The Supreme Court will consider the dispute over the effect of the moratorium on fines for municipalities

In judicial practice around the bankruptcy moratorium of April-October 2022, a new question has arisen. The moratorium, in particular, prohibited the accrual of penalty interest on the amount of debt. Now the Supreme Court of the Russian Federation (SC) will decide whether municipal authorities can refer to this support measure. The opinions of lower courts were divided – some considered it correct to apply the moratorium to everyone without exception, others decided that the measure could only be applied by those who, in principle, could go bankrupt. Lawyers believe that from the point of view of equality of all participants in civil transactions, the moratorium should also apply to authorities.

The Supreme Court will consider the dispute over who was subject to the moratorium rule on the non-accusation of penalties. JSC Samaraneftegaz (a structure of Rosneft) demanded 289 million rubles from the municipality of Pokhvistnevsky district of the Samara region. unjust enrichment. The debt arose due to overpayment by the joint-stock company for rent for the use of land located within the boundaries of the Sologaevsky subsoil plot in the Pokhvistnevsky district. But the municipality did not return the overpaid amount, so the company went to court, demanding to collect the debt and interest from the local administration and its property management committee until the day of actual repayment.

By the time the court of first instance made its decision—in August 2022—a bankruptcy moratorium was already in effect. In addition to prohibiting creditors from bankrupting debtors, it prohibited the accrual of penalties and other penalties from April 1 to October 1, 2022. In this regard, the Arbitration Court of the Samara Region decided to collect the debt and interest only until March 31, 2022. The appeal upheld this position.

But the Cassation Court of the Volga District decided in June 2023 that the moratorium does not apply to defendants who are government institutions, since the bankruptcy law does not apply to them. Since the defendants, in principle, cannot be bankrupt, they cannot exercise the right not to accrue a penalty, the cassation came to the conclusion and collected interest for the entire period before the date of actual payment.

The administration and the committee appealed the decision to the Supreme Court. The applicants explained that Art. 9.1 of the insolvency law gives the government the right to introduce a moratorium “to ensure economic stability in exceptional cases (in case of natural and man-made emergencies, significant changes in the ruble exchange rate and similar circumstances).” According to the municipal authorities, the 2022 moratorium applied to all legal entities, citizens, individual entrepreneurs, regardless of whether such persons have signs of insolvency and whether they can go bankrupt.

The introduction of the moratorium is aimed at “ensuring the stability of the economy, supporting all economic entities, including municipal bodies, which, acting as institutions, carry out activities for the purpose of comprehensive socio-economic development of municipalities,” the complaint said. The case was transferred to the Economic Collegium of the Supreme Court, the hearing is scheduled for January 23, 2024.

atLegal partner Andrey Toryannikov believes that the municipality in this case “used a very non-trivial method to exclude liability during the period of the bankruptcy moratorium.” Senior partner at Pen & Paper, Valery Zinchenko, notes that unlike the 2020 moratorium, which applied only to individuals from sectors of the economy affected by the coronavirus pandemic, in 2022 the measure covered all citizens, individual entrepreneurs and legal entities. The only exceptions were developers who had properties in the register of troubled assets.

Although the moratorium has ended, “the issues of penalties for late fulfillment of obligations during the period of its validity remain relevant,” since disputes regarding them are still being considered, adds Mr. Zinchenko. At the same time, in practice, “there is no single sustainable approach” for the circle of people who were covered by this support measure, says Anna Friedrichsen, adviser to the expert company Averta Group.

“Formally, the 2022 moratorium should not apply to state and municipal institutions, since the purpose of its introduction was to prevent mass bankruptcy of Russian companies and other persons due to the current unfavorable macroeconomic situation,” says Maxim Andreev, a lawyer in the Vegas Lex arbitration practice. In this regard, continues Ms. Friedrichsen, “it seems strange the approach according to which an institution whose bankruptcy is impossible in principle falls under the moratorium.”

But, on the other hand, the 2022 moratorium was indeed an “anti-crisis instrument” of state regulation of the economy as a whole, Mr. Toryannikov emphasizes, and although the Civil Code excludes the possibility of bankruptcy of the municipal administration, it is a participant in civil law relations.

Here, Mr. Zinchenko believes, it is worth taking into account the “principle of equality” of all participants in civil transactions: “It is this thesis that is of utmost importance and must be supported by the court. If it is decided to limit the amount of liability in order to provide support to all economic entities, then this should be done for all participants, including authorities at all levels.”

Other lawyers agree with him. “In civil circulation, state and municipal institutions act not as subjects of public authority, but as equal participants who make transactions, fulfill obligations and bear responsibility for their failure,” points out Maxim Andreev. From this point of view, Mr. Toryannikov adds, a refusal to apply a moratorium to government agencies will “violate the constitutional principle of legal equality.”

Anna Zanina