Ratio decidendi in decisions of Presidium of Supreme Commercial Court of Russian Federation Vol. 48

The decisions of Presidium of SCC of RF between 11.10 – 20.10. 2011

Decision of Presidium of SCC of RF No. 5257/11 от 18.10.2011 Ratio decidendi:
1. Terms of use municipal water supply and sanitation services in Russian Federation, approved by the Government of the Russian Federation of 12.02.1999 № 167, shall not apply to the supply of any other types of resources other than drinking water.
2. Payments for use of drinking water to subsubscribers could not be made between subsubscriber and subscriber, but in a different manner, prescribed by local authorities, first of all, only if there exist relations for the supply of drinking water between the water supply and sanitation organization and the subscriber and, secondly, when final consumers (subscribers) obtain drinking water from water mains extension organization of water and sewage services according to contract with the subscriber.
3. If supplied drinking water undergoes a change in the central heating units, so that final subscribers receive goods through heat networks, which has properties different from those of drinking water, then client uses potable water for their economic activities.
4. The presence or absence of a tariff, by which end users are required to pay for hot water supplied by subscriber, cannot affect the right of the organization belonging to water supply and sanitation sector to compel the subscriber to pay only the actual amount of drinking water in accordance with paragraph 72 of the Rules of Supply.
5. The relationship between end-users which provide communal services and hot water, and the defendant as resource-supplying organization is subject to paragraph 15 of Regulations on public services to citizens, approved by the Government of the Russian Federation of   23.05.2006 № 307.
6. The cost of thermal energy for heating water is one of the components of established tariffs for hot water.

Decision of Presidium of SCC of RF No. 5811/11 dated 11.10.2011 Ratio decidendi:
By virtue of Article 2 (9) of the Administrative Code of Russian Federation, the court costs shall not be recoverable from the administrative body.

Note: This decision does not indicate that the decisions of commercial courts with similar factual circumstances, which has force of law, adopted on the statutory basis for interpretation, being at variance with the statements contained in interpretation of present decision, may be revised in accordance with Article 311 (3) (5) of the Arbitrazh Procedure Code of the Russian Federation, unless there are other obstacles.

Decision of Presidium of SCC of RF No. 6478/11 dated 18.10.2011 Ratio decidendi:
1. Arbitration clause, as agreed in contract, which refers the dispute to the arbitral tribunal, extends its effect also on the actual relationship existing between parties whi
1. Commercial courts are not entitled to assess the decision of the arbitral tribunal on the law applicable to agency contract, its form, modification of its content and its validity.

Decision of Presidium of SCC of RF No. 6386/11 dated 18.10.2011 Ratio decidendi:
1. The master of vessel needs no special authority to make contract for carriage of goods by sea.
2. Laying additional burden on the shipper for the treatment of similar claims for damages caused by the loss of cargo during the implementation of maritime transportation according to bill of lading, to the company in a foreign court on its location, in the absence of a dispute about the facts about damages to shipper for loss of goods, is not consistent with the principle of protection of bona fide participants in business turnover.

Decision of Presidium of SCC of RF No. 7022/11 dated 18.10.2011 Ratio decidendi:
The right to claim, including the right to claim a sum of money from the debtor can be a subject to pledge.

Decision of Presidium of SCC of RF No. 7517/11 dated 20.10.2011 Ratio decidendi:
1. To distinguish between information and advertising, obligation, established by Federal Act, has significance for the purposes necessary to bring  the relevant information and place its location to consumers, while the manner of execution by placing this information does not have importance.
2. The information about goods, contained in structures at the location of gas stations: petrol brands (assortment of goods), pricing, compliance of the pertol fuel standards, the place of production of fuel - cannot be viewed as pursuing the advertising goals, since they represent the necessary information about products in order to provide their correct choice that meets the requirements of Federal legislation.

Decision of Presidium of SCC of RF No. 10096/11 dated 20.10.2011 and Decision of Presidium of SCC of RF No. 10095/11 dated 20.10.2011 Ratio decidendi:
A person is admitted to act without due diligence and caution in selecting contractors
(involving the verification of legal capacity, that is, establishing the legal status, which is due to the emergence of the state registration of legal persons, as well as its holdings of the relevant supporting documents that grant authority to commit legal actions), if upon committing and conducting the transactions he did not verify the legal capacity of another party and did not inquire about their registration of these organizations as an entity, did not request legal documents of legal entity,  on whose behalf the documents were made, nor used the publicly available information about State registration of the another party, located on the official website of the registration authority in accordance with Article 6 of the Federal Law of 08.08.2001 № 129-FZ "On state registration of legal entities and individual entrepreneurs."

Note: This decision does not indicate that the decisions of commercial courts with similar factual circumstances, which has force of law, adopted on the statutory basis for interpretation, being at variance with the statements contained in interpretation of present decision, may be revised in accordance with Article 311 (3) (5) of the Arbitrazh Procedure Code of the Russian Federation, unless there are other obstacles.

(с) Sergey Khalatov, trans. by Aibek Ahmedov

Ratio decidendi in decisions of Presidium of Supreme Commercial Court of Russian Federation Vol. 47

The decisions of Presidium of SCC of RF between 27.09. – 18.10.2011

Decision of Presidium of SCC of RF No. 3913/11 dated 27.09.2011 Ratio decidendi:

The antitrust authority shall have the right to conduct unscheduled check of customer's documentation attached to the notice about holding of public auction for the right to a state contract, with the purpose of protection of public interests and implementation of the broadest supervision powers to ensure fair competition in allocation of state orders.

Note: This decision does not indicate that the decisions of commercial courts with similar factual circumstances, which has force of law, adopted on the statutory basis for interpretation, being at variance with the statements contained in interpretation of present decision, may be revised in accordance with Article 311 (3) (5) of the Arbitrazh Procedure Code of the Russian Federation, unless there are other obstacles.

Decision of Presidium of SCC of RF No. 4408/11 dated 13.10.2011 Ratio decidendi:

If terms of sale contract are determined by decision of the Commercial Court, upheld by the decision of the appellate court, then sale contract is deemed to be concluded after the entry of court decision into force.

Decision of Presidiumof SCC of RF No. 9709/11 dated 13.10.2011 Ratio decidendi:

1. Providing indemnity by insolvent debtor after filing an application for recognition of his bankruptcy is not an operation aimed at maintenance of normal business activities. The usual practice of credit institutions (for improper performance of obligations secured by the mortgage) is a foreclosure on the mortgaged property, but not the purchase of the property by the pledgee.

2.The privilege of the bank - mortgage lender - may be expressed in the fact that its claim against the debtor was terminated outside of a bankruptcy case by obtaining, as a special performance, of real estate of the debtor as compensation, with the transfer of property made ​​in circumvention of the law on procedure for sale of mortgaged property at the auction and in violation of the rules on reserving a portion of the proceeds from the sale of the property, if company has secondary creditors.

Decision of Presidium of SCC of RF No. 7075/11dated 18.10.2011 Ratio decidendi:

Presentation of liquidation balance sheet, which does not reflect the actual state of the liquidated legal person and its accounts payable, should be amounted to a failure to present the  document containing the necessary information to registering body, which constitutes a ground for refusal to register the legal person under Article 23 (1) (a) of the Registration Act of Russian Federation.

Decision of Presidium of SCC of RF No. 6603/11dated 13.10.2011 Ratio decidendi:

Article 210 of the Tax Code, defining the procedure for calculating the tax base, and other provisions of the Tax Code does not establish rule that allows consideration of professional tax deductions exclusively within the income derived from entrepreneurial activities.

Decision of Presidium of SCC of RF No. 5531/11dated 13.10.2011 Ratio decidendi:

The obligation to provide a bank guarantee may be provided by forfeit (Article 329 (1) and Article 330 (1) Civil Code), since civil legislation does not contain any exception of this type of obligation, providing with forfeit is not inconsistent with the nature of obligation. 

(c) Sergey Khalatov, trans. by Aibek Ahmedov

Ratio decidendi in decisions of Presidium of Supreme Commercial Court of Russian Federation Vol. 46

The decisions of Presidium of SCC of RF between 20.09 - 18.10.2011 

Decision of Presidium of SCC of RF No. 7337/11 dated 11.10.2011 Ratio decidendi:
Making record about ownership in the Uniform State Register does not mark the beginning of the limitation period, which is associated with the moment of obtaining information about the owner of a loss of possession.

Decision of Presidium of SCC of RF No. 5514/11 dated 11.10.2011 Ratio decidendi:
1. Rule of Section 20 (c) of the Regulations on provision of public services is not applicable in determining the amount of electricity consumed by lifts multi-apartment building.
2. Individuals, who is under obligation to apply the appropriate standard in calculation of  of electrical energy consumption (utilities artists,citizens,consumers, resource-providing organization) does not has the discretion to allocate any component (inside apartment consumption, regulations loss, house needs) from uniform value, established by authorized body.

Decision of Presidium of SCC of RF No. 6474/11 dated 11.10.2011 Ratio decidendi:
1. Requirements of Regulation No. 1084 and Regulation No. 138  about the necessity of  coordination of construction on the terminal area and attached territories with the senior chief  of airport do not override the obligation, established by the Air Code of Russian Federation, to gain consent to build such construction from the owner of airport, which functions as a special permit and has a binding character.
2. Due to special statutory grounds, the owner of the airport is entitled to bring an action to demolish the unauthorized construction of the object as if it impedes the normal operation of the airfield, interferes with the takeoff and landing of aircraft, and threatens the lives and health of citizens.

Decision of Presidium of SCC of RF No. 5495/11 dated 11.10.2011 Ratio decidendi:
The obligation to amend fees for providing the right to construct on land should be executed properly, because it appeared due to terms of the contract, which is not contrary to Article 421 of the Civil Code of Russian Federation.

Decision of Presidium of SCC of RF No. 2119/11 dated 11.10.2011 Ratio decidendi:
Challenging the basis for calculating tax without filing an updated tax declaration by filing  directly to the court with demand to invalidate acts of non-standard inspections undertaken as part of the undisputed amount of tax penalties, declared by the taxpayer in the originally filed declaration would violate the requirements of Article 81 of the Tax Code of Russian Federation and unreasonable transfer duties of the tax authority to court in order to verify the validity of previously calculated the amount of tax by the taxpayer.

Note: This decision does not indicate that the decisions of commercial courts with similar factual circumstances, which has force of law, adopted on the statutory basis for interpretation, being at variance with the statements contained in interpretation of present decision, may be revised in accordance with Article 311 (3) (5) of the Arbitrazh Procedure Code of the Russian Federation, unless there are other obstacles.

Decision of Presidium of SCC of RF No. 5950/11 dated  11.10.2011 Ratio decidendi:
1. Specific character of the share in share capital of liability limited company as the subject of the transaction does not preclude the application of Article 488 and Article 489 (1) of Civil Code of Russian Federation to contracts of share sale (parts thereof).
2. In the absence of clear indication about deferred payment in a contract of sale condition about deferred payment can be considered consistent, if it derives from its content.

Decision of Presidium of SCC of RF No. 6962/11 dated 11.10.2011 Ratio decidendi:
The general limitation period should be applied for applications for recognition of actions of insolvency commissioners improper.

Note: This decision does not indicate that the decisions of commercial courts with similar factual circumstances, which has force of law, adopted on the statutory basis for interpretation, being at variance with the statements contained in interpretation of present decision, may be revised in accordance with Article 311 (3) (5) of the Arbitrazh Procedure Code of the Russian Federation, unless there are other obstacles.

Decision of Presidium of SCC of RF No. 5566/11 dated 04.10.2011 Ratio decidendi:
One of the main terms that allow to apply tax system in the form of a single tax on imputed income to retail sales is implementation of these activities  through stationary objects and (or) non-stationary trade network.
The sale of goods by the way of delivery of goods with supply contract to the buyer, but not through stationary premises of trading network, applies to wholesale trade, to which the tax system in the form of uniform tax on imputed income is not subject to the application.

Note: This decision does not indicate that the decisions of commercial courts with similar factual circumstances, which has force of law, adopted on the statutory basis for interpretation, being at variance with the statements contained in interpretation of present decision, may be revised in accordance with Article 311 (3) (5) of the Arbitrazh Procedure Code of the Russian Federation, unless there are other obstacles.

Decision of Presidium of SCC of RF No. 6325/11 dated 04.10.2011 Ratio decidendi:
1. The contract of assignment of rights on of sale of non-residential real property is not subject to state registration.
2. Inquiry with a claim for state registration of transfer of ownership of complex structures as arising from a contract with the organization, declared bankrupt and excluded from the register of legal persons, when the plaintiff failed to apply timely  for registration of property rights, implies that, he, in fact, did not own property, did not request the seller for assistance with registration of rights, did not put demands on transfer of property, did not receive the status of a creditor in the bankruptcy case of seller, failed to pay compensation for cession of the property constitutes an abuse of the law, inconsistent with Article 10 of the Civil Code of Russian Federation, which leads to dismissal of a claim.

Note: This decision does not indicate that the decisions of commercial courts with similar factual circumstances, which has force of law, adopted on the statutory basis for interpretation, being at variance with the statements contained in interpretation of present decision, may be revised in accordance with Article 311 (3) (5) of the Arbitrazh Procedure Code of the Russian Federation, unless there are other obstacles.

Decision of Presidium of SCC of RF No. 6977/11 dated 18.10.2011 Ratio decidendi:
If the gross amount of interest was consistent with the terms of the primary obligation secured by the surety, the scope of surety's liability has not changed and remained the same, then guarantee agreements are not terminated even if the interest rate has been amended by the lender at his sole discretion.

Decision of Presidium of SCC of RF No. 8530/10 dated 20.09.2011 Ratio decidendi:
If company was engaged in hydrocarbon mining, quality of which, as a result of field treatment, is only consistent with the GOST R 51858-2002 standard, and which, as a consequence, was subject to reflection as oil in tax declaration for the tax on mining as a object of taxation, then for the purposes, indicated in Article 337 (2) (3) of Tax Code of Russian Federation, the company did not conduct commercial preparation of gas condensates as a separate mineral.

Note: This decision does not indicate that the decisions of commercial courts with similar factual circumstances, which has force of law, adopted on the statutory basis for interpretation, being at variance with the statements contained in interpretation of present decision, may be revised in accordance with Article 311 (3) (5) of the Arbitrazh Procedure Code of the Russian Federation, unless there are other obstacles.

(c) Sergey Khalatov, trans. by Aibek Ahmedov