producers.374 
7.466.   The Panel notes that the proposed alternative of communicating with Ukrainian producers 
is in the nature of a process or procedure.  
7.467.   The Appellate Body has dealt with a similar situation in US – Gambling . In that dispute, the 
panel examined whether the ch allenged measures were necessary to protect public morals or to 
maintain public order, under Article XIV(a) of the GATS. The panel in that dispute found that the 
challenged measure s were not necessary. The panel considered that before imposing a WTO -
incons istent measure, the responding party could have entered into consultations with the 
complaining party to find alternatives. The Appellate Body reversed that panel's finding. According 
to the Appellate Body, negotiations are by definition a process, the res ults of which are uncertain. 
The Appellate Body considered that negotiations were therefore not capable of comparison with 
                                                                                                                                                  
(Exhibit UKR -3), refers to "remote inspections". Any reference to off -site inspection(s) should be understood as 
covering remote inspection(s).   
370 Ukraine's first written submission, para. 275; opening statement at the first meeting of the Panel, 
paras. 61 -68; and second written submission, paras. 212, 248, and 252.  
371 Russia's first written submission, paras. 94 -98; and second written submission, paras. 115 -120. 
372 Ukraine's first written submission, para. 275; and response to Panel question No. 66.  
373 Russia's first written submission, para. 9 5; and second written submission, para. 116.  
374 Ukraine's opening statement at the first meeting of the Panel, para . 63. WT/DS499/ R 
 
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  the measures at issue. The Appellate Body concluded on that basis that consultations could not 
qualify as a reasonably available alte rnative measure.375  
7.468.   We consider the Appellate Body's guidance useful in disposing of the matter before us. 
Ukraine's suggested alternative would have an uncertain outcome. It could theoretically lead to a 
situation that would allow the conformity assessment  procedure to continue, just as it could lead 
to a situation where the conformity assessment procedure would not continue and certificates 
would be suspended. We also note that the record contains some letters in which Ukrainian 
producers wrote to the FBO offering private security arrangements with a view to allowing FBO 
inspections to proceed in Ukraine.376 However, these letters did not remove the FBO's concerns 
about sending inspectors to conduct inspections in Ukraine and the certificates remained 
suspend ed.377 We therefore consider that, similar to the situation in US – Gambling , this 
alternative manner of applying the conformity assessment procedure is not one which could be 
considered as being reasonably available to Russia and capable of comparison with the challenged 
suspensions, which provided a result that was certain.  
7.469.   Moreover, Ukraine did not elaborate on why, in its view, it was not reasonable for the FBO 
to consider that the arrangements for conducting inspection control in Ukraine that had been 
proposed by Ukrainian producers were not satisfactory or sufficient. Also, Ukraine did not provide 
arguments  regarding whether under Russia's domestic law, which Ukraine did not challenge as 
being WTO -inconsistent, the FBO could delay suspending certificate s of products whose continued 
conformity could not be verified.378 
7.470.   Accordi ngly, we find that Ukraine has not established that communicating with the relevant 
five Ukrainian producers is a less strict manner of applying Russia's conformity assessment 
procedur e that is reasonably available  to Russia . 
Entrusting inspections in Ukraine to the competent authorities of Kazakhstan or 
Belarus  
7.471.   The second alternative identified by Ukraine is for the FBO to entrust inspections to the 
competent authorities of Belarus and Kazakhstan.  
7.472.   Ukraine submits that the practice of the competent authorities of Belarus and Kazakhstan 
demonstrates that inspections in Ukraine were possible and were successfully carrie d out there by 
the authorities of those two countries. Ukraine submits that, therefore, another alternative manner 
of applying Russia's conformity assessment procedure was for Russia to entrust the inspections to 
the authorities of Belarus and Kazakhstan.379 
7.473.   Russia submits that Ukraine failed to explain how entrusting inspections to the competent 
authorities of Belarus and Kazakhstan would achieve the level of protection sought by Russia. 
Moreover, Russia considers that this alternative is not reasonably avai lable to it because Russia 
does not have jurisdiction over nationals from governments of other countries. Russia submits that 
none of the disciplines governing recognition of conformity assessment procedures conducted by 
other Members imposes an obligation  on Members to recognize such conformity assessment 
procedures conducted by other Members. Russia considers that the absence of such an obligation 
                                                
375 Appellate Body Report, US – Gambling , paras. 315 -317 and 321.  
376 Letter [[xxx]] from PJSC [[xxx]]  to the FBO, 12 May 2014 , (Exhibit UKR -17)(BCI); Letter [[ xxx]] 
from PJSC [[xxx]]  to the FBO, (Exhibit UKR -18)(BCI)(Corr.); Letter [[ xxx]] from PJSC [[xxx]]  to the FBO, 
13 March 2015 , (Exhibit UKR -21)(BCI); and Letter [[ xxx]] from PJSC [[xxx]]  to the FBO, 10 October 2014 , 
(Exhibit UKR -41)(BCI).  
377 See Letter [[ xxx]] from the FBO to PJSC [[xxx]] , 26 March 2015 , (Exhibit UKR -22)(BCI); and Letter 
[[xxx]] from the FBO to PJSC [[xxx]] , 1 August 2014 , (Exhibit UKR -28)(BCI).  
378 We note that according to Article 13.1 of CS FRT 01 -96, (Exhibit UKR -2) and Article 5.2 of CS FRT 
12-2003, (Exhibit UKR -3), inspection control should take place once every year. This suggests th at the FBO 
had to make a determination on maintaining the validity or suspending the certificates before that time lapsed.  
379 Ukraine's opening statement at the first meeting of the Panel, para. 68; and second written 
submission, para. 248.  WT/DS499/ R 
 
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  confirms that this kind of measure is not a true alternative measure. Moreover, Russia asserts that 
the FBO w as the only organization entitled under CS FRT Rules to conduct inspection control.380 
7.474.   The Panel notes that Ukraine refers to entrusting certification bodies in Kazakhstan and 
Belarus to conduct inspections in Ukraine on behalf of Russia as an alternative to  the 
14 instructions suspending certificates held by Ukrainian producers. However, Ukraine has failed to 
submit arguments or evidence demonstrating that this alternative is available to Russia  under 
Russia's rules governing conformity assessment procedures. Indeed, it is not self -evident to us 
that the FBO has the power to entrust foreign government authorities to carry out tasks entrusted 
to it.381 Moreover, Ukraine has not provided any evidence of prior instances of the FBO entrusting 
certification bodies in other countries with the conduct of inspections abroad. As a result, we 
consider that Ukraine has not met its burden to establish that this alternative is available to 
Russia.  
7.475.   In any event, we note that Ukraine has not claimed  that any of the rules governing 
Russia's conformity assessment procedures that could prevent the FBO from entrusting the 
competent authorities of Kazakhstan or Belarus to conduct on -site inspections abroad are contrary 
to Article 5.1.2.  
7.476.   Accordi ngly, we find that Ukraine has failed to establish that entrusting the competent 
authorities of Belarus and Kazakhstan with the conduct of inspections in Ukraine  is a less strict 
manner of applying Russia's conformity assessment pr ocedure that is reasonably available  to 
Russia . 
Accrediting non -Russian e xperts or organizations to conduct inspections in Ukraine  
7.477.   The third alternative identified by Ukraine is for the FBO to accredit non -Russian experts or 
organizations to conduct inspec tions in Ukraine.  
7.478.   Ukraine submits that Russia could have accredited non -Russian experts or organizations to 
conduct inspections in Ukraine. According to Ukraine, the rules governing the suspension of 
certificates provide that the certifying body or relevan t ministry may accredit an organization as an 
expert. Ukraine submits that those rules do not preclude the accreditation of non -Russian experts, 
because they do not prescribe the nationality of the experts who can be used.382  
7.479.   Russia considers that this alte rnative is not reasonably available to it because Russia does 
not have jurisdiction over nationals from other countries. Moreover, Russia asserts that the FBO 
was the only organization entitled to conduct inspection control.383 
7.480.   The Panel understands that Ukr aine refers to the possibility of appointing experts, provided 
for in Article 10 of CS FRT 01 -96384, as a basis for its view that the FBO could accredit non -Russian 
experts to conduct inspections in Ukraine. However, it is not clear that that this provision provides 
for the possibility of accrediting non -Russian experts to conduct on -site inspections.  We note that 
Article 10 provides for a procedure for accreditation with Russia's certification system. Article 10 
does not specify the nationality that accredit ed experts must have, but Ukraine has not provided 
any evidence to indicate that non -Russian experts have been accredited. Article s 10.3 and 10.7 
indicate that experts must file an application for accreditation and that accreditation certificates 
and licen ces are granted by Russia's Ministry of Railways. In other words, the system in place is 
one where experts seek accreditation. It is not contemplated that the Ministry approaches experts 
and issues them accreditation certificates and licences. We note that under Article 10.4 accredited 
                                                
380 Russia's respo nse to Panel question No. 43; second written submission, para. 118; opening 
statement at the second meeting of the Panel, para. 44; and response to Panel question No. 116.  
381 The following provisions suggest that only FBO employees are entitled to carry out  on-site 
inspections: Articles 9.6, 13.4 and 13.6 of CS FRT 01 -96, (Exhibit UKR -2); Articles 4.1 and 4.3 of CS FRT 12 -
2003, (Exhibit UKR -3); Articles 4.3 and 6.5 of CS FRT 31/PMG 40 -2003, (Exhibit UKR -80); and Articles 5.3 and 
7.1 of PC-FZT 08 -2013, (Exhib it RUS -23). See also Russia's response to Panel question No. 43.  
382 Ukraine's, second written submission, para. 252.  
383 Russia's response to Panel question No. 43; opening statement at the second meeting of the Panel, 
para. 44; and response to Panel question  No. 116.  
384 CS FRT 01 -96, (Exhibit UKR -2). WT/DS499/ R 
 
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  experts are included in the State Register of the Certification System. There is no evidence on the 
record to indicate that at the time that the 14 instructions suspending certificates were issued, 
there were non -Russian expe rts qualified to conduct inspection control in Ukraine  with valid 
Russian accreditation certificates. We further observe that there is also no evidence of prior 
instances of the FBO using accredited experts to conduct inspections abroad. As a result, we 
consider that Ukraine has not met its burden to establish that this alternative was available to 
Russia when the 14 instructions were issued.  
7.481.   In any event, Ukraine has not claimed  that the accreditation procedure that is set out in 
CS FRT 01 -96 is WTO -incon sistent.  
7.482.   Accordi ngly, we find that Ukraine has failed to establish that accrediting non -Russian 
experts or organizations is a less strict manner of applying Russia's conformity assessment 
procedure that is reasonably available  to Russia . 
Conducting off -site inspections  
7.483.   The fourth alternative identified by Ukraine is for the FBO to conduct off -site inspections 
rather than to conduct on -site inspections in Ukraine.  
7.484.   Ukraine submits that Russia could have made use of off -site inspections instead of 
suspending the certificates due to the impossibility to conduct on-site inspection control. Ukraine 
submits that this alternative is less trade restrictive than suspending certificates. Ukraine asserts 
that this measure was reasonably available to Russian authorities  because off -site inspections are 
explicitly provided for in Article 5.3 of CS FRT 12 -2003.385 Ukraine argues that this measure would 
make an equivalent contribution to giving Russia adequate confidence of conformity as it would 
allow the FBO to carry out th e relevant conformity assessment procedures.386  
7.485.   Russia rejects Ukraine's alternative. It argues that the possibility of off -site inspections was 
provided for in Article 5.3 of CS FRT 12 -2003 and was available only if certain specified conditions 
were met. R ussia also submits that off -site inspection was available in exceptional situations and 
was not applied for high -danger goods. Russia refers to derailments of trains containing rolling 
stock produced in Ukraine. Russia considers that due to such derailment s, off-site inspections were 
not available to Russia. Moreover, Russia underscores that Ukraine has not shown how off -site 
inspections would provide an equivalent assurance of conformity with Russia's technical 
regulations.387 
7.486.   Ukraine responds that Russia co nfirms that Article 5.3 of CS FRT 12 -2003 provides for the 
possibility to conduct off -site inspections. Ukraine submits that although Russia refers to a number 
of conditions for the use of off -site inspections, Russia fails to identify the relevant documen ts in 
which those conditions are laid down. Moreover, Ukraine considers that the accidents involving 
certain Ukrainian rolling stock would not justify stopping all inspections of Ukrainian railway 
products.388 
7.487.   Russia argues that the FBO considered off -site i nspection as an option regarding the 
14 instructions challenged by Ukraine. Russia submits that off -site inspection could only be 
conducted if the conditions set out in Article 7.4.1 of PC -FZT 08 -2013389 were satisfied. According 
to Russia, these conditions include absence of prior non -conformities and absence of consumer 
complaints. Russia considers that this manner of applying its conformity assessment procedure 
corresponds to the risks that non -conformity would create.390  
7.488.   According to Ukraine, the certifica tes issued to the five producers affected by the 
14 instructions required yearly inspection s of production. Ukraine notes that the FBO suspended 
                                                
385 CS FRT 12-2003, (Exhibit UKR -3). 
386 Ukraine's first written submission, para. 275; and response to Panel question No. 66.  
387 Russia's first written submission, paras. 96 -98; and opening statement at the first meeting of the 
Panel, paras. 27 -30. 
388 Ukraine's opening statement at the first meeting of the Panel, para. 67.  
389 PC-FZT 08 -2013, (Exhibit RUS -23). 
390 Russia's response to Panel question Nos. 22 and 41; and second written submission, para. 117.  WT/DS499/ R 
 
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  those certificates due to the lack of on-site inspection control without considering and offering the 
five prod ucers the option of off -site inspection. Moreover, Ukraine notes that only in its responses 
to questions after the first Panel meeting did Russia provide a reference to Article  7.4.1 of PC -FZT 
08-2013 as the legal instrument setting out the conditions gove rning the availability of off -site 
inspections. Ukraine considers that Russia fails to provide evidence that the FBO examined the 
conditions laid down in Article 7.4.1 as regards the certificates suspended through the 
14 instructions challenged by Ukraine before deciding that off -site inspections were not available. 
According to Ukraine, the exercise of such discretion may also show that a conformity assessment 
procedure is applied too strictly.391  
7.489.   In response to Russia's argument that this alternative would  not provide an equivalent 
assurance of conformity, Ukraine argues that Russia maintained the validity of certificates of 
producers in eastern Ukraine without conducting on -site inspections. Ukraine submits that it 
follows that off -site inspections could p rovide Russia the same degree of confidence of conformity 
in respect of producers located in other parts of  Ukraine.392 
7.490.   Russia argues that off -site inspections do not provide the same level of assurance of 
conformity for the suspended certificates in questio n. According to Russia, for each of the 
producers whose certificates were suspended either a non -conformity had been identified in the 
previous inspection control or there were consumer complaints about  the quality of production of 
the certified products. Russia submits that in those circumstances the FBO had to conduct on -site 
inspections in respect of the suspended certificates.  Russia argues that off -site inspections could 
only be used as a less trade -restrictive option if the conditions  set out in Artic le 7.4.1 were  met. 
Russia submits that those conditions apply also in  circumstances where inspectors cannot  travel to 
conduct  an on -site inspection , such as those present in this dispute.  With regard to the certificates 
maintained by producers in eastern U kraine, Russia submits that no on -site inspections were 
conducted because such producers met the conditions for off -site inspections.393 
7.491.   Regarding the meaning of Article 7.4.1 of PC -FZT 08 -2013, Russia considers that if non -
conformities were identified in the previous inspection control of a railway product, such non -
conformity would prevent the FBO from conducting the next inspection contr ol through off -site 
inspection. Russia considers that non -conformities prevent conducting inspection control for any 
railway product produced by the affected producer, not just the railway product in respect of which 
a non -conformity was found. In addition , Russia submits that consumer complaints regarding the 
quality of a specific railway product would prevent the FBO from conducting off -site inspections for 
that product. Russia bases this interpretation of Article 7.4.1 on the fact that  only the condition  
concerning consumer complaints makes reference to "certified products ".394 
7.492.   Ukraine disagrees with Russia's interpretation of Article 7.4.1  of PC -FZT 08 -2013. Ukraine 
submits that Article 7.4.1 only rules out off -site inspection when there has been a non -conformity, 
or consumer complaints, in respect of the certified products. In Ukraine's view, non -conformities 
and consumer complaints can thus only prevent off -site inspection for specific products and not for 
all products produced by a producer. Ukraine furt her argues that the evidence submitted by Russia 
regarding non -conformities refers to only 15 of the products covered by the suspended certificates, 
while the evidence on consumer complaints concerns only one such product . Ukraine therefore 
rejects Russia' s argument that it could not conduct off -site inspections due to non -conformities or 
consumer complaints.395 
7.493.   Russia responds that the evidence that it has provided of non -conformities covers all 
Ukrainian producers at issue and therefore all 73 suspended cer tificates. Moreover, Russia submits 
                                                
391 Ukraine's second written submission, paras. 215 -219 and 221 -227; and opening statement at the 
second meeting of the Panel, para. 63.  
392 Ukraine's second written  submission, paras. 228 -231; and opening statement at the second meeting 
of the Panel, para. 62.  
393 Russia's opening statement at the second meeting of the Panel, para. 43; and responses to Panel 
question Nos. 138, 139, 156, and 165.  
394 Russia's second writt en submission, paras. 117 -121; and opening statement at the second meeting 
of the Panel, para. 43.  
395 Ukraine's response to Panel question No. 145; and comments on Russia's response to Panel question 
No. 139.  WT/DS499/ R 
 
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  that it has also provided evidence of consumer complaints regarding some of the relevant 
products.396 
7.494.   The Panel notes that PC -FZT 08 -2013 is an organization standard developed, approved and 
enacted by the FBO on the "proce dure of organization and implementation of inspection control of 
certified products". It is unclear from the exhibit submitted to the Panel whether PC -FZT 08 -2013 
was officially published. The document is not marked as "confidential"  and indicates that the  
standard may not be reproduced, copied or distributed as an official publication without the FBO's 
permission .397 This suggests that access and even publication by third parties is possible and that 
the standard is not a confidential internal document. More over, Ukraine has not asserted that 
access to the content of the document was not possible either directly or upon request. Indeed, 
Ukraine submitted a letter  from the FBO dated 1 August 2014 in which the FBO did not explicitly 
refer to Article 7.4.1 of PC -FZT 08 -2013, but nevertheless  indicated to a Ukrainian producer whose 
certificates had been suspended  what the  relevant  conditions for off -site inspection  were.398  
7.495.   According to Article 5.6 of PC -FZT 08 -2013, verification of continued conformity is 
ordinarily required to be examined at least annually. This can happen through scheduled or 
unscheduled inspections. The 14 instructions at issue concern scheduled inspections.  
7.496.   As noted above, it is common ground between the parties that the possibility of conducting 
inspection control remotely (off -site) is provided for in Article 5.3(b) of CS FRT 12 -2003. The main 
point of contention between  the parties is whether, under Article  7.4.1 of PC -FZT 08 -2013, which 
stipulates conditions for the conduct of off -site inspection that are not contained in Article 5.3(b),  
the FBO is precluded from conducting off -site inspections for the railway products affected by the 
14 suspensions. To address this matter, we first examine the conditions set out in Article 7.4.1 and 
then examine the evidence to determine whether the FBO had a basis to refrain from conducting 
off-site inspections in respect of the certificates suspended. This examination will allow us to 
establish whether this alternative manner of applying the conform ity assessment procedure was 
available to Russia in respect of each of the certificates  suspended.  
Availability of off -site inspections in general  
7.497.   The parties differ on the meaning of one of the conditions for off -site inspections, set out in 
Article 7.4.1  of PC -FZT 08 -2013. We recall in this respect that according to the Appellate Body's 
guidance, the meaning of a provision of domestic law is to be determined by reference to "the text 
of the relevant legislation or legal instruments, which may be supported , as appropriate, by 
evidence of the consistent application of such laws, the pronouncements of domestic courts on the 
meaning of such laws, the opinions of legal experts and the writings of recognized scholars".399  
7.498.   We note that although both parties provid ed arguments in relation to their interpretation of 
Article  7.4.1, neither Ukraine nor Russia provided evidence of the FBO's application of Article 
7.4.1, pronouncements of Russian  courts on the meaning of Article 7.4.1 , or opinions of legal 
experts or writings of recognized scholars  on the meaning of the conditions set out in Article 7.4.1. 
We do, however, have the text of Article 7.4.1  and PC -FZT 08 -2013. Accordingly, we examine 
Article 7.4.1 and PC -FZT 08 -2013 on the basis of the translation provided in the English language 
by Russia, which was not contested by Ukraine.  
7.499.   Article 7.4.1 provides as follows:  
The prerequisites for conducting an off -site [inspection control]  are the following:  
[1] Absence of instances of non -conformity in a production status a nalysis during 
product certification;  
[2] Absence of facts of non -conformity during the previous [inspection control] ; 
                                                
396 Russia's comments on Ukraine's response to Pan el question No. 145.  
397 PC-FZT 08 -2013, (Exhibit RUS -23) p. 3.  
398 Letter [[ xxx]] from the FBO to PJSC [[xxx]],  1 August 2014 , (Exhibit UKR -28)(BCI).  
399 Appellate Body Report, US – Carbon Steel,  para. 157. See also Appellate Body Report, US – 
Countervailing an d Anti -Dumping Measures (China) , paras. 4.100 -4.101.  WT/DS499/ R 
 
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  [3] Absence of consumers' complaints as to the quality of certified products;  
[4] An [inspection control]  of certified products is condu cted again .  
In case of an off -site inspection, the scope (number of facilities to be inspected and 
their potential hazard level) and travel costs are taken into account. Two successive 
off-site [inspe ction controls] are not allowed .400 
7.500.   The text of Article 7.4.1 makes clear that there are conditions for  the conduct of an off -site 
inspection control. Like the parties, we consider that all of the listed conditions must be met  for 
conducting an off -site inspection control. Thus, if all condi tions for holding an off -site inspection 
under Article 7.4.1 are not met, an off -site inspection would not be legally available under PC -FZT 
08-2013. T his indicates that an off -site inspection in a situation where all the condition s are not 
met would not p rovide the minimum level of confidence sought by Russia, and would therefore not 
constitute a reasonably available alternative manner of applying Russia's conformity assessment 
procedures.  
7.501.   We note that the parties have only referred to the second and thir d conditions as being 
relevant to this dispute. Moreover, the parties  only have different interpretations with regard to  
the second condition, specifically the phrase "[a]bsence of facts of non -conformity during the 
previous [inspection control]".  
7.502.   The phr ase "absence of facts of non -conformity" appears to refer to  a lack of evidence of 
non-conformity  with applicable rules with which conformity is required . The word "previous"  in the 
phrase "previous [inspection control]" is defined in the dictionary as "[c ]oming or going before in 
time or order; foregoing, preceding, antecedent".401 On this basis, t he phrase " during the 
previous " inspection control  appears to mean th e preceding or last occurring inspection control . 
Before elaborating further on this condition, we consider it appropriate to examine other provisions 
of PC -FZT 08 -2013. Such provisions may provide useful context for our assessment of the 
meaning of Article  7.4.1.  
7.503.   Article 5.1 of PC -FZT 08 -2013 sets out t he aims and objectives of inspection control  as 
follows :  
Verification of conformity with the rules and procedures used in SSFZHT (SSZ HT); 
Analysis of the status of manufacture of certified products;  
Verification of conformity of certified products with th e requirements confirmed during 
certification . 
7.504.   Article 5.2 of PC -FZT 08 -2013 sets out the following objectives of inspection control  as 
follows : 
а) to trace non -conformity of the products certified in SSFZHT (SSZHT) with the 
mandatory requirements of the n ormative documents of the SSFZHT (SSZHT) and 
agreement provisions;  
б) to verify observance of the rules and procedures established in SSFZHT (SSZHT);  
в) to provide accurate information on the cases of non -conformity of the products 
certified in SSFZHT (SSZ HT) with the mandatory requirements of the normative 
documents of the SSFZHT (SSZHT), to the federal executive body responsible for 
railway transport (FOIV ZhT) and other interested eligible bodies and organizations.  
                                                
400 PC-FZT 08 -2013,  (Exhibit RUS -23). 
401 The Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), 
Vol. 2, p. 2341.  WT/DS499/ R 
 
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  7.505.   With this context in mind, we return to  the second condition in Article 7.4.1. Ukraine 
argues that only if a non -conformity has been identified in respect of the same certified railway 
product as that for which an inspection control needs to be conducted, is off -site inspection 
excluded for tha t product. Ukraine argues that Article 7.4.1 makes clear that off -site inspection 
controls are available except when a non -conformity or a consumer complaint as regards a 
particular product precludes off -site inspect ion control regarding only that product  for which a non -
conformity has been identified. In  Ukraine's view, in  such a situation it would not preclude off -site 
inspection for all products produced by a producer.402 
7.506.   Russia submits that Article 7.4.1 refers inter alia  to two requirements: (a) the abse nce of 
facts of non -conformity during the previous inspection control; and (b) the absence of consumer 
complaints as to the quality of certified products. Russia notes that only the second requirement 
refers to the "certified products". According to Russia , the first requirement refers to any non -
conformity. Therefore,  in Russia's view , all non -conformities, including non -conformities with 
respect to the evidentiary  documentation , preclude the availability of off -site inspection for the 
producer concerned.403  
7.507.   Before  examining the text of the second condition , we note that  the situation confronting 
the FBO in the case of the 14 instructions challenged by Ukraine was one where the upcoming 
inspection control covered several railway products simultaneously. The issue that arises, 
therefore, is how the second condition of Article 7.4.1 applies in this situation.  
7.508.   We note that the text of the second condition provides little detail in respect of the issue 
presented, as it refers, simply, to the absence  of facts of non-conformity during the previous 
inspection control . Unlike the third condition, the text of the second condition does not refer to 
"certified products". In our view, the text of the second condition could, in principle, be read in 
four different ways. We examine them in turn.  
7.509.   The first possibility is to read the second condition as covering non -conformities identified 
in the immediately prior inspection control concerning any railway product of the producer, 
including railway products not covered by the  upcoming inspection control. Under this reading, the 
FBO would not conduct an off -site inspection in the upcoming inspection control if there was a 
non-conformity in the most recent inspection control for any railway product of that producer, 
regardless o f which railway product is subject to the upcoming inspection control. Conversely, if in 
the most recent inspection control concerning one or more railway products of the relevant 
producer (other than those covered by the upcoming inspection) no non -confor mity had been 
identified, the first condition for an off -site inspection  to take place (absence of non -conformities)  
would be satisfied  for all railway products of that producer covered by the upcoming inspection.  In 
this latter scenario , an off -site inspe ction could be allowed for the upcoming inspection of  a railway  
product even if a non -conformity  had been identified  in its most recent inspection control.404 We do 
not see  how the conduct of an off -site inspection in such circumstances could be reconciled w ith 
Russia's  position that  the conduct of an off-site inspection concerning a particular railway product 
would not provide adequate confidence of conformity if a non-conformit y had been identified in 
respect of that railway product in the previous inspection control .405  
7.510.   The second possibility is to read the second condition as applying to a n on-conformit y 
identified in the most recent  inspection control for  any of the  railway  products covered by the 
upcoming inspection control (which may not be the most recent inspection control of the relevant 
producer). Thus, if a non -conformity had been identified in the most recent inspection control for 
any of the products covered by the upcoming inspection control, off -site inspection would be 
                                                
402 Ukraine's response to Panel question No. 145.  
403 Russia's comments on Ukraine's response to Panel question No. 145.  
404 Thus, under this approach,  in the case of a producer of, inter alia , oil-tank railcars and railroad 
switches,  the FBO would conduct an off -site inspection control for oil-tank railcars on the basis that no non -
conformity had been identified in that producer's most recent inspection control (which concerned railroad 
switches), despite the fact that a non -conformity had been identified in the last inspection control  that cover ed 
oil-tank r ailcars produced by that producer.  
405 Russia's response to Panel question No. 116. See also Russia's second written submission, para. 117. 
We note that just because a producer has successfully passed the most recent inspection control for some 
railway products does not necessarily mean that the producer has  eliminated a non -conformity identified in 
respect of another railway product in a prior inspection control covering that product.  WT/DS499/ R 
 
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  excluded for all covered products, including those in respect of which no non -conformity had been 
identified in the most recent  inspection. This possibility would present the problem that by treating 
the products as a group, some ra ilway products covered by the upcoming inspection control could 
be denied an off -site inspection even if no non -conformity had been identified in the most recent 
inspection control for those products. This would raise concerns under Article 5.1.2, which re quires 
that Russia not apply its conformity assessment procedure more strictly than necessary to give 
Russia adequate confidence that the products conform to the underlying technical regulations.  
7.511.   The third possibility is to read the second condition as exc luding an off -site inspection for a 
railway  product covered by an upcoming inspection control only if a non -conformity had been 
identified in the most recent inspection control concerning that same product . In other words, 
where the upcoming inspection cov ers several products, the FBO would not refrain from 
conducting off -site inspections for products in respect of which non -conformities were not 
identified in the most recent inspection control covering these products. This product -by-product 
analysis would  not raise the concerns under Article 5 .1.2 that we identified in connection with the 
second possibility, as only products in respect of which a non -conformity had been identified in the 
preceding inspection control would be denied access to off -site inspe ction. This reading would also 
avoid the issue presented under the first possibility, as under the third possible reading a product 
in respect of which  a non -conformity had been identified in its previous inspection control would 
not have access to off -site inspection.  
7.512.   The fourth possibility is to read the second condition as applying also to non -conformities 
relating to the production process rather than to the specific products produced. The three 
preceding possibilities all focus on non -conformities iden tified in respect of the certified products. 
As the text of the second condition of Article 7.4.1 does not define or specify the non -conformity at 
issue, it appears that production non -conformities identified in the previous inspection control 
could also p rovide a basis on which to exclude off -site inspections. Thus, if a railway product was 
produced through a production line in respect of which non -conformities were found in the 
previous inspection control, the text of the second condition would appear to allow the FBO to 
deny an off -site inspection for that particular product. However, if an off -site inspection were 
denied for a product on the basis that there had been a non -conformity with a production line used 
for the production of different products, this would raise concerns under Article 5.1.2, as Russia 
must not apply its conformity assessment procedure more strictly than necessary to give it 
adequate confidence that the products conform to the underlying technical regulations.  
7.513.    On the basis of the foregoing, we consider that the first and second possibilities of giving 
meaning to the second condition of Article 7.4.1 raise concerns that militate against accepting 
these possibilities. The third possibility does not present such concerns. The fourth p ossibility 
raises concerns in its broad version, under which any production non -conformity would be 
sufficient to exclude off -site inspection. These same concerns do not arise under a narrower 
version of the fourth possibility, which would lead to the excl usion of off -site inspection only if a 
production non -conformity concerns the production process for the product covered by an 
upcoming inspection control. In the light of this, we consider that only the third possibility and the 
narrow version of the four th possibility can be accepted, since the two are not mutually exclusive. 
In sum, we understand the second condition in Article 7.4.1 to mean that an off -site inspection is 
excluded only for products in respect of which a non -conformity concerning these pr oducts or their 
related production processes had been identified in the most recent inspection control covering 
these products.  
7.514.   Before proceeding, we address the third condition (consumer complaints) in Article  7.4.1. 
It indicates that an off -site inspecti on is excluded for railway products covered by an upcoming 
inspection control if there have been consumer complaints concerning the quality of these certified 
products. The third condition does not specifically address whether any past consumer complaint i s 
sufficient to rule out the possibility of an off -site inspection or whether only recent consumer 
complaints would have that effect. It appears to us that if a consumer complaint concerning a 
railway product predates the latest inspection control covering  the same railway product, the issue 
would arise whether the producer ha d already taken appropriate corrective action and whether 
that was examined and confirmed during the latest inspection control, as would be expected. If 
that were the case, it would ap pear that the consumer complaint would no longer provide a valid 
basis on which to deny an off -site inspection. Thus, it seems to us that the timing of consumer 
complaints could well be of relevance in examining whether the complaint warrants excluding an 
off-site inspection.  WT/DS499/ R 
 
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  Availability of off -site inspection for the railway products  covered by the 
suspended certificates  
7.515.   We now examine whether Ukraine has established, in respect of each of the suspended 
certificates of the five producers, that off -site in spection was reasonably available to the FBO. 
As discussed in the previous section, off -site inspection is available under the CS FRT Rules only if 
there is evidence of absence of non -conformities regarding the certified product or its production 
process a nd there has not been any consumer complaint regarding the certified product. We will 
examine the evidence in respect of those two aspects bearing in mind Ukraine's burden of proof.  
7.516.   We recall that Ukraine advanced arguments in relation to the availability  of off -site 
inspections, first under Article 5.3 of CS FRT 12 -2003, and later, once Russia had referred to 
Article 7.4.1  of PC -FZT 08 -2013, under Article 7.4.1. Russia, for its part, has argued that off -site 
inspections under Article 7.4.1 were not availa ble, and Russia in addition has provided evidence 
which it asserts shows that the second and third conditions of Article 7.4.1 were not fulfilled.406  
7.517.   The evidence provided by Russia to rebut Ukraine's assertions as to the availability of off -
site inspection s was put forward at the second substantive meeting of the Panel. We recall in this 
respect that the Appellate Body and previous panels have indicated that either party can use 
evidence submitted by the other party in support of their claims and defences.407 Therefore, once 
Russia had submitted its evidence, Ukraine was entitled to use that evidence.  
7.518.   Russia submitted evidence of non -conformities or consumer complaints for some of the 
73 certificates suspended through the 14 instructions. In addition, Ukraine  submitted evidence of 
previous inspection controls in relation to some of the remaining suspended certificates, but not all 
of them. In our view, evidence of previous inspection controls could have indicated whether 
individual certified products subject t o annual inspection control had received positive results in 
the immediately preceding inspection control. If so, under our reading of Article 7.4.1, this would 
have demonstrated that off -site inspections for these products were available to the FBO (unles s 
there were consumer complaints concerning the relevant certified railway products).  
7.519.   In the circumstances of this dispute, we consider that it was for Ukraine to submit 
evidence of absence of non -conformities and consumer complaints concerning the railwa y products 
covered by the suspended certificates. Article 7.4.1 and its conditions are contained in a legal 
instrument that, as explained above,  we understand was available, whether publicly or upon 
request. The mere fact that Article 7.4.1 was first broug ht up by Russia does not relieve Ukraine of 
its burden of establishing the reasonable availability of off -site inspections for the railway products 
covered by the challenged instructions. We understand  in this respect  that the producers receive 
an "inspect ion act", once the FBO has completed the inspection control, that indicates the results 
of the inspection.408 Also, from the evidence on record it appears to us that the FBO would provide 
copies , or information about,  of consumer complaints to the affected p roducers, either promptly 
after receiving them or in the context of any unscheduled inspection control that the FBO would 
conduct in respect of an affected producer after receiving a consumer complaint.409 Alternatively, 
                                                
406 Evidence provided by Ukraine includes: Inspection act of certified  products of PJSC [[ xxx]], 
23 January 2014, (Exhibit UKR -151)(BCI) and Inspection act of certified products of PJSC [[ xxx]], 
24 January  2014, (Exhibit UKR -152)(BCI ). 
Evidence provided by Russia includes: Documents of the FBO  providing for the inconsistenc ies of the 
certified products of PJSC [[xxx]], (Exhibit RUS -62)(BCI); D ocuments of the FBO providing for the 
inconsistencies of the certified products of PJSC [[xxx]], (Exhibit RUS -63)(BCI); D ocuments of the FBO 
providing for the inconsistencies of the cer tified products of PJSC [[xxx]], (Exhibit RUS -64)(BCI); D ocuments of 
the FBO providing for inconsistencies of the certified products of PJSC [[xxx]], (Exhibit RUS -65)(BCI); 
Documents of the FBO providing for the inconsistencies of the certified products of PJSC [[xxx]], (Exhibit RUS -
66)(BCI); Letter from company  [[xxx]]  to the FBO of 23 May 2016,  (Exhibit RUS -67)(BCI); Letter from 
company  [[xxx]]  to the Deputy Minister of the Ministry of Transport of 13  June 2013, (Exhibit RUS -68)(BCI); 
Letter from company  [[xxx]]  to the FBO of 3 December 2015, (Exhibit RUS -69)(BCI); and Letter from 
company  [[xxx]]  to the FBO of 17  February 2013, (Exhibit RUS -70)(BCI) . 
407 Appellate Body Report, Korea – Dairy , paras. 135 -150; and Panel Report, US – Animals, para. 7.446.  
408 Article 6.2 of CS FRT 12-2003, (Exhibit UKR -3).  
409 According to Article 5.8 of PC -FZT 08 -2013, (Exhibit RUS -23), an unscheduled inspection control may 
be conducted without notifying the certificate holder, inter alia , where information is received about a  non-
conformity of the railway products with the requirements confirmed during certification. Article 5.8 states that 
such information may be received from consumers. We further note that Article 37.2 of Law No. 184 -FZ "On 
 WT/DS499/ R 
 
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  Ukraine could demonstrate that it und ertook reasonable efforts to obtain information  from Russia  
regarding any non -conformities during the previous inspection control or consumer complaints, 
with an explanation as to why the information could not be obtained . However, Ukraine has not 
done so for most of the railway products covered by the suspended certificates.  
7.520.   We proceed on this basis to examine the evidence submitted to us, to determine whether 
it has been established that off -site inspections were available to the FBO in respect of each of  the 
railway products covered by the suspended certificates. We will examine the relevant certificates 
of each Ukrainian producer that the FBO suspended through each of the instructions at issue.  
Producer 1  
7.521.   The FBO suspended certificates held by producer 1  [[xxx]] through two instructions.  
Through instruction 1  [[xxx]], the FBO suspended seven certificates. Russia submitted the 
previous inspection control  act for  the products covered by four of those certificates  [[xxx]]. In the 
same inspection control act,  FBO inspectors  addressed  the quality management system on the 
basis of which another of those certificates was issued [[xxx]]. However, it is unclear which 
specific products are affected by the "identified inconsistencies"  mentioned in the inspection 
control act .410 There is also no evidence or explanation on record regarding whether there were 
consumer complaints with respect to the products covered by those five certificates. In addition, 
there is no evidence on record regarding the remaining two certifica tes [[xxx]]. We therefore have 
no sufficient basis on which to find  that there were no relevant non -conformities or consumer 
complaints for  a particular product  covered by the certificates  at issue . In the light of this, we find 
that Ukraine has failed to demonstrate that off -site inspections were available under Article 7.4.1 
for the railway products covered by instruction 1.  
7.522.   Through instruction 2  [[xxx]], the FBO suspended seven certificates. The evidence 
provided by Russia indicates that there were non -conformities in the previous inspection control 
affecting six [[xxx]] of the seven certificates.411 In addition, there is no evidence on record 
regarding the remaining certificate [[xxx]]. On this basis, we find that Ukraine has failed to 
demonstrate that off -site inspections were available under Article 7.4.1 for the railway products 
covered by instruction 2.  
Producer 2  
7.523.   The FBO suspended 22 certificates held by producer 2 [[ xxx]] through instruction 3 
[[xxx]]. The FBO examined the 22 suspended certificates to gether in the previous inspection 
control. The inspection report indicated that the railway products covered by the 22 certificates 
were in conformity.412 However, in the same report inspectors identified inconsistencies that 
                                                                                                                                                  
Technical Regulation" , (Exhibit U KR-1) provides that a person other than the producer becoming aware of a 
non-conformity of the products released into circulation with the requirements of technical regulations may 
send its information about non -conformity of the products to the body of St ate control (supervision). In such 
cases, the body of State control is to notify the producer of the receipt of the information within five days. See 
also Article 34.2 of Law  No. 184 -FZ. Article 36 of the same Law, in its first three paragraphs, further st ipulates 
that producers are liable for any failure to comply with technical regulations, and are to compensate for 
damages caused and to take measures to prevent any damages to other persons, their property or the 
environment. Finally, we note that accordi ng to Article 7.12 of the same Law, the relevant Russian authority 
must keep a record of "all cases of causing damages as a result of a violation of requirements of technical 
regulations to life or health of citizens, property of individuals or legal entit ies, state or municipal property, 
environment, life or health of animals and plants, taking into account the severity of such damages, and shall 
organize  informing of purchasers, including consumers, manufacturers and sellers of the situation in the field of 
conformity with requirements of technical regulations ". 
410 The text of the inspection act  dated 18 April 2013 reproduced in Exhibit RUS -62(BCI) is incomplete. 
Therefore, it is not possible to ascertain to which products the "identified inconsistencies" mentioned in 
paragraph 7.3 of the inspection act refer. Moreover, the report  that is dated 1 5 May 2013 and reproduced in 
Exhibit RUS -62(BCI), likewise does not provide clarity about which products are affected by those 
inconsistencies.  
411 Through Instruction [[xxx]] of 2 October 2013, reproduced in Exhibit RUS -62(BCI), the FBO 
suspended those six  certificates, due to non -conformities identified in the inspection act of 27 September 2013 
(which relates to the most recent inspection control before the one scheduled for September 2014).  
412 According to the FBO's report on the results of inspection co ntrol of 14 March 2014, reproduced in 
Exhibit RUS -63(BCI),  the products covered by the 22 certificates "remain meeting the requirements" (p. 4) of 
 WT/DS499/ R 
 
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  apparently concern the productio n process.413 The inspection report does not provide a clear and 
direct link between the identified inconsistencies in the production process and the inspected 
products.414 It could be the case that the products covered by the 22 certificates were produced 
through the same production process with respect to which inspectors found inconsistencies. 
However, the evidence does not show if this is the case or if the products concerned were 
produced through different production processes or in different production si tes. Thus, the 
evidence on record is inconclusive as to whether the inconsistencies relative to the production 
process affect ed the products covered by the 22 certificates. Moreover, there is no evidence or 
explanation on record regarding whether there wer e consumer complaints with respect to the 
products covered by these certificates. On this basis, we find that Ukraine has failed to 
demonstrate that off -site inspections were available under Article 7.4.1 for the railway products 
covered by instruction 3.  
Producer 3  
7.524.   The FBO suspended certificates held by producer 3 [[ xxx]] through two instructions.  
Through instruction 4 [[xxx]], the FBO suspended three certificates. Russia submitted evidence 
concerning one of those certificates [[xxx]]. This evidence demons trates that although there were 
non-conformities in an earlier inspection control (in November 2012), there were no non -
conformities in the most recent inspection control (in June 2013).415 However, Russia also 
submitted evidence of a consumer complaint with  respect to the railway product (sole -bars) 
covered by that certificate. This consumer complaint was submitted on 13 June 2013, just five 
days before the most recent inspection control began.416 It is not clear to us, and neither party has 
suggested, that th e consumer complaint was addressed and disposed of in the most recent 
inspection control. We therefore  consider  that in view of this consumer complaint , off-site 
inspection was not available for the product covered by this certificate ( [[xxx]] regarding sole -
bars). There is no evidence on record regarding the remaining two certificates [[xxx]]. On the 
basis of the foregoing, we find that Ukraine has failed to demonstrate that off -site inspections were 
available under Article 7.4.1 for the railw ay products covered by instruction 4.  
7.525.   Through instruction 5 [[ xxx]], the FBO suspended two certificates. There is no evidence on 
record regarding either of these certificates. We therefore find that Ukraine has failed to 
demonstrate that off -site inspecti ons were available under Article 7.4.1 for the railway products 
covered by instruction 5.  
Producer 4  
7.526.   The FBO suspended certificates held by producer 4 [[ xxx]] through two instructions.  
Through instruction 6 [[xxx]], the FBO suspended one certificate. There  is no evidence on record 
regarding this certificate. We thus find that Ukraine has failed to demonstrate that off -site 
inspection was available under Article 7.4.1 for the railway products covered by instruction 6.  
                                                                                                                                                  
the technical regulations for which those products received a certificate. Point 3 of the FBO's report refers  to 
non-conformities specified in part 4 of the inspection act of 24 January 2014.  
413 Part 4 of the inspection act of 24 January 2014, reproduced in Exhibit UKR -152(BCI), refers to non -
conformities which appear to relate to the production process.  
414 Documents of the FBO providing for the inconsistencies of the certified products of PJSC [[xxx]],  
(Exhibit RUS -63)(BCI); and Inspect ion act of certified products of  PJSC [[xxx]], 24 January 2014, 
(Exhibit  UKR-152)(BCI).  
415 The initial non -conformities were i dentified in the inspection act of 21 November 2012, referred to in 
Instruction [[xxx]] of 27 November 2012, reproduced in Exhibit RUS -65(BCI), through which the FBO 
suspended that certificate due to the identified non -conformities. In the FBO's report on inspection of certified 
products of 31 July 2013, reproduced in Exhibit RUS -65(BCI), it is indicated that that certificates remained in 
conformity with ( "eligible" ) technical regulations confirmed during certification (p. 7).   
416 Letter from company  [[xxx]]  to the Deputy Minister of the Ministry of Transport of 13  June 2013, 
(Exhibit  RUS-68)(BCI). We note that Russia submitted another consumer complaint regarding the same 
product ( Letter from company  [[xxx]]  to the FBO of 23  May 2016, (Exhibit RUS -67)(BCI) ). That letter is dated 
23 May 2016, which is after the date of issuance of the relevant instruction (17 July 2014) and thus after the 
point in time at which the FBO had to decide whether to conduct the scheduled inspection control on -site or 
off-site. This letter suggests that at least from May 2016 , off-site inspection was not available in respect of the 
product covered by this consumer complaint (sole -bars produced by [[xxx ]]). WT/DS499/ R 
 
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  7.527.   Through instruction 7 [[xxx]], the FBO s uspended four certificates. The parties submitted 
evidence of the results of the previous inspection control of three of those certificates [[xxx]].417 
According to the inspection results submitted by the parties, there were no non -conformities with 
regard t o the railway products covered by those three certificates. But the inspection results 
indicate that there were non -conformities at the production level.418 The evidence on record is 
inconclusive, however, as to whether the inconsistencies concerning the pro duction process 
affect ed the products covered by the three certificates. Moreover, there is no evidence or 
explanation on record regarding whether there were consumer complaints with respect to the 
products covered by those three certificates. In addition,  there is no evidence on record regarding 
the remaining certificate [[xxx]]. We thus find that Ukraine has failed to demonstrate that off -site 
inspection was available under Article 7.4.1 for the railway products covered by instruction 7.  
Producer 5  
7.528.   The FBO suspended certificates held by producer 5 [[ xxx]] through seven instructions.  
Through instruction 8 [[ xxx]], the FBO suspended six certificates. Russia submitted evidence of 
the previous inspection control of five of those certificates [[xxx]].419 Accordin g to the inspection 
results, there were no non -conformities with regard to the railway products covered by those five 
certificates. However, the inspection results indicate that there were non -conformities affecting 
other products or the production process . Moreover , evidence submitted by Russia indicates that 
there were consumer complaints, which appear to concern products covered by one of the five 
certificates.420 There is no evidence or explanation on record regarding whether there were 
consumer complaints with respect to the products covered by the other four certificates.  In 
addition, there is no evidence regarding the remaining certificate [[xxx]]. We therefore  find that 
Ukraine has failed to demonstrate that off -site inspection was available under Article 7.4.1 for the 
railway products covered by instruction 8.  
7.529.   Through instruction 9 [[ xxx]], the FBO suspended seven certificates. The evidence 
provided by Russia  indicates that in the previous inspection control non -conformities  of products 
covered by the seven certificates were identified.421 We thus find that Ukraine has failed to 
demonstrate that off -site inspection was available under Article 7.4.1 for the railw ay products 
covered by instruction 9.  
7.530.   Through instruction 10 [[ xxx]], the FBO suspended two certificates. There is no evidence 
on record to support Ukraine's assertion  that the conditions for off -site inspection under Article 
7.4.1 were met in respect of the railway products covered by this instruction. We therefore  find 
that Ukraine has failed to demonstrate that off -site inspection was available under Article 7.4.1 for  
the railway products covered by instruction 10.  
7.531.   Through instruction 11 [[ xxx]], the FBO suspended seven certificates. There is no evidence 
on record to support Ukraine's assertion that the conditions for off -site inspection under Article 
7.4.1 were met in  respect of the railway products covered by this instruction. We therefore find 
that Ukraine has failed to demonstrate that off -site inspection under Article 7.4.1 was available for 
the railway products covered by instruction 11.  
                                                
417 Documents of the FBO providing for the inconsistencies of the certified products of PJSC [[xxx]],  
(Exhibit RUS -64)(BCI); and Inspect ion act of certified products of  PJSC [[ xxx]], 23 January 2014, 
(Exhibit  UKR-151)(BCI) . 
418 The inspection act of 23 January 2014, reproduced i n Exhibit UKR -151(BCI), refers to a non -
conformity consisting of the non -presentation of certain documentation. We consider that this non -conformity 
concerns the production process.  
419 Documents of the FBO providing for the inconsistencies of the certified products of PJSC [[xxx]],  
(Exhibit RUS-66)(BCI).  
420 We note that Letter from company  [[xxx]]  to the FBO of 17  February 2013, (Exhibit RUS -70)(BCI) 
refers to one of the products covered by the five certificates referred to [freight cars]. However, due to the  
general reference in instruction 8, we do not have information to determine which certificate concerns that 
specific product.  
421 Through Instruction [[xxx]] of 25 September 2013, reproduced in Exhibit RUS -66 (BCI), the FBO 
suspended those seven certificate s, due to non -conformities identified in an inspection control that took place 
in September 2013 (the most recent before the one scheduled for September 2014).  WT/DS499/ R 
 
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  7.532.   Through instruction 12 [[ xxx]], the FBO suspended three certificates. There is no evidence 
on record to support Ukraine's assertion that the conditions for off -site inspection under Article 
7.4.1 were met in respect of the railway products covered by this instruction. We thus find that 
Ukraine has failed to demonstrate that off -site inspection was available under Article 7.4.1 for the 
railway products covered by instruction 12.  
7.533.   Through instruction 13 [[ xxx]], the FBO suspended one certificate. There is no evidence on 
record to supp ort Ukraine's assertion that the conditions for off -site inspection under Article 7.4.1 
were met in respect of the railway products covered by this instruction. We therefore find that 
Ukraine has failed to demonstrate that off -site inspection was available  under Article 7.4.1 for the 
railway products covered by instruction 13.  
7.534.   Through instruction 14 [[ xxx]], the FBO suspended one certificate. There is no evidence on 
record to support Ukraine's assertion that the  conditions for off -site inspection  under Arti cle 7.4.1 
were met in respect of the railway products covered by this instruction. We thus find that Ukraine 
has failed to demonstrate that off -site inspection was available under Article 7.4.1 for the railway 
products covered by instruction 14.  
7.535.   In sum, we  have found that Ukraine has not established, in respect of any of the 
suspended certificates covered by the challenged 14 instructions , that off -site inspection was 
available under Article 7.4.1.  
7.536.   Moreover, in relation to all of the above considerations co ncerning the availability of off -
site inspection, we note that Ukraine has not claimed that the conditions set out in Article  7.4.1 
are, themselves, more strict than necessary and thus contrary to Article 5.1.2.  
7.537.   Accordingly, we find that Ukraine has failed  to establish that conducting off -site inspection 
control is a less strict manner of applying Russia's conformity assessment procedure that is 
reasonably available  to Russia . 
7.3.3.2.3.5   Overall assessment of whether Russia has applied its conformity assessment 
proced ure more strictly than necessary  
7.538.   We recall that we have determined above that Russia has applied its conformity 
assessment procedure, through each of the 14 instructions challenged by Ukraine, in a trade -
restrictive manner. We also determined, however, tha t this manner of applying the conformity 
assessment procedure contributes substantially  to giving Russia adequate confidence that the 
railway products covered by the suspended certificates conform with Russia's applicable technical 
regulations. We further determined that the risks that non -conformity would create are high. In 
the circumstanc es of this dispute, non -conformity could lead to accidents and thus endanger the 
life and health of humans, animals , and plants . Such accidents could also cause serious harm to 
the environment. Clearly, therefore, the values and interests protected are imp ortant. We also 
observed that under the applicable conformity assessment procedure the suspension of certificates 
was not the strictest manner in which the FBO could, in principle, apply the procedure (which 
would have been the withdrawal of the certificat es).  
7.539.   In weighing and balancing those elements and determinations, we note that although the 
FBO applied the underlying conformity procedure in a strict manner that had a significant trade -
restrictive effect, this manner of applying the procedure contribut ed substantially to giving Russia 
adequate confidence of conformity with the applicable technical regulations and took account of 
the high risks that non -conformity would have created for important values and interests. We also 
recall our finding that Ukra ine failed to demonstrate that there were less strict manners of applying 
Russia's conformity assessment procedure that were available to the FBO under the applicable 
conformity assessment procedure (which Ukraine did not challenge as being WTO -inconsisten t). In 
the light of this, we consider that Ukraine has failed to demonstrate that the FBO, through each of 
the 14 instructions challenged by Ukraine, has applied its conformity assessment procedure more 
strictly than is necessary to give Russia adequate co nfidence of conformity, in the light of the risks 
that non -conformity would create.  WT/DS499/ R 
 
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  7.3.3.2.3.6   Conclusion  
7.540.   On the basis of the foregoing, we find that Ukraine has failed to establish, in respect of 
each of the 14 instructions at issue, that Russia has acted inconsiste ntly with its obligations under 
Article 5.1.2, second sentence, of the TBT Agreement.  
7.3.3.2.4   Article 5.1.2, first sentence  
7.541.   We recall that Ukraine relies on both the first and the second sentences of Article  5.1.2. 
However, Ukraine has not submitted evidence or ar guments that are different from those that we 
have examined above with respect to the first sentence.  
7.542.   We recall that the first sentence of Article 5.1.2 prohibits, inter alia , that Russia applies its 
conformity procedure with a view to or with the effect of creating unnecessary obstacles to 
international trade. As we have found in our analysis under the second sentence of Article 5.1.2 
above, the FBO has applied the applicable conformity assessment  procedure in a manner that had 
the effect of creating an o bstacle to international trade, inasmuch as it restricted imports of the 
railway products from Ukraine that are covered by the 14 challenged FBO instructions. However, 
as our analysis above of the relevant arguments and evidence also indicates, the obstacl es to 
international trade created by each of the 14 instructions were not "unnecessary" within the 
meaning of Article 5.1.2, first sentence.   
7.543.   On the basis of the foregoing , we find that Ukraine has failed to establish, in respect of 
each of the 14 instruc tions at issue, that Russia has acted inconsistently with its obligations under 
Article 5.1.2, first sentence, of the TBT Agreement.  
7.3.3.2.5   Overall c onclusion  
7.544.   The Panel  conclude s that Ukraine has failed to establish, in respect of each of the 
14 instructions at i ssue, that Russia has acted inconsistently with its obligations under Article 5.1.2 
of the TBT Agreement.  
7.3.4   Consistency of the suspensions with Article 5.2.2  of the TBT Agreement  
7.545.   The Panel now turns to examine Ukraine's claims of violation under Article 5.2. 2 of the 
TBT Agreement. Ukraine's claims of inconsistency with Article 5.2.2 in respect of the 14 FBO 
instructions are based on the third obligation in Article 5.2.2. The texts of Articles 5.2 and 5.2.2 
provide in relevant part as follows:  
5.2 When impleme nting the provisions of paragraph 1, Members shall ensure that:  
… 
5.2.2 the standard processing period of each conformity assessment procedure is 
published or that the anticipated processing period is communicated to the applicant 
upon request; when receiv ing an application, the competent body promptly examines 
the completeness of the documentation and informs the applicant in a precise and 
complete manner of all deficiencies; the competent body transmits as soon as possible 
the results of the assessment in  a precise and complete manner to the applicant so 
that corrective action may be taken if necessary ; even when the application has 
deficiencies, the competent body proceeds as far as practicable with the conformity 
assessment if the applicant so requests; and that, upon request, the applicant is 
informed of the stage of the procedure, with any delay being explained[.] (emphasis 
added).  
7.546.   Ukraine claims that in respect of the 14 instructions through which the FBO suspended 
valid certificates of conformity held  by Ukrainian producers of railway products , Russia acted 
inconsistently with  the third obligation in  Article 5.2.2 by failing to transmit as soon as possible the WT/DS499/ R 
 
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  results of the conformity assessment in a precise and complete manner that would have allowed  
the applicants to take corrective actions, if necessary.422  
7.547.   Russia argues that it did not act inconsistently with this obligation contained in 
Article  5.2.2 in respect of any of the 14 instructions, because it provided very precise information 
and because all producers asking for certification were fully aware of the relevant situation.423 
Interpretation of the second and third obligations in Article 5.2.2  7.3.4.1   
7.548.   The Panel begins its assessment of Ukraine's claims by addressing a number of 
interpretative issues arising from the second and third obligations in Article 5.2.2. We will examine 
the second and third obligations together, since they share certain concepts  and Ukraine makes 
claims also under the second  obligation, albeit in respect of the three FBO decisions to reject new 
applications, which we address in section 7.4.4 below.  
7.549.   Ukraine observes that b oth the second and the third obligations in Article 5.2.2  contain the 
phrase "in a precise and complete manner".  Ukraine submits that "precise" means "exact" or 
"accurate", whereas "complete" means "having all its parts or  elements; entire, full, total". Ukraine 
deduces from this that the information provided must be full and accurate.424 
7.550.   Ukraine notes that the third obligation in Article 5.2.2 stipulates that the "applicant" is to 
receive the results of the competent body's assessment. According to Ukraine, nothing in the 
definition of "conformity assessment procedures" in Article 1.3 of the TBT Agreement suggests that 
they are limited to initial procedures leading to the issuance of a certificate. Ukraine submits that 
the th ird obligation equally applies to conformity assessment procedures that take place after a 
certificate has been issued. In Ukraine's view, producers who have already received certification 
but who continue to be subject to, for instance, yearly inspections , are "applicants".425 
7.551.   Ukraine further argues that the phrase "results of the assessment" in the third obligation of 
Article 5.2.2 should be interpreted to mean not only the results of the overall assessment made 
under the conformity assessment procedure, bu t also the results of the assessment made with 
regard to each procedure that is a necessary element of the conformity assessment procedure. In 
Ukraine's view, the reference in the text of the third obligation of Article  5.2.2 to "corrective 
action" (which Ukraine believes is about corrective action by the applicant) indicates that the 
obligation applies also in case of a negative result of any component procedure or the overall 
conformity assessment procedure. Ukraine considers that the results of the asses sment thus also 
include the assessment of why the procedure cannot be completed. Ukraine therefore submits that 
where an inspection procedure is one element of a conformity assessment procedure and cannot 
be carried out, the results of that assessment must  be transmitted to the applicant.426  
7.552.   Russia does not advance specific arguments on the interpretation of Article 5.2.2.  
7.553.   The Panel notes that pursuant to Article 5.2 the obligations set out in Article 5.2.2 apply to 
the type of conformity assessment procedu res covered by Article 5.1, that is, conformity 
assessment procedures applied by central government bodies and providing for mandatory 
conformity assessment.427 Article 5.2.2 stipulates five distinct procedural obligations that the 
competent body of the cent ral government must fulfil.  
7.554.   The second obligation in Article 5.2.2 focuses on the completeness of the documentation 
and thus the applicant's work. It assumes that the competent body may require that applicants 
submit documents establishing the conformity of their products. The second obligation imposes a 
twofold duty on the competent body that arises as soon as it has received an application. First, the 
competent body must examine whether the documentation is complete, that is, whether the 
                                                
422 Ukraine's first written submission, para. 277; and second written submission, para. 254 . 
423 Russia's first written submission, paras. 103 -104 and 106.  
424 Ukraine's first written submission, para. 280. Ukraine relies on The Shorter Oxford English 
Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), Vol. 1 and 2 , pp. 471 and 2319.  
425 Ukraine's second written submission, paras. 269 -271. 
426 Ukraine's second written submission, paras. 263 -264 and 268.  
427 See paragraph 7.251  above . WT/DS499/ R 
 
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  applicant has su bmitted all required documents. Second, the competent body must inform the 
applicant of all deficiencies. As the competent body has only examined the completeness of the 
documentation at this stage, the "deficiency" of an application in our view relates to  a shortcoming 
affecting the application or incomplete documentation.  
7.555.   The second obligation further clarifies that a competent body must "promptly examine[] 
[the application] … and inform[] the applicant". We consider that the adverb "promptly" qualifies 
both the verb "examine" and the verb "inform". Otherwise the obligation to examine completeness 
promptly would be ineffective, as the competent body could delay informing the applicant of 
deficiencies. We note that "promptly" means "quickly" and "without u ndue delay".428 Whether the 
competent body has acted promptly will depend on the circumstances and must be assessed on a 
case-by-case basis.  
7.556.   The competent body is also under an obligation to inform the applicant in a "precise and 
complete manner" of all defi ciencies  that it discovers  when examining the application. Precise and 
complete  information enables the applicant correctly to complete its application by submitting any 
missing document(s) or put together complete documentation and resubmit its applicatio n, as the 
case may be .429 We note that the obligation to inform the applicant in a precise and complete 
manner is also connected to the obligation to inform the applicant promptly. If the competent body 
informed the applicant promptly, but in an imprecise or  incomplete manner, any time that could be 
gained as a result of the competent body's prompt information might be lost if the applicant did 
not come back with the correct documents because the information was not precise or complete.  
7.557.   We consider that it m ust be assessed on a case -by-case basis whether the competent body 
has informed the applicant in a "precise and complete manner". We note, however, that the 
obligation to provide precise and complete information is unqualified. The competent body must 
always inform the applicant in a precise and complete manner. Even if the competent body 
considers that the applicant would know how to correctly complete a deficient application if it 
received less than precise and complete information, the competent body is still required to 
provide precise and complete information. The standard for assessing whether information 
provided is precise and complete is thus an objective one and not a subjective one that will vary 
from one applicant to another. This understanding a lso prevents disagreements between 
competent bodies and applicants, and it facilitates review by a review body.430 
7.558.   We next turn to the third obligation in Article 5.2.2, which focuses on the "results of the 
assessment" and thus the competent body's work. The  competent body must transmit the results 
to the applicant "as soon as possible … so that corrective action may be taken if necessary". 
Although the text does not state so expressly, we consider that the corrective action referred to is 
corrective action t o be taken by the applicant.431 Indeed, if, for instance, the result of an 
inspection at the site of facilities was negative (non -conformity), the applicant would want to take 
the necessary steps to address the inspectors' concerns.  
7.559.   The third obligation als o imposes an obligation on the competent body to transmit to the 
applicant the results of the assessment "in a precise and complete manner". We consider that the 
phrase "in a precise and complete manner" should be interpreted in the same way as in the seco nd 
obligation of Article 5.2.2, as an objective standard.  
7.560.   As noted, the third obligation requires the competent body to inform the applicant about 
the "results of the assessment". The "assessment" referred to is the "conformity assessment", 
which is confi rmed by the fourth obligation in Article 5.2.2 (which uses the term "conformity 
assessment"). Article 5.1.1, second sentence, of the TBT Agreement makes clear that conformity 
assessment entails various "conformity assessment activities". Annex 1.3 of the T BT Agreement 
                                                
428 See Panel Reports, EC – IT Products , para.  7.1074.  
429 The fourth obligation in Article 5.2.2 requires the competent body to proceed as far as practicable 
with an incomplete applicatio n if the applicant so requests.  
430 Under Article 5.2.8, Members are required to put in place a procedure for the review of complaints 
concerning the operation of a conformity assessment procedure.  
431 Canada, the European Union and the United States have exp ressed the same view. See Canada's 
third-party response to Panel question No. 20, para. 87; European Union's third -party response to Panel 
question No. 18, para. 56; and United States' third -party response to Panel question No. 20, para. 46.   WT/DS499/ R 
 
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  has an explanatory note that indicates that some of those include sampling, testing, inspection, 
evaluation, verification and assurance of conformity. These activities may be combined in a single 
conformity assessment procedure, and at least s ome of these activities may yield independent 
results. We understand that, in that sense, conformity assessment procedures may yield multiple 
results that may become available at different times of the process. We note in this connection 
that the third obl igation requires that competent bodies transmit the results "as soon as possible", 
"so that corrective action may be taken if necessary".  
7.561.   This dispute presents the issue of what counts as a "result" that must be transmitted. We 
note that the dictionary de fines the meaning of "result" as, inter alia , "outcome".432 There can be 
no question that affirmative or negative substantive outcomes of an assessment (conformity or 
non-conformity) are "results" that must be transmitted. Situations may arise, however, as i n this 
dispute, where a relevant assessment activity that in principle would yield an independent 
substantive result cannot be undertaken or completed. This may be, for instance, because of 
circumstances that make it impossible to carry out the relevant as sessment activity or a need for 
additional information (which may arise even where the documentation accompanying an 
application was complete). In such situations, there is no substantive "yes" (conformity) or "no" 
(non-conformity) result. However, the att empted or incomplete assessment  has still yielded an 
outcome, which is that no substantive outcome is possible, at least for the time being. We consider 
that such an outcome is, also, a "result" of an assessment that must be transmitted.  
7.562.   Were it otherwise , a competent body could delay sharing information with the applicant 
about an outcome even in situations where the competent body cannot proceed with the 
assessment and where the applicant could take corrective action. This would be at odds with the 
purpo se of the third obligation, which is, inter alia , to enable applicants to initiate corrective action 
promptly.433  
7.563.   Having looked at the second and third obligations in Article 5.2.2 separately, we now 
examine their relationship with each other. As we have sa id, the second obligation focuses on the 
applicant's work (completeness of the application) and the third obligation on the competent 
body's work (results of the assessment). In the ordinary course of events – and the sequence in 
which the two obligations appear in Article 5.2.2 reflects this – the competent body will first satisfy 
itself that an application is complete, and if it is, it will then proceed with the conformity 
assessment and transmit the results of its assessment to the applicant as soon as p ossible.  
7.564.   However, nothing in Article 5.2.2 indicates that the third obligation comes into being only 
once the competent body has finished its examination of the completeness of the documentation 
submitted by the applicant. The third obligation states, wit hout qualification, that the competent 
body must transmit as soon as possible the results of its assessment  so that corrective action may 
be taken . Consequently, the competent body must inform the applicant as soon as possible after 
any results become avai lable, even if this is before the competent body has been able to finish its 
examination of the completeness of the documentation. As we have said above, the results to be 
transmitted would also include "no substantive outcome" results.  
7.565.   With these interpr etative findings in mind, we now proceed to assess the measures that 
Ukraine ch allenges under Article 5.2.2.  
Application of the third obligation in Article 5.2.2  7.3.4.2   
7.3.4.2.1   Applicability of Article 5.2.2  
7.566.   The Panel begins its assessment of Ukraine's claims concernin g the 14  FBO instructions by 
addressing whether Article 5.2.2 applies to the conformity assessment procedures that resulted in 
these instructions. We note in this respect that Article 5.2.2 is part of Article 5.2, which contains 
                                                
432 The Shorter  Oxford English Dictionary defines "result" as "[t]he effect, consequence, issue, or 
outcome of some action, process, or design". The Shorter Oxford English Dictionary , 6th edn, A. Stevenson 
(ed.) (Oxford University Press, 2007), Vol. 2 , p. 2554 . 
433 We are aware that the fifth obligation in Article 5.2.2 gives the applicant the possibility to obtain 
information about the stage of the procedure and an explanation for any delay. However, this would not ensure 
that the applicant is informed about a "no substant ive outcome" result as soon as possible.  WT/DS499/ R 
 
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  obligations that Members mu st observe "[w]hen implementing the provisions of paragraph 1 [of 
Article 5]".  
7.567.   We found above that the 14 instructions are subject to Article 5.1 because they concern 
conformity assessment by a central government body and a mandatory conformity assessment  
procedure.434 As Russia was therefore required to implement Article 5.1 in respect of the 
conformity assessment procedures that resulted in these instructions, it was required, in view of 
Article 5.2, to comply also with Article 5.2.2 when undertaking those  conformity assessment 
procedures.  
7.3.4.2.2   Overview of relevant facts  
7.568.   Section 7.3.1 above summarizes the relevant facts.435 It indicates that the record cont ains 
the instructions for all 14 suspensions at issue. For five of the 14 suspensions, the record also 
contains a cover letter that is distinct from the FBO instruction, but accompanied it. The parties 
have based their analyses of the information that the FBO transmitted to the relevant applicants 
either on the instructions alone, or where there are separate cover letters, on the instructions and 
the cover letters.  
7.569.   In all 14 instances the instructions used the same or similar text.436 To the extent that 
there  are differences, they principally relate to references to dates. This reflects the different 
deadlines that had been set in each case for ins pection control to take place in Ukraine . 
7.570.   The cover letters of four of the five suspensions for which cover letters are available – 
suspensions 2, 4, 8 and 9 – provide similar relevant information to applicants. One additional 
cover letter, which concerns suspension 1, provides more detailed infor mation than the other four 
cover letters.  
7.571.    We note that all instructions and all cover letters invoke as the immediate reason for the 
decisions to suspend the valid certificates that the conditions for carrying out inspection control in 
Ukraine were not s atisfied at the relevant time.  
7.3.4.2.3   Consistency with the third obligation in Article 5.2.2  
7.572.   Ukraine claims that in respect of each of the 14 instructions through which the FBO 
suspended valid certificates, Russia did not comply with the third obligation in Arti cle 5.2.2.437 
Ukraine claims that by suspending the relevant certificates without any further explanation, the 
FBO failed to transmit in a precise and complete manner, the results of the preliminary assessment 
which would allow the applicants to take correct ive action. According to Ukraine, the generic 
reason that there were no conditions for carrying out the inspection controls does not amount to 
full and accurate information. Ukraine argues that without knowing the specific reasons why the 
inspection contro ls could not take place, the producers were not in a position to take steps to 
remedy the situation.438 
7.573.   Regarding suspension 1, Ukraine submits that the producer is located outside the regions 
where, according to the cover letter, there are military operatio ns conducted by the Ukrainian 
government. Ukraine further argues that there are no entry restrictions on Russian male citizens. 
For Ukraine, it follows that the cover letter does not explain why the inspection could not be 
carried out at the premises of the supplier and what corrective action the supplier could take to 
                                                
434 See paragraphs 7.291 - 7.293  above.  
435 See in particular Table 4 above.  
436 According to Ukraine, the text is not always identical because of differences in translation. Ukraine's 
second written submission, footnote 360.  
437 Ukraine makes no claim in respect of the 14 suspensions under the second obligation in Article 5.2.2. 
Ukraine's second written submission, para. 254.  
438 Ukraine's first written submission, paras. 282 -283. WT/DS499/ R 
 
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  remedy the situation. According to Ukraine, the information provided about the results must be 
producer -specific.439  
7.574.   Additionally, Ukraine argues that the suspensions other than suspension 1 d id not provide 
any explanation of why inspections could not be carried out. In Ukraine's view, the competent 
body must inform the applicants and not assume that they are fully aware of the situation. Ukraine 
argues that Russia cannot satisfy the third obli gation in Article 5.2.2 by making an assumption 
about the information that may already be known to applicants. Ukraine maintains that there is no 
basis in Article 5.2.2 for introducing a subjective standard under which a Member's compliance 
with Article 5. 2.2 would depend on the knowledge that each applicant has of the grounds of the 
competent body's decision or the underlying situation.440  
7.575.   Russia argues that Ukraine has failed to establish its claims under Article 5.2.2.  Regarding 
suspension 1, Russia argue s that the cover letter informed the applicant in a very precise manner 
by making clear that there were no conditions for inspection control. Russia further notes that 
there w as additional explanation regarding why there were no conditions for inspection c ontrol. 
According to Russia, there was no confidence with respect to the safety conditions in the territory 
of Ukraine.441  
7.576.   Regarding suspensions 2 -14, Russia argues that the relevant instructions informed the 
applicants in a precise manner by making clear t hat there were no conditions for inspection 
control. According to Russia, the FBO did not provide the additional information in  the case of 
those suspensions  because all applicant s were fully  aware of the underlying situation  and the 
reason for the inabili ty to conduct the inspection control . Russia submits that this  is confirmed by 
letters sent to the FBO442 by certain applicants.443 
7.577.   The Panel recalls that the third obligation in Article 5.2.2 required the FBO to transmit the 
"results of the assessment … in a precise and complete manner" to applicants so that they could 
take corrective action, if necessary. We will first address whether, through the 14 instructions and 
five cover letters, the FBO was transmitting results of its assessment.  
7.578.   We note that in all 1 4 instances inspection controls were to have taken place sometime 
prior to the date of the instructions. The instructions and cover letters informed the applicants444 
that the conditions for the inspection controls were not satisfied when they were scheduled  to take 
place or on the later date of the instructions.  
7.579.   We recall that inspection control was a distinct integral part of the then -applicable 
conformity assessment procedure set out in the CS FRT Rules. The "assessment", the result of 
which is to be tran smitted, is, therefore, the assessment to be conducted during the course of 
inspection control.  
7.580.   Evidently, the FBO was not transmitting any substantive "conformity" or "non -conformity" 
outcomes of the inspection controls, since none had been conducted. Ins tead, the FBO concluded 
that, for the time being, the assessments to be undertaken during the inspection control part of 
the conformity assessment procedure could not yield any substantive outcomes. In keeping with 
our interpretation of the term "results o f the assessment" as it appears in the third obligation, we 
                                                
439 Ukraine' s opening statement at the first meeting of the Panel, para. 71; and second written 
submission, paras. 303 -305. 
440 Ukraine's second written submission, paras. 306 -307; and opening statement at the second meeting 
of the Panel, para. 71.  
441 Russia's first writ ten submission, paras. 103 and 106; and second written submission, para. 123.  
442 Russia refers to the Letter [[ xxx]] from PJSC [[xxx]]  to the FBO, 12 May 2014 , (Exhibit UKR-
17(((BCI); Letter [[ xxx]] from PJSC [[xxx]]  to the FBO, (Exhibit UKR -18)(BCI)(Corr.); Letter [[ xxx]] from PJSC 
[[xxx]]  to the FBO, 13 March 2015 (Exhibit UKR -21)(BCI); and Letter [[ xxx]] from PJSC [[xxx]]  to the FBO, 
10 October 2014 , (Exhibit UKR -41)(BCI).  
443 Russia's first written submission, para. 104; and second written submission, para. 124.  
444 As we have already stated, the suspensions concern the  post-certification stage of the underlying  
conformity assessment procedure, and there was no need to submit a specific application for the conduct of 
inspection  control. However , the third obligation in Article 5.2.2 refers to "the applicant", and from the 
perspective of the third obligation in Article 5.2.2, the producers whose certificates were suspended are the  
original applicants.   WT/DS499/ R 
 
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  therefore consider that the "result" of the inspection assessment was that there was not and could 
not be any substantive outcome for the time being. In the light of this, it is clear to us that the 
FBO was transmitting to applicants the result of its assessment.  
7.581.   We now turn to address whether the FBO transmitted the result of its assessment in a 
precise and complete manner so that any corrective action could be taken.  
7.582.   We note at the outset that,  in our view, the FBO conveyed clearly to the applicants that no 
"conformity" or "non -conformity" inspection control outcome was possible. Ukraine argues, 
however, that this alone did not inform the applicants in a precise and complete manner so that 
they could take corrective action, if necessary. In examining this argument, we will first consider 
the information that the FBO provided to applicants in the instructions and will then examine, 
where applicable, the additional information provided in the cover  letters.  
7.583.   The relevant instructions inform applicants that the conditions for the conduct of inspection 
control were lacking up to the date of the instructions. The instructions thus inform the applicants 
about the result that was reached. However, absent  any information about the nature of the 
"conditions" that make it impossible to carry out inspection control, the applicants have no way of 
determining whether these conditions are outside their control or whether there is corrective 
action that they coul d take with a view to allowing the inspection controls to proceed. For these 
reasons, the instructions do not inform the applicants in a precise and complete manner and are 
thus not sufficient, in themselves, to satisfy the requirements of the third obliga tion. 
7.584.   According to Russia, all  applicant s were fully  aware of the underlying situation . As we have 
stated above, however, the standard for assessing whether the results have been transmitted in a 
precise and complete manner is an objective one. It is therefore not necessary to examine, in 
addition, what the applicants at issue did or did no t know about the relevant "conditions". What 
matters is whether the information was objectively precise and complete. On an objective 
assessment, the reference to "conditions" for the conduct of inspection control could cover any 
number of circumstances, r anging from the conditions of the competent body (e.g. the availability 
of inspectors), to the conditions of the applicants (e.g. their failure to have paid fees in the past or 
for the upcoming inspection or their failure to contribute to some necessary pr eparatory tasks), to 
the conditions at the location of facilities to be inspected (e.g. their accessibility or the security 
situation) as well as other conditions. Applicants were therefore objectively not in a position, 
without additional indications, rel iably to infer from the reference to a "lack of conditions" for 
conducting inspection controls what the relevant conditions were.  
7.585.   Russia also points to letters sent to the FBO by some applicants in response to the 
instructions that they had received from the FBO. Russia notes in this connection that these 
applicants were able to draw the correct inferences from the information provided by the FBO and 
thus understood the reasons for the FBO's inability to conduct the inspection control. We are not 
persuaded  by this argument. Even if it turned out that some applicants made correct assumptions 
about the information provided in the instructions, this does not detract from the fact that the 
instructions objectively did not inform applicants in a precise and comp lete manner when they 
were transmitted and that there should have been no need for applicants to make assumptions, 
which could have turned out to be correct or incorrect.  
7.586.   We next examine the additional information provided in the four cover letters concer ning 
suspensions 2, 4, 8 and 9. They all refer to a significant change in circumstances as the reason 
that prevented the conduct of inspection controls and inform the applicants that when these 
circumstances would revert to normal, inspection controls coul d resume. The four cover letters 
thus provide little additional information. All that can be reliably inferred is that there had been a 
change in circumstances. The cover letters do not elucidate  what circumstances changed. On an 
objective assessment, it i s once again unclear whether the competent body's circumstances 
changed or the applicant's circumstances, or whether the changed circumstances related to the 
location or country where inspection control was to be conducted. As a consequence, the 
applicants  do not have enough information to determine whether corrective action is a possibility. 
For these reasons, the four cover letters concerning suspensions 2, 4, 8 and 9, even considered 
together with the associated instructions, are not sufficient to satisf y the requirements of the third 
obligation in Article 5.2.2.  WT/DS499/ R 
 
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  7.587.   We turn, finally, to consider the additional information provided in the cover letter 
concerning suspension 1. It indicates that the conditions for the conduct of inspection control in 
Ukraine w ere not satisfied for two reasons, which are characterized as force majeure  
circumstances. First, a visit of FBO employees to Ukraine would, allegedly, have posed a threat to 
their life or health owing to the military operations conducted by Ukraine's gove rnment in certain 
regions of the country. Second, the State Border Guard Service of Ukraine allegedly restricted the 
entry of Russian male citizens aged between 16 and 60 years.  
7.588.   This cover letter provides fuller and more detailed information than that pro vided in the 
other cover letters and the instructions. The additional information notably clarifies the nature of 
the "conditions" that were not met for the inspection control to take place. With this information, 
the applicant was, in our view, placed in a position where it could assess whether there were 
possibilities of it taking any corrective action. The cover letter specifically indicates that inspection 
control would be possible again only once military operations on the territory of Ukraine had 
terminated and entry restrictions had been removed. This explanation covers all producers in 
Ukraine, including the applicant in question. We therefore do not agree that the information 
provided in the cover letter needed to be more producer -specific. We also observe that it is not 
relevant under the third obligation in Article 5.2.2 whether the results transmitted are well -
founded from the perspective of the applicant.445 For these reasons, we consider that the cover 
letter concerning suspension 1, read together  with the relevant instruction, transmitted the "no 
substantive outcome" result to the applicant in a precise and complete manner.  
7.589.   The cover letter concerning suspension 1 in our view also serves to confirm our findings 
concerning the other 13 suspensions.  The cover letter demonstrates that the FBO was in a position 
to provide fuller information than it did in the case of the other 13 suspensions. We add in this 
respect that the third obligation in Article 5.2.2 imposes a requirement that the result be 
transmitted in a precise and complete manner in every conformity assessment procedure that is 
undertaken. Even if the results were the same across many conformity assessment procedures, it 
is not the burden of applicants to try to identify other applicants in the same situation and inquire 
with them about what, if any, additional information the competent body had provided to them.  
7.590.   Finally, we note that the record indicates that the applicant in the case of suspensions 1 
and 2 is one and the same producer. Mor eover, the instruction for suspension 2 was issued after 
the instruction for suspension 1. The applicant therefore had access to the information 
accompanying suspension 1 when it received the instruction for suspension 2. As mentioned 
above, the cover lett er and instruction for suspension 2 are not sufficient to meet the requirements 
of the third obligation in Article 5.2.2. In our view, Russia cannot benefit in the context of 
suspension 2 from the fact that the applicant had access to additional informatio n from suspension 
1. As we have stated, the requirements of Article 5.2.2 must be satisfied in every conformity 
assessment procedure. The level of precision and completeness does not vary from applicant to 
applicant, or depending on what information has be en provided to an applicant in the context of a 
previous conformity assessment procedure.  
7.3.4.2.4   Conclusion  
7.591.   In the light of the above, the Panel concludes that Ukraine has established, for each of the 
instructions concerning suspensions 2 to 14, that Russia has acted inconsistently with the third 
obligation in Article 5.2.2. The Panel also concludes, however, that Ukraine has failed to establish, 
for the instruction concerning suspension 1, that Russia acted inconsistently with the third 
obligation in Article 5.2 .2. In sum, the Panel  conclude s that Ukraine has established 
inconsistencies with the third obligation in Article 5.2.2 in respect of 13 of the 14 suspensions.  
                                                
445 Article 5.2.8 envisages in this respect that Members put in place a procedure that allows an applicant 
to file a complaint and seek review concerning the operation of a conformity assessment procedure .   WT/DS499/ R 
 
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  7.4  Claims concerning the rejections of applications for new certificates  
7.4.1   Measures at issue  
Overview of CU legal framework on conformity assessment procedures  7.4.1.1   
7.592.   This section concerns the conformity assessment procedures applied by Russia to 
applications for new certificates for railway products by Ukrainian producers rejected by the FBO. 
CU Technic al Regulations 001/2011, 002/2011 , and 003/2011  applied in Russia from 2 August 
2014 and set out conformity assessment procedures for railway products.  
7.593.   The CU Technical Regulations  set out the railway products subject to one of the two types 
of mandatory conformity assessment procedures: supplier's declaration of conformity, or 
mandatory certification .446 The choice of the type of conformity assessment procedure depends on 
the type of railway product in question.447 The issues raised in this dispute, and the s ubsequent 
discussion and analysis, concern mandatory certification only.448 
7.594.   Mandatory certification under the CU Technical Regulations 001/2011, 002/2011 , and 
003/2011  include the stages449 which occur before  a certificate is issued (certification procedure), 
as well as after a certificate has been issued (inspection control). At issue in this dispute is only 
the application of Russia's conformity assessment procedure to the certification procedure. 
The "certification procedure" comprises sequential steps to be  followed before a certificate can be 
issued to the applicant by the certification body, which may include testing of samples and 
inspection of production.450 For sampling of the product for testing, the place of sampling in the 
certification procedure is de termined by relevant Russian standards ( GOST 31814 -2012).451 
For serial production sampling occurs at the producer's warehouse of finished products. 
For batches or consignments of products, sampling occurs at the place where a batch or  
consignment is located  (such as the producer's warehouse of finished products, warehouse of 
temporary storage, a customs warehouse or at the warehouse of the recipient).452 
7.595.   Under the three CU Technical Regulations, seven different certification schemes are 
established.453 The appli cable scheme depends on the type and volume of production of the 
railway product in question, and certificates issued under each scheme have different periods of 
validity.454 In an application for certification, the applicant selects the applicable certifica tion 
                                                
446 Article 6(2) of CU Techn ical Regulation 001/2011; Article 6(6) of CU Technical Regulation 002/2011; 
and Article 6(6) of CU Technical Regulation  003/2011.  
447 For example, under CU Technical Regulation 001/2011, "brake discs for railway rolling stock" are 
subject to "mandatory certi fication", while a "driver's seat for locomotives" is subject to "supplier's declaration 
of conformity". See Articles 6(6) and Appendices 1 -5 of CU Technical Regulation 001/2011; Article 6(10) and 
Appendices 3 -5 of CU Technical Regulation 002/2011; and Art icle 6(10) and Appendices 3 -4 of CU Technical 
Regulation 003/2011.  
448 Ukraine's response to Panel question No. 121, para. 26; and second written submission, 
footnote  354. 
449 Article 6(21 -70) of CU Technical Regulation 001/2011; Article 6(24 -73) of CU Technic al Regulation 
002/2011; and Article  6(24-72) of CU Technical Regulation 003/2011.  
450 These steps include (i)  submission of the application; (ii)  preliminary assessment of the application in 
order to decide whether it can be rejected  (the assessment of the a pplication can no longer proceed) or 
accepted  (the applicant will be informed which specific certification scheme will be followed); (iii)  a sample of 
the railway product(s) covered by the application is (are) then tested and these results are analysed; (i v) if 
specified in the applicable certification scheme, an inspection of the production of the railway product(s) 
concerned is performed; (v) based on the results under steps (iii) and (iv), a final decision is then taken on 
whether or not to issue the "ce rtificate of conformity"; (vi) if the final decision is positive, the certificate is 
issued and officially registered, and will be valid for up to five years (with a possible one -year extension). 
See Article 6 of Technical Regulation 001/2011 "On the safet y of railway rolling stock", (CU Technical 
Regulation 001/2011), (Exhibit UKR -9)(Corr.).  
451 Russia's response to P anel question No. 141 . 
452 Article 4.2.3 of GOST 31814 -2012, (Exhibit UKR -140); see also Russia's response to P anel question 
No. 141 . 
453 They are identical for each of the three CU technical regulations.  
454 Article 6(7) and Appendix 6 of CU Technical Regulation 001/2011; Article 6(11) and Appendix 6 of 
CU Technical Regulation 002/2011; and Article  6(11) and Appendix 5 of CU Technical Regulation 003/2 011. WT/DS499/ R 
 
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  scheme  under which mandatory certification by the FBO is requested.455 The applications for new 
certificates by Ukrainian producers at issue were submitted under456 schemes 3c, 4c, and 6c.457 
The following table provides an overview of these three certifica tion schemes.  
Table 5 - Selected certification schemes under CU Technical Regulation s 001/ 2011  and 
003/2011458 
Scheme  Type of production  and validity  Certification  procedure  
Under CU Technical Regulation 001/2011  
3c Applicable to series -produced 
products (serial production).  
The certificate is issued for a 
period not exceeding three years.  (i) tests of a representative (standard) 
product sample (from producer's warehouse of 
finished products)  
6c Applicable to a batc h of products 
(batch or consignment).  
The certificate covers the declared 
batch of products.  (i) test of a product sample selected from the 
batch submitted for certification (at the place 
where a consignment is located (at the 
producer's warehouse of finished products, 
warehouse of temporary storage, customs 
warehouse or at the warehouse of the 
recipient with responsible storage, in the 
vehicle capacity [ sic])) 
Under CU Technical Regulation 003/2011  
4c459 Applicable to series -produced 
products (serial production).  
The certificate is issued for a 
period not exceeding  five years.  (i) tests of a representative (standard) 
product sample (from producer's warehouse of 
finished products); and (ii) inspection of 
production  
 
Challenged FBO decisions  7.4.1.2   
7.596.   The following table compiles information on the three decisions challenged by Ukraine, 
through which the FBO rejected or annulled applications for new certificates submitted by 
Ukrainian producers. The first column contains the number of the decision and a n indication of the 
number of applications rejected through the decision. The second column contains the date of the 
decision. The third column includes the application number and the products covered by the 
relevant decision. The fourth column refers to t he scheme under which the applicant applied for 
the relevant conformity assessment procedures, as required by the applicable CU Technical 
                                                
455 Article 6 (22)(e) and Annex 6 to of CU Technical Regulation 001/2011 , (Exhibit UK R-9); 
Article  6.25(d) and Application number 6 of Technical Regulation 002/2011 "On high -speed rail safety", 
(CU Technical Regulation 002/2011 ), (Exhibit UK R-10)(Corr.);  and Article  6.25(d)  and Application number 5  of 
Technical Regulation 003/2011 "On the safety of rail transport infrastructure", ( CU Technical Regulation 
003/2011 ), (Exhibit UK R-11)(Corr.). See Russia's response to Panel question No. 141.  
456 These were thre e out of the total of seven different certification schemes provided for under the 
three CU Technical Regulations.  
457 Three of the applications submitted by Ukrainian producers that the FBO rejected were submitted for 
voluntary certification. Those applica tions are not at issue in this dispute, as they do not concern mandatory 
certification. See Table 6 below.  
458 Annex 6 to CU Technical Regulation 001/2011, (Exhibit UKR -9); Application number 5 of 
CU Technical Regulation 003/2011, (Exhibit UKR -11); and Article  4.2.3 of GOST 31814 -2012, (Exhibit UKR -
140).  As explained below, for the purpose of this dispute, only these three certification schemes are relevant to 
the three rejection decisions at issue.  
459 The description of the requirements under scheme 4c in CU Technical Regulation 003/2011 
(Exhibit  UKR-11) is difficult to understand  due to quality of the English translation provided to the Panel. The 
description in the tab le is based on the English translation of CU Technical Regulation 001/2011  (Exhibit UKR -
9). The description of scheme 4c in the Russian original appears to be identical in CU Technical 
Regulation  001/2011  (Exhibit UKR -9(a)) and in CU Technical Regulation 003/2011 (Exhibit UKR-11(a)).  WT/DS499/ R 
 
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  Regulations.460 The applications that the FBO rejected through rejection decisions 1 and 2 be low 
were submitted pursuant to CU Technical Regulation 001/2011. The applications that the FBO 
annulled through rejection decision 3  below were submitted pursuant to CU Technical Regulation 
003/2011. Each scheme is accompanied by an indication of the type of sampling and inspection 
required. The last column reproduces the reasons provided in the decision to reject the 
corresponding applications. Rejection d ecision 1 concerns producer 1 [[ xxx]]. Rejection d ecision 2 
concerns producer 3 [[ xxx]]. Rejection d ecision 3 concerns  producer 2 [[ xxx]].461 
                                                
460 See Annex B to CS FRT 01 -96, (Exhibit UKR -79) and Appendix A to CS FRT Rules 31/PMG 40 -2003, 
(Exhibit UKR -80).  
461 The producers subject to the measures at issue are listed in paragraph 7.236  above.   
  WT/DS499/R  
 
- 150 - Table 6 - Decisions through which applications for new certificates were rejected or annulled  
                                                
462 Letter [[ xxx]] from the FBO to PJSC [[xxx]] , 2 October 2014 , (Exhibit UKR -16)(BCI). See also the description of the relevant products included i n Applications 
submitted by PJSC [[xxx]] , 1 October 2014 , (Exhibit UKR -111)(BCI); and in Letter of the FBO  No. [[xxx]] of 2 October 2014, (Exhibit RUS -3). 
463 Letter [[ xxx]] from the FBO to PJSC [[xxx]] , 23 January 2015 , (Exhibit UKR -32)(BCI). See also the d escription of the relevant products included in Letter [[ xxx]] from 
PJSC [[ xxx]], 7 September 2017 , (Exhibit UKR -136)(BCI); and Letter of the FBO  No. [[xxx]]  of 23 January 2015, (Exhibit  RUS-4). 
464 Letter [[ xxx]] from the FBO of 9 February 2015 , (Exhibit UKR -23)(BCI). See also the description of the relevant products included in Exhibit UKR -112(BCI) and the 
initial acceptance of those applications in Decisions [[ xxx]], 20 and 21 January 2015 , (Exhibit UKR -113)(BCI).  Rejection 
decision  Date  Application No and products covered  Scheme and type of Inspection  Reason for rejection  
Rejection  
decision  1 – 
[[xxx]]462 
 
Concerns 4 
applications  2.10.2014  A1 – [[xxx]]: two-axle bogies; and two -axle 
bogies of trunk road freight cars with track gage.  3c, which requires tests of a standard 
product sample, and applies to serial 
production.  "[The FBO] returns without 
consideration the application 
for certification of the  goods, 
produced by [company ] 
[[xxx]], since it is impossible 
to carry out the certification 
procedure in full."  A2 – [[xxx]]: universal flat wagons; and flat 
wagons for large -capacity containers.  
 3c 
A3 – [[xxx]]: universal flat wagon  and flat 
wagon s for carrying timber.  
 3c 
A4 - [[xxx]]: open wagons  
 
 3c 
Rejection  
decision  2 - 
[[xxx]]463 
 
Concerns 2 
applications  23.1.2015  A1 [[ xxx]]: solebar of parts of the carriages, 
running balancer trolleys and similar trolleys of 
wagons (bol ster) batch of 7581  6c, which requires test of a product 
sample selected from the batch 
submitted for certification. This 
scheme applies for a specific quantity 
of products.  "[The FBO] returns without 
consideration the applications 
for certification of pro ducts 
manufactured by [company ] 
[[xxx]] due to the impossibility 
to carry out a certification 
procedure in full."  A2 [[ xxx]]: solebar of parts of the carriages, 
running balancer trolleys and similar trolleys of 
wagons (side frame) batch of 15057  6c 
Rejection  
decision  3 - 
[[xxx]]464 
 
Concerns 19 
applications  
 9.2.2015  A1 – [[xxx]]: unhardened core frogs of railroad 
switches and crossing frogs.  4c, which requires tests of a standard 
product sample and inspection of 
production. This scheme applies to 
serial production.  "Due to the absence of the 
documents, necessary for the 
performance of certification 
(Para. 28 Art. 6 of Technical 
Regulations of the Customs 
Union 003/2011 and VP 
SSFZhT 31/PMG 40 -2003 (the  A2 - [[xxx]]: railroad switch maintenance kits. 4c 
A3 - [[xxx]]: railroad switches  
 4c  
  WT/DS499/R  
 
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465 We note that both the original  version and the translation of Letter [[ xxx]] from the FBO of 9 February 2015 , (Exhibit UKR -23)(BCI) refer to applications registered on 
25 December 2015. This appears to be a clerical error. The date in which the relevant applications were submitted, as indicated in the documents contained in Exhibit UKR -
112(BCI) and Exhibit UKR -113(BCI), is 25 December 2014.    A4 - [[xxx]]: unhardened core frogs of railroad 
switches and connecting tracks for  
 underground railway  Application submitted under 4c. 
However the application was initially 
accepted under voluntary certification 
scheme 3a.   Procedure for certification of 
means of railway transport)), 
the submitted applications for 
certification of track switching 
equipment of [company ] 
[[xxx]] and registered with 
[the FBO] as of 25.12.201[4] 
[[xxx]], are annulled. "465 A5 - [[xxx]]: railroad switch maintenance kits for 
underground railway  Applied under 4c and accepted under 
3a 
A6 - [[xxx]]: railroad switches for underground 
railway  Applied under 4c and accepted under 
3a 
A7 - [[xxx]]: unhardened core frogs of railroad 
switches and connecting tracks models for 
industrial transport  4c 
A8 - [[xxx]]: switching facilities maintenance kits 
for industrial transport  4c 
A9 - [[xxx]]: armory type switching facilities for 
industrial transport  4c  
A10 - [[xxx]]: bolts for joining of parts of armory 
type switching facilities  4c  
A11 - [[xxx]]: bolts for joining of rail -track and 
points of railway switches with rail basis  4c 
A12 - [[xxx]]: fixed crossing  4c 
A13 - [[xxx]]: switching mechanisms  3a, which refers to certification of a 
voluntary declaration of conformity.  
A14 - [[xxx]]: points of armory type switching 
facilities for industrial transport  4c 
A15 - [[xxx]]: blades of armory type switching 
facilities  4c  
A16 - [[xxx]]: pads with  cushions on the welded 
joint for armory type switching facilities  4c 
A17 - [[xxx]]: pads with cushions on the welded 
joint for armory type switching facilities  4c 
A18 - [[xxx]]: brake unit removers  3a 
A19 - [[xxx]]: equalizing joints (mechanisms)  3a 
 WT/DS499/ R 
 
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  Panel's terms of reference  7.4.1.3   
7.597.   Russia asserts that it is evident from the plain terms of the panel request that Ukraine 
failed to ask the Panel to make findings on each individual FBO decision rejecting applications for 
new certificates. Russia argues that in the absence of such request, findings on each individual 
decision would be outside the Panel's terms of reference.466 
7.598.   The Panel considers that contrar y to Russia's view, the terms of the panel request identify 
the measures at issue as being each of the decisions through which the FBO rejected applications 
for certificates of conformity submitted by Ukrainian producers under the CU Technical 
Regulations.  Point two of section II of the panel request describes the measure at issue as the " the 
rejections of new applications for conformity assessment certificates … as mentioned in [Annex] 
II".467 In turn, Annex II includes a list of the three decisions through w hich the FBO rejected 
applications for certificates of conformity submitted by Ukrainian producers under CU Technical 
Regulations. It is thus clear that Ukraine's panel request identifies, as challenged measures, the 
three decisions issued by the FBO. On t his basis, we consider that the three decisions challenged 
by Ukraine are properly within our terms of reference.  
7.4.2   Consistency of the rejections with Article 5.1.1 of the TBT Agreement  
Nature of the claim s 7.4.2.1   
7.599.   Ukraine requests that the Panel find that each of t he three decisions through which the 
FBO rejected applications for certificates of conformity submitted by Ukrainian producers of railway 
products under CU Technical Regulations 001/2011 or 003/2011 is inconsistent with 
Article  5.1.1.468 Ukraine notes that t wo decisions rejected applications due to the "impossibility to 
carry out a certification procedure in full", and another decision rejected applications due to the 
"absence of documents". Ukraine submits that applications submitted by producers from Russia , 
the European Union, Belarus and Kazakhstan have not been similarly rejected. Ukraine therefore 
argues that Russia is applying its conformity assessment procedures in a manner inconsistent with 
Russia's non -discrimination obligations (both in respect of n ational treatment and most -favoured 
nation treatment) set out in Article 5.1.1.469   
7.600.   Russia argues that the three decisions challenged by Ukraine are not inconsistent with 
Article 5.1.1. Regarding two of the decisions, Russia maintains that the security situ ation in 
Ukraine prevented inspectors from conducting the required inspections. Regarding the other 
decision, Russia submits that the applicant failed to submit the documents required by the relevant 
technical regulation for the application to be considere d.470  
7.601.   The Panel first addresses the arguments concerning the decisions rejecting applications 
due to the "impossibility to carry out a certification procedure in full" and then turns to the 
decision rejecting applications due to the "absence of documents".  
7.602.   Ukraine has framed its claims as concerning, not a conformity assessment procedure as 
such, but the application of a conformity assessment procedure .471 We will therefore assess 
whether Ukraine has demonstrated that Russia applied its conformity assessment p rocedure for 
railway products so as to grant access for specific suppliers of like products originating in Ukraine 
under conditions less favourable than those accorded to suppliers of like Russian products and like 
products from other countries, in a compa rable situation. Thus, we will focus our assessment on 
Russia's application of its conformity assessment procedures for railway products, CU Technical 
Regulations 001/2011 or 003/2011, in the three instances which resulted in the decisions through 
which the FBO rejected applications for certificates of conformity submitted by the relevant 
Ukrainian producers.  
                                                
466 Russia's opening statement at the first meeting of the Panel, para. 21.  
467 WT/DS499/2, p. 2.  
468 Ukraine's first written submission, para. 183; response to Panel question Nos. 7(b), para.  2; and 
opening statement at the first meeting of the Panel, para. 37.  
469 Ukraine's first written submission, paras. 257 -259. 
470 Russia's first written submission, par as. 83 -87. 
471 Ukraine's first written submission, paras. 238 and 248.  WT/DS499/ R 
 
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  Applicability of Article 5.1.1 and order of analysis  7.4.2.2   
7.603.   We note that it  is uncontested among the parties that the three decisions challenged by 
Ukraine ( a) were adopted by a central government body, and (b)  concern a mandatory conformity 
assessment procedure.472 We consider that the evidence on record confirms that the three 
decisions satisfy the requirements to be subject to Article 5.1.1.  
7.604.   First, the three decisions were issued by the FBO. According to the evidence on record, the 
FBO is the entity in charge of certification of railway transport in Russia. The FBO acts under the 
jurisdiction of the Federal Agency of Railway Transport of Russia's Ministry of T ransport.473 The 
FBO thus is an entity of Russia's federal government. Moreover, the rejections were based on 
CU Technical Regulations 001/2011 and 003/2011, which are applied by Russia.474 We therefore 
consider that the decisions at issue were adopted by a ce ntral government body.  
7.605.   Second, the three decisions were issued in response to applications submitted by suppliers 
of Ukrainian products for certificates of conformity. The applications rejected through two of the 
decisions were submitted pursuant to CU Technical Regulation 001/2011 and the applications 
rejected through the other decision were submitted  pursuant to CU Technical 
Regulation  003/2011. Under the CU Technical Regulations, conformity assessment of railway 
products is carried out in the form of mandatory confirmation of conformity.475 Railway products 
can only be released into the CU if they conform to the relevant technical requirements. This is 
verified by allowing the customs release of the products only if they are accompanied by 
documents atte sting to conformity, such as certificates of conformity.476 Thus, the challenged 
decisions concern mandatory conformity assessment procedures.   
7.606.   However, it should be noted that through decision 3, the FBO rejected 19 applications 
submitted by a Ukrainian producer of railway products. The evidence indicates that at least three 
of those 19 applications were submitted pursuant to CU rules governing voluntary certification of 
conformity. Article  5.1.1 only applies to mandatory certification of conformity and U kraine has 
raised claims only in respect of Russia's mandatory certification of conformity.477 Therefore, our 
findings in this section only concern the FBO's rejection of applications for mandatory certification 
under CU Technical Regulation 003/2011. The re jection of applications for voluntary certification 
under CU Technical Regulation 003/2011 is not at issue, and our findings therefore do not extend 
to the FBO's rejection of those applications.478 
7.607.   We now turn to exami ne the elements necessary to demonstrate  an inconsistency with 
Article 5.1.1. We will assess those elements in the same order and under the same assumption as 
for the 14 instructions through which the FBO suspended certificates of conformity held by 
Ukrainian producers.479  
7.608.   In the light of the dif ferences in the reasons adduced by the FBO for rejecting the 
applications submitted by the relevant suppliers of Ukrainian railway products, we will examine 
decisions 1 and 2 together before addressing decision 3.  
                                                
472 Ukraine's response to Panel question No. 64; and second written submission, para. 106. Russia's first 
written submission, para. 73.  
473 Extract from the FBO's website  (Exhibit UKR -81). 
474 Article 6(3) of CU Technical Regulation 001/2011, (Exhibit UKR -9); Article 6(7) of CU Technical 
Regulation 003/2011, (Exhibit UKR -11); and Ukraine's first written submission, para. 57 . 
475 Article 6(1) of CU Technical Regulation 001/2011  (Exhibit UKR -9). 
476 Article 3 of Technical Regulation 001/2011 , (Exhibit UKR -9); and Article 3 of Technical Regulation 
003/2011 (Exhibit UKR -11). See Articles 210(1)(2), 4(1)(8), and 195 of Customs Union Customs Code 
(selected provisions) (CU4 Customs Code), (Exhibit UKR -129).  See also Article 29 of Law No. 184 "On 
Technical Regulation",  (Exhibit UKR -1); and Ukraine's second written submission, paras. 15 -16. 
477 Ukraine's first written submission, para. 39; second written submission, footnote 354 to para. 287; 
and response to Panel question No. 121.  
478 See Table 6 above.  
479 See paragraph 7.292  above.  WT/DS499/ R 
 
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  Decisions 1  and 2: Impossibility to carry out a certification procedure in full  7.4.2.3   
7.4.2.3.1   Whether Russia has granted access  for specific suppliers of products from 
another Member under conditions less favourable  
7.609.   Ukraine notes that the FBO rejected the applications for certificates of conformity 
submitted by  Ukrainian producers of railway products under CU Technical Regulation 001/2011 
based on the alleged "impossibility to carry out the inspection procedure in full". Ukraine further 
notes that the decisions did not further specify the reasons for the alleged  "impossibility", nor did 
they indicate what steps should be taken by the affected producers to remedy the situation. 
Ukraine further submits that despite repeated requests from producers to complete the 
certification process, the FBO refused to consider t he applications and to issue new certificates of 
conformity. On this basis, Ukraine argues that the FBO effectively denied the right of the suppliers 
of Ukrainian railway products to an assessment of conformity under the rules set out in the 
CU Technical Regulation .480 
7.610.   Ukraine argues that the FBO did not take similar decisions in respect of Russian products 
or products from other countries. Ukraine points out that Russian producers of railway products 
and producers of railway products from other countries ha ve obtained certificates of conformity 
under the CU Technical Regulations. According to Ukraine, Russian producers hold 1,103 
certificates, Kazakh producers hold 39 certificates, Belarusian producers hold 23 certificates, and 
European producers hold 97 cer tificates. Ukraine submits that these numbers show that suppliers 
of domestic railway products and suppliers of railway products originating in other countries did 
not face the same obstacles as the suppliers of Ukrainian railway products with regard to ac cessing 
the conformity assessment procedures provided for in CU Technical Regulation 001/2011.481 
7.611.   In Ukraine's view, by refusing to carry out the certification procedure and by rejecting the 
applications for new certificates of conformity, Russia applied the  conformity assessment 
procedure established under CU Technical Regulation 001/2011 so as to grant suppliers of 
Ukrainian railway products access under less favourable conditions than those accorded to 
suppliers of Russian railway products and of railway p roducts from other countries.482 
7.612.   Russia submits that the access conditions to Russia's conformity assessment procedure on 
railway products for suppliers of railway products are the same, irrespective of the origin of the 
products. In Russia's view, Ukraine f ailed to prove the contrary. Russia argues that the access 
conditions are established in the relevant technical regulations. Russia further submits that the 
FBO issued certificates of conformity to Ukrainian producers whenever the conditions for issuing 
the certificates were met.483 
7.613.   The Panel notes that for these two decisions the FBO "returned the applications without 
consideration", due to the "impossibility to carry out a certification procedure in full".484 We 
understand from Russia's explanations to the Pa nel that what the FBO was communicating to the 
suppliers in abbreviated form was the following. First, owing to the situation in Ukraine, the FBO 
would not be able to carry out all parts of the certification procedure. Specifically, the FBO would 
not be ab le to test product samples in Ukraine. Second, as it was already clear to the FBO that it 
would not be able to carry out all parts of the procedure, the FBO returned the applications without 
consideration, without processing them further.485  
7.614.   CU Technical Re gulation 001/2011 establishes that, depending on the scheme under which 
an application is submitted, the competent certification body must conduct testing of product 
samples before issuing a certificate .486 On this basis, we consider that testing of samples is an 
                                                
480 Ukraine's first written submission, para. 257.  
481 Ukraine's first written submission, para. 258; and response to Panel question No. 85 . 
482 Ukraine's first written submission, para. 259.  
483 Russia's first written submission, para. 76; second written submission, paras. 92 and 100; and 
opening statement at the second meeting of the Panel, para. 32.  
484 Letter [[ xxx]] from the FBO of 2 October 2014 , (Exhibit UKR-16)(BCI); and Letter [[ xxx]] from the 
FBO of 23 January 2015 , (Exhibit  UKR-32)(BCI).   
485 Russia's first written submission, paras. 83 -84; and second written submission, paras. 104 -105. 
486 Article 21(c) of CU Technical Regulation 001/2011 (Exh ibit UKR -9).  WT/DS499/ R 
 
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  integral  part of Russia's conformity assessment procedure for railway products under CU Technical 
Regulation  001/2011 .  
7.615.   As we see it, the FBO's position was not that it would not grant the relevant Ukrainian 
suppliers any access to the conformity ass essment procedure. Rather, the FBO's position appears 
to have been that it could not give access to one part of the conformity assessment procedure, the 
testing of samples, and it therefore rejected the applications. The evidence thus supports the 
conclusi on that the FBO did not grant the two suppliers of Ukrainian railway products at issue 
access to one part of Russia's conformity assessment procedure for railway products.487  
7.616.   There also is evidence demonstrating that the FBO issued certificates of conformit y to 
suppliers of Russian, Belarusian, Kazakh and European railway products under CU Technical 
Regulations.488 We note that this evidence does not directly demonstrate that suppliers of Russian, 
Belarusian, Kazakh and European railway products had access to testing of samples in order to 
obtain the certificates of conformity. However, we agree with Ukraine that a presumption arises 
that the FBO issued at least a number of those certificates on the basis of the results of testing of 
samples.489 This is further c onfirmed by evidence submitted by Russia.490 We thus infer that the 
FBO granted suppliers of Russian, Belarusian, Kazakh, and European railway products access to 
testing of samples, which is part of Russia's conformity assessment procedure for railway produc ts. 
Moreover, we note that there is no evidence on record demonstrating otherwise.  
7.617.   In sum, the FBO in our view has denied the two suppliers of Ukrainian railway products at 
issue access to a part of Russia's conformity assessment procedure for railway products, testing of 
samples, while at the same time granting suppliers of Russian, Belarusian, Kazakh, and European 
railway products access to that same part of Russia's conformity assessment procedure for railway 
products.   
7.618.   The FBO's denial of access to testing of samples resulted in the relevant suppliers of 
Ukrainian railway products not being able to obtain a certificate, which, in turn, prevented the 
relevant products entering the Russian market. The same has not been true for Russian, 
Belarusian, Kaz akh, and European railway products that received certificates of conformity, as a 
result of their products having had access to testing of samples. Consequently, this is a case 
where the relevant Ukrainian suppliers have not been given the possibility to h ave certain 
conformity assessment activities (testing of samples) undertaken, whereas Russian suppliers and 
suppliers from other countries have been given that possibility. It is clear to us, therefore, that this 
difference has modified the conditions of c ompetition for access to the conformity assessment 
procedure to the detriment of the affected Ukrainian suppliers. We thus consider that this 
difference in the conditions of access amounts to Russia granting access to the two suppliers of 
Ukrainian railway  products under conditions "less favourable" than those accorded to Russian, 
Belarusian, Kazakh, and European suppliers of railway products.  
                                                
487 See decisions 1 and 2 in Table 6 above.  
488 Extract of Unified Register of Issued Certificates of Conformity and Registered Declarations of 
Conformity concerning Russian producers , (Exhibit UKR -83); Extract of Unified Register  of Issued Certificates 
of Conformity and Registered Declarations of Conformity concerning European producers , (Exhibit UKR -54) 
(Corr.); Extract of Unified Register of Issued Certificates of Conformity and Registered Declarations of 
Conformity concerning B elarusian producers , (Exhibit UKR -58); and Extract of Unified Register of Issued 
Certificates of Conformity and Registered Declarations of Conformity concerning Kazakh producers  (Exhibit 
UKR-56). 
489 We note that this presumption extends to those certificate s issued by the FBO under schemes that 
require inspection of samples. However, the FBO could have issued certificates under a scheme that did not 
require inspection of samples, such as the scheme that requires testing of each specific product. Scheme 7c, a s 
provided in Annex 5 ("Application number 5" in the translation) to CU Technical Regulation 001/2011, (Exhibit 
UKR-9). Corr.).  
490 Information provided by the FBO on certificates of conformity with the requirements of CU T echnical 
Regulations  001/2011, 002/ 2011,  and 003/2011 issued in the period from 2  August 2014 to 31  August 2017 to 
foreign manufacturers , (Exhibit RUS -77)(BCI). See also List of the certificates of conformity to the 
requirements of CU Technical Regulations 001/2011, 002/2011, 003/2011 issue d in the period from 02  August 
2014 to 31  August 2017 to foreign manufacturers , (Exhibit RUS -42); and Certificates of conformity issued on 
the basis of CU Technical Regulations 001/2011, 002/2011 and 003/2011 during the period from 
02 August  2014 to 31  August 2017 t o the third countries producers,  (Exhibit RUS -50)(BCI) . WT/DS499/ R 
 
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  7.619.   This conclu sion is not affected by the fact that the FBO granted certificates of conformity 
under CU Technical Regu lation 001/2011 to certain other suppliers of Ukrainian railway 
products.491 Ukraine is challenging the two identified instances of application of Russia's conformity 
assessment procedure (the two FBO decisions), not the conformity assessment procedure as su ch. 
The fact that no less favourable treatment has been accorded to some suppliers of Ukrainian 
railway products does not alter the fact that the conformity assessment procedure was applied to 
deny access to certain conformity assessment activities (testin g of samples) for the two suppliers 
of Ukrainian railway products to whom the two decisions are addressed.492 
7.620.   On the basis of the forego ing, we reach the conclusion that Russia, by issuing the two 
challenged decisions, applied its conformity assessment proce dure so as to grant access to the two 
relevant suppliers of Ukrainian railway products under conditions less favourable than those 
accorded to suppliers of Russian, Belarusian, Kazakh, and European railway products. We now turn 
to examine whether Ukrainian  suppliers were granted less favourable access conditions "in a 
comparable situation".  
7.4.2.3.2   Whether  Russia has granted less favourable access conditions for specific 
suppliers of products, " in a comparable situation"  
7.621.   Ukraine submits that suppliers of Ukrainian railway products are in a comparable situation 
to suppliers of European, Russian, Belarusian, and Kazakh railway products.493 
7.622.   Russia argues that the security and safety situation in Ukraine and the existence of entry 
restrictions on Russian nationals into Uk raine prevented FBO employees from carrying out the 
necessary testing of samples. In Russia's view, these conditions put suppliers of Ukrainian railway 
products in a situation that is not comparable to that of suppliers of European, Russian, 
Belarusian, an d Kazakh railway products.494 
7.623.   The Panel recalls that in the section concerning Ukraine's claims against the 14 instructions 
through which the FBO suspended valid certificates of conformity held by Ukrainian producers it 
examined the evidence submitted by the  parties in respect of whether the situation in Ukraine was 
comparable. We concluded, after conducting an assessment of the evidence before us, that, during 
the period April 2014 to December 2016 , Ukrainian suppliers of railway products were granted less 
favourable access in a situation that was not comparable to the situation in which Russia granted 
access to suppliers of Russian railway products and suppliers of railway products from other 
countries.  
7.624.   The two decisions through which the FBO rejected the re levant applications by Ukrainian 
suppliers are dated 2 October 2014 and 23 January 2015. Thus, these decisions were issued within 
the time -frame covered by the evidence that we have already examined in section 7.3.2 .2.4 
above. Moreover, we recall that ou r findings regarding the situation not being comparable are 
based , in part, on events that took place in certain regions in Ukraine. Some of t hose events 
occurred in regions or near regions where both suppliers , whose applications the FBO rejected, are 
located.495 Therefore, our finding that less favourable access conditions were granted to Ukrainian 
suppliers of railway products in a situation th at was not comparable equally applies to the two 
decisions through which the FBO rejected applications submitted by Ukrainian suppliers under 
CU Technical Regulation 001/2011 (i.e. decisions 1 and 2).496  
                                                
491 Extract of Unified Register of Issued Certificates of Conformity and Registered Declarations of 
Conformity , (Exhibit UKR -13); Extract of the Unified Register of certificates issued to Ukrainian producers 
under the CU Technical Regulations , (Exhibit UKR -154); and Table of the valid certificates issued to Ukrainian 
producers on the basis of CU Technical Regulations 001/2011, 002/2011 and 003/2011 (based on Exhibit  UKR-
13), (Exhibit RUS -49)(BCI).  
492 See also Panel Reports, Argentina – Hides and Leather , para. 11.260 and US – Gasoline , para. 6.14.  
493 Ukraine's opening statement, paras. 43 -52; and second written submission, paras. 118 -121 and 
128-148. 
494 Russia's first written submission, paras.  83-84. 
495 See paragraphs 7.328 -7.331  above.  
496 We note that in section 7.3.2.2.4  above, we were focusing on whether the FBO could send its 
employees to Ukraine to conduct inspection control. In the context of the decisions through which the FBO 
rejected applications, we are concerned with whether the FBO could send its employees to Ukraine to test 
 WT/DS499/ R 
 
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  7.625.   As we have done in section  7.3.2.2.4.5  above,  we stress that our finding that the situation 
in Ukraine was not comparable relates to the specific time -period at issue. Developments 
subsequent to a pan el's finding that a situation is not comparable could render a situation 
comparable, with the consequence that the importing Member would have to make a change in the 
access conditions granted for it to continue to act consistently with Article 5.1.1.  
7.4.2.3.3   Like products analysis  
7.626.   Turning to the like products analysis, the parties' arguments on this issue are the same, 
mutatis mutandis , as those that are summarized in section  7.3.2.2.5  above.  
7.627.   We recall our conclusion above that Russia has granted less favourable access conditions 
for Ukrainian suppliers, but that it has done so in a situation that is not comparable to the situation 
in which Russia granted access to suppliers of Russian railway products and suppliers of railway 
products from other countries. In the light of that conclusion, it is not necessary to make 
additional findings on whether the railway products supplied by Ukrainian suppliers are "like" 
Russia n railway products or railway products from other countries.  
7.4.2.3.4   Conclusion  
7.628.   On the basis of the foregoing, the Panel concludes that  Ukraine has failed to establish, in 
respect  of the two decisions  through which the FBO "returned without consideration" applications 
for certificates submitted by Ukrainian producers under CU Technical Regulation 001/20 11, i.e. 
decisions  1 and 2, that Russia has acted inconsistently with its obligations under Article 5.1.1 of 
the TBT Agreement.  
Decision 3: Absence of docume nts 7.4.2.4   
7.629.   We turn to examine decision 3 , through which the FBO "annulled" 19 applications 
submitted by a Ukrainian producer under CU Technical Regulation 003/2011.497 
7.4.2.4.1   Whether Russia has granted access  for specific suppliers of products from 
another Member under co nditions less favourable  
7.630.   In respect of decision 3 , Ukraine submits that the FBO rejected the relevant applications 
for certificates of conformity submitted by Ukrainian producers of railway products under 
CU Technical Regulation 003/2011 based on the alleg ed "absence of documents". Ukraine argues 
that the decision did not further specify why the FBO considered certain documents to be missing, 
nor did the FBO indicate what steps should be taken by the affected producers to remedy the 
situation. On this basis , Ukraine argues that the FBO effectively denied the right of this supplier of 
Ukrainian railway products to an assessment of conformity under CU Technical Regulation 
003/2011 .498 
7.631.   Ukraine argues that the FBO did not take similar decisions with regard to Russ ian products 
or products from other countries, which have obtained certificates of conformity under the 
CU Technical Regulation 003/2011.499 In Ukraine's view, by refusing to carry out the certification 
procedure and by rejecting the applications for new cer tificates of conformity, Russia applied the 
conformity assessment procedure for railway products established under CU Technical Regulation 
003/2011 to this supplier of Ukrainian railway products in a less favourable manner than that 
accorded to suppliers o f Russian railway products and of railway products from other countries.500 
7.632.   Russia responds that the FBO rejected the applications relevant to decision 3  because they 
were submitted without the documents required by Article 6 (28) of CU Technical Regulation 
003/2011. Russia considers that Ukraine has therefore failed to demonstrate that Russia applied 
                                                                                                                                                  
product samples. Subject t o that qualification, our considerations in section 7.3.2.2.4  above apply equally to 
the rejections under CU Technical Regulation 001/2011.  
497 Letter [[xxx]] from the FBO of 9 February 2015 , (Exhibit UKR -23)(BCI).  
498 Ukraine's first written submission, para. 257.  
499 Ukraine's first written submission, para. 258, and response to Panel question No. 85 .  
500 Ukraine's first written submission, para. 259.  WT/DS499/ R 
 
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  its conformity assessment procedure for railway products in a manner inconsistent with 
Article  5.1.1.501  
7.633.   Ukraine submits that Russia' s argument that the applications were rejected because of 
missing documents is contradicted by the fact that those same 19 applications had previously been 
accepted by the FBO as being submitted under Article 6.21 of CU Technical Regulation 003/2011. 
Ukraine considers that only subsequently did the FBO issue decision 3 , making reference to the 
lack of documents required by Article 6 (28) of CU Technical Regulation 003/2011.502  
7.634.   The Panel recalls that a Member would apply a conformity assessment procedure so as  to 
grant access f or suppliers under less favourable conditions, when it denies or limits these 
suppliers' right or possibility to have conformity assessment activities undertaken under the rules 
of the applicable conformity assessment procedure. According  to the conformity assessment 
procedure applicable to this rejection, the competent certification body must reject applications 
submitted without the required documents.503 Ukraine challenges Russia's application of the 
conformity assessment procedure (CU Te chnical Regulation 003/2011), not the fact that Russia 
has adopted specific conformity assessment procedure rules, i.e. in this case the rule, according to 
which incomplete applications must be rejected. In our view, the FBO in rejecting the relevant 
applications followed the applicable rules of the procedure. The rules in question are the same for 
all suppliers. Moreover, the FBO applied the rules as foreseen. It made a determination that there 
were missing documents and rejected the applications on that b asis. In addition, we see nothing in 
CU Technical Regulation 003/2011 that would prevent the Ukrainian supplier from resubmitting 
new applications with all required documents. Finally, Ukraine has not pointed to any instances of 
application of the conformi ty assessment procedure where the FBO did not reject applications by 
other suppliers from other countries even though these applications lacked the required 
documents. We therefore have no basis for concluding that the FBO applied the applicable rules so 
as to deny or limit the right or possibility of the Ukrainian supplier concerned to have conformity 
assessment activities undertaken under these rules, and that the Ukrainian supplier was thereby 
granted access to the conformity assessment procedure under l ess favourable conditions than 
those accorded to suppliers from Russia or any other country.   
7.635.   We do not consider that Ukraine's reference to the decisions through which the FBO 
previously accepted the same applications affects the foregoing consideration. The measure that 
Ukraine challenges is decision 3 , which indicates that the basis for rejecting the application is the 
absence of documents required by Article 6 (28) of CU Technical Regulation 003/2011. On the basis 
of the evidence on record, we consider t hat applications for mandatory certification with respect to 
products produced in series are to be accompanied by the documents listed in Article 6 (28).504 
Moreover, as we address below in our analysis of Ukraine's claims under Article 5. 1.2 of the 
TBT Agree ment505, the evidence before us suggests that there were indeed documents listed in 
Article 6(28) that had not been submitted to the FBO as part of the applications in question.  
7.636.   In the light of the foregoing, we consider that Ukraine failed to demonstrate t hat through 
decision 3 , the FBO applied CU Technical Regulation 003/2011 to the relevant supplier of Ukrainian 
railway products so as to grant conditions of access to the conformity assessment procedure less 
favourable than those accorded to suppliers of R ussian railway products or of railway products 
from other countries.  
7.637.   On the basis of the foregoing we do not consider it necessary to further examine  whether 
the situation in which the FBO rejected the Ukrainian supplier's applications was "comparable" to 
others in which the FBO proceeded to process applications that had been submitted to it, nor 
whether the products of the Ukrainian supplier concerned were "like" the products of suppliers 
                                                
501 Russia's first written submission, paras. 85 -87; response to Panel question No. 72; and second 
written submission, paras. 107 -108. 
502 Ukraine's opening statement at the first meeting of the Panel, para. 53; and response to Panel 
question No. 38.  
503 Article 3 3(a) of CU Technical Regulation 003/2011, (Exhibit UKR -11).  
504 The applications for mandatory certification concerned certification for "series -produced products" 
(serial production). Applications submitted by PJSC [[ xxx]] on behalf of PJSC [[ xxx]], 22 December 2014 , 
(Exhibit UKR -112)(BCI).   
505 See paragraph 7.746  below.  WT/DS499/ R 
 
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  from Russi a or any other country whose applications were not rejected on grounds of 
incompleteness.  
Overall Conclusion  7.4.2.5   
7.638.   On the basis of the foregoing, the Panel concludes that Ukraine has failed to establish,  in 
respect of the two decisions through which the FBO "ret urned without consideration" applications 
for certificates submitted by Ukrainian producers under CU Technical Regulation 001/20 11, and  in 
respect of the decision through which the FBO "annulled" applications for certificates submitted by 
a Ukrainian produ cer under CU Technical Regulation 003/2011  that Russia has acted inconsistently 
with its obligations under Article 5.1.1 of the TBT Agreement.  
7.4.3   Consistency of the rejections with Article 5.1.2 of the TBT Agreement  
Nature of the claims  7.4.3.1   
7.639.   Ukraine challenges , under Article 5.1. 2, the three decisions  through which the FBO 
rejected applications for new certificates submitted  by Ukrainian producers of railway products.506 
Ukraine  claim s that by issuing the three decisions, Russia in each case applied  its conformity 
assessment procedures with the effect of creating unnecessary obstacles to international trade .507 
Ukraine therefore has the burden of demonstrating that Russia applied its conformity assessment 
procedure  for railway products with the effect of creating unnece ssary obstacles to international 
trade . We will therefore  need to  assess  whether Russia applied its conformity assessment 
procedure  with the effect of creating unnecessary obstacles to international trade  when it  rejected, 
through the three decisions,  nume rous applications for new certificates submitted by  Ukrainian 
producers of railway products.  
7.640.   Ukraine initially  submit ted arguments in support of its claims under Article 5.1.2 only at a 
general level . In response to Russia's arguments, Ukraine also  raised arguments in respect of each 
of the three decisions.  Russia has respond ed to both Ukraine's general arguments and Ukraine's 
specific arguments related to  each of the three decisions  challenged by Ukraine.  We therefore 
begin  our analysis with the general arguments advanced by the parties  and then address the 
specific arguments and evidence in respect of each decision . We recall that Ukraine raises claims 
against each of the three decisions and that we found these claims to be within our terms of 
reference. We will therefore  make specific findings in respect of each of the three  decisions  
challenged by Ukraine.  
7.641.   Moreover, we recall  that Ukraine is not challenging the WTO -consistency of Russia's 
relevant conformity assessment procedures as such. Therefore, only  those less strict manners of 
applying Russia's conformity assessment procedures that the FBO had the power to apply under 
the then existing rules governing these procedures, or applicable domestic law more generally, can 
in our view be considered alternat ives that were reasonably available to Russia.  
Applicability of Article 5.1.2 and order of analysis  7.4.3.2   
7.642.   We recall that in section 7.4.2.2  above, we concluded  that each of the three decisions 
challenged by Ukraine concerns (a) conformity assessment by a central government body and 
(b) a mandatory conformity assessment procedure.  On that basis, we consider that Article 5.1.2 is 
applicable to the three decisions challenged by Ukraine.  
7.643.   We first examine FBO decisions 1 and 2 regarding applications submitted under 
CU Technical Regulation 001/2011, issued due to the impossibility to ca rry out the conformity 
assessment procedure in full. We then examine FBO decision 3 regarding applications submitted 
under CU Technical Regulation 003/2011, issued because the applications were not accompanied 
by all necessary documents.508 In respect of eac h of those decisions, w e first address the elements 
relevant to establishing an inconsistency with Article  5.1.2, second sentence. We then turn, as 
                                                
506 Ukraine's first written submission, para. 18 3; opening statement at the first meeting of the Panel, 
para. 37; and  response to Panel question No. 7( b). 
507 Ukraine's first written submission, paras. 238 , 260, and 266 . 
508 The meas ures are described in  Table 6 above.   WT/DS499/ R 
 
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  necessary, to examine the elements relevant to establishing an inconsistency with Article 5.1.2, 
first sente nce. 
Decisions 1 and 2  7.4.3.3   
7.4.3.3.1   Article 5.1.2, second sentence  
7.644.   We recall that in order to establish that a measure is inconsistent with the second sentence 
of Article 5.1.2, we need to weigh and balance (a) the contribution that the challenged manner of 
application  of Russia's  conformity assessment procedure makes to giving Russia adequate 
confidence that Ukrainian railway products conform to the u nderlying technical regulations,  (b) the 
strictness (including the trade restrictiveness) of Russia's manner of applicat ion of its  conformity 
assessment procedure,  and (c)  the risks that non -conformity with the underlying technical 
regulations would create. Furthermore, we need to consider the alternative manners of application 
of the  conformity assessment procedure raised by Ukraine. We examine each of these elements in 
turn. 
7.4.3.3.1.1   Contribution to giving Russia adequate confidence that the products 
conform to the technical regulations  
7.645.   Ukraine does not dispute that Russia's mandatory certification procedure contributes to 
ensuring  that railway products comply with the applicable technical regulations. Ukraine considers, 
however, that the manner in which Russia applied its conformity assessment procedures in the 
case of the three decisions is more strict than necessary to ensure con formity.509 
7.646.   Ukraine considers  that in the present case, Russia rejected applications for new certificates 
on grounds that are not related to the conformity of products with the applicable technical 
regulations or to "imperative conditions"510 without which con formity may not be reviewed. 
According to Ukraine, the objective of the decisions is not to achieve positive assurance of 
conformity of Ukrainian railway products with the applicable technical regulations. Ukraine submits 
that the challenged measures are, instead, disguised restrictions on importation of Ukrainian 
railway products. Ukraine considers that in the absence of evidence showing that, throughout the 
territory of Ukraine, there were security concerns precluding FBO inspectors from conducting on -
site inspections, Russia's rejections did not aim to achieve a positive assurance of conformity. In 
Ukraine's view, the rejections therefore result in the creation of unnecessary obstacles to 
international trade.511 
7.647.   Russia submits that through  CU Technical Regu lation 001/2011 it seeks to, inter alia , 
(a) protect the life and health of citizens; (b) protect the property of individuals, legal entities, the 
state or municipalities; (c) protect the environment, life or health of animals and plants; and 
(d) prevent d eceptive practices. Russia also observes that, given the characteristics and end uses 
of the railway products at issue, it seeks the highest possible level of assurance of conformity. 
Russia asserts that its certification bodies require the same level of a ssurance of conformity in 
respect of conformity regardless of the  procedure adopted to verify conformity. Russia submits 
that, in the present dispute, the schemes under which Ukrainian producers of railway products 
submitted their application required insp ection of production  or testing of samples . According to 
Russia, with respect to the products at issue, such activities can only be carried out by visiting the 
producer's facilities  in Ukraine , due to the non-conformities  or consumer complaints affecting the 
products of all the producers that had their applications rejected . Russia submits that the FBO is 
not in a position to carry out such activities with respect to producers in Ukraine and it has thus 
been unable to conduct the certification procedure in full. Russia considers that the FBO has 
therefore not been able to get positive assurance of conformity.512  
                                                
509 Ukraine's first written submission, para. 274; and second written submission, paras. 188 -190. 
510 Ukraine's second written submis sion, paras. 192 and 199.  
511 Ukraine's second written submission, paras. 197 -202; and opening statement at the second meeting 
of the Panel, para. 62.  
512 Russia's responses to Panel question Nos. 19, 21, and 104; second written submission, para. 102; 
and resp onses to Panel question Nos. 108, 124, and 137.  WT/DS499/ R 
 
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  7.648.   Ukraine argues that the alternative manners of application that it has identified would 
make a  contribution that is equivalent  to that which  the rejection of the applications to giving 
Russia adequate confidence that Ukrainian railway products conform with the applicable technical 
regulations.513 
7.649.   The Panel notes that through CU Technical Regulation 001/2011 Russia seeks to protect, 
inter alia , the environment as well as the life and health of humans, animals, and plants against 
risks arising from train derailments due to low quality equipment. All of these values and interests 
are important.  
7.650.   We recall that Russia submits that it "seeks the highe st possible level of assurance of 
conformity with the relevant safety requirements".514 The evidence supports that Russia seeks a 
high level of conformity. Article 52 of the EAEU Treaty provides that the technical regulations in 
the EAEU shall be adopted to protect the life and health of people, property, the environment, life 
and health of animals and plants, prevent consumer deception and ensure energy efficiency and 
resource conservation.515 According to Article 1(3) of CU Technical Regulation 001/2011, the 
Technical Regulation 001/2011 establishes  that its  requirements for railway rolling stock and its 
components  serve to  protect the life and health of humans, animals and plants ; maintain the 
safety of property ; and prevent any actions that would mislead con sumers with respect to the 
purpose and safety of the railway products.516 
7.651.   To ensure the protection of, inter alia , life and health of humans, animals and plants, as 
well as of the environment, CU Technical Regulation 001/2011 sets out conformity assessment 
procedures through which conformity with the established safety requirements is verified. Such 
procedures rely on methods for testing and for assessing conformity that enable certification 
bodies in the CU member s to verify conformity of products with the t echnical requirements 
contained in CU Technical Regulation 001/2011.517 Under CU Technical Regulation 001/2011, 
applicants must submit, together with an application, a number of documents, including test 
results, and undergo  different forms of inspection, al l aimed at verifying conformity.518 The 
existence of these rules demonstrates that Russia indeed seeks a high level of conformity.  
7.652.   Moreover, there is evidence that Russia has enforced the rules governing its conformity 
assessment procedures , thus supporting the view that Russia seeks a high level of conformity.519 
7.653.   Russia's rejection of applications for new certificates submitted by  the two  relevant  
Ukrainian producers of railway products pursuant to CU Technical Regulation 001/2011 ensured 
that the products for  which new certificates were sought would not enter Russia's market. We 
consider that this manner of applying the conformity assessment procedure gives Russia a high 
level of assurance that any non -conforming products covered by the rejections would not en ter its 
market. We therefore conclude  that rejection of applications , as Russia's chosen manner of 
application of its  conformity assessment procedure  in the case of the two decisions at issue,  
contributes  substantially to the objective of giving Russia ade quate confidence of conformity of the 
Ukrainian railway products covered by the applications for new certificates submitted  by the two 
relevant producers  pursuant to CU  Technical Regulation 001/2011.  
                                                
513 Ukraine's opening statement at the first meeting of the Panel, para. 61; and comments on Russia's 
responses to Panel question Nos. 116, 124, and 131. See also paragraph 7.445  above.  
514 Russia's response to Panel question No. 116.  
515 Treaty on the Eurasian Economic Union  (EAEU Treaty)  (Exhibit UKR -5).  
516 CU Technical Regulation 001/2011 (Exhibit UKR -9).  
517 Article 6( 11) of CU Technical Regulation 001/2011 .  
518 Articles 6 (21)-6(28) of CU Technical Regulation 001/2011.  
519 See for instance references to certificates issued under the CU Technical Regulations, contained in 
the following exhibits: Extract of Unified Register  of Issued Certificates of Conformity and Registered 
Declarations of Conformity , (Exhibit UKR -13); Extract of Unified Register of Issued Certificates of Conformity 
and Registered Declarations of Conformity concerning European producers , (Exhibit UKR -54)(Co rr.); Extract of 
Unified Register of Issued Certificates of Conformity and Registered Declarations of Conformity concerning 
Kazakh producers , (Exhibit UKR -56); Extract of Unified Register of Issued Certificates of Conformity and 
Registered Declarations of Conformity concerning Belarusian producers , (Exhibit UKR -58); and Extract of 
Unified Register of Issued Certificates of Conformity and Registered Declarations of Conformity concerning 
Russian producers , (Exhibit UKR -83).  WT/DS499/ R 
 
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  7.4.3.3.1.2   Strictness of the manner of applying the conformity asse ssment procedure  
7.654.   Ukraine  submits that the rejections have a severe restrictive effect on imports of railway 
products originating in Ukraine , as rejecting applications for new certificates results in the  
impossibility of placing such products on the  Russian  market.520  
7.655.   Russia submits that contrary to what Ukraine suggests, the evidence on record regarding 
the entry restrictions and uncertainty with respect to safety and security conditions in Ukraine 
establish that the rejections  were neither mere pretexts nor an unnecessary obstacle to 
international trade. Russia submits that due to the impossibility to conduct inspection of 
production, the FBO was unable to carry out the inspection procedure in full.521 
7.656.   The Panel notes that the re jection of applications for new certificates leads to the loss of 
access to the Russian market, for as long as new certificates are not issued, because without a 
valid certificate, Ukrainian railway products cannot enter the Russian market. We therefore 
consider that the rejection of applications for new certificates substantially restricts trade, and can 
be considered as a strict manner of application.522 
7.4.3.3.1.3   Risks that non -conformity would create  
7.657.   Ukraine considers that the risk of non -conformity is that railway  products enter Russia's 
market without satisfying  the relevant technical regulations, thus depriving these regulations of 
their effect.523 
7.658.   Russia submits that the risks of non -conformity are that goods of insufficient quality would 
enter Russia's market. Ac cording to Russia, such low quality equipment can lead to train 
derailments, which would undermine  the objective of the technical regulations of protecting the life 
and health of humans, animals and plants. Russia considers that given the serious threat of  harm 
to human life and health, the environment, property of individuals and legal entities, the risks of 
non-conformity are grave.524 
7.659.   The Panel notes that both parties seem to agree that there are high risks arising from non -
conformity. In particular, non -conforming railway products may lead to accidents, including train 
derailments, which in turn may cause great harm, including to human, animal, and plant life and 
health and the environment. We consider that in view of the products concerned (railway rollin g 
stock and its parts thereof , such as axles, wagons, solebars and bogies , covered by the relevant 
applications for new certificates ), the consequence of a failure of any of such products, due to non -
conformity with the underlying technical regulations, co uld reasonably be expected to create 
substantial risks for human, animal, and plant life or health as well as the environment.  
7.4.3.3.1.4   Less trade -restrictive manners of application  
7.660.   Ukraine  argues that the  rejection of applications for new certificate s due to the i nability to 
conduct on -site inspections  was a more strict application of Russia's conformity assessment 
procedure than necessary to provide Russia adequate confidence that  the relevant  Ukrainian 
railway products conform to the relevant technical regulation . Ukraine submits that other , less 
trade restrictive manners of application of Russia's  conformity assessment procedure  were 
available  to Russia . Specifically, Ukraine identified the following alternatives: (a) additional 
communication with the relevant Uk rainian producers; (b) entrusting on -site inspections in Ukraine 
                                                
520 Ukraine's first written submissi on, para. 273; and second written submission, para. 187.  
521 Russia's opening statement at the second meeting of the Panel, paras. 41 -42; and response to Panel 
question No. 24.  
522 We recall that we are concerned here with how Russia has applied the certification provisions of 
CU Technical Regulation 001/2011. Recognition of certificates issued under CU Technical Regulation 001/2011 
in other CU members is a different matter. We reca ll in this respect the possibility for Ukrainian railway 
products to enter the Russian market with a valid certificate issued by a certification body in any other 
CU member state. As discussed in section 7.5 below, however , Russia has not recognized valid certificates 
issued to Ukrainian railway producers by the competent authorities of Belarus and Kazakhstan.  
523 Ukraine's second written submission, para. 209.  
524 Russia's response to Panel question No. 104; second written submission, para. 102; and response to 
Panel question No. 116.  WT/DS499/ R 
 
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  to the competent authorities from Kazakhstan and Belarus; (c)  accrediting non -Russian inspectors, 
either experts or organizations, to conduct inspections in Ukraine; and (d) off -site inspecti ons.525 
Ukraine submits that these are less strict manners of application of Russia's conformity 
assessment procedure that make an equivalent contribution to giving Russia adequate confidence 
of conformity, and that they are available to Russia.526 
7.661.   Russia responds that Ukraine failed to demonstrate that any of these alternative manners 
of application is reasonably available to Russia , and that they make an equivalent contribution  to 
giving Russia adequate confidence that Ukrainian railway products co nform with the applicable 
technical regulation .527  
7.662.   The Panel addresses each of the alternative manners of application identified by Ukraine 
below  in connection with the two challenged decisions . 
Communicating with Ukrainian producers  
7.663.   The first alternative i dentified by Ukraine is for Russian authorities to communicate with  
the two relevant  Ukrainian producers.  
7.664.   We have examined this alternative manner of application in section 7.3.3.2.3.4  above. We 
found that for several reasons this alternative manner of application is not reasonably available to 
Russia. First, this alternative is in the nature of a procedure, which makes it unsuitable as an 
alternative. Second, Ukraine did not elaborate on why, in its view, it was not reasonable for the 
FBO to consider that the arrangements for conducting inspection control in Ukraine that had been 
proposed by Ukrainian producers were not satisfactory or sufficient. Third, Ukrain e did not provide 
arguments  regarding whether under Russia's domestic law, which Ukraine did not challenge as 
being WTO -inconsistent, the FBO could delay suspending certificates of products whose continued 
conformity could not be verified.  
7.665.   Similarly, we c onsider that communicating with the two Ukrainian producers would be a 
process that is not a suitable alternative to the rejections of new applications. Moreover, Ukraine 
has not explained why additional communication with the Ukrainian producers would hav e led the 
FBO to accept that the conditions necessary to conduct the certification in full were present. 
Ukraine has also not provided arguments regarding whether under CU Technical Regulation 
001/2011 or Russia's domestic law more generally, which Ukraine  did not challenge as being WTO -
inconsistent, the FBO could delay deciding on the applications.528  
7.666.   Accordi ngly, we find that Ukraine has not established that communicating with the relevant 
Ukrainian producers is a less strict manner of applying Russia's co nformity assessment procedure 
that is reasonably available  to Russia . 
Entrusting inspections in Ukraine to the competent authorities of Kazakhstan or 
Belarus  
7.667.   The second alternative identified by Ukraine is for the FBO to entrust inspections to the 
competen t authorities of Belarus and Kazakhstan.  
7.668.   Ukraine submits that the CU Technical Regulations lay down the technical requirements 
and conformity assessment procedures applicable in all CU members. Ukraine argues that the 
technical regulations governing railw ay products and reflecting a defined level of protection are 
therefore common to Russia, Belarus and Kazakhstan. Ukraine considers that it follows that Russia 
may not rely on its unique level of protection (as regards technical regulations) and level of 
                                                
525 We recall that we use the term "off -site inspection" instead of "remote inspections". See 
footnote  369 above.  
526 Ukraine's first written submission, para. 275; opening statement at the first meeting of the Panel, 
paras. 61 -68; second written submission, paras. 212, 248, and 252.  
527 Russia's first written submission, paras. 94 -98; and second written submission, paras. 115 -120. 
528 We note that according to Article 6 (28) of CU Technical Regulation 001/2011, the certification body 
must notify the applicant of its decision on an  applicati on for certification within one month after receipt of the 
application.  WT/DS499/ R 
 
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  confidence (as regards conformity assessment procedures). Moreover, Ukraine considers that if 
Russian inspectors were not able to conduct inspections in Ukraine, the FBO could have asked the 
competent authorities of Belarus and Kazakhstan to assist with cond ucting that component of the 
conformity assessment procedure.  According to Ukraine, because the Technical Regulations are 
common to all certification bodies in the CU, it follows that the FBO and other certification bodies 
in the CU must assess conformity with the same requirements based on the same information.  
Ukraine notes that there is evidence that the competent authorities of Belarus and Kazakhstan 
carried out on -site inspections in Ukraine in connection with applications for certification submitted 
to those competent authorities.529  
7.669.   Russia considers that this alternative is not reasonably available to it because Russia does 
not have jurisdiction over nationals from governments of other countries. Russia acknowledges 
that Ukrainian railway products may circulate in Russia on the basis of a certificate issued under 
CU Technical Regulations. However, Russia considers that this requires Ukrainian producers to 
submit an application for certification to the relevant certification body of Belarus or Kazakhstan . 
In such circumstances, the certification body of Belarus or Kazakhstan would act in its own 
capacity rather than as a certification body of Russia.530 
7.670.   The Panel notes that Ukraine refers to entrusting certification bodies in Kazakhstan and 
Belarus to condu ct inspections in Ukraine on behalf of Russia as an alternative to the two decisions 
rejecting applications for new  certificates due to the impossibility to carry out the procedure in full . 
However, Ukraine has failed to submit arguments or evidence demons trating that this alternative 
is reasonably available to Russia . Indeed, it is not clear  to us that the FBO has the power under 
Russia's domestic law to entrust foreign government authorities to carry out tasks entrusted to it 
on Russia's behalf.  Moreover,  Article 6.31 of CU Technical Regulation  001/2011 , which we 
understand is part of Russia's domestic law,  provides that in the course of certification, the 
certification body should carry out product identification  and product  sampling.  And Article 6.32 
indicates that a sampling certificate must bear the signatures of the representatives of the 
certification body. The certification body under this proposed alternative manner of appl ication of  
the conformity assessment procedure is the FBO, because the applications in the case of decisions 
1 and 2 were submitted to the FBO. It is not clear whether under Articles 6. 31 and 6.3 2 the 
certification body must itself carry out certain certification tasks, including product  sampling , or 
whether it  could entrust them to another entity . Thus, we consider that Ukraine has not met its 
burden to establish that it would be possible for the FBO under the applicable rules to entrust the 
relevant part of the certification process to the competent authoritie s of Belarus or Kazakhstan . 
Moreover, we note that Ukraine has not argued that any of the applicable rules are contrary to 
Article 5.1.2.  
7.671.   Accordi ngly, we find that Ukraine has failed to establish that entrusting the competent 
authorities of Belarus and Kaz akhstan with the conduct of inspections in Ukraine  is a less strict 
manner of application of  Russia's conformity assessment procedure that is reasonably available to 
Russia.  
Accrediting non -Russian experts or organizations to conduct inspections in Ukraine  
7.672.   The third alternative identified by Ukraine is for the FBO to accredit non -Russian experts or 
organizations to conduct inspections in Ukraine.  
7.673.   Ukraine submits that Russia could have accredited non -Russian experts or organizations to 
conduct inspections in  Ukraine. According to Ukraine, the rules governing applications for new 
certificates provide that the certifying  body or relevant Ministry may accredit an organization or an 
expert. Ukraine submits that those rules do not preclude the accreditation of non -Russian 
organizations or experts, because they do not prescribe the nationality of the experts who can be 
used.531  
                                                
529 Ukraine's opening statement at the first meeting of the Panel, para. 68; response to Panel question 
No. 69; and second written submission, paras. 250 -251. 
530 Russia's second written submission, para. 119; opening statement at the second meeting of the 
Panel, para. 44; and response to Panel question No. 116.  
531 Ukraine's second written submission, para. 252.  WT/DS499/ R 
 
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  7.674.   Russia considers that this alternative is not reasonably available to it because Russia does 
not have jurisdiction over nationals of other co untries. Moreover, Russia asserts that the FBO was 
the only organization entitled to conduct inspection control.532 
7.675.   The Panel notes that Ukraine did not refer to any specific provision in CU Technical 
Regulation 001/2011 that provides for the possibility  of appointing experts in support of its view 
that the FBO could accredit non -Russian experts or organizations to conduct inspections in 
Ukraine. We note that Article 6.3 of CU Technical Regulation 001/2011 refers to "accredited 
certification … bodies" listed in the Unified Register of the CU Certification Bodies and Testing 
Laboratories as being competent to assess conformity with this technical regulation. However, CU 
Technical Regulation 001/2011 does not indicate who is eligible to receive an accreditation 
certificate and under what conditions. It is therefore unclear whether there exists a possibility of 
non-Russian experts or organizations being accredited as certification bodies. Moreover, Ukraine 
has not argued that any of the applicable rules are contra ry to Article 5.1.2. Furthermore, there is 
no evidence on the record to indicate that at the time that the two decisions rejecting applications 
for new certificates were issued, there were non -Russian experts or organizations qualified to 
conduct inspectio n control in Ukraine with valid CU accreditation certificates. In addition, there is 
also no evidence that the FBO has previously used accredited non -Russian experts to conduct 
inspections abroad. As a result, we consider that Ukraine has not met its burden to establish that 
this alternative manner of application was available to Russia when the two decisions were issued.  
7.676.   Accordi ngly, we find that Ukraine has failed to establish that accrediting non -Russian 
experts or organizations is a less strict manner of application of  Russia's conformity assessment 
procedure that is reasonably available  to Russia . 
Conducting off -site inspections  
7.677.   The fourth alternative identified by Ukraine is for the FBO to cond uct off -site inspections 
and off -site sampling rather than to conduct  them on-site with the two relevant producers in 
Ukraine.  
7.678.   Ukraine submits that Russia could have made use of off -site inspections rather than 
rejecting applications for new certificates d ue to the impossibility of carrying out the procedure in 
full. Ukraine considers that this alternative manner of application of Russia's conformity 
assessment procedure would make an equivalent contribution to giving Russia adequate 
confidence of conformit y and would allow the FBO to carry out the relevant conformity assessment 
procedures.533  
7.679.   Russia initially argued that Ukraine has not shown how off -site inspections would provide 
an equivalent assurance of conformity with Russia's technical regulations. Rus sia also submitted 
that off -site inspection is not provided for under the CU Technical  Regulations. Russia later stated  
that the FBO issued new certificates to Ukrainian producers of railway prod ucts located in the 
eastern part of the country for applicati ons submitted under schemes that  required sampling, but  
not inspection of production, because the producers sent the FBO a group of products from which 
it could select the sample to be tested. Russia submits  that, in contrast, the applications rejected 
by the FBO through the two decisions concerned products produced in series and of a large size, 
which required that sampling be conducted at the producers' facilities .534  
7.680.   Ukraine responds that, contrary to Russia's view, there is no provision in CU Technical 
Regulation 001/2011 precluding the possibility of conducting inspection of production through off -
site inspection. Ukraine submits that the evidence in fact shows that remote inspections are 
possible under CU Technical Regulation 001/2011. Ukraine refers to  the fact that the FBO issued 
certificates to producers in eastern Ukraine without visiting their facilities, despite them submitting 
applications under schemes that required  both inspection of production and sampling at the 
                                                
532 Russia's opening statement at the second meeting of the Panel, para. 44; and response to Panel  
question No. 116.  
533 Ukraine's first written submission, para. 275; and opening statement at the first meeting of the 
Panel, paras. 62 and 67 -68. 
534 Russia's first written submission, para. 98; response to Panel question No. 22; and second written 
submission, paras. 22 -23 and 117.  WT/DS499/ R 
 
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  producer's facilities. Moreover , Ukraine considers that contrary to Russia's assertion, CU Technical 
Regulation 001/2011 makes no distinction between large -sized and other -sized products. Ukraine 
further observes that Russia granted certificates to Ukrainian producers in the east on the  basis of 
off-site sampling of products of a similar size to those for which it rejected applications submitted 
by Ukrainian producers in the west. Ukraine also notes that Ukrainian producers submitted 
applications for certification under schemes 3c and 6c  of CU Technical Regulation 001/2011, which 
require sampling. Ukraine accepts that, pursuant to GOST 31814 -2012535, certificates issued under 
scheme 3c require sampling at the producers' facilities; however, Ukraine submits that Russia 
issued certificates to  producers in eastern Ukraine without testing samples at the producer's 
facilities. In Ukraine's view, Russia thus accepts that the FBO could test samples without entering 
Ukraine and needing to be on -site. For Ukraine, this demonstrates that refusing to i ssue the 
certificates due to the impossibility of carrying out the procedure in full is a mere excuse.536  
7.681.   Russia notes that under scheme 3c, inspection of production is not required, but sampling 
must be conducted before issuance of a certificate. Russia co ntends that sampling of large -size 
products must be conducted on the premises of the producer. Moreover, Russia states that the 
applications submitted under scheme 3c were rejected because, due to prior non -conformities 
identified in respect of the product s covered by the application submitted by the Ukrainian 
producer, the FBO had to conduct sampling at the producer's facilities. Russia notes that, in 
contrast, the products covered by the certificates issued to Ukrainian producers in eastern Ukraine 
were n ot affected by prior non -conformities. Moreover, Russia observes that it has not issued 
certificates to a producer in eastern Ukraine under a scheme that required inspection of production 
without conducting on -site inspection of the producers' facilities .537 
7.682.   Russia explains that although the CU Technical Regulations do not envisage off -site 
inspections, the FBO has conducted such inspections on the basis of the criteria and subject to the 
conditions set forth in Article 7.4.1 of PC-FZT 08-2013. According to Russia, these criteria include 
that off -site inspection can take place only if, with respect to the  railway products for which a 
producer is seeking certification, there have been no prior complaints concerning their quality and 
no prior non -conformities have been identified by the FBO.538 
7.683.   Russia also notes that the FBO takes into account the guidelines concerning sampling 
procedures provided in GOST 31814 -2012. Russia submits that according to GOST, sampling for 
the consignment of products, su ch as the ones covered by scheme 6c, is to be conducted at the 
place where the consignment is located . According to Russia, the information available to the FBO 
indicated that the consignments for which the relevant Ukrainian producer sought new certificat es 
were located at the premises of that producer in Ukraine. Russia underscores that Ukraine has not 
provided evidence to the contrary.539 
7.684.   Ukraine notes that Russia has changed its position on the availability of off -site inspections 
under the CU Technical Regulations. According to Ukraine, it is no longer contested that off -site 
inspections are available in respect of applications for certif ication under the CU Technical 
Regulations. Ukraine submits that despite this, the FBO did not offer this possibility to all Ukrainian 
producers. Ukraine notes that the FBO issued new certificates only to some Ukrainian producers 
located in eastern parts o f the country on the basis of off -site inspections or off -site sampling.540 
7.685.   Ukraine further submits that the non -conformities identified through inspections conducted 
under the prior CS FRT Rules are irrelevant  for the purposes of certification under the CU Technical 
Regulations. According to Ukraine, only non -conformities identified during an inspection control 
under the CU Technical Regulations would be relevant for purposes of certification under 
CU Technical Regulations. Ukraine considers that in any even t, the evidence submitted by Russia 
                                                
535 GOST 31814 -2012 "Conformity assessment. General Rules of sampling for tests of products in the 
course of conformity assessment " (GOST 31814 -2012), (Exhibit UKR -140).  
536 Ukraine's second written submission, paras. 234 and 237 -247; and opening statement at the second 
meeting of the Panel, paras. 22 -24 and 64.  
537 Russia's second written submission, para. 23; and responses to Panel question Nos. 163 and 166.  
538 Russia's respo nse to Panel question No. 167.  
539 Russia's response to Panel question No. 123.  
540 Ukraine's comments on Russia's responses to Panel question Nos. 165 and 166.  WT/DS499/ R 
 
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  demonstrates non -conformities with respect to only three of the products covered by the 
applications rejected by the FBO.541  
7.686.   The Panel notes that, initially, Ukraine identified as the alternative manner of applying 
Russia 's conformity assessment procedure  in respect of the two relevant producers  the conduct by 
the FBO of off -site inspection instead of on -site inspection. Ukraine also referred to the possibility 
of carrying out off -site sampling. Following Russia's clarific ation that under the certification 
schemes at issue, schemes 3c and 6c, inspection of production is not required, Ukraine focused its 
attention on the alternative of verifying conformity through off -site sampling instead of sampling 
at the producer's facil ities. 
7.687.   We therefore begin by examining the availability of off -site sampling in respect of schemes 
3c and 6c in general. On the basis of that assessment, we will then examine whether in respect of 
decisions 1 and 2 off -site sampling was a reasonably availa ble alternative manner of application of  
Russia's conformity assessment procedure. We first examine decision 1, which concerns scheme 
3c, before examining decision 2, which concerns scheme 6c.  
Availability of off -site testing of samples for applications su bmitted under 
scheme 3c in general  
7.688.   According to Annex 6 of CU Technical Regulation 001/2011, applications submitted under 
scheme 3c concern railway products produced in series and require sampling of products before 
issuance of a certificate. CU Technical Regulation 001/2011 is silent in respect of the procedure to 
be conducted for sampling of products. It is uncontested that the FBO follows the guidelines set 
out in GOST 31814 -2012542, which emanates from Russian national law, when sampling products 
for purp oses of certification under the CU Technical Regulations.  
7.689.   Article 4.2.3 of GOST 31814 -2012, which governs how sampling is to be carried out, 
provides in relevant part:  
Sampling is carried out:  
[1] for mass -produced items (serial production) – at the produ cer's 
warehouse of finished products.  
[2] for batch products – at the place where a batch is located (at the 
producer's warehouse of finished products, warehouse of temporary 
storage, customs warehouse or at the warehouse of the recipient with 
responsible storage, in the vehicle capacity [ sic])  
[3] for single products – at the place a product is located (at the 
production facility of the manufacturer, at the buyer's place of 
installation, at the warehouse of temporary storage [)]. 
7.690.   The first paragraph of Art icle 4.2.3 of GOST 31814 -2012 requires that sampling for 
products produced in series should be carried out at the warehouse of the producer. Thus, for 
applications for certification of products produced in series, like those covered by scheme 3c, 
sampling should take place at the producer's facilities.  
7.691.   However, in response to a question from the Panel, Russia provided additional clarifications 
concerning the FBO's practice of applying GOST 31814 -2012 guidelines for sampling when 
considering applications submitted pursuant to CU Technical Regulation 001/2011. Russia submits 
that it has been the FBO's practice to allow  sampling under scheme 3c to take place at a  location 
other than  the producer's facilities  under the conditions that it previously applied under Article 
7.4.1 of PC-FZT 08-2013 when determining whether to allow off -site inspection control .543 
                                                
541 Ukraine's comments on Russia's responses to Panel question Nos. 163 and 165 and 166.  
542 GOST 31814 -2012, (Exhibit UKR -140).  
543 Russia's second written submission, para. 23; and responses to Panel question Nos. 163, 166, and 
167.  WT/DS499/ R 
 
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  We understand this to mean that  the FBO conduct s testing of  samples on the basis of a sample 
taken from products located somewhere other than the producer's facilities when there is no pre -
existing evidence of non -conformities or consumer complaints in respect of the producer. We 
understand that it was on this bas is that the FBO issued new certificates to producers in eastern 
Ukraine who had submitted applications under scheme 3c , without carrying out sampling at the 
producer's facilities. According to Russia, these producers  were not affected by previous non -
confo rmities or consumer complaints in respect of the producer.544 
7.692.   The certificates issued to producers in eastern Ukraine thus provide evidence that Russia 
has not applied the guidelines set out in GOST  31814 -2012 as strictly as it s text appears  to 
contemplate. Although Article 4.2.3 of GOST  31814 -2012 contemplates  sampling  only at the 
producer's warehouse , the FBO has applied this provision less strictly and allowed off -site testing 
of samples. This suggests that  GOST  31814 -2012 does not prevent the FBO from carrying out off -
site testing of samples. Moreover, we note that there is no evidence on record, and Russia has not 
argued, that the FBO's practice of permitting off -site testing of samples in respect of applications 
submitted under scheme 3c has been offi cially published or is publicly known or available.  
7.693.   Russia has not specifically explained why the conditions contained in Article 7.4.1 of PC-
FZT 08 -2013, which concern post -certification inspection control, are relevant to applications for 
certification u nder CU technical regulations. We recall in this respect that the CU technical 
regulations replaced Russia's prior domestic technical regulations, including their conformity 
assessment procedures. This meant that producers who held certificates issued unde r the prior 
domestic regulations needed to submit applications for new certificates under CU technical 
regulations if they wished to continue marketing their products in Russia.  
7.694.   Producer 1 [[ xxx]] is a case in point. It submitted  applications for certific ation under 
scheme 3(c) for railway  products that it had already marketed in Russia on the basis of certificates 
issued under Russia's prior domestic  CS FRT Rules. As the relevant  product s of producer 1  were 
already in Russia's  market, and known to the FBO, it is understandable that in these particular 
circumstances the FBO would consider off -site testing of  sampl es as acceptable for certification 
under the new CU  Technical Regulation . However , it is also understandable that it would be 
difficult for the FBO to disregard a known non-conformity or consumer complaint that had not been 
adequately addressed in a prior inspection  control under CS FRT Rules . Had CS FRT Rules 
remained in force , prior non -conformities  or consumer complaints would have meant that the next 
inspection control would  have needed to be  conducted  on-site. It therefore seems logical that the 
FBO would w ish to conduct sampl ing at the producer's warehouse  in circumstances where the 
conditions for off -site inspection se t out in Article 7.4.1 were not met.  
7.695.   In the light of the foregoing, we consider that Russia's practice of allowing off -site testing 
of samples under the conditions set out in Article 7.4.1 indicates that this form of testing provides 
Russia adequate confi dence of conformity. Moreover, since Article 4.2.3 of GOST  31814 -2012 
provides for on -site testing of samples, off -site testing of samples constitutes a less strict manner 
of application of this part of Russia's conformity assessment procedure. In the circ umstances of 
the present dispute, off -site testing of samples is also, notably,  a less trade -restrictive manner of 
applying the procedure, as the FBO would not need to travel to Ukraine in order to complete the 
certification procedure. Consequently, if the  conditions applied by the FBO for off -site testing of 
samples are satisfied, off -site testing of samples would be an alternative manner of applying the 
conformity assessment procedure that is less strict, makes an equivalent contribution to giving 
Russia adequate confidence of conformity and is available to Russia.  
7.696.   We now turn to address the burden of proof. In our analysis above of Ukraine's claims 
under Article 5.1.2 concerning suspensions, we have determined that it is  Ukraine's burden  to 
provide eviden ce and argumentation to establish t hat any identified alternative manner of 
application of  the conformity assessment procedure  was reasonably available to Russia.  We further 
observed that for Ukraine to make its case that off -site inspections were an alter native manner of 
application of  the conformity assessment procedure that was reasonably available to Russia to on -
site inspections, Ukraine had to demonstrate that the conditions provided for in Article 7.4.1 of PC-
FZT 08 -2013 for off -site inspections were  met in respect of each of the railway products covered 
                                                
544 Russia's response to Panel question No. 156.  WT/DS499/ R 
 
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  by the challenged instructions.545 As also explained earlier, the evidence on record indicates that 
PC-FZT 08 -2013 was available publicly or upon request. Finally, we recall that there is evidence 
that the FBO sent a letter to one of the Ukrainian producers whose certificates were suspended  in 
which it did not explicitly refer to Article 7.4.1, but specified the relevant conditions for  off-site 
inspection to be available.546  
7.697.   By contrast, t here is no evide nce on record that the FBO's practice of permitting off -site 
testing of samples under the conditions set out in Article 7.4.1 when processing applications 
concerning railway products produced in series under CU Technical Regulation 001/2011 has been 
officially published or is publicly known or available. Nor is there evidence that the FBO informed 
the producers elsewhere in Ukraine who were applying for new certificates under CU Technical 
Regulation 001/2011 that off -site testing of samples was a possibilit y. 
7.698.   We consider that this contrast with the situation that we were dealing with in our analysis 
concerning the suspensions has implications for the allocation of the burden of proof in the context 
of the claims concerning the rejections. It is clear that it  is for Ukraine to establish a prima facie  
case and thus a presumption that what is claimed is true. However, according to the Appellate 
Body, "precisely how much and precisely what kind of evidence will be required to establish such a 
presumption will nec essarily vary from measure to measure, provision to provision, and case to 
case".547 As we have highlighted, there is no evidence or allegation in this case that going into the 
present panel proceedings Ukraine either did know or should have known about the availability of 
off-site testing of samples and the conditions that applicants must satisfy to benefit from off -site 
testing of samples.548 In these circumstances, we consider that it would not be in keeping with 
procedural fairness for Ukraine to have the b urden of demonstrating that those conditions, which 
were not previously known to it, had been met in the case of the challenged decisions.549  
7.699.   In our view, in the particular circumstances of this case, it is sufficient for Ukraine to 
establish that off -site sampling is reasonably available to Russia as a less strict manner of applying 
CU Technical Regulation 001/2011. We consider that Ukraine can rely in this respect on Russia's 
own submission and acknowledgement before the Panel that the FBO can apply, and h as applied, 
Article 4.2.3 of GOST 31814 -2012 less strictly than its text contemplates. By contrast, we consider 
that Ukraine does not need to demonstrate, as part of substantiating its claim that off -site 
sampling is a less strict manner of application rea sonably available to Russia,  that the conditions 
set out in Article  7.4.1 were satisfied in the case of the applications submitted pursuant to 
scheme  3c.550 However, if there is evidence on record that demonstrates that those conditions 
were not met, we woul d find that off -site sampling was not reasonably available to Russia.551 
Regarding these conditions, we recall that in section  7.3.3.2.3.4  above, we found that according to 
Article 7.4.1  of PC-FZT 08 -2013 off-site inspection control was not available if non -conformities 
                                                
545 See section 7.3.3.2.3.4  above.  
546 Letter [[ xxx]] from the FBO to PJSC [[xxx]] , 1 August 2014 , (Exhibit UKR -28)(BCI).  
547 Appell ate Body Report, US – Wool Shirts and Blouses , p. 14, DSR 1997:I, p. 323 at 335.  
548 We note in this connection that in EC – Tariff Preferences , the Appellate Body in determining whether 
the complaining party "would have been … aware" that the challenged measure was a preferential tariff 
scheme implemented pursuant to the Enabling Clause similarly looked to whether the measure on its face, or 
publicly available explanatory documentation, made this clear. Appellate Body Report, EC – Tariff Preferences , 
para. 117.  
549 We recall in this context that in the Appellate Body's view the allocation of the burden of proof in the 
context of Article 22.8 of the DSU is a function of, among other considerations, the requirements of procedural 
fairness. Appellate Body Reports, Canada – Continued Suspension , para. 361; and US – Continued Suspension , 
para. 361. We further note that, according to the Appellate Body, "[d]ue process is intrinsically connected to 
notions of fairness, impartiality, and the rights of parties to be heard and  to be afforded an adequate 
opportunity to pursue their claims, make out their defences, and establish the facts in the context of 
proceedings conducted in a balanced and orderly manner, according to established rules." Appellate Body 
Report, Thailand – Cigarettes (Philippines) , para. 147.  
550 We observe in this respect that according to the Appellate Body, "although the complainant must 
establish the prima facie  case in support of its complaint, the respondent bears the burden of proving the facts 
that it asserts in its defence". Appellate Body Report, India – Additional Import Duties , para. 187. We note that 
in this dispute Russia asserts that the conditions set  out in Article  7.4.1 are applicable in the context of 
Article  4.2.3 of GOST 31814 -2012 and that these conditions were satisfied in the case of the applications 
submitted pursuant to scheme 3c.  
551 As noted above in our analysis of Ukraine's claims under Art icle 5.1.2 concerning the suspensions, 
Ukraine has not argued that the conditions set out in Article 7.4.1 are, themselves, more strict than necessary 
and thus contrary to Article 5.1 .2. WT/DS499/ R 
 
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  were identified in the most recent inspection control for the railway product with an upcoming 
inspection control and there  were no consumer complaints in respect  of that product. Accordingly, 
off-site sampling would be similarly unavailable if there is evidence of non -conformities identified 
in the most recent inspection control of the railway product for which an application  for 
certification has been submitted or if there are consumer complaints in respect of that product.  
7.700.   With the foregoing considerations in mind, we turn to examine the availability of off -site 
sampling in the case of the applications for new certificates t hat were rejected by the FBO through 
decision 1.  
Decision 1: Availability of off -site testing of samples  
7.701.   Through decision 1  [[xxx]] of 2 October 2014,  the FBO rejected four  applications  for new 
certificates submitted  by producer 1 [[ xxx]], pursuant to CU T echnical Regulation 001/2011. 
According to decision 1, the FBO "return[ed] without consideration" the applications submitted by 
producer 1, "since it is impossible to carry out the certification procedure in full."552 Russia has 
elaborated on this explanatio n, explaining that it was not possible for the FBO to carry out 
sampling at the producer's warehouse due the situation in Ukraine. As discussed above, off -site 
testing of samples would be reasonably available to Russia if non -conformities were not identifi ed 
in the most recent inspection control of the railway product concerned and there were no 
consumer complaints in respect of that product.  
7.702.   On the basis of the foregoing, we examine decision 1, which concerns four  applications 
(i.e. A1, A2, A3 and A4) cove ring various railway products manufactured by producer 1. The four 
applications were submitted under scheme 3c. Application A1 [[ xxx]] concerns certification of two 
products, two -axle bogies and two -axle bogies of trunk road freight cars with track gage 15 20mm 
[[xxx]]. Application A2 [[ xxx]] concerns two products, universal flat wagons and flat wagons for 
large capacity containers [[xxx]]. Application A3 [[xxx]] concerns an application for two products, 
universal flat wagons [[xxx]] and flat wagons for carr ying timber [[xxx]]. Lastly, application A4 
concerns one product, open wagons with non -removable sides [[xxx]].553  
7.703.   The products at issue in the four applications had been covered by certificates that were 
suspended under the previous CS FRT Rules.554 Russia submitted evidence of non -conformities, 
identified in the most recent inspection control available under CS FRT Rules, in respect of one of 
the products covered by application A3 (universal flat wagons [[xxx]]) and the product covered by 
applicatio n A4 ( open wagons with non -removable sides  [[xxx]]).555 On the basis of this evidence, 
we consider that the FBO had valid grounds not to conduct off -site sampling in respect of one 
product covered by application A3 and the product covered by application A4.  
7.704.   We therefore consider that Ukraine has failed to establish that off -site sampling was a less 
strict manner of application reasonably available to Russia in respect of one product covered by 
application A3 (universal flat wagons [[xxx]]) and application A4. 
7.705.   However, Russia has failed to submit evidence of specific non -conformities or consumer 
complaints for the products covered by applications A1 (two -axle bogies and two -axle bogies of 
trunk road freight cars with track gage 1520mm [[xxx]]), A2 ( universal  flat wagons and flat 
wagons for large capacity cont ainers [[xxx]]), and one of the products covered by application A3 
(flat wagons for carrying timber [[xxx]]).556 We therefore consider that Ukraine has established 
                                                
552 Letter [[ xxx]] from the FBO of 2 October 2014 , (Exhibit UKR -16)(BCI ). The version of this 
communication submitted by Russia through Exhibit RUS -3 contains a copy of the applications submitted by 
producer 1.  
553 The text of the applications is contained in Letter of the FBO  No. [[xxx]] of 2 October 2014, 
(Exhibit  RUS-3). 
554 Products for which producer 1 submitted new applications were suspended through Letter [[xxx]] 
from the FBO of 8 August 2014,  (Exhibit UKR -15)(BCI); and Letter [[xxx]] from the FBO of 3 October 2014,  
(Exhibit UKR -19)(BCI). 
555 The non -conformities in respect of both these products (universal flat wagons [[xxx]] and open 
wagons with non -removable sides  [[xxx]]) were identified in the inspection act of 28 January 2014 contained 
in Exhibit RUS -62(BCI).  
556 As indicated in footnote 410 above, the text of the inspection act of 18 April 2013 contained in 
Exhibit RUS -62(BCI) is incomplete, thus making it impossible to ascertain to which products  the "identified 
 WT/DS499/ R 
 
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  that off -site sampling was a less strict m anner of application reasonably available to Russia in 
respect of the products covered by applications A1 and A2, and one of the products covered by 
application A3 (flat wagons for carrying timber [[xxx]]). 
7.706.   Accordingly, we find that Ukraine has established  that off -site testing of samples is a less 
strict manner of application reasonably available to Russia in respect of three of the four 
applications (A1, A2, and A3 in respect of one of the covered railway products) rejected by the 
FBO through decision 1.  
Availability of off -site testing of samples for applications submitted under 
scheme 6c in general  
7.707.   We now turn to examine the availability in general of off -site sampling for applications 
submitted under scheme 6c. We recall that the applications rejected b y the FBO through decision 2 
were submitted under scheme 6c.  
7.708.   According to Annex 6 of CU Technical Regulation 001/2011, applications submitted under 
scheme 6c concern a batch of railway products and require sampling of railway products from the 
batch before  issuance of a certificate. As explained in the previous section, the procedure for 
sampling is set out in Article 4.2.3 of GOST 31814 -2012. According to the second paragraph of this 
Article, sampling should be carried out at the place where the batch is l ocated, such as the 
producer's warehouse, a warehouse of temporary storage, a customs warehouse, or the client's 
warehouse.  
7.709.   We recall that off -site sampling would be a situation where the FBO would allow a producer 
to send a sample of the batch of product s, with a sufficient number of units for the FBO to select 
those that would be subject to testing. On the basis of the text of Article 4.2.3 of GOST 31814 -
2012, the FBO would allow for this possibility, depending on where the batch to be certified is 
located. 
Decision 2: availability of off -site testing of samples  
7.710.   Through decision 2, the FBO rejected two applications submitted by producer 3 [[xxx]], 
one for a batch of 7,581 units of solebars and another for a batch of 15,057 units of side -
frames.557 The only reference to the location of those batches was made by Russia.558 According to 
Russia, the information available to the FBO indicates that those batches were at the producers' 
premises  in Ukraine . Ukraine has not challenged this assertion nor provided evidence to the 
contrary. Under the second paragraph of Article 4.2.3 of GOST 31814 -2012, when the batch is 
located at the producer's premises, sampling must be carried out at that location. Conseque ntly, 
Ukraine has not demonstrated that under Article 4.2.3 the FBO had the possibility to carry out the 
sampling of the batches covered by decision 2 elsewhere than in Ukraine.  
7.711.   We recall in this connection that there is evidence that the FBO has applied the first 
paragraph of Article 4.2.3 flexibly so as to permit off -site sampling in respect of applications 
submitted under scheme 3c (railway products produced in series). However, there is no evidence 
on record to indicate that the FBO has applied the sec ond paragraph of Article 4.2.3 more flexibly 
than its text contemplates. We therefore have no reason to consider that the FBO had the 
possibility of not applying the second paragraph of Article 4.2.3 as written. Moreover, we note that 
Ukraine has not chall enged the WTO -consistency of Article 4.2.3.  
                                                                                                                                                  
inconsistencies" mentioned in paragraph 7.3 of the inspection act refer. Moreover, we note that the report on 
materials of inspection control dated 15 May 2013, contained in Exhibit RUS -62 (BCI), indicates that prior non -
conformities ident ified in the inspection act of 18 April 2013, which concerns the inspection of the products 
covered by applications A1 and A2 (two -axle bogies and two -axle bogies of trunk road freight cars with track 
gage 1520mm [[xxx]] and universal flat wagons and flat wagons for large capacity cont ainers [[xxx]]), had 
been eliminated. The evidence submitted by Russia does not contain any reference to the remaining product 
covered by application A3 ( flat wagons for carrying timber [[xxx]]).  
557 Letter [[ xxx]] from PJSC [[ xxx]], 7 September 2017 , (Exhibit UKR -136)(BCI); and Letter of the FBO  
No. [[xxx]]  of 23 January 2015, (Exhibit RUS -4). 
558 Russia 's response to Panel question No. 123.  WT/DS499/ R 
 
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  7.712.   Accordingly, we consider that Ukraine has failed to establish that off -site sampling is a less 
strict manner of application of the conformity assessment procedure reasonably available to Russia 
in respect of the two applications rejected by the FBO through decision 2.  
7.4.3.3.1.5   Overall assessment of whether Russia has applied its conformity assessment 
procedure more strictly than necessary  
7.713.   We recall that we have determined above that Russia has applied its conformity 
assess ment procedure, through decisions 1 and 2, in a trade -restrictive manner. We have also 
determined, however, that this manner of application of the conformity assessment procedure 
contributes substantially  to giving Russia adequate confidence that the railw ay products covered 
by the rejected applications for new certificates conform with Russia's applicable technical 
regulations. We have further observed  that the risks that non -conformity would create are high. In 
the circumstances of this dispute, non -confo rmity could lead to accidents and thus endanger, inter 
alia, the life and health of humans, plants, and animals. Such accidents could also cause serious 
harm to the environment. Clearly, therefore, the values and interests protected are very 
important.  
7.714.   In weighing and balancing these elements, we note that  although  in the case of decisions 1 
and 2  the FBO applied the underlying conformity procedure in a strict manner that had a 
significant trade -restrictive effect, this manner of application of the procedu re contributed 
substantially to giving Russia adequate confidence of conformity with the applicable technical 
regulations and took account of the high risks that non -conformity would have created for very 
important values and interests.  
7.715.   As regards alterna tive manners of application, we recall our finding concerning decision 1 
that, in respect of the products covered by applications A1 and A2, and one of the products 
covered by application A3, Ukraine has established that off -site sampling is a less strict manner of 
application reasonably available  to the FBO under the applicable conformity assessment procedure. 
At the same time, Ukraine failed to establish, in respect of one product covered by application A3 
and application A4, that there were less strict m anners of applying Russia's conformity assessment 
procedure that were reasonably available to the FBO under the applicable conformity assessment 
procedure (which Ukraine did not challenge as being WTO -inconsistent).  
7.716.   In the light of the foregoing, we consi der that in respect of decision 1 Ukraine has 
(a) established that the FBO, through applications A1 and A2, and one of the products covered by 
application A3 (flat wagons for carrying timber [[xxx]]), has applied its conformity assessment 
procedure more st rictly than is necessary to give Russia adequate confidence of conformity, in the 
light of the risks that non -conformity would create; and (b) failed to establish that the FBO, 
through application  A4 and one of the products covered by application A3 (unive rsal flat wagons 
[[xxx]]), has applied its conformity assessment procedure more strictly than is necessary to give 
Russia adequate confidence of conformity, in the light of the risks that non -conformity would 
create.  
7.717.   We note that application A3 is one sing le application covering two products. Neither party 
has addressed whether under CU Technical Regulation 001/2011 the FBO could issue a mixed 
decision with regard to such an application and issue a certificate for one covered product while 
refusing to issue  a certificate for the other covered product. Article 6(21)(e) and (f) of 
CU Technical Regulation 001/2011 contemplate that the FBO can either adopt a decision to issue a 
certificate or refuse issuance of a certificate and provide a justification. It does not indicate that in 
cases where an application covers more than one product , the FBO must apply CU Technical 
Regulation 001/2011 in such a manner that it either accepts the application as a whole or rejects it 
as a whole. It is worth noting in this connection that Article 6(22) of CU Technical Regulation 
001/2011 indicates that an appl ication for certification must provide, inter alia , "product 
information and its identifying characteristics …, [and a] technical description of the product …". 
Yet the evidence before us establishes that despite the use of the term "product" in the singul ar, 
an application can cover more than one product.559 We infer from this that CU Technical Regulation 
001/2011 leaves CU members some flexibility in respect of implementation. We therefore proceed 
                                                
559 Article 6(25) of CU Technical Regulation 001/2011 on applications concerning serial pro duction 
similarly refers to "series -production product" and "product specification" in the singular.  WT/DS499/ R 
 
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  on the basis  that CU Technical Regulation 001/2011 does not prevent the FBO from issuing 
product -specific decisions on applications for certification under scheme 3c that cover multiple 
products.  
7.718.   Regarding decision 2, we recall our finding that Ukraine has failed to establish that off -site 
sampling is a less strict  manner of application reasonably available to the FBO under the applicable 
conformity assessment procedure (which Ukraine did not challenge as being WTO -inconsistent  as 
such).  
7.719.   In the light of the foregoing, we consider that in respect of decision 2 Ukrai ne has failed to 
establish that the FBO has applied its conformity assessment procedure more strictly than is 
necessary to give Russia adequate confidence of conformity, in the light of the risks that non -
conformity would create.  
7.4.3.3.1.6   Conclusion  
7.720.   On the basis of  the foregoing, the Panel  conclude s with regard to decision 1 that Ukraine 
has established, in respect of applications A1, A2 and one of the products covered by application 
A3, that Russia has acted inconsistently with its obligations under Article 5.1.2, second sentence, 
of the TBT Agreement.  
7.721.   The Panel also conclude s with regard to decision 1 that Ukraine has failed to establish that, 
in respect of application A4 and one of the products covered by application A3, Russia has acted 
inconsistently with its o bligations under Article 5.1.2, second sentence, of the TBT Agreement.  
7.722.   Finally, the Panel conclude s with regard to decision 2 that Ukraine has failed to establish 
that Russia has acted inconsistently with its obligations under Article 5.1.2, second sentenc e, of 
the TBT Agreement.  
7.4.3.3.2   Article 5.1.2, first sentence  
7.723.   We recall that Ukraine's claims are based on both the first and the second sentence of 
Article  5.1.2. However, in relation to the first sentence, Ukraine has not submitted evidence or 
arguments that are different from those that we have examined in our ana lysis under the second 
sentence of Article 5.1.2.  
7.724.   The first sentence of Article 5.1.2 prohibits Russia from applying its conformity assessment 
procedure with a view to or with the effect of creating "unnecessary obstacles to international 
trade". We have found in our analysis  under the second sentence of Article 5.1.2 that the FBO has 
applied the applicable conformity assessment  procedure in a manner that had the effect of 
creating an obstacle to international trade, inasmuch as it restricted imports of th e railway 
products from Ukraine that are covered by decisions 1 and 2. However, as our analysis above of 
the relevant arguments and evidence also indicates, the obstacles to international trade created by 
(a) decision 1 in respect of application A4 and one  of the products covered by application A3, and 
(b) decision 2, were not "unnecessary" within the meaning of Article 5.1.2, first sentence. At the 
same time, our analysis above has led us to conclude with regard to decision 1 that applications 
A1, A2 and o ne of the products covered by application A3, were "unnecessary" within the meaning 
of Article 5.1.2, first sentence.   
7.725.   On the basis of the foregoing , we find that Ukraine has established in respect of decision 1, 
for applications A1, A2 and one of the pro ducts covered by application A3 (flat wagons for carrying 
timber [[xxx]]), that Russia has acted inconsistently with its obligations under Article 5.1.2, first 
sentence, of the TBT Agreement.  
7.726.   We also find that Ukraine has failed to establish in respect of decision 1, for application A4 
and one product covered by application A3 (universal flat wagons [[xxx]]), and also in respect of 
decision 2, that Russia has acted inconsistently with its obligations under Article 5.1.2, first 
sentence, of the TBT Agreement . WT/DS499/ R 
 
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  7.4.3.3.3   Overall conclusion  
7.727.   The Panel conclude s that Ukraine has established in respect of decision 1, for applications 
A1, A2 and one of the products covered by application  A3 (flat wagons for carrying timber 
[[xxx]]), that Russia has acted inconsistently with i ts obligations under Article  5.1.2 of the 
TBT Agreement.  
7.728.   The Panel also conclude s that Ukraine has failed to establish in respect of decision 1, for 
application A4 and one of the products covered by application A3 (universal flat wagons [[xxx]]), 
and decision 2, that Russia has acted inconsistently with its obligations under Article 5.1.2 of the 
TBT Agreement.  
Decision 3  7.4.3.4   
7.4.3.4.1   Article 5.1.2, second sentence  
7.729.   According to Ukraine, through  decision 3 [[xxx]] of 9 February 2015  the FBO annulled 
19 application s for new certificates  submitted  by a Belarusian agent  [[xxx]] of producer 2 [[xxx]] 
pursuant to CU Technical Regulation 003/2011 , due to a lack of necessary documentation. Ukraine 
claims that through decision 3 , Russia applied its conformity assessment proce dure more strictly 
than necessary to ensure that railway products originating in Ukraine conform with the applicable 
technical regulations, taking into account the risk non -conformity would create.560  
7.730.   Russia submits that the FBO issued decision 3 based on Article 6.33 of CU Technical 
Regulation 003/2011. Russia submits that the FBO issued decision 3 because the 19 annulled561 
applications did not contain all of the documents required by Article 6 (28) of CU Technical 
Regulation 0 03/2011.562 
7.731.   Ukraine submits that the FBO first accepted the 19 applications as being complete, and 
that the FBO issued decision 3 only afterwards. According to Ukraine, this presupposes that in the 
FBO's view there were no missing documents  when the applicat ions were submitted. In Ukraine's 
view, the FBO's reference to missing documents was a mere pretext for rejecting those 
19 applications.563  
7.732.   Ukraine further submits that, irrespective of whether the required documentation was 
complete, the FBO would arguably  have rejected the applications due to the impossibility of 
carrying  out on -site inspection, which was required by scheme 4c of CU Technical Regulation 
003/2011.564 
7.733.   Russia submits that Ukraine's  view that the FBO initially accepted the applications is based 
on an incomplete view of the facts. Russia submits that although the FBO initially accepted certain 
applications, it subsequently reviewed the decision and found that documents were missing, 
leading it to annul those applications through decision 3.565 
7.734.   The Panel turns to examine each of the elements required to establish whether decision 3 
constitutes an application of Russia's conformity assessment procedure that is more strict than 
necessary to give Russia adequate confidence that Ukrainian railway produc ts conform with 
Technical Regulation 003/2011, taking into account the risks non -conformity would create.  
                                                
560 Ukraine 's first written submission, para. 271; and second written submission, para. 204.  
561 Russia has explained that there is no difference between  annulling an application and returning it 
without consideration , which is what the FBO did in the case of decisions 1 and 2 . Russia 's response to Panel 
question No. 34.  
562 Russia 's first written submission, paras. 85 -86 and 99; response to Panel question N o. 72; second 
written submission, para. 106; and response to Panel question No. 169.  
563 Ukraine 's opening statement at the first meeting of the Panel, para. 53; response s to Panel question 
Nos. 38 and 70; and second written submission, para. 205.  
564 Ukraine 's second written submission, para. 206.  
565 Russia 's second written submission, para. 107; and response to Panel question No. 125.  WT/DS499/ R 
 
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  7.4.3.4.1.1   Contribution to giving Russia adequate confidence that the products 
conform to the technical regulations  
7.735.   Ukraine submits that because decision 3 is ba sed on the pretext that documents were not 
complete, it constitutes a trade restrictive  measure that makes no contribution to the objective of 
giving Russia adequate confidence that Ukrainian railway products conform with CU Technical 
Regulation 003/2011.566 
7.736.   Russia submits that through  CU Technical Regulation 003/2011 it seeks to, inter alia , 
(a) protect the life and health of citizens; (b) protect the property of individuals, legal entities, the 
state or municipalities; (c) protect the environment, life or h ealth of animals and plants; and 
(d) prevent deceptive practices. Russia also observes that, given the characteristics and end uses 
of the railway products at issue, it seeks the highest possible level of assurance of conformity.567  
7.737.   Ukraine argues that the alternative  manners of application that it has identified would 
make an equivalent contribution to giving Russia adequate confidence that Ukrainian railway 
products conform with the applicable technical regulations.568 
7.738.   The Panel notes that through CU Technic al Regulation 003/2011 Russia seeks to protect, 
inter alia , the environment as well as the life and health of humans, animals , and plants  against 
risks arising from train derailments due to low quality equipment. All of these values and interests 
are very important.  
7.739.   We recall that Russia submits that it "seeks the highest possible level of assurance of 
conformity with the relevant safety requirements".569 The evidence supports that Russia seeks a 
high level of conformity. Article 52 of the EAEU Treaty provid es that the technical regulations in 
the EAEU shall be adopted to protect the life and health of people, property, the environment, life 
and health of animals and plants, prevent consumer deception and ensure energy efficiency and 
resource conservation.570 According to Article 1.3 of CU Technical Regulation 003/2011, this 
CU technical regulation establishes the requirements for railway rolling stock and its components 
for the purpose of protecting the life and health of humans, animals and plants, maintaining  the 
safety of property, and preventing any actions that would mislead consumers with respect to the 
purpose and safety of the covered railway products.571 
7.740.   To ensure the protection of life and health of humans, animals , and plants, as well as of 
the environm ent, the CU technical regulation sets out a conformity assessment procedure through 
which conformity with the safety requirements are verified. Such procedures rely on methods for 
testing and for assessing conformity that enable certification bodies in CU members to verify 
conformity of products with the technical requirements contained in CU Technical Regulation 
003/2011.572 According to CU Technical Regulation 003/2011, applicants must submit, together 
with an application, a number of documents, including t est results, and producers undergo 
different forms of inspection, all aimed at verifying conformity.573 The existence of these rules 
demonstrates that Russia indeed seeks a high level of conformity.  
7.741.   Moreover, there is evidence that Russia has enforced the ru les governing its conformity 
assessment procedures, thus supporting  the view that Russia seeks a high level of conformity.574 
                                                
566 Ukraine 's second written submission, para. 207.  
567 Russia's responses to Panel question Nos. 108, 124, and 137.  
568 Ukraine's opening statement at the first meeting of the Panel, para. 61; and comments on Russia's 
responses to Panel question Nos. 116, 124, and 131.  
569 Russia's response to Panel question No. 116.  
570 EAEU Treaty , (Exhibit UKR -5).  
571 CU Technical Regulation 003/2011 , (Exhibit UKR -11).  
572 Article 6(8) of CU Technical Regulation 003/2011, (Exhibit UKR -11).  
573 Articles 6 (21) and 6(24) -6(29) of CU Technical Regulation 00 3/2011 , (Exhibit UKR -11).  
574 See for instance references to certificates issued under the CU Technical Regulations, contained in 
the following exhibits: Extract of Unified Register of Issued Certificates of Conformity and Registered 
Declarations of Conformity , (Exhibit UKR -13); Extract of Unified Register of Issued Certificates of Conformity 
and Registered Declarations of Conformity concerning European producers , (Exhibit UKR -54)(Corr.); Extract of 
Unified Register of Issued Certificates of Conformity and Registered Declarations of Co nformity concerning 
 WT/DS499/ R 
 
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  7.742.   Russia's annulment and rejection of applications submitted by producer 2 pursuant to 
CU Technical Regulation 003/2011 ensured that t he railway products for which new certificates 
were sought would not enter Russia's market. We consider that this manner of application of  the 
conformity assessment procedure gives Russia a high level of assurance that no non -conforming 
products covered by  decision 3 enter its market.  
7.743.   We note that Article 6 (28) of CU Technical Regulation 003/2011 sets out ten specific 
documents or types of information that must be submitted together with an application for a new 
certificate concerning products produced in series. Pursuant to Article 6.33 of CU Technical 
Regulation 003/2011, a certification  body must reject an application when (a) it fails to contain the 
documents required under paragraphs 25, 26, and 28 of Article 6 or (b) the information contained 
in the d ocuments submitted is unreliable. To us, Article 6.33(a) indicates that any application, 
including one submitted under Article 6.21, must be accompanied by the documents required, as 
relevant, in paragraphs 25, 26, and 28 of Article 6. Most of the applicat ions rejected through 
decision 3 concern products produced in series (pursuant to scheme 4c of CU Technical Regulation 
003/2011).575 As such, they should be accompanied by the documents required by Article 6 (28). 
Ukraine has not demonstrated otherwise. Moreo ver, Ukraine has not  claimed that the documentary 
and information requirements set out in Article 6 (28) are WTO -inconsistent.  
7.744.   According to t he text s of the applications submitted by Ukraine  under scheme 4c,  the 
documents attached to the applications do not appear to have include d each of the documents 
required by Article 6 (28).576 Ukraine has not submitted  the attachments  themselves  or other  
evidence of the documents that were attached to the applications. In the light of this, it appears to 
us that the a pplications were indeed not accompanied by all documents required by Article 6 (28). 
We consider that without the required documents or information, the FBO was not in a position 
properly to assess the conformity of the products covered by the applications.  
7.745.   Thus, Russia's chosen manner of application of  its conformity assessment procedure – the 
annulment of the applications – contributes substantially to the objective of giving Russia adequate 
confidence of conformity inasmuch as it ensured that no covered r ailway product that might not 
have conformed with CU Technical Regulation 003/2011 could enter Russia's market.  
7.4.3.4.1.2   Strictness of the manner of applying the conformity assessment procedure  
7.746.   Ukraine  submits that decision 3 has a severe restrictive effect on impo rts of railway 
products originating in Ukraine , as rejecting applications for new certificates results in the  
impossibility of placing such products on the  Russian  market.577  
7.747.   Russia submits that the FBO issued decision 3 because the 19 annulled applications  did not 
contain all of the documents required by Article 6 (28) of CU Technical Regulation 003/2011.578 
7.748.   The Panel notes that the rejection of applications for new certificates leads to the loss of 
access to the Russian market, for as long as new certificates  are not issued, because without a 
valid certificate, Ukrainian railway products cannot enter the Russian market.579 We therefore 
consider that the rejection of applications for new certificates substantially restricts trade, and can 
be considered as a strict manner of application.  
                                                                                                                                                  
Kazakh producers , (Exhibit UKR -56); Extract of Unified Register of Issued Certificates of Conformity and 
Registered Declarations of Conformity concerning Belarusian producers , (Exhibit UKR -58); and Extract of 
Unified Register of Issued Certificates of Conformity and Registered Declarations of Conformity concerning 
Russian producers , (Exhibit UKR -83).  
575 We note that at least three of those 19 applications were submitted pursuant to CU rules governing 
voluntary certification of conformity . See Table 6 above.  
576 Applications submitted by PJSC [[ xxx]] on behalf of PJSC [[ xxx]], 22  December  2014, (Exhibit UKR -
112)(BCI).  
577 Ukraine's first written submission, para. 273; and second written submission, para. 187.  
578 Russia 's first written submission, paras. 85 -86 and 99; response to Panel question No. 72; second 
written submission, para. 106; and response to Panel question No. 169. 
579 Article 3 (2) of CU Technical Regulation 003/2011 provides that objects and elements of railway 
infrastructure in respect of which conformity has not been certified cannot be released into the market , 
(Exhibit  UKR-11).  WT/DS499/ R 
 
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  7.4.3.4.1.3   Risks that non -conformity would create  
7.749.   Ukraine considers that the risk of non -conformity is that railway products enter Russia's 
market without satisfying the CU technical regulations, thus depriving these regulations of their 
effect.580 
7.750.   Russia submits that the risks of non -conformity are that goods of insufficient quality would 
enter Russia's m arket. According to Russia, such low -quality equipment can lead to train 
derailments, which  would undermine the objective of the technical regulations, including that of 
protecting the life and health of humans, animals , and plants. Russia considers that g iven the 
serious threat of harm to human life and health, the environment, property of individuals and legal 
entities, the risks of non -conformity are grave.581 
7.751.   The Panel notes that both parties seem to agree that there are high risks arising from non -
confor mity. In particular, non -conforming railway products may lead to accidents, including train 
derailments, which in turn may cause great harm, including to human, animal, and plant life and 
health. We consider that in view of the railway products covered by the applications for new 
certificates  (railway rolling stock and its parts thereof such as, wagons, switches, etc .), the 
consequence s of a failure of any of such products, due to non -conformity with the underlying 
technical regulations, could reasonably be  expected to create substantial risks notably for human, 
animal, and plant life or health as well as the environment.  
7.4.3.4.1.4   Less trade -restrictive manners of application  
7.752.   We now turn to examine the alternative manners of application raised by Ukraine.  
7.753.   Ukraine  argues that the  rejection of applications for new certificate s was a stricter 
application of Russia's conformity assessment procedures than necessary to provide Russia 
adequate confidence that Ukrainian railway products conform to the relevant technical regu lations. 
Ukraine submits that other , less trade restrictive manners of application of  Russia's conformity 
assessment procedure  were available  to Russia . Specifically, Ukraine identified the following 
alternatives: (a) additional communications with the relevant Ukrainian producers; (b) entrusting 
on-site inspections in Ukraine to the competent authorities of Kazakhstan and Belarus; 
(c) accrediting non -Russian inspectors, either experts or organizations, to conduct inspections in 
Ukraine; and (d) off -site in spections.582 Ukraine submits that these are less strict manners of 
application of  Russia's conformity assessment procedure that make an equivalent contribution to 
giving Russia adequate confidence of conformity, and are available to Russia.583 
7.754.   Russia does not  raise arguments addressing Ukraine's proposed alternatives. Russia 
responds that the FBO annulled the applications through  decision 3 because necessary documents 
had not been submitted with the applications.  
7.755.   The Panel understands that the alternative mann ers of application proposed by Ukraine are 
meant to be alternatives to the FBO not conducting inspections (suspensions) or sampling 
(rejections) in Ukraine. However, decision 3 concerns the application of a different and prior part 
of Russia's conformity a ssessment procedure, the initial examination of whether applications have 
deficiencies. We therefore do not consider that Ukraine has identified any alternative manners of 
application that would have allowed the FBO to avoid annulling the applications thro ugh decision 
3.584 
                                                
580 Ukraine's second written submission, para. 209.  
581 Russia's response to Panel question No. 104; second written submission, para. 102; and response to 
Panel question No. 116.  
582 We recall that, as explained in footnote 369 above, we use the term "off -site inspection" and "remote 
inspection" interchangeably.  
583 Ukraine's first written submission, para. 275; opening statement at the first meeting of the Panel, 
paras. 61 -68; and second written submission, paras. 212, 248, and 252.  
584 We note Ukraine's argument that irrespective of whether the required documentation was complete, 
the FBO would arguably have rejected the applications due to the impossibility to carry out on -site inspection . 
 WT/DS499/ R 
 
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  7.4.3.4.1.5   Overall assessment of whether Russia has applied its conformity assessment 
procedure more strictly than necessary  
7.756.   We recall that we have determined above that Russia has applied its conformity 
assessment procedure, through decision 3, in a  trade -restrictive manner. We have also 
determined, however, that this manner of applying the conformity assessment procedure 
contributes substantially  to giving Russia adequate confidence that the railway  products covered 
by the annulled applications for new certificates cannot enter Russia's market, unless they conform 
with Russia's applicable technical regulations. We have further found that the risks that non -
conformity would create are high. In the circumstances of this dispute, non -conformity could le ad 
to accidents and thus endanger the life and health of humans,  animals, and  plants. Such accidents 
could also cause serious harm to the environment. Therefore, the values and interests protected 
are important.  
7.757.   In weighing and balancing those elements an d findings, we note that although the FBO 
applied the underlying conformity procedure in a strict manner that had a significant trade -
restrictive effect, this manner of applying the procedure contributed substantially to giving Russia 
adequate confidence o f conformity with the applicable technical regulations and took account of 
the high risks that non -conformity would have created for important values and interests. We 
further observe that the FBO in annulling the incomplete applications followed Article 6 (33)(a) of 
CU Technical Regulation 003/2011. Ukraine has not argued that Article 6(33) is contrary to 
Article  5.1.2.  
7.758.   We also recall our finding that Ukraine has failed to identify less strict manners of 
application available to the FBO under Russia's domestic  law, including Article 6(33) and other 
provisions of the applicable conformity assessment procedure.  
7.759.   In the light of this, we consider that Ukraine has failed to establish that the FBO, through 
decision 3, has applied its conformity assessment pr ocedure more strictly than is necessary to give 
Russia adequate confidence of conformity, in the light of the risks that non -conformity would 
create.  
7.4.3.4.1.6   Conclusion  
7.760.   We thus conclude that Ukraine has failed to establish that, through decision 3, Russia has 
acted inconsistently with its obligations under the second sentence of Article 5.1.2 of the 
TBT Agreement.  
7.4.3.4.2   Article 5.1.2, first sentence  
7.761.   We recall that Ukraine bases its claims under Article 5.1.2 on both the first and the second 
sentence of Article  5.1.2. How ever, in relation to the first sentence, Ukraine has not submitted 
evidence or arguments that are different from those that we have examined in our analysis under 
the second sentence of Article 5.1.2.  
7.762.   The first sentence of Article 5.1.2 prohibits Russia f rom applying its conformity assessment 
procedure with a view to or with the effect of creating "unnecessary obstacles to international 
trade". We have found in our analysis under the second sentence of Article 5.1.2 that the FBO has 
applied the applicable conformity assessment  procedure in a manner that had the effect of 
creating an obstacle to international trade, inasmuch as it restricted imports of the railway 
products from Ukraine that are covered by decision 3. However, as our analysis above of the 
relevant arguments and evidence also indicates, the obstacle to international trade created by 
decision 3 was not "unnecessary" within the meaning of the first sentence of Article 5.1.2.  
7.763.   On that basis, we find that Ukraine has failed to establish in respect of decision 3 that 
Russia has acted inconsistently with its obligations under the first sentence of Article 5.1.2 of the 
TBT Agreement.  
                                                                                                                                                  
However, we cannot speculate about what the FBO would have done. Moreover, Article 6(33) of CU Technical 
Regulation 003/2011 contemplates that  the FBO reject applications that are not complete.  WT/DS499/ R 
 
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  7.4.3.4.3   Overall conclusion  
7.764.   In respect of decision 3, the Panel thus conclude s that Ukraine has failed to establish that 
Russia has acted inconsistently with its obligations under Article 5.1.2 of the TBT Agreement.  
7.4.4   Consistency of the rejections  with Article 5.2.2 of the TBT Agreement  
7.765.   Ukraine has also pr esented claims of violation u nder Article 5.2.2 of the TBT Agreement, to 
which we now turn. Ukraine's claims concern all three decisions, through which the FBO rejected 
or annulled applications by Ukrainian producers, and they are based on the second and third 
obligations in Article 5 .2.2. 
7.766.   Ukraine claims that in respect of the three FBO decisions Russia acted inconsistently with 
Article 5.2.2, both by failing to examine promptly the completeness of the documentation 
submitted by the applicants and failing to inform them in a precise an d complete manner of all 
deficiencies in their applications (second obligation) and by failing to transmit the results of the 
conformity assessment in a precise and complete manner that would have allowed the applicants 
to take corrective actions (third ob ligation).585 
7.767.   Russia rejects all of Ukraine's claims under the second and third obligations in 
Article  5.2.2, arguing that Ukraine has failed to establish that the three decisions are inconsistent 
with Article 5.2.2.586 
7.768.   The Panel recalls that it has already ad dressed the meaning of the second and third 
obligations in Article 5.2.2 in section 7.3.4.1  above. We therefore proceed directly to apply 
Article  5.2.2 to the chal lenged rejections.  
Application of the second and third obligations in Article 5.2.2  7.4.4.1   
7.4.4.1.1   Applicability of Article 5.2.2  
7.769.   We found above  that the three decisions,  through which the FBO rejected or annulled 
applications, fall within the scope of Article 5.1 of the TBT Agreement , as they concern conformity 
assessment by a central government body and a mandatory conformity assessment procedure.587 
Article 5.2 indicates that in situations where a Member must implement the obligations set out in 
Article 5.1, it must also implement those set out in Article 5.2, including the obligations contained 
in Article 5.2.2. The three challenged decisions are therefore subject to Article 5.2.2.  
7.4.4.1.2   Overview  of relevant facts  
7.770.   Section 7.4.1 above  summarizes the relevant facts.588 For each of the three decisions, it 
provides the explanation given in support  of the relevant decision. The explanation given for 
decisions 1 and 2, through which the FBO returned the applications without consideration, are 
virtually the same. A different explanation was given for decision 3, through which the submitted 
application s were annulled.  
7.771.   We note that decisions 1 and 2 refer to the impossibility of carrying out the certification 
procedure in full. They do not refer to any missing documents or incomplete applications. In 
contrast, decision 3 does not refer to the impossibili ty of carrying out the certification procedure in 
full. But it points to the absence of documents necessary for performance of certification.  
                                                
585 Ukraine's first written submission, para. 277; and second written submission, para. 254.  
586 Russia's first written submission, para s. 104-106. 
587 See paragraphs 7.608 - 7.611  above.  
588 See in particular Table 6 above.  WT/DS499/ R 
 
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  7.4.4.1.3   Consistency with the third obligation in Article 5.2.2  
7.772.   Turning now to the matter of the consistency of the three r ejection decisions with 
Article  5.2.2, we will address the claimed inconsistencies with the third obligation in Article 5.2.2 
before addressing the claimed inconsistencies with the second obligation.  
7.773.   Ukraine claims that Russia did not comply with the thir d obligation in Article 5.2.2 in 
respect of decisions 1 and 2 because it failed to transmit in a precise and complete manner the 
results of the preliminary assessment, which would have allowed the applicants to take corrective 
action. Ukraine submits that the explanation provided by the FBO did not address why the 
certification procedure could not be carried out in full or which specific part of the certification 
procedure was posing difficulty.589  
7.774.   Regarding decision 3, Ukraine submits that Russia acted inco nsistently with the third 
obligation in Article 5.2.2 because it failed to inform the relevant producer in a precise and 
complete manner of the results of the FBO's assessment. Ukraine argues that the FBO decision did 
not indicate which specific documents had not been provided, thus making it impossible for the 
producer to know what corrective action it could take (i.e. what documents to submit) in order for 
the applications to be processed by the FBO. According to Ukraine, Article 6(24) of CU Technical 
Regulation 003/2011 indicates that immediately following the submission of an application, the 
certification procedure foresees as the second of seven steps "assessment of the application … by 
the certification body, the decision in respect of the said applic ation and the direction of the 
applicant". In Ukraine's view, it therefore follows that the FBO's conclusion that documents were 
missing constitutes an "assessment" within the meaning of the third obligation of Article 5.2.2.590  
7.775.   Russia argues that Ukraine h as failed to establish its claims under the third obligation of 
Article 5.2.2. Regarding decisions 1 and 2, Russia argues that the two producers were fully aware 
of the relevant situation and the reasons for the inability to conduct the inspection control 
necessary for the certification, which included uncertainty about the safety of FBO employees. 
According to Russia, without visiting the premises of the producer, it was impossible for the FBO to 
carry out product identification, sampling of products, insp ection of production or certification of 
the quality management system or production. Russia further observes that according to Article 
6(9) of CU Technical Regulation 001/2011 certification is conducted on the basis of a contract 
between the certification  body and the applicant. Russia submits that the FBO could not conclude 
such contracts given the situation in Ukraine, as otherwise it would have entered into contractual 
obligations that it could not have performed.591  
7.776.   Regarding decision 3, Russia argues t hat the applications covered by this decision were 
incomplete, and that the reference to Article 6(28) of CU Technical Regulation 003/2011 was 
sufficient to inform the applicant in a precise and complete manner of all the documents that were 
necessary for the applications to be accepted.592 
7.777.   Ukraine counters in respect of decisions 1 and 2 that there is no basis in Article 5.2.2 for a 
presumption that applicants are supposed to be fully aware of the situation. According to Ukraine, 
it is up to the FBO to infor m the applicants in a precise and complete manner. Ukraine also argues 
that the certification schemes relevant to decisions 1 and 2, schemes 3c and 6c, do not require 
FBO inspectors to visit the producer's site of production. In Ukraine's view, the referen ce to the 
impossibility of carrying out the certification procedure is therefore an excuse for refusing the 
issuance of certificates.593  
7.778.   The Panel begins its analysis with decisions 1 and 2. We first address whether, through 
decisions 1 and 2, the FBO was t ransmitting the results of an assessment. In the two decisions, 
                                                
589 Ukraine's first written submission, para s. 284 -285. 
590 Ukraine's first written submission, para s. 286 -287; and Ukraine's section written submission, 
paras.  316-317. 
591 Russia's first w ritten submission, para s. 84 and 104; second written submission, para. 124; and 
responses to Panel question Nos. 21, 34 and 71.  
592 Russia's first written submission, para . 105.  
593 Ukraine's opening statement at the first meeting of the Panel , para. 72; and s econd written 
submission, paras. 313 -314. WT/DS499/ R 
 
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  the FBO refers to the impossibility of carrying out a certification procedure in full. As we noted  
above  and as explained by Russia594, the FBO's position appears to have been that it could not 
give access to one integral part of Russia's conformity assessment procedure set out in 
CU Technical Regulation 001/2011, the testing of samples, and that it therefore r eturned  the 
applications  without substantive consideration . Thus, the relevant "assessm ent", the result of 
which was to be transmitted, is the assessment concerning the testing of samples.  
7.779.   As the FBO determined that it was impossible to carry out the testing of samples for the 
Ukrainian suppliers concerned, it was clear that the assessment t o be undertaken by the FBO 
during the testing of samples could not yield any substantive "conformity" or "non -conformity" 
outcomes. In keeping with our interpretation of the term "results of the assessment"595, we 
therefore consider that the "result" of the FBO's assessment concerning the testing of samples was 
that there was not and could not be any substantive outcome. In the light of this, we further 
consider that by referring to the impossibility of carrying out a certification procedure in full, the 
FBO was transmitting to the relevant applicants the result of its assessment concerning one 
integral part of the conformity assessment procedure .  
7.780.   We now turn to address whether the FBO transmitted the result of its assessment in a 
precise and complete manner so that any corrective action could be taken. Decisions 1 and 2 
inform applicants that it is not possible to carry out a certification procedure in full. The decisions 
thus inform the applicants about the result of an assessment, but it is not clear to wha t part of the 
conformity assessment procedure and hence to what assessment the FBO is referring. Moreover, 
the decisions do not provide any information about the nature of, and reason for, the 
"impossibility" that prevents the FBO from carrying out the cer tification procedure in full. 
Consequently, the applicants have no way of determining whether there is any corrective action 
that they could take with a view to allowing the certification procedure to proceed. For these 
reasons, decisions 1 and 2 do not in form the applicants in a precise and complete manner and are 
thus not sufficient to satisfy the requirements of the third obligation.  
7.781.   In our view, Russia's argument that the two suppliers were fully aware of the relevant 
situation and the reasons for the i mpossibility of carrying out the certification procedure in full is 
inapposite. As we have explained above, the standard for assessing whether the results have been 
transmitted in a precise and complete manner is an objective one. It is therefore not neces sary to 
examine, in addition, what the applicants at issue did or did not know about the "impossibility". On 
an objective assessment, applicants were not in a position, without additional indications, reliably 
to infer from the reference to the "impossibil ity" of carrying out the certification procedure in full 
what the nature of, and reason for, the impossibility was.  
7.782.   Turning to decision 3, we note that it refers to the absence of documents "necessary for 
the performance of certification". This decision i nforms the applicant that the documentation 
submitted by the applicant was incomplete. In contrast, nothing in decision 3 indicates that the 
FBO was transmitting the result of any part of the conformity assessment procedure.  
7.783.   To be sure, and as noted by Ukraine, decision 3 indicates that the FBO "assessed" the 
completeness of the applications and found deficiencies in this respect. However, not every 
assessment by the competent body that is undertaken in connection with a confo rmity assessment 
procedure falls within the scope of the third obligation in Article 5.2.2. Assessing the completeness 
of the documentation submitted by an applicant is not the same as assessing, or determining596, 
the conformity of a product. The former act ivity is specifically addressed in the second obligation in 
Article 5.2.2; the latter activity is covered by the third obligation in Article 5.2.2. Moreover, if the 
assessment of the completeness of an application were subject to the third obligation, the second 
obligation in Article 5.2.2 would be redundant.597 
                                                
594 See paragraph 7.617  above; and Russia's response to Panel question No. 21.  
595 See section 7.3.4.1  above.  
596 Article 5.2.7 uses the term "determination" of conformity, whereas the fourth obligation of 
Article  5.2.2 and Article 5.2.3 refer to "assessment" of conformity or "assess[ing]" conformity.  
597 We recall that treaty provisions must be interpreted so as not to deprive them of meaning and effect. 
Appellate Body Report, US – Gasoline , p. 23, DSR 1996:I, p. 3 at 21.  WT/DS499/ R 
 
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  7.784.   For these reasons, we do not agree with Ukraine that the FBO's conclusion that documents 
were missing constitutes the result of an assessment that the FBO had to transmit in a precise and 
complete man ner to the applicant, as prescribed by the third obligation of Article 5.2.2. In our 
view, the third obligation is not applicable to the information provided in decision 3.  
7.4.4.1.3.1   Conclusion  
7.785.   In the light of the above, the Panel concludes that Ukraine has establis hed, for decisions 1 
and 2, that Russia has acted inconsistently with the third obligation in Article 5.2.2. The Panel also 
concludes, however, that Ukraine has failed to establish, for decision 3, that Russia has acted 
inconsistently with the third obliga tion in Article 5.2.2. In sum, the Panel conclude s that Ukraine 
has established inconsistencies with the third obligation in Article 5.2.2 in respect of two of the 
three rejections of new applications.  
7.4.4.1.4   Consistency with the second obligation in Article 5.2. 2 
7.786.   We now turn to examine Ukraine's claims of inconsistency with the second obligation in 
Article 5.2.2.  
7.787.   Ukraine  claims that Russia did not comply with the second obligation in Article 5.2.2 in 
respect of decisions 1 and 2 because it failed to inform the tw o producers in a precise and 
complete manner of all deficiencies in their applications. Ukraine notes that the explanation 
provided by the FBO did not address why the certification procedure could not be carried out in full 
or which specific part of the ce rtification procedure was posing difficulty.598  
7.788.   Ukraine further submits that the FBO failed to examine the completeness of the 
documentation submitted by the two producers. For Ukraine, this is clear from the two decisions 
themselves, which indicate that the FBO decided to return the applications without consideration. 
Ukraine also argues that the FBO did not have sufficient time to examine properly the 
completeness of the documentation submitted. Regarding decision 1, Ukraine refers to the number 
of documen ts that were submitted and the issuance of the FBO's decision only a day after the 
applications had been submitted. Ukraine notes that in the case of decision 2, the FBO's decision 
was issued only three days after the applications had been submitted.599  
7.789.   Regarding decision 3, Ukraine submits that Russia acted inconsistently with the second 
obligation in Article 5.2.2 because it failed to inform the relevant producer in a precise and 
complete manner of all deficiencies in its applications. Ukraine argues that the FBO's decision did 
not indicate which specific documents had not been provided, thus making it impossible for the 
producer to take corrective action (i.e. submit the missing documents).600  
7.790.   Ukraine further argues that the reference in the FBO's decision to Article 6(28) of 
CU Technical Regulation 003/2011 was not sufficient, in the circumstances of decision 3, to comply 
with the second obligation of Article 5.2.2. Ukraine contends that the applications had been 
submitted and accepted by the FBO under Arti cle 6(21) of CU Technical Regulation 003/2011, 
without mentioning that any documents were missing, before the FBO decided to annul these 
applications on the basis of a lack of documents required by Article 6(28). Ukraine argues that 
since the FBO had not p reviously invoked Article 6(28), did not explain why this provision was 
being invoked, and merely referred to Article 6(28), which lists all documents that must be 
submitted with an application for certification for serial production, the FBO did not infor m the 
applicant in a precise and complete manner of the specific documents that were missing.601 
7.791.   Russia argues that Ukraine has failed to establish its claims under the second obligation of 
Article 5.2.2.  Regarding decisions 1 and 2, Russia argues that the t wo producers were fully aware 
                                                
598 Ukraine's first writte n submission, para s. 284 -285. 
599 Ukraine's second written submission, paras. 280 -281 and 283 -284. 
600 Ukraine's first written submission, para s. 286 -287; and second written submission, paras. 316 -317. 
601 Ukraine's second written submission, paras. 288 -290; and  responses to Panel question Nos. 70 and 
122. WT/DS499/ R 
 
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  of the relevant situation and the reasons for the inability to conduct the inspection control 
necessary for the certification.602 
7.792.   Regarding decision 3, Russia argues that this application was incomplete, and that the 
explicit re ference to Article 6(28) of CU Technical Regulation 003/2011 was sufficient to inform the 
applicant in a precise and complete manner of all the documents that were necessary for the 
applications to be accepted. Russia notes that Article 6(28) lists ten dif ferent documents that are 
necessary for an application for certification. According to Russia, the FBO annulled these 
applications because they contained only two out of the ten necessary documents, (a) a proposed 
method and point of application of a singl e sign of products on the markets of CU members, and 
(b) the document establishing an expiration date of the goods.603 
7.793.   In respect of decision 3, Ukraine responds that Russia's assertion is incorrect and that the 
applications were accompanied by multiple docu ments showing conformity of the covered railway 
products with CU Technical Regulation 003/2011, such as technical documentation (certificates for 
components) and protocols of certification tests.604 
7.794.   The Panel again begins its analysis with decisions 1 and 2.  As noted above, the two 
decisions inform the applicants of the result of the FBO's assessment concerning one integral part 
of the conformity assessment procedure , the testing of samples. Nothing in decisions 1 and 2 
suggests that the FBO had determined th at the applications had any deficiencies. The FBO's 
explanation that it was impossib le for it  to carry out a certification procedure in full  does not 
indicate that the applications had deficiencies.  To that extent, it is clear that the second part of the 
second obligation in Article 5.2.2, which requires that the competent body "inform[] the applicant 
in a precise and complete manner of all deficiencies", is not applicable to the information provided 
in decisions 1 and 2. Thus, the facts do not support Ukra ine's claim that  in respect of these two 
decisions  Russia has acted inconsistently with the second part of the second obligation in Article 
5.2.2.  
7.795.   Ukraine also claims an inconsistency with the first part of the second obligation, according 
to which when re ceiving an application, the competent body must promptly examine the 
completeness of the documentation. In support of its claim s, Ukraine refers to the FBO's decision 
to return the applications "without consideration". However, it is important to bear in m ind the 
FBO's complete explanation. The FBO returned the applications without consideration due to the 
impossibility of carrying out a certification procedure in full. Thus, the FBO indicated that it would 
not proceed with a conformity assessment because i t was not possible to complete it. In other 
words, the consideration that the FBO declined to undertake concerned whether the covered 
products conformed with the CU Technical Regulation 001/2011. The FBO did not state that it 
would not examine whether the applications were complete.  
7.796.   Ukraine further argues that the FBO did not have sufficient time to examine properly the 
completeness of the documentation submitted, since the FBO issued the two decisions one and 
three days, respectively, after the applicatio ns had been submitted. Russia has not argued that the 
FBO finished its examination of the completeness of the documentation. As we see it, the FBO 
issued the two decisions so promptly because it was in a position to transmit to the applicants a 
result of i ts assessment, the impossibility of carrying out an integral part of the conformity 
assessment procedure in full. We note in this respect that the third obligation required the FBO to 
transmit results of its assessment "as soon as possible". In our view, i t cannot be inferred from the 
prompt issuance of the two decisions that the FBO had not engaged at all, or was no longer 
engaged, in an examination of the completeness of the documentation submitted when it issued 
the two decisions. Indeed, Ukraine itself states in respect of decision 1 that numerous documents 
had been submitted with the applications. And in respect of decision 2 Ukraine similarly asserts 
that three days were not enough properly to examine the completeness of the documentation.  
7.797.   Furthermore , we recall that under Article 5.2.2 the competent body must "promptly" 
inform the applicant of all deficiencies of the application and also transmit the results of its 
                                                
602 Russia's first written submission, para . 104; and response to Panel question No. 71.  
603 Russia's first written submission, para s. 85-86 and 105; second written submission, para. 125; and 
response to Panel question No. 72.  
604 Ukraine's second written submission, para.  286; and response to Panel question No. 70.  WT/DS499/ R 
 
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  assessment "as soon as poss ible". As we have explained in s ection 7.3.4.1  above, the competent 
body in our view must inform the applicant as so on as possible after any results become available, 
even if this is before the competent body has been able to finish its e xamination of the 
completeness of the documentation. Consequently, the FBO was not required to have finished its 
examination of the completeness of the documentation before it issued decisions 1 and 2 to 
transmit a result of its assessment. In the case of decisions 1 and 2, the FBO had clarity regarding 
the result of the assessment concerning the testing of samples quickly, which is why the FBO 
transmitted the two decisions without delay. And Ukraine does not argue that the FBO could have 
finished its exami nation of the completeness of the documentation before decisions 1 and 2 were 
issued. In fact, Ukraine argues the opposite. Therefore, it cannot be inferred from the prompt 
issuance of decisions 1 and 2 that the FBO did not promptly examine the completenes s of the 
documentation. For these reasons, we reject Ukraine's claim that Russia in respect of decisions 1 
and 2 has acted inconsistently with the first part of the second obligation in Article 5.2.2.  
7.798.   We now turn to examine Ukraine's claim concerning decis ion 3. Through decision 3, the 
FBO clearly informed the applicant that its applications had deficiencies. It is not in dispute that 
the FBO indicated that documents necessary for the conduct of a conformity assessment were 
missing, and that it referred the  applicant to Article 6(28) of CU Technical Regulation 003/2011 for 
a list of the required documents.605 Ukraine claims an inconsistency with  the second obligation in 
Article 5.2.2 on the basis that the FBO did not inform the applicant in a precise and compl ete 
manner of all deficiencies in its applications .  
7.799.   We observe at the outset that Ukraine does not challenge the WTO -consistency of 
Article  6(28) as such, nor does it argue that there is a lack of clarity regarding the specific 
documents or type of inform ation that Article 6(28) lists as having to be submitted with the 
application for certification. As Russia has pointed out, Article 6(28) lists ten distinct documents or 
types of information.  
7.800.   It is correct that decision 3 does not identify the specific do cuments or types of information 
that are missing. However, Ukraine does not argue that the applicant did not have a copy of the 
documentation that it submitted or that the applicant could not have had access to the 
documentation that it submitted upon requ est.606 In our view, the applicant should therefore have 
been able to ascertain which specific document or type of information was missing in its 
application. To do so, the applicant only needed to compare the documents and information that it 
submitted agai nst the ten items listed in Article 6(28). We observe in this connection that the first 
obligation in Article 5.2.2 does not state that the competent body, which may have numerous 
applications to process at any given time, must necessarily identify any mis sing documents directly 
or explicitly, or in as precise and complete a manner as possible, as Ukraine seems to consider. 
Rather, it states more broadly that the applicant must be informed of all deficiencies "in a precise 
and complete manner".  
7.801.   We note, in  addition, that the parties disagree over how many of the ten documents or 
types of information listed in Article 6(28) the applicant had submitted to the FBO with the 
applications. Similar to what we have already stated in respect of the third obligation in 
Article  5.2.2, we also observe that, in our view, it is not relevant under the second obligation in 
Article  5.2.2 whether the competent body's allegation that an application has deficiencies is well -
founded from the perspective of the applicant.607  
7.802.   In sum, we note that the FBO informed the applicant that its applications had deficiencies 
and what their nature was (missing documents that were necessary). The FBO further called the 
applicant's attention to the specific legal provision that lists all documen ts and information that 
needed to accompany the applications for certification. Ukraine does not assert that the legal 
provision is itself unclear. Moreover, the FBO's reference to the relevant legal provision enabled, or 
                                                
605 The FBO also referred the applicant t o VP SSFZhT 31/PMG 40 -2003 (the procedure for certification of 
means of railway transport) . However, as neither party has discussed this procedure, our analysis does not 
further address this procedure.  
606 Indeed, during the course of these proceedings, Ukraine has submitted copies of the applications at 
issue. Applications submitted by PJSC [[ xxx]] on behalf of PJSC [[ xxx]], 22 December 2014 , (Exhibit UKR -
112)(BCI).  
607 As previously noted, Article 5.2.8 envisages that Members put in place a procedure that allows an 
applicant to file a complaint and seek review concerning the operation of a confo rmity assessment procedure .   WT/DS499/ R 
 
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  should have enabled, the applicant  to determine which specific documents or types of information 
were missing and hence what deficiencies needed to be corrected. On this basis, we consider that 
the FBO informed the applicant of all deficiencies in its applications  in a precise and complete  
manner .  
7.803.   Ukraine argues, however, that in the specific circumstances of decision 3, which Ukraine 
suggests were confusing, the FBO should have informed the applicant about the specific 
documents that were missing. The evidence on record indicates that aft er receiving and 
"processing" the applications, the FBO took a decision on each application regarding how to 
conduct the certification procedure.608 Article 6(21) of CU Technical Regulation 003/2011 is 
referred to in some of these initial decisions on applic ation for certification, which mirrors the fact 
that the applicant had submitted documents pursuant to Article 6(21). The FBO's initial decisions 
do not refer to any missing documents. Less than three weeks later, the FBO issued decision 3.609  
7.804.   In considerin g Ukraine's argument, we note that it is less than clear from the evidence 
before us what is the relationship between Articles 6(21) and 6(28) of CU Technical Regulation 
003/2011; why the FBO issued decision 3 soon after its initial decisions on application for 
certification; and whether decision 3 was prompted by the FBO's subsequent detection of a 
deficiency in the applications or by a different assessment of the legal provision applicabl e to the 
applications. In response to questions from the Panel, Russia has explained that applicants 
applying for certification of serial production must always submit the documents and information 
listed in Article 6(28), and that they must submit in addi tion the documents listed in Article 6(21) 
in those cases where Article 6(21) is applicable.610 Russia has further stated that after issuing its 
initial decisions, the FBO reviewed these decisions and informed the applicant that the 
requirements of Article 6 (28) had not been satisfied.611  
7.805.   While the circumstances surrounding the annulment of the applications are thus not 
entirely clear, we note that what is clear is that Ukraine is challenging decision 3. Ukraine's claim 
is that in annulling the applications th rough decision 3, Russia failed to inform the applicant of all 
deficiencies in a precise and complete manner.612 Decision 3 indicates that the applications were 
annulled because documents required by Article 6(28) were missing. It is correct that the FBO had  
not invoked Article 6(28) in its initial decisions on application for certification. However, this fact 
alone, and the lack of an explanation as to why Article 6(28) was being invoked, in our view did 
not impede the ability of the applicant to ascertain, on the basis of the list contained in 
Article  6(28), which specific documents or types of information were missing. In the light of this, 
the circumstances surrounding the issuance of decision 3 do not change our initial assessment 
that, through decision 3 , the FBO informed the applicant of all deficiencies in its applications  in a 
precise and complete manner . For all these reasons, we find that Ukraine has not established that 
Russia in respect of decision 3 has acted inconsistently with the seco nd obligat ion in Article 5.2.2.  
7.4.4.1.4.1   Conclusion  
7.806.   In the light of the above, the Panel  conclude s that Ukraine has not established, for 
decisions 1, 2 and 3, that Russia has acted inconsistently with the second obligation in 
Article  5.2.2.  In sum, the Panel conclude s that Ukraine has not established inconsistencies with the 
second obligation in Article 5.2.2 in respect of any of the three rejections of new applications.  
                                                
608 Decisions [[xxx ]], 20 and 21 January 2015 , (Exhibit UKR -113)(BCI).  
609 Not all of the initial FBO decisions on application for certification have legible dates. Those that do 
date from 21 January 2015, whereas decision 3 dates  from 9 February 2015. Letter [[ xxx]] from the FBO of 9 
February 2015 , (Exhibit UKR -23)(BCI); and Decision s [[xxx ]], 20 and 21 January 2015 , (Exhibit UKR -
113)(BCI).  
610 Russia's response to Panel question No. 125(a).  
611 Russia's response to Panel question No.  125(c).  
612 We note that Ukraine does not claim that the FBO did not inform the applicant of all deficiencies 
promptly . Ukraine's second written submission, paras. 285 -290.   WT/DS499/ R 
 
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  7.5  Claims concerning  the non -recognition of CU certificates issued in other CU 
countries  under CU Tech nical Regulation 001/2011  
7.807.   We now turn to the third  measure at issue, Ukraine 's claims concerning Russia 's alleged 
non-recognition of CU Technical Regulation certificates issued by other CU countries.613 
7.808.   Ukraine claims that Russia does not recognize in its te rritory the validity of certificates 
issued to producers of Ukrainian railway products in other CU countries. In Ukraine 's view, this 
measure is inconsistent with Articles 2.1, 5.1.1 and 5.1.2 of the TBT Agreement and Articles I:1, 
III:4, and X:3(a) of the GATT 1994.614 
7.809.   Russia argues that the measure as described by Ukraine in its first written submission is 
different from the measure identified in the panel request  and is therefore outside the Panel 's 
terms of reference, except with regard to the claim under Article X:3(a) of the GATT 1994. 
However, even if the Panel were to consider that the measure as described by Ukraine in its first 
written submission is within its terms of reference, Russia considers that Ukraine has not shown 
that the measure is inconsistent with Articles 2.1, 5.1.1 , and 5.1.2 of the TBT Agreement or 
Articles  I:1, III:4 and X:3(a) of the GATT 1994.615 
7.5.1   The measure at issue  
7.810.   The parties have divergent views about how the third measure at issue should be 
described and what it  covers.  
7.811.   According to Ukraine, the measure at issue is Russia's alleged decision that it will not 
recognize the validity of certificates issued for Ukrainian railway products by certification bodies in 
other CU countries. Ukraine notes that this decision can be found in Protocol No. A 4 -3 of Russia 's 
Ministry of Transport and two individual decisions of Russia 's Federal Agency for Railway 
Transport. The individual decisions are listed in Annex III of the panel request .616  
7.812.   Ukraine further explains that Russi a bases its alleged decision on CU Technical Regulation 
001/2011. More specifically, Ukraine asserts that Russia relied on the text of CU Technical 
Regulation 001/2011 to develop two "additional"617 requirements.618 According to Ukraine, Russia 
subjects the ap plication of the requirements in CU Technical Regulation 001/2011 to these 
additional requirements. Ukraine contends that Russia has used these requirements as reasons not 
to recognize the validity of certificates issued for railway products of Ukrainian o rigin by 
certification bodies in other CU countries.619  
7.813.   Ukraine describes the two requirements as:  
a. the requirement that only products manufactured in the territory of the CU may be 
subject to certification under CU Technical Regulation 001/2011 ; and  
                                                
613 We note that the term "non -recognition" is Ukraine's term, and it is used in the panel request. This 
term is not to be confused with the term "recognition" that appears in Article 6 of the TBT Agreement. What is 
at issue in Article 6 is the recognition of  the results of conformity assessment procedures conducted in other 
Members under their own rules. What is at issue in the context of the third measure at issue in this dispute is 
Russia's alleged non -recognition of the results of conformity assessment pro cedures conducted in other CU 
countries under common CU rules, namely CU Technical Regulation 001/2011, which is equally applicable in 
Russia and the other CU countries.  
614 Ukraine's first written submission, para s. 4 and 8.  
615 Russia 's first written submiss ion, paras. 107 -108 and 190.  
616 Ukraine's first written submission, para.  373. 
617 Ukraine's first written submission, para.  373. 
618 Ukraine also says that the two additional requirements are imposed by CU Technical 
Regulation  001/2011, read together with the Protocol of the Ministry of Transport and the decisions listed in 
Annex III to the panel request. Ukraine's first written submission, para.  398. 
619 Ukraine's first written submission, para s. 4, 315, 373, 377 and 398; and second written submission, 
para. 339 . WT/DS499/ R 
 
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  b. the req uirement that only entities registered in the same country as the relevant 
certification body can apply for certification.620  
7.814.   According to Ukraine, these requirements are applied towards Ukrainian producers , but not  
towards producers from other third countr ies. Depending on the legal basis for its claims, Ukraine 
takes issue with one or both requirements. Regarding the first requirement, Ukraine points out 
that the Russian authorities have never invoked that requirement when rejecting applications 
submitted to the FBO by Ukrainian producers under CU Technical Regulation 001/2011 for 
certification of products produced in Ukraine621, like those discussed above in the context of 
measure two challenged by Ukraine. Regarding the second requirement, Ukraine notes that, 
according to Russian authorities, it is laid down in  Article 6(9) of CU Technical Regulation 
001/2011 .622  
7.815.   For Russia, it follows from the panel request that the measure at issue is CU Technical 
Regulation 001/2011 as such. Russia submits that under th e umbrella of this measure, which has 
been included in the panel request, Ukraine is trying to challenge different measures depending on 
the measure that would be more suitable to support a particular claim. Russia argues that Ukraine 
in its first written submission puts forward a new and different measure for its claims concerning 
Article 2.1 of the TBT Agreement and Articles I:1 and III:4 of the GATT 1994, Russia 's alleged 
decision not to recognize the validity of certificates issued to Ukrainian producer s by certification 
bodies in other CU countries. Russia further argues that for its claims under Article s 5.1.1 and 
5.1.2 of the TBT Agreement,  Ukraine in its first written submission challenges yet another new 
measure, the application of Article 6(9) of C U Technical Regulation 001/2011, read together with 
one of the decisions listed in Annex III of the panel request.623  
7.816.   Ukraine responds that a single measure may be simultaneously inconsistent with different 
WTO provisions, since different aspects of the sam e measure may be covered by different 
WTO provisions. The measure at issue in Ukraine's view includes elements of a technical regulation 
and elements relating to conformity assessment procedures. Ukraine also clarifies that its claims 
under the GATT 1994 c oncern both the production and the registration requirement, whereas its 
claim under Article 2.1 of the TBT Agreement concerns only the production requirement and the 
claims under Article s 5.1.1 and 5.1.2 concerns only the registration requirement.624 
7.817.   Before  addressing the parties' divergent descriptions of the third measure at issue, the 
Panel must address a claim put forward by Russia concerning the terms of reference. Russia claims 
that the measure described by Ukraine in its first written submission is no t within the Panel's 
terms of reference.  
Terms of reference  7.5.1.1   
7.818.   Russia expresses strong concern about the nature and substance of Ukraine's description 
of the third measure in its first written submission. In Russia's view, in these proceedings Ukraine 
has not  challenged the measure referred to in the panel request, CU Technical Regulation 
001/2011, and it therefore has not made any prima facie case in respect of its claims concerning 
that measure. According to Russia, Ukraine instead challenges measures that a re not referred to in 
the panel request, Russia's alleged "decision" and certain requirements of the conformity 
assessment procedure.625  
                                                
620 Ukraine's first written submission, paras. 375 -376; and responses to Panel question Nos. 23, 26 and 
36. 
621 Ukraine challenges those rejections as part of measure two, which is discussed above.  
622 Ukraine's first written submission, para. 398; opening st atement at the first meeting of the Panel, 
paras. 97 and 108; and response to Panel question No. 26. See also Ukraine's claims concerning the rejections 
of applications under CU Technical Regulations 001/2011 and 003/2011 at section 7.4 and Table 6 above.   
623 Russia 's first written submission, paras. 107 -108; and opening statement at the first meeting of the 
Panel, para. 31.  
624 Ukraine's opening statement at the first meeting of the Panel , para. 76; and second written 
submission, para. 322.  
625 Russia 's opening statement at the first meeting of the Panel, para. 31; and second written 
submission, paras. 130 -131. WT/DS499/ R 
 
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  7.819.   Regarding Russia's alleged "decision" not to recognize, Russia argues that there is "no 
trace"626 in the panel request of this new measure, which does not even mention CU Technical 
Regulation 001/2011. In Russia 's view, the measure put forward by Ukraine in its first written 
submission is not adequately identified in the panel request. Russia submits that the panel request 
refers only to CU Technical Regulation 001/2011 as a measure being challenged, while Ukraine 's 
first written submission refers also to Russia 's "decision". According to Russia, this new measure 
significantly changes and extends the scope of the dispute, and thereby prejudices Russia 's right 
to know what case it has to answer. Russia therefore asks the Panel to find that the panel request 
does not satisfy the requirements of Article 6.2 of the DSU and, consequently, that the claims 
regarding this measure fall outside the Panel 's terms of reference.627  
7.820.   Regarding the application of Article 6(9) of CU Technical Regulation 001/2011, Russia 
submits that this concerns neither CU Technical Regulation 001/2011 as such nor Russia's alleged 
"decision". In Russia's view, t his measure is not specified in the panel request and cannot be 
reasonably derived from any other measure that is specified in the panel request. Russia therefore 
asks the Panel to find that the panel request does not satisfy the requirements of Article 6. 2 of the 
DSU and, consequently, that the claims regarding this measure fall outside the Panel 's terms of 
reference.628 
7.821.   Ukraine rejects Russia's arguments. According to Ukraine, the measure identified in the 
panel request is Russia's decision not to recognize  the validity of certificates issued to Ukrainian 
producers by other CU countries. Regarding that decision, Ukraine submits that the decisions listed 
in Annex III to the panel request do rely on CU Technical Regulation 001/2011. Ukraine recalls 
that the pa nel request identifies the measure at issue as CU Technical Regulation 001/2011, read 
together with the Protocol of the Ministry of Transport and the decisions listed in Annex III. 
Regarding the application of Article 6(9) of CU Technical Regulation 001/20 11, Ukraine argues that 
the measure identified in the panel request is equally a measure concerning the application of 
conformity assessment procedures, since underlying that decision is the requirement that only 
entities registered in the same country as the relevant certification body can apply for 
certification.629 
7.822.   The Panel notes at the outset that contrary to what Russia appears to suggest, its claim 
about the terms of reference does not concern the sufficiency of the panel request and thus its 
consisten cy with Article 6.2 of the DSU. In fact, we have already reached an affirmative conclusion 
in our preliminary ruling that the panel request satisfies Article 6.2 insofar as it concerns the third 
measure. Rather, what Russia is claiming now is that the meas ure that Ukraine challenges before 
the Panel is different from the measure that is identified in the panel request. There is no question 
that we do not have jurisdiction to make findings on claims concerning a measure that is outside 
our terms of reference . We have therefore undertaken further analysis of the panel request and 
the measure challenged by Ukraine before the Panel.  
7.823.   In our preliminary ruling , we have analysed the panel request in detail.630 Our analysis 
supports the conclusion that Ukraine's third measure concerns an alleged requirement that 
Russia's authorities consider to flow from CU Technical Regulation 001/2011.631 Under that alleged 
non-recognition requirement, Russia's authorities must not recognize certificates issued to 
Ukrainian producers in other CU countries, unless certain conditions are met. One such condition is 
that for certificates issued in another CU country to be recognized, the products covered by these 
certificates must ha ve been produced in a CU country. The third narrative paragraph of the panel 
                                                
626 Russia 's first written submission, para. 108.  
627 Russia 's first written submiss ion, paras. 107 and 109 -111; opening statement at the first meeting of 
the Panel, para. 31; second written submission, para. 130; and Russia's comments on Ukraine's response to 
Panel question No. 132.  
628 Russia 's first written submission, para. 139.  
629 Ukraine's opening statement at the first meeting of the Panel, paras. 78 -79 and 81; and response to 
Panel question No. 132.  
630 See paragraph 7.93 above.  
631 As we have noted in our preliminary ruling, Ukraine has indicated that it is not pursuing any claims in 
respect of  the individual instructions mentioned in Annex III  to the panel request. Ukraine's response to Panel 
question No. 7(c).  WT/DS499/ R 
 
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  request specifically identifies this production condition.632 It is therefore clear to us from the 
analysis of the panel request in our preliminary ruling that any challenge to the alleged 
requirement that Russia's authorities must not recognize certificates issued in other CU countries if 
the certified products were not produced in a CU country is within our terms of reference.  
7.824.   As indicated above, Ukraine has also raised before the  Panel the matter of non -recognition 
of certificates issued in other CU countries in situations where another condition is not met. Under 
that alleged condition, certificates issued in a CU country other than Russia cannot be recognized if 
entities applyin g for certification are not registered in the same country as the relevant 
certification body (the registration condition ).633 We note that the third narrative paragraph in 
section II of the panel request makes no reference to a registration condition. The p aragraph 
refers to non -recognition and then indicates that the non -recognition was based on the view that 
CU Technical Regulation 001/2011 is applicable only to products produced in CU countries. This 
does not alert the reader to the existence of a second pathway to non -recognition. We further note 
that none of the numbered points in section II of the panel request make any mention of the 
alleged registration condition. In contrast, the third numbered point refers to the fact that the 
Protocol of the Minist ry of Transport concerns "certificates … for products manufactured by third -
countries", which is consistent with the reference in the third narrative paragraph to the alleged 
production condition. Finally, there is the reference to Annex III. It became cle ar during the course 
of the proceedings that one of the instructions mentioned in Annex III identifies the alleged 
registration condition. However, the same instruction also identifies the alleged production 
condition. As the third narrative paragraph only  refers to the production condition, a logical 
inference to draw from the absence of a reference to the registration condition would be that non -
recognition resulting from non -fulfilment of that condition is not being challenged. Furthermore, 
we note that the instruction concerned predates the request for establishment of a panel. Also, it 
is a letter from Russia's Federal Agency for Railway Transport to a company ([[ xxx]]). As such, it 
is not publicly available. We recall in this regard that also the third  parties must be given adequate 
notice about what measures are at issue.634  
7.825.   For these reasons, we find that the panel request does not give adequate notice to Russia 
and third parties  of a complaint being made about non -recognition resulting from a failure to meet 
the alleged registration condition. Non -recognition resulting from a failure to meet the alleged 
registration condition is, therefore, not a measure within our terms of reference. Consequently, we 
will not make findings with regard to those of Ukra ine's claims about non -recognition that relate to 
the alleged registration condition.  
7.826.   Consistent with this finding, we will not address Ukraine's claims that the third measure is 
inconsistent with Articles 5.1.1 and 5.1.2 of the TBT Agreement. As regards U kraine's claims that 
the third measure is inconsistent with Articles I:1, III:4 and X:3(a) of the GATT 1994, we will not 
address these to the extent that they relate to the alleged registration condition.  
7.827.   Ukraine in its submissions to the Panel describes the third measure as Russia's "decision" 
not to recognize in its territory certificates issued to Ukrainian producers in other CU countries. We 
agree with Russia that this description is somewhat different from the description provided in the 
panel request . The panel request only talks about a "decision" in the third narrative paragraph, 
when it refers to Russia's decision regarding the meaning and scope of CU Technical Regulation 
001/2011. Moreover, the third numbered point in the panel request and the thi rd narrative 
paragraph of section II with its reference to Russia's interpretation of CU Technical Regulation 
001/2011 both indicate that the alleged non -recognition finds its basis in CU Technical Regulation 
001/2011 as interpreted by Russia, and not in s ome independent "decision" by Russia that is 
divorced from CU Technical Regulation 001/2011.  
7.828.   There are therefore good reasons for us to refer to the alleged non -recognition 
requirement flowing from CU Technical Regulation 001/2011 rather than to a non -recognition 
                                                
632 As referenced above, Ukraine in its submissions refers to the production condition as the production 
"requirement".  
633 As referenced above, Ukraine in its submissions refers to the registration condition as the registration 
"requirement".  
634 Panel Report, Canada – Wheat Exports and Grain Imports , para. 16 and footnote 22 of the 
preliminary ruling incorporated at para. 6.8.  WT/DS499/ R 
 
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  "decision". Nonetheless, what matters for purposes of our assessment of Ukraine's claims 
regarding the third measure is not so much what terms Ukraine has employed before the Panel to 
describe the third measure. Rather, what matters is whether Ukr aine has demonstrated the 
existence of the measure that Ukraine has identified in the panel request, i.e. the alleged non -
recognition requirement. That Ukraine has referred to Russia's "decision" not to recognize is not 
sufficient justification, in and of itself, for finding that the measure challenged by Ukraine is 
outside our terms of reference and not examining the evidence submitted by Ukraine in support of 
the third measure.  
7.829.   As a final point about the terms of reference, we observe that the panel requ est clearly 
circumscribes the scope of the third measure. The third measure concerns only the non -
recognition by Russia of certificates already issued to Ukrainian producers under CU Technical 
Regulation  001/2011 in other CU countries. It does not concern non -certification by Russia, i.e. 
any refusal by Russia to issue certificates under CU Technical Regulation  001/2011 to Ukrainian 
producers. Accordingly, in the context of the third measure, we will not examine any claims of 
inconsistency arising from non -certification by Russia of Ukrainian products.635  
7.830.   Having clarified the scope of  our terms of reference  in relation to the third measure at 
issue, we can proceed to examine the evidence before the Panel re garding the existence of the 
third measure.  
Existence of the measure at issue  7.5.1.2   
7.831.   Russia submits that it is Ukraine's burden to establish a prima facie  case that the alleged 
"decision" exists. Russia argues that it has taken no "decision" not to recognize the certificates 
issued to Ukrainian producers by other CU countries, let alone a binding decision. Russia also 
contends that the documents put forward by Ukraine are not of general application, as they refer 
only to two Ukrainian producers. Russia states that  one of those documents, the Protocol of the 
Ministry of Transport, is of a non -binding nature and reflects the opinions expressed in the course 
of a January 2015 meeting by government officials representing various Russian bodies. Russia 
submits that its Federal Agency for Railway Transport could not find the first of the three 
documents listed in Annex III (the letter to company  [[xxx]] concerning products produced by 
company [[ xxx]]), which according to Ukraine refers to the alleged registration conditio n. Russia 
states that it was therefore not in a position to verify the validity and content of the document. 
Russia further argues that its Federal Agency for Railway Transport is not authorized to issue any 
decisions on the recognition of certificates or take any other action in respect of the certificates, 
whether they have been issued in Russia or other CU countries. Russia argues that even if the 
Federal Agency had issued the document in question, its significance would be limited to the 
circumstances o f the relevant conformity assessment procedure and could not contain any general 
decision or requirement not to recognize certificates issued in other CU countries.636  
7.832.   Russia also submits that according to Article 53 of the EAEU  Treaty637 products that are 
subject to technical regulations of the CU are put into circulation within the territory of the whole 
CU after completion of the necessary conformity assessment procedure.638 As Russia also notes, 
Article 53 further provides that CU countries must ensure the c irculation of the products that 
conform to CU technical regulations within their respective territories without introducing any 
requirements additional to those set out in the CU technical regulations or any additional 
conformity assessment procedures.639  
7.833.   Regarding the alleged production condition, Russia submits that no such condition exists. 
Russia observes that products manufactured in the territory of the CU are indeed subject to 
certification under CU Technical Regulation 001/2011. Russia contends, howe ver, that neither the 
                                                
635 We recall that, in contrast, one of the components of the second measure at issue concerns Russia's 
rejections of applications for cer tificates of conformity under CU Technical Regulation 001/2011.  
636 Russia's second written submission, paras. 133 -134; opening statement at the second meeting of the 
Panel, paras. 48 -49 and 51; responses to Panel question Nos. 129 and 172; and comments on Ukraine's 
responses to Panel question Nos. 127 and 154.  
637 EAEU Treaty, ( Exhibit UKR -5); and Ukraine's response to Panel question No. 25 . 
638 Ukraine observes that Russia's contention is further supported by Eurasian Economic Commission, 
Decision No. 20, 28 A pril 2017 , (Exhibit UKR -94), para. 1. Ukraine's response to Panel question No. 74.  
639 Russia's second written submission, para. 159.  WT/DS499/ R 
 
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  Protocol of the Ministry of Transport nor the decisions listed in the panel request state that 
CU Technical Regulation 001/2011 applies only to such products.640 Russia points out that 
CU Technical Regulation 001/2011 has been applied t o products put into circulation in the customs 
territory of the CU, but manufactured in third countries. Russia asserts that these products 
circulate freely within the territory of the CU, including in Russia.641 Russia further notes that it has 
issued certi ficates under CU Technical Regulation 001/2011 to Ukrainian producers.642 According to 
Russia, CU Technical Regulation 001/2011 is therefore applicable to railway rolling stock and their 
parts, put into circulation in the customs territory of the CU, irrespe ctive of their origin. Russia 
submits that the documents referred to by Ukraine do not contain any additional conditions based 
on the origin of Ukrainian producers.643  
7.834.   As concerns the alleged registration condition, Russia observes that there is no 
requirem ent in Article 6(9) of CU Technical Regulation 001/2011 that the legal entity applying for a 
certificate must register in the CU country where it is seeking a certificate. Russia states that 
under Article 6(9), the applicant can be registered in any CU cou ntry. Russia further notes that the 
Protocol of the Ministry and the decisions listed in Annex III also do not contain the alleged 
generally applicable requirement. According to Russia, neither its Ministry of Transport nor the 
Federal Agency for Railway T ransportation has the authority to interpret the scope of CU Technical 
Regulation 001/2011 or establish any additional requirements. Russia also asserts that the FBO 
issued certificates in response to applications submitted by legal entities registered in Belarus and 
Kazakhstan.644 
7.835.   Russia alleges that the reason for the non -recognition of the certificates covered by the 
decisions identified by Ukraine was not the alleged imposition of two additional requirements. The 
reason, according to Russia, was Article 6 (51) of CU Technical Regulation 001/2011, which 
requires that, for products composed of components, certificates may be issued only if there also 
are certificates of conformity for the components. Russia points out in this respect that the 
certificates ref erred to in the Protocol of the Ministry of Transport indicate that marking with a 
single sign of product circulation on the market of the CU is carried out only if there are certificates 
for components subject to mandatory certification.645 Russia asserts t hat the certification body of 
Belarus certified the Ukrainian producers under CU Technical Regulation 001/2011 despite the lack 
of certificates for the components of the products at issue. Russia notes in this respect that 
Belarusian legislation did not pr ovide for the certification of components before the entry into force 
of CU Technical Regulation 001/2011, whereas Russia 's did. According to Russia, in keeping with a 
2014 explanatory letter of the Eurasian Economic Commission646, the components of the prod ucts 
at issue could therefore be put into circulation only within the territory of Belarus. Russia submits 
that the non -recognition of the relevant certificates would thus have occurred for any producer of 
any origin. Russia finally observes that the repre sentatives present at the meeting that resulted in 
the Protocol of the Ministry of Transport wished to resolve their concerns and therefore included in 
the Protocol a paragraph that refers to initiating a dialogue with the authorities of Belarus. Russia 
                                                
640 Regarding two of the documents emanating from the Federal Agency for Railway Transport on which 
Ukraine relies to demonstr ate the existence of the production condition, Russia states that the Federal Agency 
"could have cited the provisions of the CU Technical Regulation [more clearly], not creating such ambiguity". 
Russia's response to Panel question No. 77.    
641 Russia refers  to Exhibit RUS -51(BCI), which lists 35 certificates issued by Belarus and Kazakhstan to 
Ukrainian producers between 2014 and 2017. Russia also refers to Exhibit UKR -54(Corr.) ( Extract of Unified 
Register of Issued Certificates of Conformity and Registered  Declarations of Conformity concerning European 
producers). According to Ukraine, this evidence shows that Russia issued certificates to producers located in 
the European Union after  CU Technical Regulation  001/2011  had entered into force.  
642 Certificate o f Conformity [[xxx]], ( Exhibit RUS -11)(BCI) ; and Certificate of Conformity [[xxx]], 
(Exhibit  RUS-12)(BCI). We note that these certificates concern a producer located in eastern Ukraine.   
643 Russia 's first written submission, paras. 128 -130; and opening statement at the second meeting of 
the Panel, para. 50.  
644 Russia 's second written submission, paras. 158 -159, 164 and 168; opening statement at the second 
meeting of the Panel, para. 53; and responses to question Nos. 26, 36, 75, and 82 . 
645 Extract of Belar usian registry of certificates  [[xxx]], ( Exhibit RUS -52) and Extract of Belarusian 
registry of certificates  [[xxx]], ( Exhibit RUS -53). 
646 Explanatory l etter of the Eurasian Economic Commission , (Exhibit RUS-13). According to Russia, the 
explanatory letter i s not of a binding nature, but its purpose is to clarify the provisions of the CU Technical 
Regulation. Russia's response to Panel question No. 106.  WT/DS499/ R 
 
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  notes that a few months later, Belarus terminated the certificates referred to in the letter to which 
the Protocol was attached.647 
7.836.   Ukraine responds that the refusal to recognize is not a one -off situation, but has affected 
all Ukrainian producers trying to ex port to Russia using Belarusian or Kazakh certificates. Ukraine 
argues that Russia denies the existence of the production and registration conditions, but fails to 
explain how this view can be reconciled with the text of the relevant documents.648  
7.837.   Regarding  the production condition, Ukraine submits that the text of CU Technical 
Regulation 001/2011 does not require that only railway products manufactured in the territory of 
the CU may be subject to certification. Ukraine maintains, however, that Russia noneth eless 
applies this requirement. According to Ukraine, the decision not to recognize certificates issued to 
Ukrainian producers in other CU countries is based on the fact that these certificates were issued 
for products manufactured outside the CU territory . In Ukraine's view, the certificates issued under 
CU Technical Regulation 001/2011 for some products manu factured in third countries or in certain 
regions in eastern  Ukraine  simply show that the manner in which Russia applies this additional 
requirement is arbitrary and targets specifically railway products manufactured in Ukraine.  Ukraine 
also observes that there is no evidence before the Panel showing that any Ukrainian pro ducts 
covered by these certificates actually circulate freely in Russia's territory.649 
7.838.   With regard to the registration condition, Ukraine states that the text of CU Technical 
Regulation 001/2011 does not require that the applicant must be registered in the same country 
as the relevant certification body. Ukraine submits that, regardless of whether that requirement is 
based on the text of CU Technical Regulation 001/2011, what matters is that Russia nonetheless 
applies this requirement to producers of Ukraini an railway products. According to Ukraine, Russian 
producers applying through an entity registered in Russia have been issued certificates in 
Kazakhstan, and their products are available for sale in Russia.650  
7.839.   Regarding the alleged lack of certificates for the components of the products concerned, 
Ukraine submits that this was never mentioned by the Russian authorities in their decisions not to 
recognize certificates. Ukraine argues that the certificates issued to Ukrainian producers in other 
CU countries we re issued under CU Technical Regulation 001/2011, which means that their 
products, including the components, complied with the relevant requirements. Ukraine also argues 
that Russia has not supported its assertion regarding the components with evidence tha t would 
indicate that the products needed such certificates and that Belarus legislation did not provide for 
the certification of components. According to Ukraine, the products referred to in the first letter 
listed in Annex III of the panel request concer n a type of product (solid-rolled wheels ), which does 
not have any components. Ukraine also notes that there is no evidence that Russia has failed to 
recognize certificates for products from Belarus on the basis that Belarusian legislation did not 
provide for certification of components. Regarding the 2014 explanatory letter of the Eurasian 
Economic Commission, Ukraine submits that it concerns transitional arrangements for the entry 
into force of the CU technical regulations. Ukraine states that these arran gements related to 
products that CU countries could put into circulation until 2 August 2017 without certificates or 
with national certificates, even though they did not undergo conformity assessment under 
CU technical regulations. Ukraine points out that these transitional arrangements do not apply to 
certificates that Belarus issued under CU Technical Regulation 001/2011 to Ukrainian producers. 
Finally, Ukraine notes that the two certificates referred to in the letter to which the Protocol was 
attached we re terminated due to clerical errors and immediately replaced by new certificates.651 
                                                
647 Russia 's first written submission, paras. 131 -135; second written submission, paras. 135 -136; and 
respons es to Panel question Nos. 25, 35, 76, 79, 81 , 129 and 130.  
648 Ukraine's second written submission, para. 443; and opening statement at the second meeting of the 
Panel, para. 74.  
649 Ukraine's opening statement at the first meeting of the Panel, paras. 90 -91; second written 
submission, para. 357; opening statement at the second meeting of the Panel, para. 83; and response to Panel 
question No. 142.  
650 Ukraine's second written submission, paras. 393 and 409; response to Panel question No. 82;  
Certificate ТС.KZ.7 100990.22.01.00063 , (Exhibit UKR -67); Tehnomashkomplekt 's shop webpage  (Exhibit UKR -
68); Certificate ТС.KZ.7100990.22.01.00061 , (Exhibit UKR -69); and Rostok 's shop webpage  (Exhibit UKR -70). 
651 Extract of Belarus Register with information concerning certific ates issued to PJSC [[ xxx]], (Exhibit 
UKR-148)(BCI).  WT/DS499/ R 
 
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  For these reasons, Ukraine considers that the alleged lack of certificates for the components 
should not be accepted as a reason for the non -recognition of certificates.652  
7.840.   The Panel recalls that panels have the authority to make findings on measures that were in 
existence on the date of their establishment. This Panel was established on 16 December 2016. 
We will therefore review the evidence to determine whether Russia's aut horities applied the third 
measure on that date.  
7.841.   The evidence submitted by Ukraine includes three letters from Russia's Federal Agency for 
Railway Transport to private companies , dated between January 2015 and August 2016. The 
letters concern the validity  of certificates issued under CU Technical Regulation 001/2011 by the 
certification body in Belarus for products manufactured by two different Ukrainian producers. Each 
letter contains, or refers to, a decision covering the relevant products. The letters w ere sent in 
response to requests by companies that appear to have sought the registration of specified 
Ukrainian railway products for operation in Russia. The following table compiles relevant 
information about the three letters:  
Table 7 - Overview of letters not recognizing certificates of conformity issued by the 
Belarusian certification body to Ukrainian producers  
Product and Ukrainian 
producer  Date of letter and decision  Reasons provided  
The January 2015 letter  
Product : Two types of 
wagons  
Producer : [[xxx]] 
(Exhibit UKR-48 (BCI) ) The date is unclear; the letter 
most likely dates from soon 
after 20 January 2015, which 
is the date of the Protocol of 
the Ministry of Transport that 
was attached to the letter (the 
"January 2015 le tter").  
Decision : The certificates are 
not valid within Russia's 
territory and the products are 
not registered.  The products were manufactured by a third -
country (a producer in Ukraine). CU Technical 
Regulation 001/20 11 applies to products 
manufactured in  the territory of the CU. The 
applicable conformity assessment procedures for 
products manufactured in third countries are 
established in accordance with the national laws.  
The reason was provided in the attached Protocol 
of the Ministry of Transport.  
The February 2016 letter  
Products : Two types of 
solid-rolled wheels  
Producer : [[xxx]] 
(Exhibit UKR-49) (BCI)  
(Corr.)  4 February 2016 (the 
"February 2016 letter")653 
Decision : The certificates are 
not valid within Russia's 
territory.  Belarus issued the certificates with two violations 
of CU Technical Regulation 001/2011. According 
to its Article 1(1), CU Technical Regulation 
001/2011 applies to products produced within the 
territory of the CU. Furthermore, in accordance 
with Article 6(9), an applicant fo r certification may 
register in a CU country in accordance with the 
legislation of that country a legal entity that is a 
producer or a seller or that performs the functions 
of a foreign producer. In this case, the products 
were produced in Ukraine and Bela rus certified 
them on receiving an application from a business 
entity registered in Russia.  
 
The August 2016 letter  
Producer : Same as in 
Exhibit UKR -48 (BCI) 
[[xxx]] 
Products : One type of 10 August 2016 ( the "August 
2016 letter" ) 
Decision : The certificates are 
not valid within Russia's Belarus issued the certificate with violations of CU 
Technical Regulation 001/2011. A ccording to its 
Article 1(1), CU Technical Regulation 001/2011 
applies to products manufactured within the 
territory of the CU. Moreover, according to Article 
                                                
652 Ukraine's opening statement at the first meeting of the Panel, paras. 92 -93 and 103; second written 
submission, paras. 366, 371 -374, 416 and 419; and opening statement at the second meeting of the Pane l, 
para. 82.  
653 Ukraine initially submitted a translation showing the date as 4 February 2015, but later provided a 
modified version showing the date as 4 February 2016 ( Letter from the Federal Agency for Railway Transport 
to company  [[xxx ]] – on validity of certificates, 4 February 201 6, (Exhibit UKR -49)(BCI)(Corr.)).  WT/DS499/ R 
 
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  Product and Ukrainian 
producer  Date of letter and decision  Reasons provided  
wagon (one of those 
also at issue in  Exhibit  
UKR-48 (BCI) ) 
(Exhibit UKR-141 (BCI) ) territory and the product 
cannot be registered.  6(9), an applicant for certification shall be a legal 
person registered in accordance with the 
legislation of the CU country. In this case, the 
products were manufactured in Ukraine and 
Belarus certified them according to a request from 
an economic entity registered in Russia.  
 
7.842.   Russia raises several preliminary points in respect of the letters submit ted by Ukraine that, 
in its view, detract from their importance. Russia first asserts that notwithstanding the reasons 
given in the above letters, the reason why the Federal Agency for Railway Transport did not accept 
the validity of the certificates at is sue was the lack of certificates for the components of the 
relevant products. We are unable to accept this assertion. Russia has provided no evidence to 
show that Belarus issued certificates under CU Technical Regulation 001/2011 without requiring 
certific ates for the components or that Belarusian legislation did not require certificates for the 
components before the entry into force of CU Technical Regulation 001/2011. Nor does the 
evidence on record indicate that Belarus terminated and immediately re -issued the certificates for 
the products covered by the January 2015 and August 2016 letters because of a lack of certificates 
for the products' components.654 
7.843.   In connection with the January 2015 letter, Russia argues that the Protocol of the Ministry 
of Transpo rt is a non -binding document that records the opinions of representatives of various 
Russian railway -related bodies. The Protocol indicates that the Deputy Minister of Transport met 
with representatives of these bodies, including the Federal Agency for Rai lway Transport, the FBO 
and Russian Railways, to consider an application from a legal entity for registration of Ukrainian 
railway products for operation in Russia. The Protocol sets forth the "results" of the consideration 
of the application, which are si gned by the Deputy Minister. The Protocol notably reveals that the 
Ministry of Transport reached a particular view on the scope of CU Technical Regulation 001/2011. 
The Protocol then sets out the "decisions" that were adopted based on that view. They inclu de that 
the certificates issued in Belarus under CU Technical Regulation 001/2011 are not valid in Russia's 
territory and that Russia's Customs Service is to be informed of this; that the Federal Agency for 
Railway Transport should be informed of the non -registration of the products concerned; that the 
products concerned  require a certificate issued in accordance with Russian legislation; and that 
Belarus' Ministry of Transport should be notified of the results of the consideration of the 
application. Conse quently, it emerges from the Protocol itself that the underlying meeting was not 
a mere exchange of opinion. Rather, specific decisions were taken with regard to the application 
that prompted the meeting.  
7.844.   As concerns the February 2016 letter, Russia quest ions its authenticity. According to 
Ukraine, t he copy  that it  provided to the Panel, an English translation of the original letter  in 
Russian , mistakenly referred to the year 2015 instead of 2016. Ukraine therefore submitted a 
version of the translation  with the modified date . We note in this connection that the text of the 
letter indicates that it was sent in response to a request from July 2015 and concerns certificates 
issued in Belarus in April 2015. To that extent, it is difficult to see how the initially provided date of 
the letter, February 2015, could be correct.  For its part, Russia submitted a document from 
January 2016 indicating that the person whose signature is on the February 2016 letter was on 
medical leave on the date of the letter.655 However, the February 2016 l etter could have been 
signed either before the start of the medical leave or during the leave and away from the office.656 
Russia also argues that if the letter dates from February 2016, the third measure did not exist 
when the parties held consultations in this dispute.657 However, Ukraine relies on the February 
                                                
654 The extracts of the Belarusian registry of certificates submitted by Russia (E xhibit RUS -52 and 
Exhibit RUS -53) do not specify  the reason for Belarus'  termination of the relevant certifica tes. 
655 Order of Federal Agency on Railway Transport as of 27 January 2016 No. 50/k "On temporary 
assignment of performance of duties ", (Exhibit RUS -92)(BCI); and Russia's response to Panel question No. 
172. Ukraine observes that Exhibit RUS -92(BCI) was fil ed too late in the proceedings, but nevertheless 
comments on its content and relies on it. Ukraine's comments on Russia's response to Panel question No. 172.  
656 Ukraine has commented that the signature on the January 2016 document matches that in the lette r 
contained in Exhibit UKR -49(BCI) (Corr.) , which was signed  by the same person. Ukraine's comments on 
Russia's response to Panel question No. 172.  
657 Russia's response to Panel question No. 172.  WT/DS499/ R 
 
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  2016 letter as evidence of the existence of the third measure; it is not challenging the February 
2016 letter as such. In any event, Ukraine also relies on the January 2015 letter and the Protocol 
accompanying it. In the light of the foregoing, we are not persuaded that the February 2016 letter 
constitutes evidence that is either not valid or that we cannot take into account.  
7.845.   Additionally, Russia argues that the Federal Agency for Railway Transport is not authorized 
to make any decisions on the recognition of certificates issued in other CU countries. In support, 
Russia submits, but without any further explanation, a regulation on the Federal Agency that lists 
its powers.658 It is our understanding, and t his is based on the January 2015 and August 2016 
letters and the Protocol, that the Federal Agency is responsible for registration of railway products, 
and it appears that registration assumes the existence of a valid certificate. But even if the Federal 
Agency acted ultra vires  under Russian law by deciding on the validity of certificates issued in 
other CU countries, this would not prevent the Panel from making findings on the WTO -consistency 
of the third measure, which is about actual non -recognition by Russian authorities, whether 
allowed under Russian law or not.  
7.846.   Having dealt with Russia's preliminary points, we now proceed to analyse in more detail 
the content of the letters  and the Protocol . They indicate that the Ministry of Transport (for the 
Proto col sent with the 2015 letter ) or the Federal Agency for Railway Transport (for the 2016 
letters) decided that the relevant certificates issued by Belarus' certification body were not valid in 
Russia's territory.659 In each case, the decision was based expli citly on the provisions of 
CU Technical Regulation 001/2011. Indeed, the documents make very clear that it was because of 
CU Technical Regulation 001/2011 that the decision was made not to recognize the validity of the 
certificates issued in Belarus.  
7.847.   Speci fically, the Ministry and the Federal Agency provided their interpretation of Articles 
1(1) and 6(9) of CU Technical Regulation 001/2011 and then applied it to the certificates at issue. 
According to the interpretation reflected in the Protocol and the 201 6 letters, a certificate cannot 
be validly issued under CU Technical Regulation 001/2011, unless (a) the products to be certified 
were produced within the CU (the production condition) and (b) the applicant for certification is 
registered in the same CU co untry in which the application has been submitted (the registration 
condition). Indeed, the 2016 letters explicitly state that the relevant certificates were issued by 
Belarus in "violation" of CU Technical Regulation 001/2011 because Belarus had not enfor ced the 
two requirements.  
7.848.   We observe in this respect that, according to Russia, the Protocol or the letters do not say 
that CU Technical Regulation 001/2011 applies only to products produced in the territory of the 
CU. However, the Protocol states that fo r products produced in third countries the applicable 
conformity assessment procedures are established by the national laws of the importing 
CU countries. Also, the 2016 letters make it clear that one of the reasons for not recognizing the 
validity of the certificates at issue was that the products had been produced in Ukraine.  
7.849.   We also note that the Protocol makes no reference to the registration condition 
(presumably because it was not an issue), but that the 2016 letters do. One of the letters says 
that applicants "may" register in the same CU country as the certification body, the other says that 
they "shall" register in the same CU country. But it is clear from both letters that the registration 
condition was enforced, since one of the reasons for not r ecognizing the validity of the relevant 
certificates was that the applicant was registered in Russia, while the certification body was in 
Belarus.  
7.850.   Russia submits that the letters concern products from only two Ukrainian producers and 
that the letters are not of general application. However, CU Technical Regulation 001/2011 is a 
regulation of general application. Nothing in the Protocol or the 2016 letters suggests that the 
Ministry's and the Federal Agency's interpretation of Articles 1(1) and 6(9) of CU T echnical 
Regulation 001/2011 would not be generally applicable and would apply only to Ukrainian 
products. Thus, the relevant documents provide a general interpretation. In fact, the Protocol 
                                                
658 Abstract from the Statute of the Federal Agency for Railway Transport of  Russia's  Ministry of 
Transport , (Exhibit RUS -71). 
659 The January 2015 and August 2016 letters indicate that the decision on the validity of the certificates 
resulted in the Federal Agency for Railway Transport declin ing to register the  covered  products . WT/DS499/ R 
 
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  specifically states that the underlying meeting concerned "certi ficates of conformity for products 
manufactured by third -countries", which countries include, but are not limited to Ukraine.  Only the 
decisions about the validity of the identified certificates are specific to the covered products.  
7.851.   Russia also argues, wi thout elaboration, that neither the Ministry nor the Federal Agency 
has the authority to interpret CU Technical Regulation 001/2011. It may well be that in Russia only 
courts can interpret laws authoritatively or that in the case of CU Technical Regulation  001/2011 
only a CU body can do so. However, it is clear from the Protocol and the letters that the Ministry 
and Federal Agency reached a conclusion on the meaning and scope of certain provisions of 
CU Technical Regulation 001/2011 and based their decision s on it. Whether or not the Ministry and 
the Federal Agency had the power to interpret CU Technical Regulation 001/2011 and interpreted 
it correctly is not relevant to our analysis, which, as we have already noted, concerns what these 
authorities actually did or did not do.  
7.852.   As regards the resulting non -recognition, it is apparent from the Protocol and the 2016 
letters that, in the Ministry's and the Federal Agency's view, they were prohibited from accepting a 
certificate as having been validly issued under  CU Technical Regulation 001/2011 in another 
CU country if it had been issued in violation of CU Technical Regulation 001/2011. In their view, 
proper enforcement of CU Technical Regulation 001/2011 required that they not recognize such 
certificates as vali d within Russia's territory.  
7.853.   In the light of the foregoing, we consider that the three letters and the Protocol support 
the view that the Ministry and the Federal Agency applied a general non -recognition requirement 
within Russia (which they considered to flow from CU Technical Regulation 001/2011 as they 
interpreted it). The situations in which that requirement was applied included those where a 
certificate had been issued in another CU country in violation of the production condition.  
7.854.   In our view, the evi dence submitted by Ukraine thus indicates that the Ministry and the 
Federal Agency did not independently "decide" to establish a new general non -recognition 
requirement. Instead, that requirement flows from CU Technical Regulation 001/2011 as they 
interpre ted it. We therefore believe that the panel request correctly identifies, as the source of the 
non-recognition requirement, CU Technical Regulation 001/2011 as interpreted and applied by 
Russia in the Protocol and the 2016 letters.  
7.855.   Russia has also submitted evidence and made additional counterarguments, which we turn 
to consider now. We begin by addressing Russia's evidence  concerning the situation before the 
Panel's establishment. This evidence  includes a commercial analytical repor t on a Ukrainian 
producer whose products are also at issue in the February 2016 letter. The report indicates that in 
2015 that producer exported 33,000 tons of railway wheels to Russia.660 The third measure 
concerns certificates issued under CU Technical Reg ulation 001/2011 by other CU countries. 
However, the report provides no information on whether these exports to Russia were made using 
a certificate issued under CU Technical Regulation 001/2011 by another CU country or a certificate 
issued by Russia prior  to the entry into force of CU Technical Regulation 001/2011. As noted , any 
certificates issued by Russia for railway products before the entry into force of the CU Technical 
Regulations that remained valid could still be used until 2 August 2017.661 For the se reasons, the 
report provided by Russia does not demonstrate that, notwithstanding the evidence submitted by 
Ukraine, in 2015 Russia applied no requirement not to recognize certificates issued under 
CU Technical Regulation 001/2011 in other CU countries.   
7.856.   Russia further maintains that it has applied no production condition. Russia refers to Article 
53 of the EAEU Treaty, according to which a product that conforms to CU technical regulations 
must be permitted to circulate freely across the territory of the  CU. However, the 2016 letters  
from Russian authorities  submitted by Ukraine explicitly stated that the certificates had been 
issued in violation of CU technical regulations. Having said this, there is indeed evidence that 
                                                
660 Information provided on analytical website Share Ukrainian Potential with respect to  the company 
[[xxx]], (Exhibit RUS -72); and Russia's response to Panel question Nos. 128.  
661 Ukraine's response to Panel question No. 45.  According to Ukraine, the last Russian certificates 
covering products of the relevant Ukrainian producer were suspended by Russia on 21 December 2015, and 
Ukraine contends that the certificates could therefore be used until that time. Ukraine's responses to Panel 
question Nos. 142 and 154; and Extract of the FBO's Register , (Exhibit UKR -12). WT/DS499/ R 
 
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  Russia has itself issued certific ates under CU Technical Regulation  001/2011 to producers located  
in third countries.662 Nevertheless, there is no evidence that before the date of establishment of 
this Panel Russia actually allowed registration and importation of products produced outside t he 
CU and covered by a certificate issued under CU Technical Regulation 001/2011 by another 
CU country. Russia has therefore not rebutted Ukraine's evidence concerning non -recognition that 
shows that a production condition  was enforced.   
7.857.   Russia similarly a sserts that it has not applied a registration condition. Russia submits that 
it has itself issued certificates to applicants registered in other CU countries. Here again, however, 
there is no evidence that before the date of establishment of this Panel Rus sia actually allowed 
registration and importation of products covered by a certificate that had been issued under 
CU Technical Regulation 001/2011 by another CU country to an applicant not registered in that 
same country. Russia has therefore not rebutted Ukraine's evidence regarding the application of 
the registration condition  in connection with certificates issued in other CU countries .  
7.858.   Turning to the temporal scope of application of the third measure, we note that the most 
recent of the three letters s ubmitted by Ukraine dates from August 2016, whereas this Panel was 
established in December 2016. In our view, it can be presumed in the specific circumstances of 
this case that the general non -recognition requirement was still being applied by the Ministry  and 
the Federal Agency on the date of establishment of this Panel. The Panel was established only four 
months after the August 2016 letter, and the August 2016 letter concerned one of the certificates 
at issue in the January 2015 letter and effectively re confirmed that decision. Moreover, Russia has 
provided no contrary evidence.  
7.859.   Both parties have also submitted evidence concerning the situation after the Panel's 
establishment. Th is evidence consists of letters that were prepared during the course of thes e 
proceedings and sent to the parties' authorities. Ukraine produced a letter from September 2017 
from a Ukrainian producer ([[ xxx]]) in which the producer indicates that as of that date it did not 
have valid certificates to export to Russia, inter alia , because of the non -recognition by Russia's 
Ministry of Transport of certificates that had been issued under CU Technical Regulation 001/2011 
by the certification bodies in Kazakhstan and Belarus.663 Russia provided two letters from 
November 2017 concerning a  certificate for a product that is produced by a Ukrainian producer 
and that is also at issue in the February 2016 letter submitted by Ukraine. The November 2017 
letters were sent by two different Russian companies. Their letters state that as of November 2017 
they were using the product covered by the certificate and that the certificate had been issued by 
Belarus.664 
7.860.   We note that the September and November 2017 letters are not letters from official 
Russian government sources or specifically from Russia's Mi nistry of Transport or the Federal 
Agency, which are the authorities that applied the non -recognition requirement. Moreover, 
whereas the September 2017 letter suggests that the requirement was still being applied in 
September, the November 2017 letters sug gest that at least from November 2017 the situation 
may have changed at least with regard to one Ukrainian producer's certificate. As we have little 
and only indirect evidence and that evidence is contradictory, we refrain from taking a position on 
whether  the general non -recognition requirement continued to be applied by Russia after the 
Panel's establishment.  
7.5.1.2.1   Conclusion  
7.861.   In conclusion, we find that the third measure has been demonstrated to exist. More 
particularly, the  evidence on the record supports the conclusion that on the date of establishment 
of this Panel Russia's Ministry of Transport and its Feder al Agency for Railway Transport applied a 
general non -recognition requirement, which these authorities consider ed to flow from CU Technical 
                                                
662 Extract of Unified Register of Issued Certificates of Conformity and Registered Declarations of 
Conformity concerning European producers , (Exhibit UKR -54)(Corr.).  
663 Letter [[ xxx]] from company  [[xxx ]] to Ukraine's  Ministry of Economic Development and Trade, 12 
September 2 017, ( Exhibit UKR -139)(BCI); and Ukraine's response to Panel question No. 127.  
664 Letter from company  [[xxx]]  to the FBO of 3 November 2017, ( Exhibit RUS-73)(BCI); and Letter 
from company  [[xxx]]  to the FBO of 7  November 2017, [[xxx]], ( Exhibit RUS -78)(BCI); and Russia's responses 
to Panel question Nos. 128 and 171.  WT/DS499/ R 
 
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  Regulation  001/2011  as they interpreted it . In accordance with  that requirement, the Ministry and 
the Federal Agency were not to recognize certificates issued under CU Technical Regulation  
001/2011 in other CU countries if ( a) the certified products were not produced i n a CU country or 
(b) the applicant for certification is not registered in the same CU country in which the application 
had been submitted.   
7.862.   As noted above, however, the non -recognition requirement falls within the Panel's terms of 
reference only to the ex tent that it requires non -recognition in situations where the certified 
products were not produced in a CU country. Accordingly, in the remainder of this section and the 
following sections of our Report we will use the term "non -recognition requirement" to  refer to the 
requirement not to recognize certificates issued in other CU countries if the certified products were 
not produced in a CU country.  
7.5.2   Ukraine's claim under Article 2.1 of the TBT Agreement  
7.863.   We now begin our analysis of Ukraine's claims of violat ion against the third measure. The 
first claim raised by Ukraine is that the third measure is inconsistent with Article 2.1 of the 
TBT Agreement. The heading of Article 2 and text of Article 2.1 provide as follows:  
Preparation, Adoption and Application of Technical Regulations by Central Government 
Bodies  
With respect to their central government bodies:  
2.1    Members shall ensure that in respect of technical regulations, products imported 
from the territory of any Member shall be accorded treatment no less  favourable than 
that accorded to like products of national origin and to like products originating in any 
other country.  
7.864.   Ukraine describes and states its claim under Article 2.1 variously:  
a. Russia violates Article 2.1 because, in respect of CU Technical Re gulation 001/2011, 
railway products of Ukrainian origin are accorded treatment less favourable than the 
treatment accorded to like products of national origin and to like products originating in 
any other country665;  
b. Russia's decision whereby Russian author ities refused to recognize the validity of 
certificates issued to Ukrainian producers by certification bodies in other CU countries 
violates the MFN and national treatment obligation in Article 2.1666; and   
c. Russia violates Article 2.1 because, by imposing th e additional requirement that only 
products manufactured in the CU territory may be subject to certification and by not 
accepting the validity of certificates issued to Ukrainian producers in other CU countries 
on that basis, Russia accords less favourable  treatment to railway products imported 
from Ukraine.667 
7.865.   Russia argues that the third measure is not inconsistent with Article 2.1. According to 
Russia, the third measure is not a "technical regulation" within the meaning of the TBT Agreement 
and therefore f alls outside the scope of Article 2.1. Russia argues that the alleged decision not to 
accept certificates issued in other CU countries does not meet the definition of a technical 
regulation. Russia further argues that Ukraine in any event failed to demonst rate the likeness of 
the products at issue and did not show that the measure violated the MFN and national treatment 
obligations in Article 2.1. Russia argues that, in any event, CU Technical Regulation 001/2011 does 
not contain any discriminatory provisio ns, and that the same is true for the  Protocol of the Ministry 
                                                
665 Ukraine's first written submission, para. 289; and second written submission, para. 324.  
666 Ukraine's first written submission, para. 304.  
667 Ukraine's second written submission, para. 382.  WT/DS499/ R 
 
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  of Transport and the letters of the Federal Agency for Railway Transport, which also do not contain 
any additional requirements based on the origin of Ukrainian producers.668 
7.866.   The Panel notes that  three elements must be established for a measure to be inconsistent 
with Article 2.1: (a) the measure must be a "technical regulation", (b) the relevant products must 
be "like products", and (c) the measure must accord less favourable treatment to importe d 
products as compared to a relevant group of like products.669 We begin our analysis of the non -
recognition requirement with the first element.  
Obligation to ensure no less favourable treatment "in respect of technical 7.5.2.1   
regulations"  
7.867.   Ukraine points out that Article 2.1 stipulates an obligation to ensure no less favourable 
treatment "in respect of technical regulations". Ukraine argues that the words "in respect of" 
indicate that the scope of Article 2.1 is broader than technical regulations. In Ukraine's view , 
Article 2.1 applies also in cases where a measure relates to a technical regulation applicable in its 
territory and through which it discriminates between like products in respect of the (application of) 
that technical regulation. According to Ukraine, A rticle 2.1 therefore applies to technical 
regulations and measures in respect of technical regulations.670 
7.868.   Ukraine further submits that Article 2.1 is not limited to technical regulations promulgated 
by central government bodies of a Member, but applies more  broadly to all technical regulations , 
and measures in respect of technical regulations,  that are applicable in the territory of a Member, 
regardless of the specific body that adopted such instrument.  In Ukraine's view, in the event that a 
Member is part o f a customs union or other supranational organization with competence to adopt 
directly applicable technical regulations, these regulations may constitute "technical regulations" 
covered by the TBT Agreement. Ukraine submits that otherwise Members could ci rcumvent their 
obligations under Article 2.1, for example by adopting distinct measures setting out discriminatory 
conditions for the application of technical regulations put in place by supranational harmonizing 
bodies.  With regard to  CU Technical Regulat ion 001/2011 , Ukraine therefore considers that it  is a 
technical regulation within the meaning of Annex 1.1 of the TBT Agreement , as it was adopted by 
a supranational body of the CU and is applicable in Russia's territory. Ukraine further argues that 
the m easure at issue (Russia's decision not to accept the validity of certificates issued in other 
CU countries) is a measure relating to a technical regulation, i.e. CU Technical Regulation 
001/2011. Ukraine states that this is because the production condition  applied by Russia is an 
element relating to a technical regulation inasmuch as it imposes a condition on the application of 
the requirements laid down in CU Technical Regulation 001/2011. According to Ukraine, the 
measure taken on the basis of the product ion condition is, therefore, a measure taken "in respect 
of a technical regulation".671 
7.869.   Russia asks the Panel to disregard Ukraine's interpretation of Article 2.1, according to 
which that provision covers measures other than technical regulations. Russia sub mits that the 
TBT Agreement draws a clear line between two types of TBT measures: "Technical Regulations and 
Standards", on the one hand, and "Conformity with Technical Regulations and Standards", on the 
other. Russia considers that the third measure at is sue can either fall under one type of 
TBT measure or the other. In Russia's view, Ukraine's claims appear to be concerned with issues 
covered by Articles 5 and 6 of the TBT Agreement rather than with issues covered by Article 2.1.672 
7.870.   Russia agrees that CU Technical Regulation 001/2011 is a technical regulation within the 
meaning of the TBT Agreement. But Russia considers that the Protocol of the Ministry of Transport 
                                                
668 Russia's first written submission, paras. 112, 125, 127-128 and 1 30; and second written submission, 
para. 139.  
669 Appellate Body Report, US – Tuna II (Mexico) (Article 21.5) , para. 7.25.  
670 Ukraine's first written submission, p. 93 and para. 310; and second written submission, para. 331.  
671 Ukraine's first written submissi on, para s. 311-312, 315 -316, 320 and 346.  
672 Russia's second written submission, paras. 140 -141; and opening statement at the second meeting 
with the Panel, para. 52.  WT/DS499/ R 
 
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  and the letters of the Federal Agency for Railway Transport do not sa tisfy the criteria established in 
WTO jurisprudence for measures to qualify as technical regulations.673 
7.871.   Ukraine responds that the measure challenged by it is the decision not to accept the 
validity of certificates issued in other CU countries. According to Ukraine, this measure is not itself 
a technical regulation, but a measure "in respect of a technical regulation".674  
7.872.   Canada considers that Article 2.1 may apply also to actions other than the preparation, 
adoption and application of technical regulations, a s long as such action is in respect of technical 
regulations. Canada also notes, however, that decisions whether to accept certificates issued by 
other CU countries are not the type of actions subject to Article 2.1 if they are governed by 
Article  5 of the  TBT Agreement.675  
7.873.   The European Union argues that Article 2.1 may encompass measures that are not, in and 
of themselves, technical regulations within the meaning of the TBT Agreement. Yet the European 
Union also observes that the decision challenged by Ukra ine falls squarely within the scope of 
Article 6 of the TBT Agreement.676 
7.874.   The Panel begins by considering Ukraine's interpretation of Article 2.1, which relies on the 
phrase "in respect of". As we see it, this phrase serves to circumscribe the scope of appli cation of 
the non -discrimination obligation677 contained in Article 2.1.678 It specifies the measures – 
technical regulations – to which the obligation applies.679 Indeed, we see no difference in this 
respect with the phrase "with respect to" in the introductory  paragraph to Article 2. This 
functionally equivalent phrase further circumscribes the scope of application of the non -
discrimination obligation in Article  2.1. It specifies that Article 2 applies only to measures 
emanating from central governmental bodies .  
7.875.   According to Ukraine, Article 2.1 "expressly refers to measures ' in respect of  technical 
regulations'".680 However, we are bound to note that the text of Article 2.1 does not contain the 
term "measures". Nor does it say that Members must observe a non -discrimination obligation "in 
respect of" (a) "technical regulations" and (b) measures in respect of technical regulations, i.e. 
other measures that are related to technical regulations. In our view, the phrase "in respect of" as 
it is used in Article 2.1 doe s not, therefore, provide any useful indication as to whether Article 2.1 
may be interpreted broadly so as to encompass also measures in respect of technical regulations.  
7.876.   Looking beyond the phrase "in respect of", we observe that Articles 2 -4 of the 
TBT Agreement are preceded by the heading "Technical Regulations…". Annex 1.1 of the 
TBT Agreement defines the term "technical regulation". The term means a "[d]ocument which lays 
down product characteristics or their related processes and production methods, i ncluding the 
applicable administrative provisions, with which compliance is mandatory". Applying this definition 
to Article 2.1 yields a useful clarification regarding its meaning: when Members (at the central 
government level) prescribe certain product ch aracteristics or product -related processes and 
production methods, they must ensure that they treat imported products no less favourably than 
like domestic or other like imported products. We deduce from this that Article 2.1 is concerned 
with substantive technical  requirements concerning product characteristics  or their related 
processes and production methods.681  
                                                
673 Russia's first written submission, paras. 117, 119 and 124.  
674 Ukraine's second written s ubmission, paras. 337 -338 and 343.  
675 Canada's third -party submission, paras. 51 and 52.  
676 European Union's third -party submission, paras. 54 and 56.  
677 We use the term "non -discrimination obligation" as a shorthand to refer to the obligation to ensure 
that imported products are not treated less favourably than like domestic or other like imported products.  
678 See also Panel Report, US – COOL , para. 7.245.  
679 Article III:4 of the GATT 1994, which we discuss further below, similarly states that imported 
product s must be accorded treatment no less favourable " in respect of " any "laws, regulations and 
requirements affecting their internal sale, offering for sale, purchase, transportation, distribution or use ". 
680 Ukraine's opening oral statement at the second meeting with the Panel, para. 77 (emphasis in 
original).  
681 We use the term "substantive technical requirement" , which does not appear in the TBT Agreement,  
as shorthand for a substantive requirement in a tech nical regulation.  WT/DS499/ R 
 
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  7.877.   Whereas Article 2.1 is about technical regulations and hence substantive technical 
requirements, Articles 5 -9 of the TBT Agreement, as their intr oductory section heading indicates, 
are about "Conformity with Technical Regulations…"682 and hence conformity with substantive 
technical requirements. We recall that Article 5, for instance, is entitled "Procedures for 
Assessment of Conformity by Central Go vernment Bodies". Moreover, Annex 1.3 of the 
TBT Agreement defines the term "conformity assessment procedure" as "[a]ny procedure used, 
directly or indirectly, to determine that relevant requirements in technical regulations … are 
fulfilled". We observe, f inally, that Article 5.1.1 sets out a specific non -discrimination obligation 
also in respect of conformity assessment procedures.  
7.878.   To us, the explicit distinction in the TBT Agreement between,  on the one hand, disciplines 
applicable to substantive technica l requirements and, on the other hand, disciplines applicable to 
procedures for assessment of conformity with substantive technical requirements indicates that 
issues relating to conformity with substantive technical requirements do not fall within the sco pe of 
application of Article  2.1.683 
7.879.   Consequently, even if, in principle, Article 2.1 could encompass also "measures in respect 
of technical regulations" (and we take no position on this issue), they would need to be measures 
in respect of substantive techni cal requirements. To be covered by Article 2.1, "measures in 
respect of technical regulations" could not include measures in respect of the assessment of 
conformity with substantive technical requirements. Any conclusion to the contrary would 
improperly di sregard the different section headings for Articles 2 -4 (Technical Regulations) and 
Articles 5 -9 (Conformity with Technical Regulations).  
7.880.   Bearing these introductory interpretative observations in mind, we now examine whether 
the third measure can be prope rly characterized as a "measure in respect of a technical 
regulation". The relevant technical regulation is CU Technical Regulation 001/2011.  
7.881.   As we have determined above, the measure at issue is the general non -recognition 
requirement (as applied by the id entified Russian authorities in situations where a product certified 
in another CU country had not been produced in a CU country). This requirement is applied in 
cases where another CU country has already assessed the conformity of a product with the 
subst antive requirements of a technical regulation, CU Technical Regulation 001/2011, and issued 
a certificate under CU Technical Regulation 001/2011. Thus, the non -recognition requirement goes 
to the issue of whether in respect of an already -certified product there in fact is conformity with a 
CU-level technical regulation.  
7.882.   In other words, the non -recognition requirement is about whether certain products 
conform with the applicable substantive technical requirements contained in CU Technical 
Regulation 001/2011 . It is not about certain products having to conform with different or 
additional substantive technical requirements. It follows that the non -recognition requirement fits 
comfortably within the section of the TBT Agreement that is entitled "Conformity with  Technical 
Regulations" (Articles 5 -9). The non -recognition requirement does not fall within the scope of 
Article 2.1 merely because CU Technical Regulation 001/2011 "serves as the basis"684 for the non -
recognition of certificates.   
7.883.   For these reasons, we consider that even if Article 2.1 could in principle cover "measures in 
respect of a technical regulation", the non -recognition requirement is no such measure.  We 
consequently find that the non -recognition requirement falls outside the scope of application  of 
Article 2.1.  
7.884.   We note that in one of its various descriptions of the claim under Article 2.1, Ukraine 
appears to allege that Russia violates Article 2.1 by imposing the requirement that only products 
manufactured in the CU territory may be subject to c ertification.685 However, the production 
condition (i.e. the condition that only products produced within the CU are eligible for certification 
                                                
682 The full heading reads: "Conformity with Technical Regulations and Standards".  
683 We note that Ukraine considers that "conformity assessment procedures and technical regulations 
are mutually exclusive". Ukraine's second written submissio n, para. 345.  
684 Ukraine's opening statement at the first meeting of the Panel, para. 85.  
685 See paragraph  7.864c  above.  WT/DS499/ R 
 
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  under CU Technical Regulation 001/2011) is not a measure at issue that can be separately 
challenged in these proce edings as being inconsistent with Article 2.1. Indeed, nothing in the panel 
request gives notice that the production condition as such is a challenged measure and that it is 
independently claimed to be inconsistent with Russia's WTO obligations. Rather, as  is clear from 
the multiple references to non -recognition  in section II of the panel request686, the third measure 
that Ukraine identified as a measure at issue concerns Russia's failure to recognize certificates 
issued in other CU countries. It is in that c ontext that the panel request in the third narrative 
paragraph makes a reference to the production condition. However, that reference simply explains 
why Russia's authorities "concluded that the conformity assessment certificates issued to Ukrainian 
produc ers in other CU countries were not valid".687 Accordingly, we will not examine whether the 
production condition falls within the scope of application of Article 2.1.  
Conclusion  7.5.2.2   
7.885.   As the non -recognition requirement falls outside the scope of application of Arti cle 2.1, the 
Panel concludes that the requirement is not inconsistent with Article 2.1 of the TBT Agreement.  
7.5.3   Ukraine's claim under Article I:1 of the GATT 1994  
7.886.   We now turn to  Ukraine's claim of violation under Article I:1 of the GATT 1994.688 The text 
of Art icle I:1 provides as follows:  
With respect to customs duties and charges of any kind imposed on or in connection 
with importation […] or imposed on the international transfer of payments for imports 
[…], and with respect to the method of levying such dutie s and charges, and with 
respect to all rules and formalities in connection with importation […], and with 
respect to all matters referred to in paragraphs 2 and 4 of Article III, any advantage, 
favour, privilege or immunity granted by any contracting party  to any product 
originating in […] any other country shall be accorded immediately and unconditionally 
to the like product originating in […] the territories of all other contracting parties.689 
7.887.   Ukraine claims that Russia's decision not to accept in its terr itory the validity of certificates 
issued to Ukrainian producers in other CU countries based on the requirement whereby only 
products manufactured in the territory of the CU may be subject to certification is inconsistent with 
Article I:1. In Ukraine's vie w, a violation arises because Russia's decision does not immediately 
and unconditionally grant railway products originating in Ukraine the same advantage as is granted 
to like products originating in the CU territory.690 
7.888.   Russia argues that the measure at iss ue is consistent with Article I:1.691 
7.889.   The Panel notes that four elements must be demonstrated to establish an inconsistency 
with Article I:1: (a) the measure at issue must fall within the scope of application of Article I:1; 
(b) the imported products at issu e must be like products; (c) the measure at issue grants an 
advantage, favour, privilege, or immunity to a product originating in the territory of any country; 
and (d) the advantage, favour, privilege, or immunity is not extended immediately and 
unconditio nally to like products originating in the territory of all Members.692 We will address these 
four elements in turn, combining the third and fourth into one. We begin with the question 
whether the measure falls within the scope of application of Article I:1.  
                                                
686 See section 7.1.1.1.5  on the Panel's preliminary ruling.  
687 See paragraph 7.93 above. 
688 As explained above, we do  not make findings with regard to those of Ukraine's claims about non -
recognition that relate to the registration condition.  
689 Ad note omitted.  
690 Ukraine's first written submission, paras. 351 and 361.  
691 Russia's first written submission, para. 157.  
692 Appellate Body Report, EC – Seal Products , para. 5.86.   WT/DS499/ R 
 
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  Matters referred to in Article III :4 of the GATT 1994  7.5.3.1   
7.890.   Ukraine notes that Article I:1 covers "all matters referred to in [paragraph] 4 of 
Article  III". Ukraine submits that the measure at issue is a requirement affecting the internal sale 
and offering for sale of railway products. According to Ukraine, the refusal to recognize the validity 
of certificates issued in other CU countries implies that railway products from Ukraine having such 
certificates cannot be placed on Russia's market.693  
7.891.   Russia argues that  the measure at issue does not deal with the importation of railway 
products into Russia and is therefore not a measure "in connection with importation" as provided 
for in Article I:1. As such, Russia claims, the measure falls outside the scope of Article I:1.694  
7.892.   The Panel notes that the parties appear to agree that the measure at issue is an internal 
measure, not a border measure. Ukraine says that the measure affects the internal sale or offering 
for sale, while Russia says that it is not a measure taken i n connection with importation.  
7.893.   The measure at issue is the requirement not to recognize certificates issued in other 
CU countries if the certified products were not produced in a CU country. The requirement that 
products must have been produced in a CU co untry is contained in CU Technical Regulation 
001/2011 as interpreted by Russia's Ministry of Transport and the Federal Agency for Railway 
Transport. The production condition applies both to products imported into Russia and domestic 
Russian products. It i s enforced in the case of imported and some domestically produced products 
through non -recognition of certificates issued in other CU countries, which appears to mean that 
the product could not be imported.695 In the case of other domestically produced produ cts, 
Russia's authorities would check that the products have in fact been domestically produced and 
hence can be subject to certification in Russia. For these reasons, the non -recognition requirement 
in our view forms part of an internal measure that is en forced in the case of imported products at 
the time or point of importation.696 As such, the requirement is an internal requirement that falls 
within the scope of Article III.  
7.894.   Article I:1 brings within the scope of its most -favoured nation treatment obligati on "all 
matters referred to in [paragraph] 4 of Article III". Ukraine has correctly stated that this includes 
any requirement "affecting" the "internal sale" of imported products, or their "offering for sale". In 
our view, non -recognition of a certificate issued in another CU country has an adverse effect on a 
supplier's ability to offer the product covered by the certificate  for internal sale, as it would seem 
that the product could not be lawfully offered for internal sale in Russia's territory without a valid 
certificate. But even if the product could be offered for sale, it could not be lawfully sold for 
operation on Russia's territory without a valid certificate. Indeed, if Ukrainian producers could sell 
into Russia despite Russia's refusal to recognize  their certificate from another CU country, there 
would be no need for Ukraine to challenge the third measure. We therefore find that the non -
recognition requirement falls within the scope of application of Article I:1.  
Like imported products  7.5.3.2   
7.895.   Turning to th e issue of "like products", Ukraine submits that t he measure  at issue  
distinguishes between products based solely on whether the products were manufactured in the 
territory of the CU (and thus based on their origin) and on where the applicant and the certi fication 
body are located . Ukraine argues that the structure and design  of the measure at issue therefore  
distinguish between products based on factors that are not relevant to the definition of likeness.  
Ukraine notes that based on the design and structure of the measure, any good exported from 
Ukraine that is subject to certification could potentially have a corresponding like counterpart. For 
                                                
693 Ukraine's first written submission, para. 355.  
694 Russia's first written submission, para. 174.  
695 We note that the Protocol of the Ministry instructed  that Russia's Customs Service be informed of the 
non-validity of the certificates issued in Belarus.  
696 The Ad note to Article III provides in relevant part that " any law, regulation or requirement of the 
kind referred to in paragraph 1 [of Article III] which applies to an imported product and to the like domestic 
product and is collected or enforced in the case of the imported product at the time or point of importation, is 
nevertheless to be regarded as … a law, regulation or requirement of the kind refe rred to in paragraph 1, and 
is accordingly subject to the provisions of Article III ". WT/DS499/ R 
 
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  Ukraine, it follows that the likeness of the railway products  imported into Russia from Ukraine and 
the railway products imported from other countries has been established.697  
7.896.   Russia argues that Ukraine has failed to present a prima facie  case with regard to the 
likeness of the goods at issue. Russia submits that Ukr aine failed to identify the products in 
question and did not substantiate likeness.  Russia submits that Ukraine failed to present any 
evidence that the products at issue satisfy the likeness criteria (physical characteristics, end -uses, 
consumers' tastes a nd tariff classification). Moreover, in Russia's view, Ukraine failed to 
demonstrate that the measure at issue draws a distinction based on origin. According to Russia, 
the presumption of likeness is therefore inapplicable.698 
7.897.   The Panel begins by recalling t hat under the non -recognition requirement the Ministry of 
Transport and the Federal Agency for Railway Transport would not recognize a certificate issued 
under CU Technical Regulation 001/2011 by e.g. Belarus for a product manufactured in Ukraine, 
regardle ss of whether the applicant for the certificate was registered in Belarus or elsewhere. In 
contrast, the aforementioned authorities would recognize a certificate issued by Belarus for a 
product manufactured in either Belarus or Kazakhstan (to use CU countr ies other than Russia), if 
the applicant was registered in Belarus. Thus, in cases where the applicants are registered locally 
in Belarus, a Ukrainian product, on the one hand, and a Belarusian and Kazakh product, on the 
other, are treated differently even  if they both have a certificate that was issued in Belarus. The 
only basis for the difference in treatment between the products is where they were produced. In 
the case of the Ukrainian product, it was produced outside the CU, whereas in the case of the 
Belarusian and Kazakh product, it was produced inside the CU. Consequently, the non -recognition 
requirement in some situations draws a distinction based on the origin of the imported products – 
CU-origin imported products versus non -CU-origin imported produ cts. 
7.898.   Under well -established WTO jurisprudence, when origin is the sole criterion for a regulatory 
distinction between products, it is sufficient for a complaining party to demonstrate that there can 
or will be imported products that are "like".699 As the abo ve example illustrates, owing to the 
requirement that products must have been produced in a CU country  if certificates are to be 
recognized, the non -recognition requirement will in certain situations result in differential 
treatment even if a product produ ced in Ukraine is identical in all respects to a product produced in 
Belarus or Kazakhstan. In the light of this, it is not necessary for the complaining party to 
establish likeness by reference to the likeness criteria that have likewise been developed in  the 
jurisprudence, or to identify specific imported railway products covered by CU Technical Regulation 
001/2011 that are like.  
7.899.   As the complaining party in this dispute has shown that the non -recognition requirement in 
certain situations  results in an or igin-based distinction between imported railway products, the 
likeness of the products can be presumed. As explained, such situations arise where two imported 
railway products have been certified in a CU country; one was produced in the CU, the other was 
produced outside the CU; and the applicant in each case was registered in the CU country where it 
applied for the certificate. Russia has not adduced argument or evidence sufficient to rebut this 
presumption of likeness.  
                                                
697 Ukraine's opening statement at the first meeting of the Panel, para. 106; second written submission, 
paras. 429 -430; and response to Panel question No. 23 . 
698 Russia's f irst written submission, para. 157; second written submission, paras. 144 and 175; and 
response to Panel question No. 14.  
699 See, with specific reference to Article I:1, e.g. Panel Reports, Colombia – Ports of Entry , paras. 
7.355 -7.356; US – Poultry (China) , paras. 7.424 -7.432 ; with reference to Article III:2 of the GATT 1994, e.g. 
Panel Reports, Argentina – Hides and Leather , para. 11.168; China – Auto Parts , para. 7.216 ; and with 
reference to Article III:4 of the GATT 1994, e.g. Panel Reports, Argentina – Import Measures , para. 6.274; 
Canada – Autos , para. 10.74; Canada – Wheat Exports and Grain Imports , para. 6.164; China – Publications 
and Audiovisual Products , para. 7.1447; India – Autos , para. 7.174; Thailand – Cigarettes (Philippines) , para. 
7.661; Turkey – Rice, paras. 7.214 -7.216; US – FSC (Article 21.5 – EC), paras. 8.132 -8.135 . The Appellate 
Body has also applied this approach in the context of the non -discrimination obligations contained in the GATS. 
Appellate Body Report, Argentina – Financial Services , para. 6.38.  WT/DS499/ R 
 
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  Non-extension of an advantage  7.5.3.3   
7.900.   Ukraine submits that the measure at issue grants an advantage to products manufactured 
in the territory of CU countries like Belarus and Kazakhstan that is not granted at all to products 
that are not manufactured in the territory of the CU, like those of Ukrain e. In Ukraine's view, the 
opportunity to obtain certificates necessary for placing railway products on Russia's market is an 
advantage. Ukraine notes that the certificates issued for products from Ukraine are not accepted 
as valid in Russia and, as a conse quence, they cannot be placed on the Russian market. Ukraine 
therefore argues that the requirement that only products manufactured in the territory of the CU 
may be subject to certification under CU Technical Regulation 001/2011, which Russia used as a 
reason not to recognize the certificates issued in other CU countries, grants an advantage to 
products manufactured in the CU countries.700  
7.901.   Russia argues that CU Technical Regulation 001/2011 is applicable to railway products put 
into circulation in the CU ter ritory irrespective of their origin. According to Russia, the documents 
to which Ukraine refers do not contain any requirements based on the origin of Ukrainian products. 
Russia further notes that it has already explained the reasons for the non -recognitio n of the 
relevant certificates for Ukrainian products.701 
7.902.   Russia further observes that between 2014 and 2017 the Belarusian and Kazakh 
certification bodies issued 35 certificates to Ukrainian producers and that the relevant products are 
allowed to circulate freely in the CU territory, including in Russia. Russia also recalls that the FBO 
had issued three certificates to a Ukrainian producer ([[ xxx]]) pursuant to Russia's Certification 
Rules  for the Certification System for Federal Railway Transport, and that these products were able 
to circulate freely in the CU market.702 
7.903.   The Panel notes that under the non -recognition requirement two like imported products, 
one produced in Ukraine, the other produced in Belarus or Kazakhstan, that are both covered by a 
certific ate issued in Belarus will be treated differently, provided that the applicant was in both 
cases registered in Belarus. The Belarusian or Kazakh product thus enjoys an advantage, since the 
certificate issued in Belarus that covers the product can be used t o obtain registration of the 
product in Russia and operate the product on Russia's territory.703 The Ukrainian product can 
neither be registered nor operated in Russia. The advantage enjoyed by the Belarusian or Kazakh 
product is therefore not being extended , immediately and unconditionally, to a Ukrainian product.  
7.904.   Russia's evidence concerning the 35 certificates from Belarus and Kazakhstan only 
indicates that the certificates were issued there. There is no evidence that these products could 
circulate freely  also within Russia's territory. Indeed, we have determined that on the date of 
establishment of the Panel there was a general non -recognition requirement in place. Moreover, 
Ukraine has submitted evidence concerning certificates very similar to the 35 tha t Russia has 
submitted. That evidence  – the three letters from Russia's Federal Agency for Railway Transport 
dated between January 2015 and August 2016 concerning certificates issued in Belarus for 
products produced in Ukraine – shows that the certified pr oducts were not allowed to circulate 
freely within Russia's territory. We are therefore unable to accept that the 35 certificates referred 
to by Russia show that the advantage granted to some products covered by certificates issued in a 
CU country and prod uced in a CU country has been extended to like Ukrainian products covered by 
certificates in the same countries.  
7.905.    As regards the three certificates that the FBO issued to a Ukrainian producer under 
Russia's own Certification Rules, we note that Ukraine's claim relates to the difference in treatment 
between like imported products covered by certificates issued under CU Technical Regulation 
001/2011 in a CU country other than Russia. The evidence referred to by Russia concerns a 
different, national technical  regulation and a different situation, namely the issuance of certificates 
                                                
700 Ukraine's first written submission, paras. 357 -360. 
701 Russia's first written submission, para. 160.  
702 Russia's first written submission, paras. 178 -179; and CS FRT 31/PMG 40 -2003, ( Exhibit RUS -25); 
and Ukraine's response to Panel qu estion No. 49.   
703 As the text of Article I:1 refers to "any other country", even an advantage  granted to a product 
originating in a country that is not a WTO Member must be extended immediately and unconditionally to like 
imported products of WTO Members.    WT/DS499/ R 
 
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  by Russia rather than recognition by Russia of certificates issued elsewhere. We therefore do not 
consider that these three certificates demonstrate that Russia has extended an equi valent 
advantage to all Ukrainian products affected by the non -recognition requirement.  
7.906.   We therefore find that the non -recognition requirement in some situations confers an 
advantage on products produced in a CU country that is not immediately and uncondi tionally 
extended to like products produced outside the CU countries.  
Conclusion  7.5.3.4   
7.907.   As the four elements of Article I:1 have all been established, the Panel concludes that the 
non-recognition requirement is inconsistent with Article I:1 of the GATT 1994.  
7.5.4   Ukra ine's claim under Article III:4 of the GATT 1994  
7.908.   The Panel next examines Ukraine's claim of violation under Article III:4 of the 
GATT  1994.704 The text of Article III:4 provides in relevant part as follows:  
The products of the territory of any contracting pa rty imported into the territory of 
any other contracting party shall be accorded treatment no less favourable than that 
accorded to like products of national origin in respect of all laws, regulations and 
requirements affecting their internal sale, offerin g for sale, purchase, transportation, 
distribution or use.  
7.909.   Ukraine claims that Russia's decision not to accept in its territory the validity of certificates 
issued to Ukrainian producers in other CU countries is inconsistent with Article III:4. In Ukraine 's 
view, a violation arises because this decision accords less favourable treatment to Ukrainian 
railway products than is accorded to like products of national origin.705 
7.910.   Russia argues that the measure at issue is consistent with Article III:4, as products of 
Ukraine imported into Russia are afforded treatment no less favourable tha n that accorded to like 
products of national origin.706 
7.911.   The Panel notes that a measure is inconsistent with Article III:4 if three elements have 
been established: (a) that the measu re is a law, regulation or requirement affecting the internal 
sale, offering for sale, purchase, transportation, distribution, or use, of products; (b) that the 
imported and domestic products at issue are like; and  (c) that the imported products are accorded 
less favourable treatment.707 We will examine these elements in turn, starting with the question 
whether the measure falls within the scope of application of Article III:4.  
Internal requirement affecting the internal sale and offering for sale  7.5.4.1   
7.912.   Ukraine submits that the measure at issue is a requirement affecting the internal sale and 
offering for sale of railway products.708  
7.913.   Russia does not specifically address this point.  
7.914.   The Panel recalls its findings under Article I:1  in section 7.5.3.1  above regarding  whether 
the measure at issue concerns "matters referred to in [paragraph] 4 of Article III". We found 
already i n that context that the non -recognition requirement is an internal requirement that falls 
within the scope of Article III:4. More particularly, we determined that non -recognition of a 
certificate issued in another CU country has an adverse effect on the of fering for internal sale, or 
at least the internal sale, of the product covered by the certificate.  
                                                
704 As explained above, we do  not make findings with regard to those of Ukraine's claims about non -
recognition that relate to the registration condition.  
705 Ukraine's first written submission, para. 362.  
706 Russia's first written submission, para. 171; and second written submission, para. 187.  
707 Appellate Body Report, Korea – Various Measures on Beef , para. 133.  
708 Ukraine's first written submission, para. 370.  WT/DS499/ R 
 
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  Like imported and domestic products  7.5.4.2   
7.915.   Regarding "like products", Ukraine submits that the measure at issue distinguishes  
between products based solely on whet her the products were manufactured in the territory of the 
CU (and thus based on their origin) and on where the applicant and the certification body  are 
located . Ukraine argues that the structure and design  of the measure at issue therefore  distinguish 
between products based on factors that are not relevant to the definition of likeness.  Ukraine notes 
that based on the design and structure of the measure, any good exported from Ukraine that is 
subject to certification could potentially have a corresponding like domestic counterpart. For 
Ukraine, it follows that the likeness of the railway products imported into Russia from Ukraine and 
the domestic railway products has been established.709  
7.916.   Russia argues that Ukraine has failed to present a prima facie  case wit h regard to the 
likeness of the goods at issue. Russia submits that Ukraine failed to present any evidence that the 
products at issue satisfy the likeness criteria (physical characteristics, end -uses, consumers' tastes 
and tariff classification). Moreover,  in Russia's view, Ukraine failed to demonstrate that the 
measure at issue draws a distinction based on origin. According to Russia, the presumption of 
likeness is therefore inapplicable.710 
7.917.   The Panel recalls that under the non -recognition requirement the Mi nistry of Transport and 
the Federal Agency for Railway Transport would not recognize a certificate issued under 
CU Technical Regulation  001/2011 by e.g. Belarus for a product manufactured in Ukraine, 
regardless of whether the applicant for the certificate was registered in Belarus or elsewhere. In 
contrast, the aforementioned authorities would recognize a certificate issued by Belarus for a 
product manufactured in Russia, if the applicant was registered in Belarus. Thus, similar to what 
we have seen above i n the context of our analysis under Article I:1, in cases where the applicants 
are registered locally in Belarus, the Ukrainian product, on the one hand, and the domestic 
(Russian) product, on the other, are treated differently based solely on where they w ere produced, 
even though they both have a certificate  that was  issued in Belarus.  
7.918.   Accordingly, the non -recognition requirement in some situations (when the applicant for 
certification is registered in the place where the certification body is also locate d) draws a 
distinction between domestic (Russian) products (which are by definition produced in a 
CU country) and one sub -category of imported products (those that were not produced in a 
CU country) that is based solely on where they were produced and henc e their origin. In contrast, 
the requirement draws no origin -based distinction between domestic products and the other sub -
category of imported products (those that were produced in a CU country).  
7.919.   As we have explained above, past WTO jurisprudence establi shes that when origin is the 
sole criterion for a regulatory distinction between products, the likeness of the products that are 
distinguished in this way can be presumed.711 We have also explained that, when viewing the non -
recognition requirement through a  national treatment lens, origin is the sole criterion for 
differential treatment between domestic products and imported products only in respect of a sub -
category of imported products (those that were not produced in a CU country). Ukraine's claim 
under A rticle III:4 focuses exclusively on the treatment accorded to that particular sub -category of 
imported products. We therefore do not need to make findings on likeness with regard to the other 
sub-category. Moreover, the two sub -categories of imported produ cts do not overlap. In the light 
of these circumstances, we find it appropriate in this instance to apply the presumptive likeness 
test in examining those imported products that are treated differently based on their origin.  
7.920.   Applying this test to the fact s of Ukraine's claim, we note that, owing to the requirement 
that products must have been produced in a CU country if certificates are to be recognized, the 
non-recognition requirement will in certain situations result in differential treatment even if a 
product produced in Ukraine is identical in all respects to a product produced in Russia. In the light 
of this, it is not necessary for Ukraine to establish likeness by reference to the customary likeness 
                                                
709 Ukraine's second written submission, paras. 433 -434. 
710 Russia's first written submission, para. 1 65; and second written submission, paras. 144 and 183.  
711 See Appellate Body Report, Argentina – Financial Services , para. 6.38; and e.g. Panel Reports, 
Argentina – Import Measures , para. 6.274; China – Publications and Audiovisual Products , para. 7.1447; and 
Canada – Wheat Exports and Grain Imports , para. 6.164.   WT/DS499/ R 
 
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  criteria, or to identify specific imported railway p roducts covered by CU Technical Regulation 
001/2011 that are like domestic ones.  
7.921.   As Ukraine has shown that the non -recognition requirement in certain situations results in 
an origin -based distinction between domestic railway products and the sub -category of imported 
railway products that is relevant to Ukraine's claim, the likeness of the products can be presumed. 
Russia has not adduced argument or evidence sufficient to rebut this presumption.  
Less favourable treatment  7.5.4.3   
7.922.   Ukraine recalls that the requirement  that only products manufactured in the territory of the 
CU may be subject to certification has been used by Russia as a reason not to recognize the 
validity of certificates issued in other CU countries for railway products originating in Ukraine. 
Accordin g to Ukraine, the production condition modifies the conditions of competition to the 
detriment of imported Ukrainian railway products, since under this requirement Russian products 
can obtain certification under CU Technical Regulation 001/2011 and be plac ed on Russia's market, 
while Ukrainian products cannot.712  
7.923.   Ukraine further submits that under the measure at issue only certificates issued for 
products manufactured in the CU to applicants located in the same country as the certification 
body can be recogn ized in Russia. According to Ukraine, this means that Russian railway producers 
can use certificates obtained in other CU countries in Russia, while this is not the case for 
Ukrainian producers. In Ukraine's view , Russia therefore  treats suppliers of railway products 
originating in third countries less favourably than suppliers of domestic railway products.713  
7.924.   Russia argues that it has already explained the reasons for the non -recognition of the 
relevant certificates for Ukrainian p roducts.714 
7.925.   The Panel notes that for there to be "less favourable" treatment within the meaning of 
Article III:4, the regulatory distinctions applied between imported and like domestic products need 
to "distort the conditions of competition to the detriment of imported products".715 This holds true 
also, in our view, in cases where differential treatment distorts competition to the detriment of 
only a sub -category of imported products.  
7.926.   We recall that under the non -recognition requirement two like products, one produced in 
Ukraine, the other produced in Russia, that are both covered by a certificate issued in Belarus and 
an application submitted there by an applicant registered in Belarus, will be treated differently. 
Whereas in the case of the Russian product th e certificate issued in Belarus can be used to obtain 
registration of the product in Russia and operate the product on Russia's territory, the Ukrainian 
product can neither be registered nor operated in Russia. This indicates that the non -recognition 
requirement in certain situations (when the applicant for certification is registered in the place 
where the certification body is also located) distorts the conditions of competition to the detriment 
of that sub -category of imported products which comprises pr oducts not produced in a CU country. 
We therefore determine that the non -recognition requirement accords "less favourable" treatment 
to these imported products than it accords to the like domestic products.  
7.927.    According to Ukraine, there is evidence to show that Russia has  in fact  recognized 
certificates issued by the Kazakh certification body to Russian producers applying through Russian 
entities.716 In support of this assertion, Ukraine has  submitted copies of two certificates issued by 
the Kazakh certificati on body and two print -outs from webpages of Russian shops where, 
according to Ukraine, the products can be bought for use in Russia. However, it is not clear  from 
this evidence  that in both cases the certificates and webpages cover identical products, sinc e there 
are minor differences in the product descriptions and product type names. It is also not clear from 
                                                
712 Ukraine's first written submission, paras. 376 -377. 
713 Ukraine's opening statement at the first meeting of the Panel, para. 107.  
714 Russia's first written submission, para. 160.  
715 Appellate Body Report, Thailand – Cigarettes (Philippines) , para. 128.  
716 Certificate ТС.KZ.7100990.22.01.00063 , (Exhibit UKR -67); Tehnomashkomplekt 's shop webpage , 
(Exhibit UKR -68); Certificate ТС.KZ.7100990.22.01.00061 , (Exhibit UKR -69); and Rostok 's shop webpage , 
(Exhibit UKR -70). WT/DS499/ R 
 
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  the print -outs that these products could indeed be bought for use in Russia , as website shops often 
sell across borders . In any event, Ukraine chall enges the non -recognition requirement as such, 
and the record evidence establishes that th is requirement distorts the conditions of competition to 
the detriment of imported products. Evidence of actual trade effects, whether favourable or 
unfavourable, is not necessary to establish  "less favourable" treatment under Article III :4. 
Article  III protects competitive opportunities of imported products and not trade flows.717 
Conclusion  7.5.4.4   
7.928.   As the three elements of Article III:4 have all been established, the Panel con cludes that 
the non -recognition requirement is inconsistent with Article III:4 of the GATT 1994.  
7.5.5   Claim under Article X:3(a) of the GATT 1994  
7.929.   We now begin our analysis of Ukraine's claim that the third measure is inconsistent with 
Article X:3(a) of the GATT  1994.  
7.930.   Article X:3(a) provides that:  
Each contracting party shall administer in a uniform, impartial and reasonable manner 
all its laws, regulations, decisions and rulings of the kind described in paragraph 1 of 
this Article . 
7.931.   Ukraine claims that the third measure violates Article X:3(a) of the GATT 1994 because it 
has not been administered in a uniform, impartial and reasonable manner.718  
7.932.   Russia argues that Ukraine has failed to make a prima facie case that Russia does not 
administer its laws in a  uniform, impartial and reasonable manner. Russia submits that Ukraine 
identifies Technical Regulation 001/2011 as a whole and the Protocol of the Ministry of Transport 
No. A 4 -3 as a part of the measure at issue. Russia argu es that Technical Regulation  001/2011 as 
a whole and the Protocol of the Ministry of Transport No. A 4 -3 could not on their face be covered 
by Article X:3(a); only the administration of those acts falls within the scope of that Article.  As 
regards the letters from the Federal Agency for  Railway Transport, Russia recalls that Article X:1 is 
not concerned with specific transactions, but with the administration of rules of general 
application. Russia considers that the letters from the Federal Agency do not evince a generally 
applicable req uirement not to recognize certificates issued in other CU countries.719  
7.933.   Regarding "uniform" administration of laws, Ukraine argues that Russia does not recognize 
certificates issued to Ukrainian railway products in other CU countries. According to Ukraine, a 
number of certificates have been issued to producers located in the European Union. In Ukraine's 
view, if the requirement had been applied in a uniform manner to all countries outside the CU, no 
certificates would have been issued for products manufactur ed in the European Union. Ukraine is 
challenging the fact that the Russian Federation applies those requirements only towards Ukrainian 
producers and not towards producers from other third countries.720  
7.934.   Russia argu es that Technical Regulation  001/2011 is applied in a uniform manner.  Russia 
argues that Ukraine tries to build its case on an incorrect reading of the relevant provisions. 
According to Russia, t he evidence submitted by Ukraine is partially irrelevant, partially 
inconclusive, and in any event does not show a general pattern of non -uniform administration of 
relevant laws in Russia.721  
7.935.   Regarding "impartial" administration of laws, Ukraine claims that the Russian Federation 
fails to administer the requirements in an impartial manner. Ukraine argues that s ince the 
                                                
717 Appellate Body Report, Japan – Alcoholic Beverages II , p. 15, DSR 1996:I, 97, at 110; and Panel 
Report, Argentina – Hides and Leather , para. 11.20.  
718 Ukraine's second written submission, para. 437.  
719 Russia's second written s ubmission, paras 189 -194; and opening statement at the second meeting of 
the Panel, para. 53.  
720 Ukraine's second written submission, 439 -445. 
721 Russia's first written submission, paras. 178 and 181; and second written submission, para. 150.  WT/DS499/ R 
 
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  requirements are only applied to products originating in Ukraine,  the manner in which the Russian 
authorities has admin istered Technical Regulation  001/2011, read together with the Protocol of the 
Ministry of Transport No. A 4 -3 and the decisions listed in Annex III to the panel request, has not 
been impartial .722 
7.936.   Russia respon ds that Technical Regulation  001/2011 is applied in an impartial manner, as 
it is applied in an unbiased and unprejudiced manner without any distinction on the  basis of 
origin.723  
7.937.   Regarding "reasonable" administration of laws, Ukraine recalls that Russian authorities rely 
on the requirement that goods need to be produced in the territory of the CU in order to be eligible 
for certificatio n under Technical Regulati on 001/2011 in the context of denying the validity of 
certificates issued for Ukrainian railway products by certification bodies in other CU countries . 
Ukraine notes that  this requirement was , however,  never invoked by the Russian authorities in the 
contex t of rejecting the applications for certifications submitted by Ukrainian producers under the 
very same Technical Regulation. According to Ukraine t he fact that this requirement has been 
raised only in some cases but not in others clearly shows that the th ird measure  has been 
administered in an unreasonable manner in order to discriminate against railway products from 
Ukraine.724 
7.938.   Russia argu es that Technical Regulation  001/2011 is applied in a reasonable manner, since 
the certificates at issue were suspended for a legitimate reason, i.e. the lack of certification by 
Belarus of components integrated into a final (certified) product.725 
7.939.   The Panel has found that the third measure is  inconsisten t with both Articles I:1 and III:4 
of the GATT 1994. In the light of our  conclusions that Russia has acted inconsistently with  Article s 
I:1 and II I:4, we see no need, for the purpose of  resolving this dispute, to make additional 
findings regarding whether  Russia has also acted inconsistently with Article X:3(a) . We therefore 
exercise judicial  economy and decline to make findings with respect to this claim.  
Conclusion  7.5.5.1   
7.940.   Accordingly, the Panel reach es no conclusion in respect of Ukraine's claims of inconsistency 
with Article X:3(a) of the GATT 1994.  
7.6  Claims concerning the alleged systematic  import prevention  
7.941.   Ukraine claims that Russia maintains, since mid -2014, a measure consisting of the 
systematic prevention of Ukrainian railway products from being imported into Russia by means of: 
(a) suspending valid certificates held by Ukraini an producers, (b) refusing to issue new certificates, 
and (c)  not recognizing certificates issued by other CU countries, as evidenced in the instructions 
and decisions listed in Annexes I, II and III to the panel request. Ukraine  claims that this measure 
is inconsistent with Russia's obligations under Articles I:1, XI:1 and XIII:1 of the GATT 1994.726 
7.942.   Russia  claims that Ukraine failed to demonstrate the existence of such measure, and in the 
alternative, that Ukraine failed to demonstrate that the alleged meas ure is inconsistent with 
Articles I:1, XI:1 and XIII:1.727 
7.943.   The Panel will begin by assessing the parties' arguments and evidence regarding the 
existence of the measure. If Ukraine has demonstrated the existence of the measure, we will then 
assess Ukraine's c laims of inconsistency with Russia's obligations under the relevant provisions of 
the GATT 1994.  
                                                
722 Ukraine's fi rst written submission, para 397.  
723 Russia's first written submission, para 182.  
724 Ukraine's first written submission, para. 398.  
725 Russia's first written submission, para 182.  
726 Ukraine's first written submission, paras. 187 -188.  
727 Russia's first written  submission, paras. 29, 37, 60, and 70.  WT/DS499/ R 
 
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  7.6.1   Measure at issue  
Ascertaining the existence of an unwritten systematic measure  7.6.1.1   
7.944.   Ukraine submits that the challenged measure is unwritten, overarching, and syste matic. 
According to Ukraine, any act or omission attributable to a Member can be a measure of that 
Member for the purposes of dispute settlement proceedings. Ukraine submits that according to the 
Appellate Body, a complaining party seeking to prove the exi stence of an unwritten measure will 
need to prove the attribution of the measure to a Member and its precise content. In addition, the 
specific measure challenged and how it is described or characterized by the complaining party will 
determine the kind of evidence that a complaining party must submit and the elements that it 
must prove to demonstrate the existence of the measure. Moreover, Ukraine argues that a 
systematic measure is one "that is done according to a system, plan or organized method". 
Ukraine  submits that it may be possible to infer the existence of a "system" where the observed 
repetition is so substantial as to render it more likely than not that an underlying system, plan, 
organized method or effort exists.728 
7.945.   Russia responds that Ukraine cha racterized this measure as unwritten, systematic and 
distinct from the legal acts that it is based on, or from the Russian authorities' acts or actions. 
Russia argues that consistent with the Appellate Body's guidance, the evidentiary burden to 
demonstrate  the existence of an unwritten measure is high. Russia agrees with Ukraine that the 
systematic nature of a measure must be demonstrated through the existence of a plan or 
organized effort.729 
7.946.   The Panel notes that to demonstrate the existence of an unwritten measure, a complaining 
party must provide evidence demonstrating (a) that the measure is attributable to the responding 
party; (b)  the precise content of the measure; and (c) other elements arising from the manner in 
which the complaining party described o r characterized the measure. Such other elements may 
include demonstrating the specific nature of the measure, i.e., whether it is of general and 
prospective application or of a different nature. A complaining party may also have to demonstrate 
how the dif ferent components of the measure operate together as part of a single measure and 
how such single measure exists as distinct from its components. Furthermore, the evidentiary 
threshold for proving the existence of an unwritten measure is high.730 
7.947.   We further observe that a complaining party seeking to demonstrate the systematic nature 
of a measure must demonstrate that such measure is  aimed at achieving a particular policy or 
result and is done according to a system, plan, or organized method or effort. The sy stematic 
nature of a measure could be demonstrated, for instance, by proving that the measure is applied 
to economic operators in a broad variety of different sectors as part of an organized effort, or 
coordinated and implemented at the highest levels of g overnment.731 
7.948.   On the basis of the foregoing, we turn to examine the parties' arguments and evidence 
regarding the precise content and existence of the measure.  
                                                
728 Ukraine's first written submission, paras. 142 -144; opening statement at the first meeting of the 
Panel, paras. 14 -15; response to Panel question No. 87; second written submission, para. 10.  
729 Russia's first writte n submission, paras. 12 -13 and 16; and second written submission, paras. 24 -31. 
See also Russia's opening statement at the second meeting of the Panel, paras. 6 -12. 
730 Appellate Body Reports, Argentina - Import Measures , paras. 5.104 and 5.108; and US – Zeroing 
(EC), para. 198; and Panel Reports, Indonesia – Chicken , paras. 7.616 and 7.656; and Russia – Tariff 
Treatment , paras. 7.283, 7.338, and 7.341. See also European Union's third -party submission, paras. 10 -12 
and 16; Indonesia's third -party submissio n, paras. 9 -12; Japan's third -party submission, paras. 4 -7; and the 
United States' third -party submission, paras. 3 -7. 
731 Appellate Body Reports, Argentina – Import Measures , para. 5.142; and Panel Report, Russia – Tariff 
Treatment , paras. 7.302 -7.311.  WT/DS499/ R 
 
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  Precise content and evidence of the existence of the measure  7.6.1.2   
7.6.1.2.1   The components of the measure and its  systematic nature  
7.949.   According to Ukraine, the alleged systematic import prevention is unwritten and directed 
against the importation of Ukrainian railway products into Russia. Ukraine submits that "to 
prevent" means to "provide beforehand against the occurr ence of (something); make impractical 
or impossible by anticipatory action; stop from happening".732 Thus, Ukraine considers that the 
prevention of Ukrainian railway products from being imported into Russia consists of Russia's 
action of making it impractica ble for Ukrainian railway products to be imported into Russia.733 
7.950.   Ukraine submits that the systematic import prevention has been in place since mid -2014. 
According to Ukraine, the existence of this measure is evidence d through  (a) the  systematic  
suspension o f valid certificates , refusals to issue new certificates and non -recognition of certificates 
of certificates issued in other CU countries , as show n by the drastic decrease in the number of 
certificates held by Ukrainian producers , (b) the  fact that the sys tematic prevention only concerns 
railway products originating in Ukraine, and (c) the individual decisions listed in Annexes I, II, and 
III to the panel request . Ukraine argues that Ukrainian producers have been denied, or have been 
unable to use, certific ates for reasons other than the lack of conformity with the relevant technical 
regulations. Ukraine argues that because certificates are required at the time of importation, it 
follows that through anticipatory action, Russia makes it impracticable or impo ssible to import 
Ukrainian railway products into Russia.734  
7.951.   Ukraine  submits, finally, that  Russia prevents the importation of Ukrainian railway products 
through  an organized effort. Ukraine considers that Russia has put in place all means possible to 
prevent imports of Ukrainian railway products into Russia. Moreover, Ukraine argues  that this 
measure has been applied to substantially all producers of Ukrainian ra ilway products who 
exported to Russia . In Ukraine's view , the measure  thus does not cons ist of merely  sporadic  
instances  or unrelated applications. Ukraine contends  that this measure appears to be part of a set 
of trade -restrictive measures taken by Russia  against Ukraine following the conclusion by Ukraine 
of an Association Agreement with the European Union in June 2014 .735 
7.952.   Russia submits that Ukraine has failed to demonstrate the existence of this measure and 
its systematic nature.736 Russia considers that th e mere reference  by Ukraine  to the FBO's 
suspension of 313 certificates and rejection of 33 applications for certificates for Ukrainian 
producers is not evidence of the existence of the alleged systematic import prevention. Russia 
argues that, to the contr ary, Ukraine's submissions support the existence of trade in railway 
products between Ukraine and Russia, which rebuts the existence of this measure. Moreover, 
Russia submits that Ukraine ignores evidence of the FBO having issued certificates to Ukrainian 
producers in certain areas of Ukraine. Russia also argues that Ukraine ignores the reasons for the 
suspensions of valid certificates and the rejections of the applications for new certificates.737 
7.953.   Russia further argues that the conditions for suspensions of certificates are established in 
its conformity assessment procedure for all producers irrespective of their origin. Moreover, Russia 
submits evidence that it has suspended certificates or rejected applications of Russian producers 
                                                
732 Ukraine's first written submission, para. 146 (referring to the definition of "to prevent" provided by 
the Appellate Body in its reports in China – Raw Materials , para. 327).  
733 Ukraine's first written submission, paras. 142 -147; opening statement at the firs t meeting of the 
Panel, para. 16; response to Panel question No. 87; and second written submission, paras. 11 -18. 
734 Ukraine's first written submission, para. 147; second written submission, paras. 13 and 18; and 
opening statement at the second meeting of t he Panel, paras. 30 and 38 -39; and response to Panel question 
No. 143.  
735 Ukraine's first written submission, paras. 132 -141 and 150 -159; second written submission, 
paras.  19-20 and 38 -56; and opening statement at the second meeting of the Panel, para. 40. See also 
Ukraine's responses to Panel question Nos. 86 and 133; and comments on Russia's response to Panel question 
No. 109.  
736 Russia's first written submission, paras. 11 -14; and second written submission, paras. 24 -26. 
737 Russia's first written submission , paras. 11 -14 and 18 -22; second written submission, paras. 24 -26 
and 27, 33 and 35; opening statement at the second meeting of the Panel, paras. 6 -12; and comments on 
Ukraine's response to Panel question No. 143.  WT/DS499/ R 
 
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  and producers from other countries, which means that suspensions and rejections have not been 
applied exclusively to Ukrainian producers.738  
7.954.   Russia submits that Ukraine failed to meet the high evidentiary standard required to 
demonstrate that Russian authorities acted in accordance  with a plan aimed at preventing 
Ukrainian railway products from being imported into Russia. Russia considers that Ukraine failed to 
submit any evidence of an "organized effort" on the part of Russian authorities that could turn 
measures two (suspensions a nd rejections) and three (non -recognition of certificates from other 
CU countries) into the alleged systematic import prevention. Moreover, Russia argues that Ukraine 
failed to demonstrate how this measure is distinct from its components or how such compon ents 
operate together as a single measure.739  
7.955.   Russia asks the Panel to disregard Ukraine's suggestion that the alleged measure is part of 
alleged unlawful trade -restrictive measures on products from Ukraine. Russia points out that no 
such measures are menti oned in the panel request, and they are therefore outside the Panel's 
terms of reference. In any event, Russia considers that these other alleged measures are not 
relevant, as they are in no way linked to imports into Russia of the railway products.740 
7.956.   The P anel first addresses the specific content of the challenged measure. As explained, 
Ukraine considers that it was because of an overarching unwritten measure taken by Russia that 
Ukrainian producers between 2014 and 2016 faced a reduction in trade opportuni ties in the 
Russian market. Ukraine describes this measure as the systematic prevention of  imports of  
Ukrainian railway products into Russia by way of suspensions  of certificates , rejections  of 
applications for new certificates , and non -recognition of cert ificates issued by other CU countries . 
According to Ukraine, this measure is not an import ban, but rather a measure making imports of 
Ukrainian railway products "impracticable" through "anticipatory action". Ukraine bases this 
understanding of the term "p revention", on the Appellate Body's definition of the term "to 
prevent". According to the  Shorter  Oxford English Dictionary, to "prevent" is "[t o p]rovide 
beforehand against the occurrence of ( something ); make  impractical or impossible by anticipatory 
action; stop from happening ".741 Based on this definition, Ukraine argues that the alleged measure 
does not formally and completely ban the importation of the products at issue but rather makes it 
impracticable to import such products, therefore allowing for a c ertain degree of trade.  
7.957.   With this in mind, we turn to assess  first whether the  instructions through which the FBO 
suspended valid certificates, the decisions through which the FBO rejected applications for 
certificates, and the non -recognition requirement  applied by Russia's authorities , which we have 
separately examined in the previous sections,  are evidence of the existence of this measure and of 
its systematic nature.742  
7.958.   In the preceding sections of our findings, we carefully examined the WTO -consistency  of 
the instructions through which the FBO suspended valid certificates, the decisions through which 
the FBO rejected applications for certificates, and the non -recognition requirement applied by 
Russia's authorities .  
7.959.   The evidence before us concerning the  14 instructions through which the FBO suspended 
valid certificates does not support the conclusion that the FBO adopted these instructions with the 
aim or as part of a plan directed at preventing the importation of Ukrainian railway products into 
Russia. Rather, the evidence suggests that the FBO adopted those instructions because its inability 
to conduct inspections in Ukraine due to the situation there prevented the FBO from having 
                                                
738 Russia's first written submission, paras . 23-25; and second written submission, para. 34.  
739 Russia's first written submission, paras. 15 -17; second written submission, paras. 26, 28 -32; 
opening statement at the second meeting of the Panel, paras. 13 -18 and 20 -23; and comments on Ukraine's 
respon ses to Panel question Nos. 110 and 133.  
740 Russia's second written submission, para. 43; and opening statement at the second meeting, para. 
19. 
741 The Shorter Oxford English Dictionary , 6th edn, A. Stevenson (ed.) (Oxford University Press, 2007), 
Vol. 2, p. 2341.  
742 We note that the specific suspension instructions and rejection decisions on which we made findings 
in the sections above are not the only instances of such suspensions and rejections. We address the relevant 
evidence submitted by the parties rega rding additional suspensions and rejections further below in this section.  WT/DS499/ R 
 
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  adequate confidence that the products at issue still conformed with the r elevant technical 
requirements.  
7.960.   The evidence before us also indicates that, in respect of the challenged decisions, the FBO 
had valid grounds to reject many  of the applications for certificates submitted by Ukrainian 
producers under CU Technical Regulation s 001/2011 and 003/2011. Our findings that in the case 
of two applications and one product subject to another application the FBO rejected applications 
unjustifiably and contrary to Russia's obligations under Article 5.1.2 rest on the lack of evidence on 
the record regarding past non -conformities or consumer complaints involving the producers at 
issue. We further note that there is evidence on record indicating that Russia granted applications 
for certificates under CU Technical Regulations 001/2011 and 003 /2011 to Ukrainian suppliers, the 
majority of whom are located in the eastern regions of Ukraine.743 Russia has explained that  these 
applications for certificates were granted  because , since no inconsistencies had been identified 
with regard to the products at issue in the course of the previous inspections,  the conditions for 
off-site testing of samples or off -site inspection of production were satisfied.744 We note that the 
inspection acts  that Russia submitted in support of the fact that no inconsistencies h ad been 
identified with regard to the products at issue in the course of the previous inspections are from 
2016 and 2017 and post -date th e date of issuance of those certificates .745 The parties have not 
submitted other evidence in this respect.  Therefore , there is no evidence on record that would 
allow us to either accept or reject Russia's explanation . In the light of this, we are not persuaded 
that the applications unjustifiably rejected by the FBO, mentioned above,  are proof that the FBO 
used its powers with the aim or as part of a plan directed at preventing the importation of 
Ukrainian railway products into Russia.  
7.961.   Additionally, we have found that the requirement, applied by the Ministry of Transport and 
the Federal Agency for Railway T ransport, that certificates issued in other CU countries must not 
be recognized if the certified products were not produced in a CU country is inconsistent with 
Articles I:1 and III:4 of the GATT 1994. We recall that the non -recognition requirement is the 
result of a particular interpretation of Article 1(1) of CU Technical Regulation 001/2011 adopted 
and applied by Russia's Ministry of Transport and Russia's Federal Agency for Railway Transport. 
Russia before this Panel has, however, distanced itself from that interpretation, suggesting that 
under EAEU Treaty rules products certified under CU Technical Regulation 001/2011 in one 
CU country may circulate freely in the territory of other CU countries, including Russia. Also, it 
seems that the FBO did not foll ow the same interpretation when considering applications from 
Ukrainian producers for certification under CU Technical Regulation 001/2011. Indeed, the 
challenged decisions through which the FBO rejected applications do not indicate that certification 
was not possible because the Ukrainian products had not been produced in the CU.  
7.962.   We further observe that there is no evidence on record that the general requirement that 
Russia's authorities must not recognize certificates issued in other CU countries if the certified 
products were not produced in a CU country has been applied to products from countries other 
than Ukraine. It is unclear from the information before us, however, whether other third -country 
(i.e. non -CU) producers have requested Russia's authorit ies to recognize certificates that they 
obtained in other CU countries.  
7.963.   Thus, the facts surrounding the application by Russia's Ministry of Transport and Russia's 
Federal Agency for Railway Transport of the non -recognition requirement are in principle 
consistent with Ukraine's allegation that Russia was seeking to prevent importation of railway 
                                                
743 Extract of Unified Register, ( Exhibit UKR -13); Extract of the Unified Register of certificates issued to 
Ukrainian producers under the CU Technical Regulations , (Exhibit UKR -154); and Table of the valid certificates 
issued to Ukrainian producers on the basis of CU Technical Regulations 001/2011, 002/2011 and 003/2011 
(based on Exhibit  UKR-13), (Exhibit RUS -49)(BCI).  
744 Russia's response to Panel question No. 156. Se e Table of the valid certificates issued to Ukrainian 
producers on the basis of CU Technical Regulations 001/2011, 002/2011 and 003/2011 (based on Exhibit  UKR-
13), (Exhibit  RUS-49)(BCI) . We note that in its comments on Russia's response to Panel question No. 156, 
Ukraine submitted that the evidence provided by Russia is insufficient to establish that there have been no 
non-conformities regarding the products.  
745 We note that the certificates were issued to the relevant companies between 2015 and 2016 (Extra ct 
of Unified Register, (Exhibit UKR -13)) and the exhibits submitted by Russia refer to inspection acts from 2016, 
regarding the certificates issued in 2015, and from 2017, regarding the certificates issued in 2016 
(Exhibit  RUS-79(BCI), Exhibit RUS -80(BCI) , Exhibit RUS -81(BCI) and  Exhibit  RUS-82(BCI) ).  WT/DS499/ R 
 
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  products from Ukraine. Indeed, application of the non -recognition requirement prevented 
Ukrainian suppliers from entering Russia's market using certificates issued i n other CU countries in 
situations where they were unable to obtain certificates under CU Technical Regulation 001/2011 
directly in Russia (or where their valid Russian certificates had been suspended by Russia).746  
7.964.   However, the fact that one of the three element s of the alleged systematic import 
prevention (suspensions  of certificates,  rejections of certificates , and non -recognition of certificates 
issued in other CU countries)  unjustifiably restricts access to the Russian market is not sufficient to 
demons trate the existence of systematic prevention of  imports of Ukrainian products as an 
independent measure. As is clear from our analysis of the suspensions and rejections challenged 
by Ukraine, the suspensions and rejections have not been demonstrated to be inconsistent with 
Article 5.1.1  and only one  decision  rejecti ng applications  has been demonstrated to be inconsistent 
with Article 5.1.2 in respect of two applications and one product subject to another application. 
Thus, the suspensions and rejections cha llenged by Ukraine, considered together , were in their 
great majority justified. In the light of this, it is only if the circumstances justifying these decisions 
disappeared and they were nonetheless maintained or such decisions were nonetheless adopted in  
respect of  new applications, that the issue would arise whether those measures form part of a 
comprehensive systematic import prevention that covers both the recognition of certificates issued 
in other CU countries and issuance of certificates in Russia.  
7.965.   In our view, the mere fact that the non -recognition requirement has been applied 
alongside the (for the most part) justified suspensions and rejections, which also had the effect of 
preventing imports of Ukrainian products, does not mean that these distinc t measures in fact form 
a single, coherent measure with a common aim of preventing imports of Ukrainian products 
through any means possible. Or to put it differently, there is no indication that the combined effect 
of these distinct measures is the reason for applying each of them.  
7.966.   Moreover, we note that at least one producer [[xxx]] located in the western part of 
Ukraine maintained valid certificates after the approximate date when, according to Ukraine, 
Russia introduced the alleged systematic import pre vention. There is evidence that this producer 
was able to export to Russia between 2014 and the end of 2016.747 At the same time, Ukraine 
notes that this producer had certificates  both for products produced in series and  for batch 
products . According to Ukraine, the certificates for products produced in series were suspended in 
late 2015 , whereas the certificates for batch products  could have been used only until the batch 
had been exported.748 Russia responds  that Ukraine has failed to submit any evidence supporting 
that this producer could not  use certificates  for batch products  during the relevant time -period  and 
requests that the Panel take into account the certificates issued to this producer.749 We note that 
although this producer  had the  possibility of exporting its railway products to Russia between 2014 
and 2016 , the explanation provided by Ukraine suggests that such possibility could not be used for 
products in series after late 2015, and for batch products upon exportation of the entire batch . To 
that extent, the exports by the relevant producer between 2014 and 2016 do not, by themselves, 
support a conclusion that no  systematic import prevention was operated during that time.   
7.967.   We recall that Ukraine submits additional evidence  in support of  the existence of this 
measure and its  alleged  systematic nature. First, Ukraine argues that the systematic nature of the 
measure may be established on the basis of substantial repetition (i.e. repeated suspensions of 
certificates and rejections of new applications for certification affecting Ukrainian producers),  
which, in Ukraine's view, renders it more likely than not that the underlying system exists. Ukraine 
considers that the decrease in the number of certificates held by Ukrainian producers  and the 
number of U krainian producers holding certificates  is proof of such substantial repetition.750 
                                                
746 We recall that the non -recognition requirement concerns CU Technical Regulation 001/2011.  
747 Ukraine's responses to Panel question Nos. 11, 32 and 49; and Information provided on analytical 
website Share U krainian Potential with respect to  the company [[xxx]] (Exhibit RUS -72). 
748 Ukraine's responses to Panel question Nos. 115 and 143.  
749 Russia's comments on Ukraine's response to Panel question No. 115.  
750 Ukraine's response to Panel question No. 86 (referring  to the panel report in Russia – Tariff 
Treatment , paras. 7.311 and 7.374); second written submission, paras. 38 -46; opening statement at the 
second meeting of the Panel, para. 32; and response to Panel question No. 110.  WT/DS499/ R 
 
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  Second, Ukraine submits that the systematic nature of the measure is evidenced through a  "set of 
trade restrictive measures" adopted by Russia .751 
7.968.   The Panel has compiled the evidence submitted by Ukraine in support of its argument on 
the repetition of the measure in the following table.752 The table reflects the certificates 
(a) granted by the FBO between 1 January 2012 and 31 July 2014, (b) held by producers in 2013, 
(c) suspen ded by the FBO for producers from different countries from 2014, (d) issued by the FBO 
under CU Technical Regulations from August 2014, and (e) certificates held in April 2017, issued 
both under CS FRT Rules and under CU Technical Regulations.  
Table 8 - Information on certificates of conformity, by producers from different 
countries753 
Origin of 
producers 
of railway 
products  (a) G ranted between 
January 2012 and 
July 2014754 (b) H eld 
in 2013  (c) S uspended 
since 2014 , 
issued both  under 
CS FRT Rules  and 
CU TRs  (d) I ssued 
under CU TR 
from August 
2014  (e) H eld in  
April  
2017755 
European 
Union756 260 
 126 
 109 
 97 287 
Kazakhstan
757 34 26 22 39 38 
Belarus758 35 39 6 23 26 
Ukraine759  379 244 313  
(between the 
beginning of 2014 
and the end of 
2015)  18 
(all but three of 
these 18 were 
issued to 
producers in 
eastern Ukraine)  40760 
                                                
751 Ukraine's first written submissio n, para. 132 -141; response to Panel question No. 86; and second 
written submission, paras. 51 -55. 
752 Russia submitted evidence in support of its comments on some of the certificate numbers and on 
evidence submitted by Ukraine.  
753 Except where indicated other wise, this table compiles the data submitted by Ukraine. Where 
relevant, the table includes footnotes referring to any discrepancy between the data included in Ukraine's 
submissions, Ukraine's exhibits, and Russia's submissions and supporting exhibits.   
754 This column includes certificates issued by the FBO, under CS FRT Rules, between 1 January 2012 
and 31 July 2014, regardless of their status as valid, suspended, cancelled or expired.  
755 The number of certificates listed in this column includes certificates  issued under CU Technical 
Regulations and certificates issued under CS FRT Rules which could have remained valid up to 2 August 2017 
because they had not been suspended or expired.  
756 Ukraine's first written submission, para.  162; response to Panel question No. 85 (regarding 
certificates held in April 2017); and Exhibit UKR -53 and Exhibit UKR-54(Corr.)  (regarding certificates issued 
under CU Technical Regulations). Russia disagrees with the numbers submitted by Ukraine (Russia's response 
to Panel que stion No. 134(b)  (referring to Exhibit RUS -95(BCI)). Ukraine responds that Russia's numbers are 
inaccurate because they include certificates issued to companies from non -EU countries, such as Switzerland 
and Serbia ( Ukraine's comments on Russia's responses  to Panel question No. 134). We note that there are 
discrepancies between the numbers submitted by Ukraine in its first written submission, the information 
included in Exhibit UKR -53, and the information included in Exhibit RUS -95(BCI) . There is not enough  evidence 
on record to verify the accuracy of the numbers submitted by Ukraine .  
757 Ukraine's first written submission, para. 163 ; and Exhibit UKR -55 and  Exhibit  UKR-56. Russia 
disagrees with the numbers submitted by Ukraine (Russia's response to Panel ques tion No. 134(b) (referring to 
Exhibit RUS -93(BCI)). Ukraine does not contest Russia's comments. We have included in the table the numbers 
submitted by Ukraine in its first written submission.  
758 Ukraine's first written submission, para. 164 ; and Exhibit UKR -57 and  Exhibit  UKR-58. Russia 
disagrees with the numbers submitted by Ukraine (Russia's response to Panel question No. 134(b)  (referring to 
Exhibit RUS -94(BCI)). Ukraine responds that Exhibit RUS -94(BCI) is missing certain certificates issued to 
Belarusia n producers (Ukraine's comments on Russia's response to Panel question No. 134).  
759 Ukraine's first written submission, paras. 155 -158; and Exhibit UKR -12 and Exhibit UKR-13. Russia 
disagrees with the numbers submitted by Ukraine (Russia's response to Panel  question No. 134(b) ).). Ukraine 
responds that Russia does not provide sufficient evidence or arguments in support of its view of the numbers 
regarding Ukrainian producers (Ukraine's comments on Russia's response to Panel question No. 134(b)).  
760 Despite in itially submitting that Ukrainian producers held 40 valid certificates in April 2017, Ukraine 
considers that this number should be reflected as 30, because 10 of those certificates were issued under the 
CS FRT Rules for batches of products and all of these  batches have been exported. According to Ukraine, this 
means that although these 10 certificates appear as valid in the FBO's Register, they cannot be used by the 
 WT/DS499/ R 
 
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7.969.   The table shows that in 2017 Ukrainian producers held only a fraction of the certificates 
that they held in 2013. This is due, inter alia , to the fact that certificates issued before the 
CU Technical Regulations entered into force were suspended or expired, and that the FBO issued 
few certificates to Ukrainian producers under the new CU Technical Regulations.761 We note that 
the table does not show repetition with regard to rejections of new applications from August 2014. 
Instead, it shows the numbers of certificates accepted.  
7.970.   However, the table does show repetition with regard to suspensions of valid certificates 
since 2014. In our view, in the particular circumstances o f this dispute, the evidence adduced by 
Ukraine regarding  repetition (i.e.  the substantial number of times that suspension instructions 
were repeated in the case of certificates held by Ukrainian producers ) is not, by itself, probative of 
the existence of the measure or of its systematic nature. As explained above, Russia in the case of 
the challenged suspensions had justified reasons for suspending certificates concerning Ukrainian 
producers. We have no evidentiary basis on which to infer that the FBO should have suspend ed 
more certificates also in the case of producers from the other countries identified in the table , but 
did not .  
7.971.   Specifically with regard to producers from the European Union, we note that, like Ukrainian 
producers, they  had a substantial number of their certificates suspended since 2014. At the same 
time, the number of certificates held by producers from the European Union in April 2017 was 
substantially higher than the corresponding number for Ukrainian producers , in good part because 
in the case of producers from the European Union fewer certificates were suspended and more 
new certificates were granted under the new CU Technical Regulations. As noted, we do not have 
detailed evidence regarding the  basis for maintaining the validity of ce rtificates issued under 
CS FRT Rules or issuing certificates under the CU Technical Regulations  in the case of producers of 
the European Union . Absent such evidence, we have no basis for inferring  that the reasons behind 
the suspensions and  rejections that  we have analysed in the context of measure two (including the 
safety and security situation in the country of the producers, non -conformities , and consumer 
complaints) similarly affect ed producers from the European Union.  
7.972.   For all these reasons , we do not  consider that the difference s in the number of certificates 
held, suspended, and applications rejected , concerning producers from different countries  
establishes th e existence of the alleged systematic import prevention.  
7.973.   We have carefully examined the  evidence submitted by Ukraine in respect of the alleged 
"set of trade restrictive measures".762 According to Ukraine, the alleged systematic import 
prevention concerning railway products is part of a set of trade -restrictive measures adopted by 
Russia in respon se to Ukraine's negotiation and conclusion of an Association Agreement with the 
                                                                                                                                                  
producers holding them to export railway products to Russia. Ukraine further argues that as those certificates 
were issued for batches of products, they could not be suspended because they do not require yearly 
inspection control. Ukraine's responses to Panel question Nos. 110, 115 and 133.  
761 We understand that the numbers submitted by Ukraine do  not include certificates issued under CU 
Technical Regulations by certification bodies other than the FBO, whether in Russia or other CU members.   
762 "Between two stools: Ukr aine says EU trade deal certain, Russia –led union also an option", RT, 25 
Sep, 201 3, (Exhibit UKR-50); "Minister of the EEC: exports of goods from the Customs Union to Ukraine could 
be complicated", Chamber of Commerce of the Russian Federation, 30 September 2013 , (Exhibit  UKR-51); 
Irina Ksayanova, "Glazyev: Euromissioners receive good fees for involving Ukraine", Vesti, December 14, 2013 , 
(Exhibit  UKR-52); "Russia's customs service halts all Ukrainian imports, says Ukraine's Employers Federation", 
Interfax -Ukraine, 14 August 2013 , (Exhibit UKR -95); R. Emmott, "Putin warns Ukraine over Europe ambitions", 
Reuters, 23 September 2014 , (Exhibit  UKR-96); " Russia is getting ready to cease cooperation with Ukraine in 
production of aircraft", 22 August 2013, Levyy Bereg , (Exhibit  UKR-97); B. Hoyle, "Russia threatens to back 
Ukraine split", The Times, 23 September 2013 , (Exhibit  UKR-98); S. Walker, "Ukraine's EU trade deal will be 
catastrophic, says Russia", The Guardian, 22 September 2013 , (Exhibit  UKR-99); J. Fleming, "Lithuania warns 
Russia over cheese ban and KGB smears", Euractiv, 6 November 2013 , (Exhibit  UKR-100); "More than 500 
trucks occupied the Russian -Ukrainian border", Vesti, 31 October 2013 , (Exhibit  UKR-101); " Russia will 
strengthen customs control if Kyiv is to sign an agreement with the EU", RIA Novosti Ukraine, 18 August 2013 , 
(Exhibit  UKR-102); " Russia hits at Ukraine with chocolate war", Euractiv, 14 August 2013 , (Exhibit  UKR-128); 
D. Cenusa, M. Emerson, T. Kovziridese & V. Movchan, Russia's Punitive Trade Policy Measures towa rds Ukraine, 
Moldova and Georgia, CEPS Working Document, No. 400, September 2014 , (Exhibit UKR -131); and "An 
unfortunate agreement with the anti -Russian nature - Russia's reaction to the ratification of the Ukraine -EU 
Association Agreement", 24TV, 31 May 2 017, (Exhibit UKR -132).  WT/DS499/ R 
 
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  European Union in June 2014. Ukraine does not argue that the set of alleged trade -restrictive 
measures are challenged measures in these proceedings and that the Panel should ma ke findings 
on them. Rather, Ukraine submits evidence of those measures in support of its case that Russia 
adopted the alleged systematic prevention on the importation of Ukrainian railway products. We 
will limit our assessment of that evidence to that pur pose.  
7.974.   The media articles that Ukraine has presented point to tensions in the bilateral relationship 
in connection with  the negotiation and conclusion by Ukraine of an Association Agreement with the 
European Union . They also refer to trade action that Russian authorities might take or did take 
against Ukraine in response. We recall that in Ukraine's view, that evidence further supports the 
existence of the alleged systematic import prevention. Ultimately, however, the evidence 
presented to the Panel does not demonstrate  that Russia adopted a plan or decided to embark on 
an organized effort to prevent the importation into Russia of Ukrainian products in general or 
Ukrainian railway products in particular.  Moreover, e ven if trade -restrictive measures were taken 
with regard to some Ukrainian products, this does not necessarily mean that such measures were 
taken also with regard to Ukrainian railway products.  
7.6.1.2.2   Import trade data  
7.975.   Ukraine further submits that certain trade d ata supports the existence of the alleged 
systematic import prevention of Ukrainian railway products into Russia. Ukraine argues that 
between 2012 and 2016 there was a decline of imports of railway products into Russia that 
affected Ukraine the most. Accor ding to Ukraine, the decline of Ukrainian imports represents 85% 
of the decline of imports of railway products from all import sources into Russia. Ukraine submits 
that this negative ef fect translates, as a separate matter, into the loss of 54% of Ukraine' s share in 
the imports of railway products into Russia, while at the same time China's and the European 
Union's share increased. Ukraine also refers to the substantial decrease in imports of Ukrainian 
railway products into Russia.763  
7.976.   Russia argues that the information submitted by Ukraine only shows that there was a 
decrease in the imports of the products at issue into Russia. Russia submits that there was an 
overall decrease of imports into Russia, which affected imports from all countries. Russia further 
submits that the decrease of Ukrainian imports can be explained by other factors, such as (a) the 
decrease of production of railway products in Ukraine; (b) a generalized industrial crisis in Ukraine, 
which began in January 2015; and (c) a decrease in deman d of railway products in the Russian 
market. Russia concludes that the decrease in imports from Ukraine is not the consequence of 
actions taken by Russian authorities.764 
7.977.   Russia also submits that the increase in the Chinese and European Union's share of 
imports of railway products into Russia may be explained by reasons other than Russia's actions, 
including currency rate fluctuations. Moreover, Russia notes that the products imported from China 
and the European Union are not the same as those imported from U kraine between 2014 and 
2016. Russia therefore considers that the evidence submitted by Ukraine in respect of China's and 
the European Union's share is irrelevant and does not demonstrate the systematic nature of the 
alleged measure.765 
7.978.   Ukraine responds that  the decrease in production of Ukrainian railway products is 
explained by the existence of Russia's alleged systematic import prevention. Moreover, Ukraine 
submits that railway products are made to order. Ukraine notes in this respect that, in 2013, 60% 
of exports of Ukrainian railway products were destined to Russia. Ukraine argues that because 
exporters could no longer get certificates to export to Russia, they no longer received orders and 
therefore halted their production. Ukraine considers that this de monstrates the existence of the 
alleged systematic import prevention. Ukraine also submits that the economic problems to which 
                                                
763 Ukraine's first written submission, paras. 169-171; response to Panel question No. 90 ; second 
written submission, paras. 21 and 24; opening statement at the second meeting of the Panel, paras. 34 -35; 
and response to Panel question  No. 109.  
764 Russia's first written submission, paras. 26 -28; and second written submission, para. 38.  
765 Russia's second written submission, paras. 39 -42; response to Panel question No. 109; and 
comments on Ukraine's response to Panel question No. 111.  WT/DS499/ R 
 
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  Russia refers primarily affected companies in the eastern regions of Ukraine, which have not been 
subject to the alleged measure.766 
7.979.   As regards the decrease in demand in Russia, Ukraine responds that the decrease in 
demand for railway products in Russia is the result of an import substitution policy conducted by 
Russia, aimed at favouring the consumption of Russian goods. Ukraine disa grees with Russia that, 
between 2014 and 2016, Russia imported products from other countries that were different from 
those imported from Ukraine. According to Ukraine, producers from other countries held 
certificates for precisely the same products as the  ones imported from Ukraine, such as 
locomotives and parts thereof, railway switches and parts thereof, and cargo and cistern wagons.  
Moreover, Ukraine submits that the decrease in demand in Russia also affected the amount of 
exports of Ukrainian products to Kazakhstan and Belarus. Ukraine considers that the fall in 
demand in Russia has led to a decline in industrial production both in Kazakhstan and Belarus, 
thus leading to less demand for railway parts from Ukraine. Ukraine considers that the decline in 
demand  in Kazakhstan and Belarus  was also caused by the impossibility of selling Ukrainian 
railway products in Russia.767 
7.980.   Russia disagrees that all railway products are made to order and that production in Ukraine 
therefore decreased because of the suspension s of certificates or while applications or renewals 
are pending. Moreover, Russia states that it has not put in place an import substitution policy. 
Russia points out that what Ukraine refers to is a measure aimed at developing and increasing 
competitive o pportunities of the domestic industry. Russia nevertheless notes that Ukraine's 
import substitution argument seems to concede that factors other than the alleged systematic 
import prevention are responsible for the decrease in importation of Ukrainian rail way products.768 
7.981.   Ukraine considers that even if the import substitution programme explains a drop in the 
demand for railway products in Russia, such decline in demand cannot alone explain why Ukraine's 
market share in Russia fell, while the market shares of China and the European Union grew. 
According to Ukraine, that development is rather the result of the alleged systematic import 
prevention.769 
7.982.   The Panel will examine the evidence with a view to determining whether the trade and 
economic data demonstrates the  existence of the alleged measure, including its systematic nature.  
7.983.   The evidence on record regarding the trade and economic data on imports of Ukrainian 
railway products into Russia supports the following three points. First, between 2012 and 2016, 
there was a sharp decrease in imports of railway products into Russia, which affected most 
significantly Ukrainian imports.770 Second, production of Ukrainian railway products declined 
significantly between 2012 and 2016.771 Third, Ukraine's exports of railway produ cts have 
decreased not only for exports to Russia, but also for exports to Kazakhstan and Belarus.772  
7.984.   The evidence supports the view that there have been problems with Ukrainian industrial 
production, including the railway products industry, associated with  factors such as a decline in 
economic and investment activities in Ukraine's domestic market and the decline in sales to 
                                                
766 Ukraine's response to Panel question No. 88; second written submission, paras. 26 -29; response to 
Panel question No. 112.  
767 Ukraine's response to Panel question No. 47; opening statement at the second meeting of the Panel, 
paras. 36 -37; and responses to Panel question Nos. 90 and 111.  
768 Russia's response to Panel question No. 113; and comments on Ukraine's response to Panel question 
No. 112.  
769 Ukraine's comments on Russia's response to Panel question No. 113.  
770 Ukraine's first written submission, para. 60 ; and Export data from International Trade Centre for 
customs code 86 , (Exhibit UKR -14). 
771 See Russia's first written submission, para. 27; Report of Financial Results for 2015 of Public Joint -
Stock Company [[xxx]],  (Exhibit RUS -27)(BCI); Report of Financial Results for 2015 of Public Joint -Stock 
Company [[xxx]], (Exhibit RUS -28)(BCI); Report of Financial Results for 2015 of Public Joint -Stock Company 
[[xxx]], (Exhibit RUS -29)(BCI); Report of Financial Results for 2015 of Public Joint -Stock  Company [[xxx]], 
(Exhibit RUS -30)(BCI); Report of Financial Results for 2015 of Public Joint -Stock Company [[xxx]], 
(Exhibit  RUS-31)(BCI); Ukraine's response to Panel question No. 48; and State Statistics Service of Ukraine 
"On production of railway produ cts in Ukraine during 2012 -2016", (Exhibit UKR -87).  
772 Ukraine's response to Panel question No. 47.  WT/DS499/ R 
 
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  Russia.773 Although, as Ukraine argues, those conditions may have affected producers in eastern 
Ukraine the most, the evidence suggests that such circumstances have generally affected 
industrial production in Ukraine. These elements suggest to us that some supply -side economic 
factors within Ukraine may well explain the decrease of production in Ukraine. On this basis, we 
are not persuaded  by Ukraine's argument that the decrease of orders of railway products by 
Russian clients was the main cause of the decrease in production in Ukraine. We thus consider that 
the evidence on record does not establish that the decline in Ukraine's production is the result of 
the allege d systematic import prevention.  
7.985.   Moreover, we do not consider that the increase in China's and the European Union's share 
of imports of railway products into Russia, when compared to the significant decline of Ukraine's 
share, dem onstrates the existence of the alleged systematic import prevention. The evidence 
shows that the general decrease in imports of railway products into Russia affected Ukraine the 
most.774 However, as we have discussed, there are several factors specific to Uk raine that explain 
why imports of Ukrainian railway products into Russia decreased. Such factors include aspects on 
the supply -side, such as a decline in the production of railway products and in economic and 
investment activities in Ukraine, including in the railway product sector. We also recall that imports 
of Ukrainian railway products into Kazakhstan and Belarus likewise decreased , albeit for reasons 
that may also be linked to the situation in Russia's  market for railway products . 
7.986.   According to Russia, the decrease in exports of Ukrainian railway products resulted from a 
decrease in demand of railway products in Russia. The evidence on record does not demonstrate 
that there was a decrease in Russia's demand for railway products.775 However, we cannot rule out 
that such a decrease in demand exists and that this, coupled with other economic factors in the 
Russian market, resulted in a decrease in imports of railway products into Russia, including from 
Ukraine.  
7.987.   We note in this connection Ukraine's suggestion that the decrease in demand may be 
explained by a policy of import substitution applied by Russia. Ukraine's position suggests that it 
accepts the existence of a decrease in Russia's demand for railway products. However, the 
evidence submitted by Ukraine i n respect of Russia's import substitution policy is inconclusive as to 
the existence of such a policy objective.776 Even if that objective had been demonstrated to exist, 
we fail to see how it would be probative of the existence of another measure, the alleg ed 
systematic import prevention.  
7.988.   In sum, the evidence on record does not paint a clear picture regarding what caused the 
decline in Ukraine's import market share in Russia. The evidence on the economic situation in 
Ukraine suggests that there may be econo mic factors other than the alleged systematic import 
prevention that could have caused the decrease of imports of Ukrainian railway products into 
                                                
773 Dmytro Kostyuk (First Deputy Director of JSC  "Electrovazhmash "), "Results of the year for Ukrainian 
heavy manufacturing ", 29 December 2014 , (Exhibit UKR -64); Olga Levkovich, "Infographics: what 's happening 
to import and export in Ukraine ", 1 October 2015 , (Exhibit UKR -65). See also Information provided on 
analytical website Share Ukrainian Potential with respect to  the company [[xxx]], (Exhibit RUS -72); 
Uaprom.info, extract from article  (Exhibit RUS -74); and Center of Transport Strategies, extract from the 
article, "Second life: How [[xxx]]  produces railway wheels from scrap iron", 8 November 2016 , (Exhibit RUS -
75). 
774 Ukraine's first written submission, para. 60; and Export data from International Trade Centre for 
customs code 86 , (Exhibit UKR -14). 
775 We note that the evidence submitted by Russia in support of this assertion is limited to the volume of 
purchase of cargo  wagons and rolling stock by one Russian company between 2012 and 2016 ( Volume of 
Purchase by the company  [[xxx]]  of the park of  Russia's  cargo wagons in 2013 -2016, (Exhibit RUS -39)(BCI); 
and Volume of Purchase by  the company  [[xxx]]  of Production for Roll ing Stock in the Period 2012 -2016, 
(Exhibit RUS -40)(BCI). In our view, such evidence is insufficient to serve as a basis for the conclusion that 
there was a decline in demand of railway products in the Russian market.  
776 Russia's government Order  No. 328 "On implementation of state program of Russian Federation 
'Development of the manufacturing industry and increase of its competitiveness '", 15 April 2014 , (Exhibit UKR -
104); The main results of the work of Russia's  Ministry of Industry and Trade in 2016, 19  April 2017 , 
(Exhibit  UKR-105); and Russia's government Decree  No. 925 Moscow "On the priority of goods of Russian 
origin, works and services performed by Russian persons in relation to goods originating from a foreign 
country, work, services performed by foreign Persons ", 16 September 2016 , (Exhibit UKR -106). See Ukraine's 
response to Panel question No. 90.  WT/DS499/ R 
 
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  Russia. We, therefore, consider that the trade and other economic data on record does not 
demonstrate the exis tence of the alleged systematic import prevention.  
7.6.1.2.3   Overall assessment of the evidence submitted in support of the existence of 
the measure  
7.989.   We recall that the evidence submitted by Ukraine to support the existence of the alleged 
systematic import prevention  consists of (a) suspensions of valid certificates, refusals  to issue new 
certificates (including the ones challenged individually and examined above), and the general non -
recognition  requirement , and (b) trade and economic data concerning the decline in t he imports of 
Ukrainian railway products into Russia and in Ukraine's share of  Russia's  import s of railway 
products, as compared to that of other countries.  
7.990.   In our view, the evidence on record does not establish that the  three elements of the 
alleged syste matic import prevention ( suspension  of certificates,  rejection of certificates, and the 
general non -recognition of certificates issued in other CU countries ) have been designed, 
structured, or operated in combination so as to constitute a separate measure with the aim of 
systematically preventing imports of Ukrainian railway products into Russia.  
7.991.   Moreover, the evidence does not establish that those elements  form part of a plan or 
coordinated effort directed at attaining the aim of preventing the importation of Ukrainian railway 
products into Russia.  
7.992.   Finally, the trade and other economic data submitted by Ukraine also does not establish 
the existence of the al leged systematic import prevention. The evidence does not demonstrate 
that the cause of the decrease in Ukraine's imports and import share in Russia was more likely 
than not the alleged existence of a systematic prevention of imports by Russia. Rather, we 
consider that there is evidence on record suggesting that there are other causes that could explain 
the decrease of imports of Ukrainian railway products into Russia.  
7.993.   On the basis of an overall assessment of the evidence on record, we thus consider that 
Ukraine has failed to demonstrate that Russia systematically prevented the importation of 
Ukrainian railway products into Russia.  
7.6.2   Conclusion  
7.994.   Accordingly, we find that Ukraine has failed to demonstrate the existence of the alleged 
systematic prevention of i mports of Ukrainian railway products into Russia.  
7.995.   As Ukraine has not demonstr ated the existence of the systematic import prevention, the 
Panel conclude s that Ukraine has failed to establish its claims of inconsistency with Articles I:1, 
XI:1, and XIII:1 o f the GATT 1994.  
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  8  CONCLUSIONS AND RECO MMENDATION  
8.1.  For the reasons set forth in this Report, the Panel concludes as follows:  
a. in respect of Russia's preliminary ruling request:  
i. the Panel finds that Russia has failed to establish that Ukraine's panel request is 
inconsistent with Article 6.2 of the DSU ;  
b. in respect of the instructions suspending certificates:  
i. the Panel finds that Ukraine has failed to establish, in respect of each of the 
14 instructions at issue, that Russia has acted inconsistently with its ob ligations 
under Article 5.1.1 of the TBT Agreement ; 
ii. the Panel finds that Ukraine has failed to establish, in respect of each of the 
14 instructions at issue, that Russia has acted inconsistently with its obligations 
under Article 5.1.2, first and second se ntence, of the TBT Agreement;  
iii. the Panel finds that Ukraine has established, in respect of 13 out of 14 instructions at 
issue that Russia has acted inconsistently with its obligations under Article 5.2.2, 
third obligation, of the TBT Agreement;  
iv. the Panel f inds that Ukraine has failed to establish, in respect of the other instruction 
at issue  that Russia has acted inconsistently with its obligations under Article 5.2.2, 
third obligation, of the TBT Agreement;  
c. in respect of the decisions rejecting application s for certificates:  
i. the Panel finds that Ukraine has failed to establish, in respect of the two decisions 
through which the FBO "returned without consideration" applications for certificates 
submitted by Ukrainian producers under CU Technical Regulation 00 1/2011, and in 
respect of the decision through which the FBO "annulled" applications for certificates 
submitted by a Ukrainian producer under CU Technical Regulation 003/2011, that 
Russia has acted inconsistently with its obligations under Article 5.1.1 of  the 
TBT Agreement;  
ii. the Panel finds that Ukraine has established, in respect of one of the decisions 
through which the FBO "returned without consideration" applications for certificates 
submitted by a Ukrainian producer under CU Technical Regulation 001/2011 
(decision 1 insofar as it relates to applications A1 and A2 and one of the products 
covered by application A3) , that Russia has acted inconsistently with its obligations 
under Article 5.1.2, first and second sentence, of the TBT Agreement;  
iii. the Pan el finds that Ukraine has failed to establish, in respect of both decisions 
through which the FBO "returned without consideration" applications for certificates 
submitted by a Ukrainian producer under CU Technical Regulation 001/2011 
(decision 1 insofar as  it relates to one of the products covered by application A3 and 
application A4, and decision 2), and in respect of the decision through which the FBO 
"annulled" applications for certificates submitted by a Ukrainian producer under 
CU Technical Regulation 003/2011, that Russia has acted inconsistently with its 
obligations under Article 5.1.2, first and second sentence, of the TBT Agreement;  
iv. the Panel finds that Ukraine has failed to establish, in respect of the two decisions 
through which the FBO "returned without consideration" applications for certificates 
submitted by Ukrainian producers under CU Technical Regulation 001/20 11, and in 
respect of the decision through which the FBO "annulled" applications for certificates 
submitted by a Ukrainian producer un der CU Technical Regulation 003/2011, that 
Russia has acted inconsistently with its obligations under Article 5.2.2, second 
obligation , of the TBT Agreement;  WT/DS499/ R 
 
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  v. the Panel finds that Ukraine has established, in respect of the two decisions through 
which the FBO "returned without consideration" applications for certificates 
submitted by Ukrainian producers under CU Technical Regulation 001/20 11, that 
Russia has acted inconsistently with its obligations under Article 5.2.2, third 
obligation , of the TBT Agreement;  
vi. the Panel finds that Ukraine has failed to establish, in respect of the decision through 
which the FBO "annulled" applications for certificates submitted by a Ukrainian 
producer under CU Technical Regulation 003/2011 that Russia has acted 
inconsistently w ith its obligations under Article 5.2.2, third obligation , of the 
TBT Agreement;  
d. in respect of the non-recognition of certificates issued in CU countries other than Russia:   
i. the Panel finds that the non -recognition requirement is properly before the Panel;  
ii. the Panel finds that Ukraine has failed to establish that the non -recognition 
requirement falls within the scope of application of Article 2.1 of the TBT Agreement;  
iii. the Panel made no findings regarding Ukraine's claims under Articles 5.1.1 and 5.1.2 
of the TBT Agreement  because these claims concern aspects of the non -recognition 
requirement that are not properly before the Panel ; 
iv. the Panel finds that Ukraine has established, in respect of the non -recognition 
requirement, that Russia has acted inconsisten tly with Article I:1 of the GATT 1994;  
v. the Panel finds that Ukraine has established, in respect of the non -recognition 
requirement, that Russia has acted inconsistently with Article III:4 of the 
GATT  1994;  and 
vi. the Panel exercises judicial economy in respec t of Ukraine's claims of inconsistency 
with Article X:3(a) of the GATT 1994;  
e. in respect of the systematic import prevention:  
i. the Panel finds that Ukraine has  failed to establish its claims of inconsistency with 
Article s I:1, XI:1, and XIII:1 of the GATT 19 94, because it did not demonstrate the 
existence of the systematic import prevention . 
8.2.  Pursuant to Article 19.1 of the DSU, the Panel recommends that the Dispute Settlement Body 
request that Russia bring its measures  at issue  into conformity with its obliga tions under the 
TBT Agreement and the GATT 1994.  
__________