Do not bring a scarlet flower – Newspaper Kommersant No. 172 (7373) of 09/19/2022
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The counter-sanctions legislation, which provides for fines from July 2023 for violating “retaliatory” sanctions imposed in Russia against “unfriendly” jurisdictions, will be systematically enforced. The Ministry of Finance has prepared and published a package of relevant amendments to the laws, according to which the Federal Customs Service, the Federal Tax Service and the Bank of Russia will be able to jointly use the FCS, the Federal Tax Service and the Bank of Russia from the summer of 2023. Up to this point, the actual rules of the game for Russian business, which must comply with the prohibitions of counter-sanctions and at the same time break through the trade blockade of the West, will already be clearer.
The Ministry of Finance published on regulation.gov.ru a package of bills that build a system of control over the implementation of counter-sanction requirements by businesses and citizens in order to “ensure financial stability.” For this purpose, the agency prepared amendments to the law on counter-sanctions (127-FZ dated June 04, 2018 “On measures to influence (counter) unfriendly actions …”), to the law on control and supervision (248-FZ) and to the article of the Code of Administrative Offenses on non-compliance with counter-sanctions measures – on new fines for violations of the counter-sanctions perimeter.
An article on measures to ensure financial stability was introduced into the law on counter-sanctions in June 2022 and provides for a special procedure for citizens and businesses to conduct transactions with persons from “unfriendly” countries, a special procedure for paying dividends to such persons and currency control. These requirements are detailed in various presidential decrees and supported by documents from the Bank of Russia (temporary procedure for foreign exchange settlements, etc.), specialized government commissions (for example, for foreign investment control), individual departments – the bulk of temporary anti-sanction measures are introduced by special acts, not amendments to the relevant legislation (173-FZ dated December 10, 2003 “On currency regulation and currency control”). At the same time, the mechanism for monitoring the implementation of new requirements is not described in special acts.
The Ministry of Finance notes that the decrees of the President of Russia adopted over the past six months establish new rules of the game, but do not determine the mechanism for establishing responsibility for their failure to comply, while violations of the requirements of the decrees have already been recorded. The department adds that the bill was developed jointly with the Central Bank and creates a legislative structure that has incentives to comply with new requirements.
According to the draft of the Ministry of Finance, from July 2023, three state bodies should immediately receive supervisory powers over compliance with counter-sanction requirements – the Federal Tax Service, the Federal Customs Service and the Bank of Russia. The structure of the Ministry of Finance of the Federal Tax Service and the Federal Customs Service prescribes to control the operations of citizens and legal entities, with the exception of financial and credit organizations – supervision of banks and financial organizations remains within the contour of the Bank of Russia. According to the project, the Federal Customs Service and the Federal Tax Service will be able to send requests for documents and information to citizens and legal entities (the government will determine the procedure for providing such information separately). At the same time, the FCS can delegate control powers to regional customs departments and posts, and the Federal Tax Service to territorial bodies. All “counter-sanction controllers” will have to establish a mutual exchange of documents and information – the procedure will also be determined by the government together with the Bank of Russia. This design will allow closing the control over the operations of residents: the Federal Tax Service – taxes, the Federal Customs Service – customs payments (import), the Central Bank – settlements.
The new “aggregated” controller for the project will not be limited by the government’s recently built system to reduce excessive pressure on business. “In all other types of state control, as a rule, one authorized body is involved, which identifies violations and applies sanctions to violators,” the Ministry of Finance admits. In the case of counter-sanction requirements, we are talking about participation in the control of their compliance by citizens and legal entities (including both trading companies and financial ones) of several departments and the Bank of Russia, which is not a state body – and therefore, probably, in the understanding of the department, the law on CND on it cannot spread. The creation of a new supervisory structure will require the removal of counter-sanction control for the sake of financial stability from the scope of the relevant law, and as a result, it will result in an additional bureaucratic and financial burden on business in the form of document requests and fines for violations of requirements. Thus, the Ministry formalized the measures of responsibility for non-compliance with counter-sanction requirements in the form of a separate draft law on the amendment of the Code of Administrative Offenses. According to them, in the case of citizens and legal entities, we are talking about a fine in the amount of 20% to 40% of the amount of a transaction with violations, for officials this amount should not exceed 30 thousand rubles. In the absence of a monetary value, a fine for citizens will amount to 1–1.5 thousand rubles, for individual entrepreneurs and officials – 2–3 thousand rubles, for legal entities – 20–30 thousand rubles.
The tightening of control can also complicate the circumvention of external sanctions and restrictions – as Kommersant’s interlocutors among officials and representatives of large companies admitted, so far, businesses have been able to bypass restrictions and meet the need for imported equipment. Tightening control over the financial perimeter can close such loopholes.
At the same time, as Kommersant found out, the project of the Ministry of Finance is the department’s own initiative, implemented with the assistance of the Bank of Russia, and the document has not yet been discussed in the executive branch — it turned out to be news for the government apparatus that controls legislative activities, the White House confirmed yesterday.
According to them, the question of how justified is the removal of a new type of “joint control” from the scope of the relevant law on control and supervisory activities and whether it should be finalized, only to be studied based on the results of the regulatory impact assessment. In the Ministry of Finance itself, they state “the insufficiency of regulating the procedures for monitoring compliance by residents” with counter-sanction measures – and insist that “if there are certain obligations for business arising from the requirements of decrees, then there should be responsibility for their non-fulfillment. Otherwise, the requirements to ensure financial stability measures will be declarative, which is unacceptable in the current geopolitical situation.”
In itself, the idea of a separate supervisory structure that would deal de facto with the suppression of transactions prohibited by decrees between Russian and “unfriendly” jurisdictions, which is being implemented by the Ministry of Finance as an executor of the presidential will, looks like a fairly good illustration of the heterogeneity of the decision-making structure in the Russian government associated with sanctions. Now the main meaning of the interaction of Russian companies with companies of “unfriendly” jurisdictions is access to goods, technologies and equipment, other resources, most of which is “sub-sanctioned” already on the other side of the sanctions.
In this sense, “the course towards trade isolation from the West” and “the course towards breaking the Western trade blockade” are directly opposite: probably, the main content of the work of the “three-headed” control structure will be to determine whether a particular company interacts for the benefit of the Russian economy (obviously, through the mediation third jurisdiction – the possibility of a direct violation of the sanctions restrictions of the EU, the USA and Japan is small on their side) with “unfriendly” foreigners or to the detriment. There is no direct reason to say that various parts of the new “near sanctions” regulation of recent months have been initiated by various structures within the extended government, but such an impression is being created. Meanwhile, the executive power in the Russian Federation is one, and the same government structures are forced to execute orders of a different origin and ideology, and it is not always possible to “pack” unambiguous formulations in the execution, for example, of the State Duma into the pragmatics of the rules and procedures of government decisions in the logic of their own decisions of the White House.
Apparently, for this reason, the Ministry of Finance, the Central Bank and the Federal Tax Service are requesting such a long time to create specific regulations for interaction with each other on this issue: a counter-sanctions perimeter created ahead of time, that is, before the summer of 2023 in the context of emerging gray markets on the borders of the Russian and “unfriendly “jurisdictions will only interfere, and before that, gross violations of the law on counter-sanctions (as well as the” counter-sanctions decrees” of 2015, which in a situation with an imperious call for the active development of parallel imports are generally difficult to take literally – at least in spirit, if not in letter ) can be detected by the forces of Rosfinmonitoring and the Federal Tax Service. By next summer, it will be clear what exactly “counter-sanction control” will look like – and what will allow the perimeter to pass in practice.
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