21 January 2016
Why Russian retailers are not punished for trafficking in banned products
Came under embargo grocery products can be freely sold in Russia. Such a decision a few days ago received the Arbitration Court of St. Petersburg. DP understood why retailers did not punish trafficking in illicit products.
The embargo was introduced by the decree of the President of Russia and the RF Government. On 7 August 2014, they have banned the import of food products produced in the European Union, the USA, Canada, Australia and Norway. Unwitting hostage situation turned out to be the importers, wholesalers, retailers, transporters and others.
The burden of control over the implementation of the embargo the country’s leadership is on the customs service. But despite their efforts, illegal imported goods still began to fall in Russia. In the fight against retailers Rospotrebnadzor involved — only a few months in 2014 in St Petersburg management of the agency seized 17 tons of banned products (fruits and vegetables, meat and dairy products, etc.). Tatiana Tereshchenko of AB «Prime Advice St. Petersburg» considers such checks lawful, «Russian trading companies may not acquire in Russia related products and sell them unless there is evidence that they are produced in the countries of the sanctions.»
«By implementing the sanctions goods, the seller would violate, in particular, Article 16.21 of the Administrative Code (use of goods that are illegally transferred across the customs border),« — says Anton Poddubny, a lawyer of Borenius.
But traders have gone to court have been able to prove the illegality of such measures. The case took a decision on March 27 the Arbitration Court of St. Petersburg and Leningrad, Tikhvin shop has considered the claim «True." Finding the trading floor of the five packs Polish cheese Edam, Rospotrebnadzor shop fined 30 thousand rubles.
But the court concluded that the trading company did not violate the law, as the Russian government did not prohibit the sale of products in the Russian sanctions. Moreover, even the importation of prohibited goods does not constitute an offense at the dealer.
«The decision of the government is to contain an indication of the import ban, not the trade ban — says business lawyer Maxima Legal Natalia Zelentsova. — A presidential decree banned foreign trade operations, and not the sale of goods on the domestic market." Therefore, experts say, there is no basis for the formal involvement of commercial companies responsible for selling the products of sanctions.
«On the prohibition of trafficking in the country, provided the legal import of the question,« — I agree with counterpart Dmitry Lobach lawyer «Hrenov and partners.»
Transit Bridge
Deliveries in Russia popular imported products to help open borders with Russian partners in the Customs Union — Belarus and Kazakhstan. Transit deliveries to these countries embargo limits.
So, on the border with Finland Buslovskaya Vyborg Customs detained the car with 61 tons of milk powder of the Finnish company Valio. Invoice he followed in Kazakhstan, but at the opening of the train revealed that milk purchased by St. Petersburg. A fine of 105 thousand. Rubles customs imposed on JSC «Russian Railways».
But the court, which asked the railroad, revealed no violations.
It was found that indicated in the Code of Administrative Offences limitations and restrictions may be introduced or adopted international treaties on the basis thereof Russia, which no presidential decree or a government decree does not apply. In addition, arbitration is not found in the actions of Railways of guilt: the company transports goods in accordance with the shipping documents, observing the customs legislation and «performing daily activities with the due diligence.»
«It is no secret that the forbidden goods come to us under the guise of products produced in the vehicle. In this connection, track and stop the importation of goods harder sanctions», — said Alexander Petrov, a senior lawyer Rightmark Group.
We are innocent
Thousands of companies suffered from antisanctions. But the attempt to challenge the embargo was not a success: the Supreme Court rejected the application of the Murmansk fish processing plant, deprived of his material — the purchased Norwegian fish.
The court decided that the president and the government acted within its powers.
However, market participants refer to antisanktsii as force majeure, allowing them not to fulfill contractual obligations. «In virtue of the rules of the Civil Code in the case of the publication agency’s act, which resulted in the fulfillment of the obligations becomes impossible, the obligation ceases, in relevant part,« — says Eugene Gurchenko, a senior lawyer AB «Egorov, Puginsky, Afanasiev & Partners." «But the connection default and introduction of prohibitive measures required to prove», — says Sergey Paladkin, legal counsel of the Institute for Enterprise Issues.
Lawyer «Kachkin and partners," Maxim Ali said that the efficiency argument for exemption from liability can depend on the circumstances of the case «is often a reference to force majeure used by unscrupulous debtors who seek to evade responsibility.»
Although sometimes suffer from imposed restrictions on food imports far companies such as property owners.
For example, the St. Petersburg «daughter» of the Danish concern Arla Natura — LLC «Arla Foods Artis» — tried to terminate the lease warehouse concluded just a week before the embargo.
The court accepted a compromise: admitting antisanctions «exceptional circumstances beyond the limits of normal, everyday», they released the tenant of fines and penalties, but not to perform the contract (rent).
«Often, the courts refer such cases to the entrepreneurial risk», — says the lawyer, «United Consulting Group» Natalia Brusentsova.
With a colleague agrees Lawyer «LeksKledere Consulting» Olga Khodakevich: «An important point — whether the parties could at the time of conclusion of the contract to know about the possible introduction of antisanctions. Given that antisanctions long been discussed in the media, the court could take them to the usual business risks.
