Country of origin of goods and the limits on applying maximum customs duty rates: A theoretical and practical analysis

Background. The issue of correctly determining the country of origin of goods within the Eurasian Economic Union (hereinafter, the EAEU) is pivotal to maintaining a balance between the interests of importers and the state. An analysis of recent customs disputes reveals a consistent judicial practice whereby, if the origin of goods is not confirmed, increased rates established by Resolution of the Government of the Russian Federation No. 788 of July 6, 2018 are applied automatically. The relevance of this study stems from the fact that every year arbitrazh courts hear dozens of disputes over the application of Government Resolution No. 788 of July 6, 2018 in customs legal relations, often deciding against participants in foreign economic activity, whereas the justification for applying the increased customs duty rates provided for by this Resolution is, at a minimum, open to dispute.

The novelty of the study lies in offering, for the first time, a comparison of the characteristics of the retaliatory measures provided for in Article 40 of the Treaty on the EAEU (signed in Astana on May 29, 2014) with the characteristics of special, anti-dumping, and countervailing duties. The author reaches a clear conclusion that these retaliatory measures constitute a distinct legal phenomenon. This is also the first study to raise the issue of the lawfulness of applying maximum duty rates to goods referenced in Government Resolution No. 788 of July 6, 2018. The aim of the research is to critically assess the prevailing enforcement and judicial practice and to propose avenues for its revision.

The article addresses the topical issue of applying customs duties within the EAEU to certain categories of goods for which proof of origin plays a decisive role.

Purpose. The author seeks to determine the legal nature of the duties provided for by Government Decree of the Russian Federation No. 788 of 6 July 2018 and the consequences that should ensue when the origin of the goods listed in that decree is not confirmed.

Methodology. The methodology combines formal-legal and comparative-legal analysis, a review of more than 50 judicial decisions from 2023–2025, and a comparison of the provisions of the EAEU Customs Code with the WTO Agreement on Safeguards.

Results. The findings confirm that Government Decree of the Russian Federation No. 788 of 6 July 2018 implements Russia’s right to “rebalance” under Article 8.2 of the WTO Agreement on Safeguards and that, unlike safeguard, anti-dumping, and countervailing duties, the duties introduced by that decree do not fall under the regime of applying maximum rates where origin is unconfirmed.

Practical implications. The findings and the proposed criteria for delineating «rebalancing» duties from safeguard, anti-dumping, and countervailing measures are intended for use: by courts and litigants in shaping arguments in cases involving unconfirmed origin and the misapplication of rates under Government Decree No. 788; by the Federal Customs Service of Russia and other authorities when drafting and updating guidance on the interpretation of Articles 314(6) and 315(2) of the EAEU Customs Code; in preparing draft clarifications of higher courts (including potential amendments to Supreme Court Plenum Ruling No. 49 of 26 November 2019);  within importers and advisors compliance practices (structuring proof of origin, selecting appropriate supporting documents, and managing tariff risk); and in academic curricula and professional training in customs-tariff regulation. This scope of application rests directly on the interpretative tests developed in the article and the argument showing that the «maximum-rate» regime does not apply to retaliatory measures adopted under Decree No. 788.