The Supreme Court will determine the rules for establishing commissions for transferring funds to other banks

The Supreme Court will return to determining the rules for establishing commissions for transfers of legal entities to citizens. The VTB client succeeded in bringing the issue to the level of the Collegium for Economic Disputes (SCES) of the Supreme Court. Bankers are confident that protective commissions in the case of dubious transactions will not become a thing of the past. Lawyers hope for clarity on this issue.

The Supreme Court (SC) of the Russian Federation will determine whether the bank has the right to set a significantly higher commission for legal entities for transferring funds to individuals’ accounts in third-party credit institutions. According to the court file dated October 2, SKES will study this issue using the example of Investcom’s litigation with VTB. The company entered into a bank account agreement. In accordance with its terms, VTB charges remuneration in accordance with tariffs, which it has the right to revise unilaterally with mandatory publication no later than ten working days before introduction.

In December 2021, Investcom, whose sole owner and manager is Vladimir Bereznyakov, sent 13.33 million rubles. to the account of Elvira Bereznyakova with the purpose “provision of funds under an interest-bearing loan agreement” at Promsvyazbank. The bank was guided by the current tariffs when transferring amounts over 5 million rubles to individuals’ accounts in third-party Russian banks. a 10% commission will be charged. Investcom tried to object to the collection of such an amount in correspondence with the bank, and appealed to the Arbitration Court of the Voronezh Region, which sided with the bank. The appeal and cassation upheld the decision. However, Investcom is now trying to challenge it in the RF Supreme Court.

In the complaint, the company insists that the establishment of increased commissions when clients perform certain types of transactions “is clearly burdensome, significantly disturbing the balance of interests of the parties.” The plaintiff points out that when providing a similar service in the form of a bank transfer of funds between client accounts maintained by VTB, if they were received through the “Remote Banking Service (RBS)” system, a commission of 6 rubles is established. And in the amount of 35 rubles. in case of transfer of funds from the client’s account to accounts maintained in other banks. “The bank charges a commission in an amount that is 38 thousand times higher than the tariff for a similar banking transaction,” it is stated in the materials for the case. Judge Tatyana Zavyalova of the Supreme Court of the Russian Federation considered these arguments sufficient to transfer the complaint to the SCES of the Supreme Court for consideration.

However, bankers are inclined to believe that it is precisely the essence of the operation that matters. According to the chairman of the board of Realist Bank, Vladimir Elmanin, transfers from legal entities to individuals are often used by unscrupulous market participants for the purpose of money laundering (in accordance with Federal Law 115-FZ). “In this regard, banks are introducing an increased, so-called protective commission as a preventive measure to suppress such transactions,” he explains. Kommersant’s interlocutors from among the bankers indicate that the practice of establishing different commissions for transfers within the bank (from a legal entity to an individual) and external ones traditionally differ.

The Supreme Court has already looked into the issue of protective commissions set by banks for companies transferring money to individuals, but has not put an end to this issue (see “Kommersant” dated December 8, 2021). “The problem of proportionality of the commission to the bank’s expenses for carrying out the operation will remain until this type of commission is recognized as insignificant,” says Mikhail Zhuzhalov, senior lawyer at Tomashevskaya & Partners. “For now, the only thing that remains to be argued about is the validity of the size of the commission.” He believes that the Supreme Court will take a closer look at comparing tariffs, as a result of which the purpose of the tariff may be revealed – to keep money in the bank. In this case, the freedom of contract referred to by the bank should not lead to abuse of law, given that the bank account agreement is public and the client is deprived of the opportunity to change its conditions or tariffs, adds Roman Yakovenko, advisor to the investment practice of the BVMP law office.

At the same time, the Supreme Court refers the case to the collegium when it wants to change the vector of judicial practice, notes NSP lawyer Sergei Bakhmisov. “In a similar case, the FAS previously recognized the commission amount of 300% of the payment as an abuse by the bank, and the courts recognized the service’s decision as legal,” concludes Elizaveta Savina, head of the antimonopoly compliance department at Kulik & Partners Law.Economics.

Ksenia Dementieva, Anna Zanina