The Supreme Court will clarify the legitimacy of information from registers without notarization

The Supreme Court of the Russian Federation (SC) will decide whether it is possible to participate in the auction using a printed extract from the Unified State Register of Legal Entities, which is generated automatically on the Federal Tax Service website. The auction organizer did not admit the company with such an extract, considering that the document should be notarized. The company appealed to the Federal Antimonopoly Service and arbitration courts, but was unsuccessful. However, her arguments interested the Supreme Court, and the case was transferred to the economic board. Lawyers note that the requirement for a notarized extract from the Unified State Register of Legal Entities is outdated, but there is no uniform approach to such disputes either in the courts or in the FAS departments.

The Supreme Court will consider the dispute over whether a legal entity can confirm its status for participation in auctions with an extract from the Unified State Register of Legal Entities printed from the Federal Tax Service website. In October 2022, the Troitsk municipal unitary enterprise “Tsentralny Store” announced an auction for the right to enter into a lease agreement for municipal real estate for the purpose of trading activities. Two bids were received for the auction – from RIITA LLC and Yantarny Iceberg LLC. The first company was denied permission to participate, which is why the auction was declared invalid. As a result, the customer entered into an agreement with Yantarny Iceberg as the only participant.

According to the terms of the auction, an extract from the Unified State Register of Legal Entities in paper form had to be attached to the application. According to the auction commission, the printout presented by RIITA “is not the original document” and therefore must be “notarized.” The company complained to the Moscow office of the Federal Antimonopoly Service, but the agency found no violations. Then RIITA challenged the decisions of the FAS and the auction commission in court, insisting that the extract was received through the Federal Tax Service website https://egrul.nalog.ru in electronic form and printed.

The defendants in court insisted that a printed extract “is not an electronic document equivalent to a document on paper”, since “translating information into another form leads to the loss of the properties of an electronic document and the loss of the verification properties of an electronic signature.” The arbitration courts of three instances agreed with this. They added that the contract with Amber Iceberg has been concluded and paid for, and invalidation of the tender “does not guarantee the plaintiff victory in the newly conducted procedure, as well as participation itself.”

RIITA appealed to the Supreme Court. In the complaint, the company explained that the extract was generated through the official service of the Federal Tax Service, “has an outgoing number, and is signed with a qualified electronic signature of the Ministry of Taxes and the Federal Tax Service for centralized data processing, indicating the certificate number and its validity period.” There was no discrepancy between the contents of the extract and the information posted in the public domain on the tax authority’s website, and the authenticity of the electronic signature has not been refuted. The purpose of requiring an extract from the Unified State Register of Legal Entities is to ensure “the reliability of the information provided by the tender participant,” while “taking into account the open nature of the information,” the customer could confirm the status of the person who submitted the application. The case was transferred to the Economic Collegium of the Supreme Court, scheduling a hearing for December 22.

Orchards Advisor Anastasia Sivitskaya notes that Order No. 121n of the Ministry of Finance dated August 5, 2019 “directly allows for the provision of information from the Unified State Register of Legal Entities in the form of an electronic document.” “Providing electronic extracts from the Unified State Register of Legal Entities is a common practice; they are accepted by courts, government agencies, and contractors,” confirms Anastasia Lysenko, senior lawyer at YurTechConsult.

But as part of bidding, customers often require paper statements certified by a notary, Ms. Sivitskaya clarifies. “The provided extract does not formally comply with the application filing rules established in this case and is a copy of the document,” admits antimonopoly lawyer Natalya Pantyukhina. Ms. Lysenko says that the organizer has the right to set conditions for the form of documents, but they must be “objectively determined.” “The Unified State Register of Legal Entities data is publicly available, and the auction organizer can check the relevance of the information at any time,” adds the senior lawyer of the law firm “BFL | Arbitrage.ru Denis Danilov. Therefore, Aleksey Kostovarov, partner at Liniya Prava, believes that “the RIITA statement is obviously sufficient.”

There is no uniform approach to this issue in the regional departments of the FAS and the courts. Legislation does not always have time to “catch up with reality,” explains Natalya Pantyukhina. At the time of consideration of RIITA’s complaint, FAS Order No. 67 of February 10, 2010, dated February 10, 2010, was still in effect, which indicated the submission of a notarized copy of an extract from the Unified State Register of Legal Entities, but from October 1, 2023, it became invalid, notes Denis Danilov. A similar requirement has been removed from the contract system law in 2021. “Providing a notarized extract is an outdated practice,” emphasizes Mr. Danilov.

According to Anastasia Lysenko, if the Supreme Court forms a clear position on the legality of submitting printed extracts for participation in auctions, “this will create legal certainty.” Now, Ms. Pantyukhina adds, the requirement for a notarized extract from the Unified State Register of Legal Entities has been abolished for bidding for the lease of state property and procurement under the law on the contract system, “but there are bidding for land, subsoil, fish and a number of others, in which the organizers can be arbitrary.” She hopes that the Supreme Court “will speak out on the sufficiency of an extract from the government agency’s website in any form for any bidding.”

Anna Zanina