The Supreme Court will consider the issue of a penalty on a soft loan issued during the coronavirus pandemic

Litigation related to subsidies to small and medium-sized businesses (SMEs) issued in 2020-2021 in connection with the pandemic continues in the courts. The Supreme Court of the Russian Federation (SC) will decide whether a penalty is charged in favor of the guarantor who repaid the borrower’s debt on a soft loan issued under state support. VEB.RF acted as a guarantor for the loan, guaranteeing the return of most of the loan to the bank on behalf of the state. Having repaid 75% of the principal debt, VEB demanded a late payment penalty from the borrower. The arbitration courts decided that the guarantor does not have such a right, but the Supreme Court has the final say.

The Supreme Court will consider the issue of a penalty on a preferential loan issued to legal entities and individual entrepreneurs “for the resumption of activities” within the framework of state support. We are talking about interest-free loans issued during the coronavirus pandemic by government decree of April 2, 2020. But the conclusions of the Supreme Court on the dispute can be applied to any preferential loans within the framework of state support. In 2021-2022, the Supreme Court considered several disputes on “coronavirus subsidies”, however, they concerned the deprivation of the business of the right to a benefit.

In May 2020, MS-Logistics LLC took a loan from Sberbank for 4.4 million rubles. at a reduced rate of 0%. Under the terms of the agreement, the borrower was charged a penalty in the amount of 0.1% of the amount of the overdue payment for each day of delay. The loan was secured by the guarantee of the state corporation VEB.RF to Sberbank in the amount of 75% of the principal amount. Due to the company’s breach of its obligations, on April 9, 2021, VEB.RF paid the bank 3.3 million rubles. and applied to the court for the recovery of this amount from the borrower. In addition, the state corporation demanded from MS-Logistics the payment of a penalty for late payments in the amount of 0.4 million rubles.

Arbitration courts of three instances recognized the right of VEB.RF to 3.3 million rubles, but rejected the claim for a penalty. The decisions state that the plaintiff “did not indicate the legal nature of the origin of the forfeit claimed for collection, this is also not seen from the presented calculation.” The cassation added that the obligation to prove the grounds for collecting a penalty lies with VEB.RF, while “the representative of the plaintiff did not appear at the court hearings” in any of the instances.

VEB.RF appealed to the Supreme Court, insisting that it has the right to collect a penalty from the borrower for four months from the day following the day of payment in favor of Sberbank. The amount of the penalty is calculated at a rate of 0.1% per day (36.5% per annum), which appeared in the agreement with the bank, since the state corporation “passed over the rights of the creditor” after repayment, the complaint says. The case was transferred to the Economic Board of the Armed Forces, the meeting is scheduled for July 26.

Enforce Law Company lawyer Pavel Kondratiev notes that entrepreneurs often make delays on soft loans, which results in litigation. Most often they arose in connection with non-payments of the borrower or in connection with the loss of the right to a benefit, he clarifies. Vyacheslav Kosakov, managing partner of NOVATOR Legal Group, calculated that since the end of 2020, there have been about 100 disputes in courts only on pandemic subsidies.

At the same time, Elena Mende, a partner at the Smolenka 33 Bar Association, points out that “the courts mostly satisfy the requirements of VEB.RF” to recover a penalty on such loans.

The opinions of the lawyers themselves were divided. Pavel Kondratiev considers VEB.RF’s claim to recover a penalty at the contractual rate justified, noting that the Civil Code (CC) gives the guarantor who repaid the debt the rights of a creditor, and “during the development of concessional lending programs, the recovery of a penalty was not prohibited or limited.” Elena Mende agrees with him, believing that “the meaning of state support is not distorted” by charging a penalty in favor of the guarantor: the purpose of subsidizing was interest-free lending, but “in case of delay, the debtor must be held liable.”

It should be taken into account that VEB.RF asked for a penalty only for the period from the moment he fulfilled the obligations of the guarantor to Sberbank, and not for the entire period of delay, adds Azat Akhmetov, adviser to Orchards law firm. At the same time, he considers it possible to reduce the amount of the contractual penalty under Art. 333 of the Civil Code “taking into account the specifics of relations aimed at supporting the financial stability of the enterprise.”

At the same time, according to Vyacheslav Kosakov, if according to the terms of the agreement, in case of delay, the 0% rate on the loan does not change, then the penalty is compensatory in nature and can be collected, and if the percentage rises, then “the penalty can be considered as over-enrichment.” The decisions of the courts say nothing about changing the rate on the MS-Logistics loan.

Forward Legal lawyer Ilya Ryzhakov takes a different position: “The economic effect of the subsidy for businesses was in obtaining interest-free repayable financing. But in this case, VEB.RF did not cover the bank’s expenses for paying interest and vouched only for 75% of the principal debt of the borrower, therefore it is not entitled to demand a penalty under the contract. He adds that Art. 365 of the Civil Code gives the guarantor the right to demand compensation for “interest and other losses incurred in connection with the liability for the debtor”, but VEB.RF “did not suffer any losses.” In his opinion, if anyone has the right to demand a penalty from the borrower, it is the lender, that is, Sberbank. In any case, emphasizes Ilya Ryzhakov, the Armed Forces “will need to sort out the situation and find a reasonable balance of interests.”

Anna Zanina