Таможня и Наука

 

Sergey Moser

Aspirant of the Russian customs academy

Customs bulletin. – 2010. – № 4 (130). – p. 2-3.

 

The retrospective analysis of the European Union participation in settlement of customs problematics of Transdniestrian issue was determined by several reasons. The first is a lack of research materials concerning a role of the European partners and their initiatives in settlement of customs conflict between the Republic of Moldova and Transdniestria. The European colleagues declare openly new prospects and opportunities for Transdniestrian business, search for technical decisions with regard to carrying out freely export/import transactions of Transdniestria. The impression is that priority point for the European Union is a smooth and unobstructed integration of Transdniestrian economy into the world’s economic system.

The second reason is the European Union active work in Transdniestria relating to different directions of reintegration of a single customs, economic and legal space of the Republic of Moldova. Recently the EU lobbies for an idea of implementation of so-called joint projects and trust measures between two banks of the Dniester; attempts to annul the status of Transdniestria as the equal in rights participant in Moldavian-Transdniestrian conflict settlement are being made. In this case at issue is the work of so-called joint expert groups from the Republic of Moldova and Transdniestria.

For purposes of scientific research of administrative-legal regime of the customs activity of Transdniestria* some directions of the European Union policy in Transdniestrian region may be of special interest. However, in author’s opinion, the main thing is not the PR campaign concerning hypothetical reintegration of Transdniestrian economy with international one, and creation of new regulations for unimpeded foreign trade activity of Transdniestria, but conditions under which the European experts propose to fulfill this.

 

* The administrative-legal regime of the customs activity of Transdniestrian Moldavian Republic is the complex means of administrative-legal regulation of foreign trade relations of Transdniestrian Moldavian Republic complicated by international element and characterized by special combination of administrative-legal means related to customs activity in the territory of Transdniestria and based on absolute economic autonomy of Transdniestria in foreign trade sphere.

Over the last year and a half the European Union has enhanced its work in Transdniestrian conflict settlement field. The EU High Representatives persistently visit Transdniestrian Moldavian Republic; participate in meetings with political leadership of the region and economic experts. In the course of this process some proposals are being presented that can reportedly resolve existing Moldavian-Transdniestrian contradictions including in customs area. On the one hand the EU supports unilateral actions of the Republic of Moldova connected with changing of administrative-legal regime of the customs activity of Transdniestria and enforcing new regime regulations for Transnistrian exportation, on the other hand – declares its understanding of the problem concerning double-checked Transdniestrian exportation in Moldavian Customs Service, and imposing on economic operators of Transdniestria an additional tax by Moldavian side.

In other words, the impression is that the EU plays a special role in Transdniestrian conflict settlement and has a special peacekeeping status in resolving the whole complex of contradictions between the Republic of Moldova and Transnistria in customs area. As we consider, one can’t blame European political experts for any deception. They can be just “gently chided” for that the legal aspect of the EU proposals, laid down conditions for Transdniestrian business-potential improvement and juridical details of so-called reintegration of economics of both banks of the Dniester are not disclosed in the course of the talks with official administration of Transdniestria and with Transdniestrian business community.

Let’s try to analyze the EU policy relating to customs problematics of Transdniestrian conflict settlement and to understand what the European diplomats actually mean when declaring creation of favorable conditions for Transdniestrian business.

For a start let’s note that ignorance or unwillingness to know the legal aspect of the issue concerning implementation of the EU initiatives in the territory of Transdniestria and the Republic of Moldova are the foremost problems of Transdniestrian experts, not of their European colleagues.

The analysis of the empiric materials shows that one of the subjects through which the European Union endeavors “to open the window” to Transdniestria and to implement initiatives on reintegration of the territory of the Republic of Moldova is strangely enough the Chamber of Commerce and Industry of Transdniestria.

The role of the Chamber of Commerce and Industry of Transdniestria in the reintegration process of Transdniestria and the Republic of Moldova is trivial. On the one hand the administration of the Chamber of Commerce and Industry states about existing problems for Transdniestrian exportation, because of changing of administrative-legal regime of the customs activity of Transdniestria, on the other hand — conducts actively the course on implementing in the territory of Transdniestria joint projects, financed by the European Union, and other donors including the USAID, in strict compliance with legislation of the Republic of Moldova (!), including the Law “On national development strategy of the Republic of Moldova for 2008-2011”.

In author’s opinion, in this case the substitution of concepts takes place – attraction of foreign investments to Transdniestrian economy and implementation of system of external grants provided for legal persons of the Republic of Moldova situated in Eastern regions of Moldavian state (that is Transdniestria – author’s note). But we will touch this topic later.

It is nonrandom that in March 2010 in the departmental journal of the Chamber of Commerce and Industry of Transdniestria “The Partner” the exclusive interview of the Head of the European Union delegation to Moldova Dirk Schubel was published as the topic of the issue.^[1] The interview concerns some aspects of customs problematics of Transdniestrian issue, technical decisions and proposals relating to settlement of the current situation, on which, according to the EU High Representative, the European experts from EUBAM had been working.

Prior to proceed to the analysis of these proposals, let’s indicate the position of the EU political leadership on the basis of several facts:

1. On 16 March 2006 the EU High Representative for Foreign Affairs and Security Policy Javier Solana declared that he welcomes Ukraine only recognizing Moldovan customs stamps and Moldova facilitating the registration of Transnistrian enterprises in Chisinau.^[2]

2. On 14 March 2006 the European Union expressed its official position, in accordance with which “the implementation of the Joint Declaration of 30.12.2005 (preventing export/import transactions of Transdniestria – author’s note) reinstalls a transparent and legitimate customs regime on the Moldovan-Ukrainian state border”.^[3] As mentioned in the Joint Declaration by the Presidency the EU called on the economic agents of the Transnistrian region of Moldova to register with the relevant authorities in Chisinau in order to promote the unimpeded flow of goods across the border. At the same time the EU supported the actions of the Republic of Moldova on blocking Transdniestrian exportation, having declared that welcomed the measures taken by the Moldovan authorities in this regard.^[4]

3. The EUBAM Annual Report 2006/2007 said that “since August 2007, EUBAM has taken part in consultations about Moldovan legislation on circulation and border crossing by vehicles with ‘Transnistrian’ number plates and has provided technical recommendations”.^[5] In other words transport problem was being created thanks to participation and technical recommendations of EUBAM experts.

Taking into consideration that position of the Head of the European Union delegation to Moldova cannot run contrary to Brussels official position, one should suppose that initiatives mentioned on the pages of the journal “ the Partner” are the continuation of the policy aimed at establishment of overall control over foreign trade transactions of Transdniestrian region in accordance with legislation of the Republic of Moldova, annuling the status of economic autonomy of Transdniestrian region and authority of Transdniestria to carry out separately customs clearance in Transdniestrian Customs, that is fixed in the WTO materials of 2001 when Moldova entered the WTO.

In the Dirk Shubel’s interview attracts attention the information concerning the fact that the EUBAM has elaborated a number of proposals aimed at settling the current situation (connected with double registration, double customs clearance of goods and vehicles and delivery of Transdniestrian cargoes – author’s note).^[6] It also says that the most important initiative of the Monitoring Mission is the new importation system in Transdniestria on the basis of the advanced informing. The diplomat notes: if this system will start operating, this will allow Transdniestrian companies to receive goods directly and without delay.

As regards Transdniestrian exportation the Head of the European Union delegation to Moldova noted that the EUBAM provided some technical recommendations concerning cooperation between customs services from the both banks of the Dniester.^[7] Here the attention is given to some proposals of the EUBAM, which were provided to the sides for simplification of goods conveyance and promoting unimpeded movement in the region.

In this context it should be noted that the problem of release of faulty information (concerning customs problematics of Transdniestrian region) in the European area and CIS space attracts attention of various researchers. The situation looks especially badly when the misrepresented information comes from respected European diplomats and the EU bodies.

For instance, knowingly falsified by the EU information relating to Transdniestrian region is beneath all criticism. In particular, in Memorandum to the Commission of 25.10.2005 Transdniestria is referred to as a source, destination and point of transit sizable illicit flows (including weapon, drugs, human beings).^[8]

In opinion of the European experts, preparing deployment of the EUBAM, improved controls along this border should reduce illicit cross border flows, including of weapons, drugs and trafficked human beings^[9], reducing possible security threats originating from this region.^[10]

The presented facts, in our opinion, underline the political character of those reasons caused changing of administrative-legal regime of customs activity of Transdniestria in March 2006.

Proceeding with retrospective analysis, let’s note that Mr. Shubel’s information concerning some EUBAM projects which the Monitoring Mission provided to the sides for simplification of goods conveyance and promoting unimpeded movement in the region,^[11] does not correspond to reality:

– today neither department of foreign affairs of Transdniestria nor Customs Service of Transdniestrian Moldavian do not have any formulated EUBAM proposals or projects (other EU institutes), relating to stabilization of situation in customs area as well as simplification of goods conveyance and promoting unimpeded movement of goods and vehicles in the region.

Let’s remind that an attempt of some EU representatives to pass the desirable for reality have taken place earlier. On 16.11.2009 13th meeting of the Advisory Board of the European Union Border Assistance Mission to Moldova and Ukraine convened in Odessa in the framework of which the information concerning the EUBAM intention “to continue promoting cooperation between Customs Services of Chisinau and Tiraspol” was presented. The same EUBAM position with regard to the need of cooperation between Chisinau and Tiraspol was presented by the Head of the EU Mission for Border Assistance to Moldova and Ukraine, Brigadier General Dr. Ferenc Banfi in March 2009 in his interview to the Journal of Banking and Finance.^[12]

In connection with the fact that this information did not correspond to reality, press service of the State Customs Committee of Transdniestria made a commentary where disproved the EUBAM statement presented in mass media.^[13] Customs bodies of Transdniestria paid attention that the EUBAM did not contribute to cooperation between customs bodies of Transdniestria and the Republic of Moldova. The State Customs Committee emphasized that the EUBAM avoided any cooperation with representatives of Transdniestrian Customs.^[14]

For instance, in February 2008 Customs Committee requested officially to the EUBAM to accredit representatives of the press service of the Customs Committee in the EUBAM press center, that could allow the representatives of press service of Transdniestrian Customs to take part in conferences arranged by the EUBAM, to obtain firsthand objective information concerning the European Monitoring Mission’s work. But EUBAM denied the request of the State Customs Committee.

In addition to this, let’s remind that on 26.06.2009 the representatives of the law enforcement units of the State Customs Committee of Transdniestria and Department on customs cooperation of Customs Committee held a briefing “Transdniestrian Customs in struggle against smuggling”, dated to the International Day against drug abuse and illicit trafficking, the topic of which was the results of work of Transdniestrian customs bodies in combatting drug smuggling. The invitation of the State Customs Committee of Transdnistrian Moldavian Republic to the Head of EUBAM General Ferenc Banfi was ignored, in spite of the fact that the deployment of the Mission in 2005 was under the aegis of struggle against drug smuggling.

In author’s opinion, such an obvious discord of the presented facts with faulty information concerning the EUBAM role in Transdniestrian settlement is mainly determined by geopolitical task – to position the EUBAM as an institute, assisting effectively, including at the bargaining table, to economic operators of Transdniestria and the Republic of Moldova. The controversy is that available facts indicate the contrary of those facts.

As regards the key EUBAM initiative concerning new importation system in Transdniestria on the basis of the advanced informing system, we’ll note the following.

In comprehension of the political leadership of the European Union, Transdniestria as a separate subject of law does not exist. In this context Moldavian-Transdniestrian regional agreements are annulled, provided Transdniestrian region the right to have its own legislative system, to clear separately goods and vehicles in Transdniestrian Customs.

For instance, in accordance with Moldavian-Transdniestrian Protocol of the agreed issues of 11.03.1996 Transdniestria adopts the Organic Law (Constitution), laws and regulations, decides upon economic, social and cultural development issues in the interests of population resident in its territory, has the right to independently establish and maintain international contacts in economic area.^[15] The indicated agreement was achieved between Transdniestria and the Republic of Moldova, coordinated with the guarantor states: Russia, Ukraine,the OSCE.

One can consider that the EU initiatives were addressed not to Transdniestrian leadership for further coordination but for economic operators of the Republic of Moldova situated in Eastern regions of Moldova (i.e. Transdniestria). From our point of view, another substitution of concepts takes place. At issue are not the projects for the sides – Transdniestria and the Republic of Moldova, but for economic operators of Moldova and Transdniestria on the ground of legislation of the Republic of Moldova.

As the next example we will provide a position of the political adviser to the EU Special Representative Mindaugas Kacherauskis expressed on 2.11.2010 at the meeting between delegations of Transdniestria and the Republic of Moldova. In the course of the meeting with Transdniestrian experts the Baltic diplomat has declared: «EU understands Transdniestria’s aspiration to self-determination, however you (Transdniestria – author’s note) do not exist in legal relation, juridically».

In its turn the question arises: what can the EU official representative discuss with subject that does not exist juridically? As we consider, the expressed by political adviser to the EU Special Representative to Moldova supposition is just a rude slip of the tongue of a young diplomat and nothing more than that.

Most probably, the European representative is insincere, pretending that he does not have any information regarding on documented agreements between the Republic of Moldova and Transdniestria, for example, in customs area where Transdniestria acts as an independent side.

The intention of the Republic of Moldova to revoke the status of Transdniestria as an equal participant of negotiation process is obvious. For this reason the legal regulation of the joint work of so-called experts groups from the Republic of Moldova and Transdniestria is absent up till now. It is obvious that this circumstance does good to Moldavian experts because their major task is to annul the status of Transdniestria in legal relation. According to Moldavian side, the presence of the Moldavian-Transdniestrian regulation for joint work with Transdniestrian experts legitimizes “criminal separatist Transdniestrian regime”. In this connection the lack of documented agreements with Transdniestria concerning experts groups and implementation of joint projects (receiving grants) are the results of tactics successfully fulfilled by the Republic of Moldova and its partners.

Let’s make another example: incident occurred in the course of the official meeting on 11.02.2009 between the Transdniestrian leadership and the OSCE official delegation comprised the Head of the OSCE Parliamentary Assembly, the Secretary General of the OSCE Parliamentary Assembly, the Head of the OSCE Mission to Moldova and other representatives of the Assembly.

When discussing the issue concerning the Cyprus precedent the skilled interpreter of the OSCE Mission to Moldova crudely interpreted the phrase from English into Russian. The words of the representative from Turkey said that “the sides of the Cyprus conflict must seek a resolution on the ground of equality of the sides” were interpreted as “the sides of the Cyprus conflict must seek a resolution in the framework of common state”. One should suppose that the representative of administrative-technical personnel of the Mission (interpreter) had to add from himself the words – “single and indivisible”.^[16]

The presented facts confirm that the legal side of the issue regarding stabilization of administrative-legal regime of customs activity of Transdniestria is been often misrepresented by representatives of Western diplomacy for political reasons.

Returning to the subject of unknown propositions of the EUBAM concerning new importation system for Transdniestrian enterprises, let’s explain that in 2006 Customs Services of Ukraine and Moldova have signed the Protocol on organization of pre-arrival information exchange on good and vehicles crossing the state border of the Republic of Moldova and Ukraine. Experts note that the Moldavian-Ukrainian protocol was signed specially for conditions of its implementation by EUBAM. In this connection the EUBAM provided its own decision of the problem that is pre-arrival information exchange system, and ensured training of Ukrainian and Moldavian customs officials.

As it is stated in official EUBAM reports, pre-arrival information exchange system allows receiving information about commercial activity across the Transdniestrian segment of the Ukrainian-Moldavian border where Moldovan authorities are not present.

Experts have no doubt that unknown to Transdniestrian side EUBAM’s initiatives will be based on strict observance of the law of the Republic of Moldova and Moldavian-Ukrainian agreements related to preventing of Transdniestrian export without the fact of customs clearance of goods in Customs of the Republic of Moldova. It is also obvious, that the EUBAM does not intend to contribute to the restoration of the previous procedure for customs clearance of goods in customs bodies of Transdniestria in compliance with the Protocol Decision on settlement of problems arisen in activity of Customs Services of Republic of Moldova and Transdniestria of 07.02.1996. Today this contradicts to the EU geopolitical interests.

Talking about so-called contribution of the EUBAM to cooperation between customs bodies of the Republic of Moldova and Transdniestria in the context of the analysis of the propositions and projects of the State Customs Committee of Transdniestria for Moldavian Customs Service (regarding organization of joint control, harmonization of customs relations)^[17] , one can understand that unilateral actions of the Republic of Moldova in 2001 have thrown back for ten years the joint work of Customs Services of Moldova and Transdniestria on the issues of combatting smuggling and customs offences and in other areas of mutual interest.

In our opinion, propositions (projects) of the State Customs Committee of 2001, for instance, regarding pre-arrival information exchange with Moldavian Customs, establishment of common database on cargoes moved for economic operators of Moldova and Transdniestria, goods and vehicles delivery control, transit through the customs territory of Transdniestria and etc., were more fundamental, more effective than an obscure so-called propositions-suppositions of the EUBAM.

Returning to the subject of trust measures between the Republic of Moldova and Transdniestria, introduction of which the EU lobbies, let’s remind that in 2008 the Law “On national development strategy for 2008-2011” was adopted, where the administration of the Republic of Moldova gave to understand clearly that “ single customs and financial space will be rebuilt through cooperation with the EU institutes, particularly, with the European Union Border Assistance Mission to Moldova and Ukraine, through introduction of Moldavian-Ukrainian agreements in foreign commerce area, and elaboration and implementation of joint projects aimed at reconstruction and development of infrastructure under external donors’ support”.^[18]

This circumstance gives rise to consider that so-called joint projects within the limits of implementation of trust measures between both banks of Dniester river, and proposed in 2008 mechanisms for work of joint groups of the Republic of Moldova and Transdniestria, are the facts of consistent implementation of national interests of the Republic of Moldova concerning involvement of Transdniestria into a single economic, customs space of Moldova on the basis of legislation of the Republic of Moldova.

The research of legal aspects of implementation of trust measures between the Republic of Moldova and Transdniestria allowed revealing fundamental contradictions, which some “experts” of Transdniestrian side were trying to ignore, playing as an active conductors of the idea to introduce in the territory of Transdniestria joint Moldavian-Transdniestrian projects (grants), so-called investments financed, for instance, by the European Union and United States Agency for International Development.

The controversy is that Transdniestria as a subject does not exist in these projects. At issue are solely legal and natural persons of the Republic of Moldova, situated in Eastern regions. The procedure for implementation of these projects stipulates strict observance of legislation of the Republic of Moldova. Thus, at substitution of concepts the role and status of Transdniestria are annulled.

Nevertheless, if the Transdniestrian side adheres to the line of economic independence of the region, stabilization of administrative-legal regime of the customs activity of Transdniestria, resolution of customs problematic on the bases of previously achieved Moldavian-Transdniestrian agreements, and insists on existence of independent legislative system of Transdniestrian Republic, than some aspects of participation of Transdniestrian side in implementation of so-called trust measures should be reviewed. From our point of view, it is essential that the implemented measures will actually correspond to expectations and interests of Transdniestrian people and will be aimed at elimination of economic blockade of the region.

In conclusion let’s note that discussion on customs contradictions between the Republic of Moldova and Transdniestria and some projects and initiatives concerning their settlement at the bargaining table is only a matter of time. Many opportunities have been lost. The positive aspect is that European diplomats understand the role and the status of experts from the State Customs Committee of Transdniestria when solving these issues, realizing that without their participation the problem resolution process would not get moving.

However joint consideration of the existing contradictions in customs area can take place solely when propositions (initiatives) of the interested subjects are articulated and shaped properly, and expert work is carried out in compliance with regulations and with clear “rules of the game”. Up till now neither of these criteria is fulfilled.

In this context it is early to talk about the role of the EU and the EUBAM Mission in settlement of Moldavian-Transdniestrian contradictions in customs area. Practice shows that resolution of technical issues concerning cargo management (customs control), moved for economic operators of Transdniestria and Moldova, is broken against the political factor.

In this connection, one can recommend to European colleagues, participating in Transdniestrian conflict settlement, to address to their own experience of building bilateral relations between the European Union and separatists Taiwan in economic sphere. In case of Taiwan the European Union adopted a clear position: political contradictions of the mainland China and Taiwan are not the reason to restrict export potential of the unrecognized Taiwan. As is known, tactics of political settlement based on implementation of methods of economic isolation is the way to nowhere.

NOT TO BE PUBLISHED UNTIL AUTHORIZATION