The State Duma is preparing for consideration in the second reading of amendments to the Law on Trade. The deputies want to protect the interests of producers, the producers want their interests to be protected, but they are not sure that the option proposed by the deputies is correct. Retailers watch as the next round ends state regulation in the field of trade.

Sergei Ilyukha,

General Director of Liga Kommersants LLC

In this article you will read:

• What awaits entrepreneurs after amendments to the Law on Trade-2016
• How to restructure work after changes in the Trade Law-2016

According to the general opinion, self-regulatory organizations can become a solution to problems in the interaction of suppliers and retailers, but so far their status is not clear, and the mechanisms of work are under development. Conclusion: it is very likely that soon we will live and work under new edition 381 FZ.

Best Article of the Month

The first half of 2018 is coming to an end - it's time to sum up the interim results. Even if the company's commercial performance has grown compared to the previous period, make sure that there are no hidden difficulties in the company's operation that can bring trouble.

To diagnose problems, fill out the checklists from our article and find out which side of the business to pay attention to.

What will change in the work of retail, how will these changes in the Law on Trade-2016 affect the work with suppliers, what risks and opportunities will the new edition of the Law on Trade bring? Let's answer these questions one by one.

For clarity, I have summarized all the amendments that may affect the economics of cooperation between the supplier and retail network into one table.

Table 1. Change in the economics of cooperation between a retail chain and a manufacturer

Variable indicator
Sample size reward
Payment for the provision of services to promote products *	By agreement according to the promo plan. Logistics services separately
Basis for premium calculation	The price of the delivered goods	The price of the delivered goods, excluding VAT and excise
Payment term for delivered products	10 business days 30 calendar. days 45 kcalendar. days	5 or 8 business days. 20 or 25 calendar days. 35 or 40 calendar days.
The beginning of the countdown of the deferred payment for the delivered goods	Date of submission of the full package of documents	Date of receipt of goods
A ban is introduced on payments and compensation for:		Deliveries to new stores, rotation, returns

At the same time, it is proposed to include services for the promotion of products provided to business entities that supply food products in retail chains in order to promote food products, including by:

• advertising of food products;
• implementation of their special calculations;
• consumer demand research;
• preparation of other reports containing information on such goods;
• or other activities aimed at promoting food products

As well as by

provision of logistics services, including the preparation, processing or optimization of delivery routes specified goods(there is no consensus on the advisability of classifying logistics services as promotional services).

In other words, at the price of the delivered goods of 100 rubles, the costs of the manufacturer were:

Rice. 1. Approximate cost structure of a supplier when working with a retail network under the current version of the Law on Trade

What are the costs of the supplier today:

Sample size premium- up to 10% of the cost of the supplied products. Depending on the agreements, the cost of shipped products with or without VAT can be taken as the basis for calculating the premium.

Logistic bonus(compensation of logistics costs of the network in case the goods are delivered to distribution center) - up to 5% of the cost of shipped products.

promotional budget- the cost of promoting products (the list of articles above). Depending on the structure of the promo plan (whether additional displays, participation in advertising booklets and promotions are provided), as well as on the existing sales volume, the promo budget can be agreed in the form of a promo plan with a fixed cost for each event, or as a percentage of the planned turnover. In this case, the budget can reach up to 20%.

Network lending costs. If the deferred payment for the delivered goods is 45 calendar days, and the cost of the loan, let's say 12%, then the supplier's expenses for providing a commodity loan can be considered equal to 1.5%.

With a shipment price of 200 rubles to the network, the manufacturer's costs can be 73 rubles. At the same time, it should be taken into account that all regulatory authorities have been fighting for many years against the imposition on the service provider, the so-called false marketing and other extortions from retail chains. So all suppliers who supply liquid goods and have the right to protect their interests have not paid "taxes" for a long time.

As conceived by the developers of the bill, all budgets should be converted into prices. In this case, the cooperation model is shown in Figure 2.

Rice. 2. Approximate cost structure of a manufacturer when working with a retail network under the new edition of the Law on Trade

All expenses: promotional budget, network losses from premium reduction, network losses from delay reduction, according to the developers' intention, must be converted into a price. In this case, the shipping price should be 145 rubles, and before the retail price, the chain should mark up more than 70%. In addition, due to the reduction of the base for calculation from 200 to 145 rubles, the logistics bonus will increase in percentage terms (if it is still allowed to be paid).

This option is very risky for both the retailer and the manufacturer.

It is dangerous for retailers to make a big markup. Any check will have many questions, why is the markup 70% and not 50 or 30? In addition, there is a high probability of a decrease in promotional activities: the specifics of the work of retailers is such that the coordination of promotions at the expense of budgets provided by suppliers under a separate agreement is much easier than the coordination of promotions at the expense of their own profitability!

If suppliers refuse to provide a discount in price, the margin model for the retail chain will collapse. The retailer will be forced to either reduce the number of promotions or raise prices - the end consumer and the image of the network will suffer from this. The second option is to optimize the assortment matrix, leaving only the most profitable and high-turnover goods - small producers and, again, the consumer will suffer from this.

In order to understand all the risks of the manufacturer after the amendments to the Law on Trade-2016, it is necessary to recall the basics of category management.

When choosing various goods the buyer uses different criteria. If the main thing is the price, then the category is called price. If the main sales in a category are made by products of several manufacturers, the category is called branded. If there are no obvious leaders in the category, and the assortment is important for the buyer, the category is called assortment. If the product is not a leader in its category, it is necessary to carry out Promotions for increase in sales volumes.

As most manufacturers know:

if the product is a leader in the price category: purchases are made according to the tender system. The main thing is the price and compliance with quality standards. Premiums are minimal, promos are mostly price-based.

if the product is the leader in the brand category, then the market power of its manufacturer is commensurate with the market power of the network. Advertising is federal, promo is federal, prices are federal, conditions are also federal.

if the product is not a leader in the price or brand category, or belongs to the assortment, then it must be actively promoted. In this case, the manufacturer needs budgets. The law limits aggregate payments to five percent. But this is not the main thing. The main thing is that even a discount in price will be significant only if it is given for a large volume.

So, the predicted consequences of amendments to the Law on Trade-2016 for manufacturers:

- Manufacturers with a large assortment of both liquid and assortment goods in the network will be able to actively develop their sales by redistributing budgets within the assortment portfolio.

- farmers, small producers, new players will not be able to hold promotions, since 5% of 100,000 rubles is 5,000 rubles. You will not be running this promotion! As a result, the product will be washed off the shelves. Or there is another option - to involve third-party agencies (not affiliated!!!) and pay their commission, since it is impossible to negotiate directly with the network.

- think over a model of work when adopting a new edition of 381 - FZ

– work out alternative distribution channels in case of termination of shipments in the network that required additional discounts

– find partners who will help you promote new products and new networks until sales reach a level where the statutory 5% will allow for effective rewards and promotion

– have an additional supply chain in case the new edition prohibits the payment of a logistics bonus

Truly partnerships, regardless of the change in the Law on Trade-2016, can only be built with the network that needs your product (included in the TOPs, better than competitors, solves important tasks for the network), you supply a fairly wide range of products, the level profitability within the assortment portfolio allows you not only to earn, but also to conduct an effective promotion, and the level of service tends to 100%.

Letter from the Federal Antimonopoly Service
№AK/60976/16 of 09/05/2016

EXPLANATIONS OF THE FAS OF RUSSIA ON SOME ISSUES OF APPLICATION OF THE FEDERAL LAW OF 12/28/2009 N 381-FZ "ON THE BASIS OF STATE REGULATION OF TRADING ACTIVITIES IN THE RUSSIAN FEDERATION" IN THE EDITION OF THE FEDERAL LAW OF 03.07.2016 N 273-FZ

1. Entry into force of the law.

Federal Law No. 273-FZ of July 3, 2016 "On Amendments to the Federal Law "On the Fundamentals of State Regulation of Trading Activities in Russian Federation"and the Code of the Russian Federation on administrative offenses"(hereinafter - Law N 273-FZ) amended the Federal Law of December 28, 2009 N 381-FZ "On the Basics of State Regulation of Trading Activities in the Russian Federation" (hereinafter - the Law on Trade).

In accordance with Part 1 of Article 3 of Law No. 273-FZ, this law enters into force 10 days after its official publication. The law was published on the official Internet portal of legal information www.pravo.gov.ru on 07/04/2016, therefore, the changes come into force on 07/15/2016.

Article 3 of Law N 273-FZ also provides for transitional provisions, according to which the terms of supply contracts and other contracts regulated by the Law on Trade and concluded before the date of entry into force of the specified federal law, must be brought into line with the Law on Trade (as amended by Law N 273-FZ) before 01/01/2017.

In accordance with Article 422 of the Civil Code of the Russian Federation, the contract must comply with the rules binding on the parties, established by law and other legal acts (imperative norms) in force at the time of its conclusion. If, after the conclusion of the contract, a law is adopted that establishes rules binding on the parties other than those that were in force at the conclusion of the contract, the terms of the concluded contract shall remain in force, except in cases where the law establishes that its effect extends to relations arising from previously concluded contracts.

Based on these provisions, it can be concluded that the terms of contracts related to the implementation of the provisions of the Law on Trade must be brought into line with the requirements of Law N 273-FZ before 01/01/2017.

The parties have the right to be guided by the terms of contracts concluded before 07/15/2016 until the terms of the contracts are brought into line with the requirements of the Law on Trade (as amended by Law N 273-FZ).

The deadline for fulfilling the obligation to bring the terms of contracts in line with the requirements of the Law on Trade (as amended by Law N 273-FZ) expires on 12/31/2016.

After the expiration of the specified period, the terms of the contracts that are contrary to the Law on Trade (as amended by Law N 273-FZ) will not be able to regulate the relations of the parties to the contract.

2. Action of the Law on a circle of persons.

Article 1 of the Law on Trade is supplemented by part 6, which provides that the antimonopoly rules, requirements, prohibitions on actions (inaction) of economic entities established by Chapter 3 of the Law on Trade also apply to actions (inaction) of persons belonging to the same group of persons in accordance with Federal Law No. 135-FZ of July 26, 2006 "On Protection of Competition" (hereinafter referred to as the Law on Protection of Competition).

The concept of a group of persons and the signs by which persons are included in this group are defined in Article 9 of the Law on Protection of Competition.

The introduction of this provision means that the antimonopoly body can recognize a violation of the antimonopoly law in accordance with Chapter 3 of the Law on Trade in relation to the actions of economic entities as part of their group of persons.

3. The concept of "trading network".

In the edition of the Law on Trade, a new concept of a trade network is given.

Trading network - a set of two or more trading facilities that legally belong to an economic entity or several economic entities that are part of the same group of persons in accordance with the Law on Protection of Competition, or a set of two or more trading facilities that are used under a single commercial designation or other means of personalization.

Previously, the concept of a trading network assumed a set of two or more retail facilities that are under general management, or a combination of two or more retail facilities that are used under a single commercial designation or other means of individualization.

Thus, the concept of a trading network has been brought into line with the conceptual apparatus of the Law on Protection of Competition.

4. Services for the promotion of goods.

The new version of the Law on Trade defines the concept of services for the promotion of goods, which include services provided to business entities that supply food products to retail chains in order to promote food products, including by advertising food products, carrying out their special display, research consumer demand, preparing reports containing information about such products, or carrying out other activities aimed at promoting food products.

It should be noted that the list of related services specific types services is not limited to this concept, since they may include services through the implementation of other activities aimed at promoting goods.

This means that the list of such services is open and other similar services may include services that are similar in essence to services for the preparation of goods, processing, packaging of these goods, services for the promotion of goods, including by advertising food products, selling them. special display, research of consumer demand, preparation of reports containing information on such products, or other activities aimed at promoting food products.

5. Access to information about the conditions for selecting counterparties.

The new wording of Part 1 of Article 9 of the Law on Trade provides that an economic entity carrying out trading activities through the organization of a trading network is obliged to provide an economic entity supplying food products with access to information on the conditions for selecting a counterparty for concluding a contract for the supply of food products and on essential conditions such an agreement by posting the relevant information on its website in the information and telecommunications network "Internet".

In turn, part 2 of Article 9 of the Law on Trade provides that an economic entity that supplies food products is obliged to provide an economic entity that carries out trading activities through the organization of a trade network with access to information on the conditions for selecting a counterparty for concluding an agreement on the supply of food products and on essential the terms of such an agreement, to information about the quality and safety of the supplied food products by posting relevant information on its website in the Internet information and telecommunication network.

It should be noted that the new version of these provisions provides for providing access to information on the procedure for selecting counterparties and on the essential terms of supply contracts only by posting information on the website of an economic entity on the Internet.

The above provisions excluded the alternative possibility of providing such information in the form of a response free of charge within fourteen days from the date of receipt of the relevant request.

6. Aggregate remuneration.

Part 4 of Article 9 of the Law on Trade (as amended by Law N 273-FZ) provides that the total amount of remuneration paid to an economic entity engaged in trading activities in connection with the acquisition of a certain amount of food products from an economic entity engaged in the supply of food products , and fees for the provision of services for the promotion of goods, logistics services, services for the preparation, processing, packaging of these goods, other similar services cannot exceed five percent of the price of purchased food products. When calculating the specified total amount, the amount of value added tax presented by an economic entity supplying food products to be paid to an economic entity engaged in trading activities in connection with the purchase of these goods is not taken into account, and in relation to excisable food products, the amount of excise tax is also not taken into account, calculated in accordance with the legislation of the Russian Federation on taxes and fees.

Thus, the norm contains two components:

Remuneration for the purchase of a certain amount of food products;

Payment for the provision of services for the promotion of goods, logistics services, services for the preparation, processing, packaging of these goods.

Thus, remuneration may be included in the supply contract and may be calculated as a percentage of the price of purchased food products.

According to paragraph 12 of Article 9 of the Law on Trade, the inclusion by an economic entity engaged in trading activities and (or) an economic entity supplying food products into a contract for the supply of food products of conditions on the performance by an economic entity engaged in trading activities in relation to the supplied food products of actions, related to the provision of services for the promotion of goods, services for the preparation, processing, packaging of these goods, other similar services, or the execution (implementation) of such an agreement in the relevant part is not allowed. Thus, the fee for the provision of services can be included in the contract paid provision services and is determined not in percentage terms, but in a fixed cost.

So, in the event that each specific service for the promotion of goods, a logistics service, a service for the preparation, processing, packaging of these goods, and other similar services provided by a trading network to suppliers in order to promote the supplied food products (hereinafter referred to as goods promotion services), are identical for all suppliers, that is, they have the same content and scope of actions, when providing services to different suppliers to promote goods, the trading network will incur equal costs. The establishment by the trade network of the price of the contract for the provision of services for the promotion of goods as a percentage of the turnover (the volume of the retail chain purchased from the supplier of food products in monetary terms for a certain period of time) will lead to the establishment of different prices for the same service for different suppliers of the trade network and will considered by the antimonopoly body as a violation of paragraph 1 of part 1 of Article 13 of the Trade Law.

The total amount of all payments for remuneration for the purchase of a certain amount of food products and for the provision of services for the promotion of these products, logistics services, services for the preparation, processing, packaging of these products should not exceed 5% of the price of purchased food products.

7. Extension of Article 9 of the Trade Law.

Law N 273-FZ supplemented part 13 of Article 9 of the Law on Trade, according to which business entities engaged in trading activities for the sale of food products through the organization of a trading network, and business entities supplying food products to retail chains, are prohibited from:

1) levying a fee or making a fee for the right to supply food products to functioning or opening trade facilities;

2) charging a fee or making a fee for changing the range of food products;

3) reimbursement of expenses in connection with the loss or damage to food products after the transfer of ownership of such goods, except in cases where the loss or damage occurred due to the fault of an economic entity supplying such goods;

4) reimbursement of expenses not related to the execution of the contract for the supply of food products and the subsequent sale of a specific batch of such products.

When the antimonopoly body establishes violations of the prohibitions named in part 13 of Article 9 of the Law on Trade, the antimonopoly body initiates an administrative offense case in accordance with the Code of Administrative Offenses of the Russian Federation (hereinafter referred to as the Administrative Offenses Code) without conducting an investigation into the case of violation of the antimonopoly law.

8. Bringing Article 13 of the Law on Trade in line with the main provisions of antimonopoly regulation.

Law N 273-FZ clarifies the antimonopoly requirements provided for in Article 13 of the Law on Trade. The changes introduced in this part involve the establishment of clear requirements for market participants and are aimed at combating the emerging negative practice of creating discriminatory conditions. It should be noted that these changes are aimed at bringing the norms establishing antimonopoly rules in the field of trading activities in line with legal framework and principles of antimonopoly regulation in the Russian Federation.

Thus, in accordance with Part 1 of Article 13 of the Law on Trade, economic entities engaged in trading activities for the sale of food products through the organization of a trading network, and economic entities supplying food products to retail chains, are prohibited from:

1) create discriminatory conditions determined in accordance with the Federal Law "On Protection of Competition";

2) create obstacles to access to the commodity market or exit from commodity market other business entities;

3) violate the pricing procedure established by regulatory legal acts;

4) to impose on the counterparty:

a) conditions on the prohibition to conclude contracts for the supply of food products with other economic entities engaged in similar activities, as well as with other economic entities on similar or other conditions;

b) conditions on liability for failure to fulfill the obligation of an economic entity to supply food products for more than favorable conditions than the conditions for other economic entities carrying out similar activities;

c) the conditions for the economic entity to provide the counterparty with information about the agreements concluded by this economic entity with other economic entities engaged in similar activities;

d) conditions for the reduction by an economic entity supplying food products of their price to a level that, subject to the establishment of a trade markup (margin) to their price, will not exceed minimum price such goods when they are sold by economic entities engaged in similar activities;

e) conditions for the return to an economic entity that has supplied food products of such goods that have not been sold after a certain period of time, except in cases where the return of such goods is allowed or provided for by the legislation of the Russian Federation;

f) other conditions that are not related to the subject of the contract and (or) containing essential features of the conditions provided for in subparagraphs "a" - "e" of this paragraph;

5) to conclude an agreement between themselves for the purpose of carrying out trading activities, under which the goods are transferred for sale to a third party without transferring the ownership of the goods to such a person, including a commission agreement, an agency agreement, agency contract or a mixed contract containing elements of one or all of these contracts, with the exception of the conclusion of these contracts within one group of persons, determined in accordance with the Law on Protection of Competition, and (or) the conclusion of these contracts between economic entities forming a trading network, or to execute (implement ) such contracts.

Accordingly, part 2 of article 13 of the Trade Law provides that an economic entity has the right to provide evidence that its actions (inaction) specified in part 1 of article 13 (with the exception of the actions specified in paragraph 4 of part 1 of this article) can be recognized as admissible in accordance with the requirements of part 1 of article 13 of the Law on Protection of Competition.

Thus, all clarifications of the FAS Russia prepared within the framework of the application of Article 10 of the Law on Protection of Competition may be applicable to the provisions of Article 13 of the Law on Trade, taking into account the specifics of the subject composition of Article 13 of the Law on Trade.

9. On the possibility of bringing to administrative responsibility for violation of the provisions included by Law N 273-FZ in the Law on Trade and the Code of Administrative Offenses of the Russian Federation.

Article 3 of Law N 273-FZ provides that although Law N 273-FZ enters into force ten days after the day of its official publication, the terms of supply contracts and other contracts regulated by the Law on Trade and concluded before the date of entry into force of Law N 273-FZ must be brought into line with the Law on Trade (as amended by Law N 273-FZ) before 01/01/2017.

According to part 1 of Article 1.7 of the Code of Administrative Offenses, a person who has committed an administrative offense is subject to liability on the basis of the law in force at the time the administrative offense was committed.

At the same time, Part 1 of Article 54 of the Constitution of the Russian Federation establishes a rule according to which a law establishing or aggravating liability does not have retroactive effect.

In this case, the inclusion in the Trade Law additional requirements to the content of the terms of the relevant agreements, for the violation of which administrative liability may arise, as well as the expansion of the scope of certain articles of the Code of Administrative Offenses worsens legal status such subjects.

Therefore, if the terms of contracts concluded before 07/15/2016 and subject to regulation by the Law on Trade do not meet the requirements introduced by Law N 273-FZ, then until 01/01/2017 a person cannot be held administratively liable for the execution of the relevant contracts.

However, if the contracts were concluded after July 15, 2016 on terms that do not comply with the Law on Trade as amended by Law N 273-FZ (date of entry into force of Law N 273-FZ), the perpetrators are subject to administrative liability on the basis of the Code of Administrative Offenses.

10. On bringing to administrative responsibility for violation of the provisions of the Law on Trade.

In order to ensure the implementation and application of the requirements of the Law on Trade, Articles 14.40 - 14.42 of the Code of Administrative Offenses provide for liability for violation of antimonopoly rules and requirements established by law in the course of trading activities.

Law N 273-FZ amended the dispositions of the relevant articles of the Code of Administrative Offenses, which provide for prohibitions and administrative responsibility not only for the inclusion of prohibited conditions in the provisions of contracts, but also for the execution (implementation) of such conditions.

The grounds for bringing persons to administrative responsibility under Articles 14.40 - 14.42 of the Code of Administrative Offenses are violations of antimonopoly rules (Article 14.40), requirements for providing information on the conditions for concluding a contract for the supply of food products (Article 14.41) and requirements for the conditions for concluding a supply contract food products (Article 14.42) established by the Trade Law.

In accordance with Part 1 of Article 23.48 of the Code of Administrative Offenses, the federal antimonopoly body, its territorial bodies consider cases of administrative offenses, liability for which is established by Articles 14.40 - 14.42 of the Code of Administrative Offenses.

The procedure and terms for bringing persons to administrative responsibility under these articles are established by the provisions of the Code of Administrative Offenses.

In accordance with Part 1 of Article 4.5 of the Code of Administrative Offenses, a decision in a case on an administrative offense cannot be issued after two months from the date of the commission of an administrative offense, and for violation of the legislation of the Russian Federation on the basics of state regulation of trading activities and for violation of the antimonopoly legislation of the Russian Federation after one years from the date of commission of the administrative offense.

In case of a continuing administrative offense, the time limits provided for by Part 1 of Article 4.5 of the Code of Administrative Offenses begin to be calculated from the day the administrative offense is discovered (Part 2 of Article 4.5 of the Code of Administrative Offenses).

In accordance with Part 1 of Article 2 of the Law on Protection of Competition, the antimonopoly legislation of the Russian Federation is based on the Constitution of the Russian Federation, Civil Code of the Russian Federation and consists of this Federal Law, other federal laws regulating the relations specified in Article 3 of this Law.

Article 13 of Chapter 3 of the Law on Trade establishes antimonopoly rules for economic entities engaged in trading activities and economic entities engaged in the supply of food products.

Therefore, the said provision of the Commerce Act is integral part antimonopoly legislation, liability for violation of which is established by Article 14.40 of the Code of Administrative Offenses.

Part 1.2 of Article 28.1 of the Code of Administrative Offenses establishes that the reason for initiating cases of administrative offenses provided for in Article 14.40 of this Code is the adoption by the commission of the antimonopoly body of a decision, which established the fact of violation of the antimonopoly legislation of the Russian Federation.

Thus, cases of administrative offenses, liability for which is provided for by Article 14.40 of the Code of Administrative Offenses, are initiated from the moment the decision of the commission of the antimonopoly body, which established the fact of violation of the antimonopoly legislation of the Russian Federation, comes into force.

At the same time, it should be taken into account that for the commission of prohibited actions listed in Article 14.40 of the Code of Administrative Offenses, business entities may be held administratively liable, taking into account the statute of limitations established by Part 1 of Article 4.5 of the Code of Administrative Offenses, i.e. within one year from the date of committing an administrative offense, and in the case of a continuing offense within one year from the moment of its discovery.

According to part 6 of Article 4.5 of the Code of Administrative Offenses, the statute of limitations for bringing to administrative responsibility for administrative offenses provided for in Article 14.40 of the Code of Administrative Offenses begins to be calculated from the date of entry into force of the decision of the commission of the antimonopoly authority, which established the fact of violation of the legislation of the Russian Federation.

For violation of other provisions of the Law on Trade (including violation of Article 9), liability is provided for under Articles 14.41 and 14.42 of the Code of Administrative Offenses.

The statute of limitations for bringing to administrative responsibility under Articles 14.41 - 14.42 of the Code of Administrative Offenses is determined in accordance with Part 1 of Article 4.5 of the Code of Administrative Offenses - within a year from the date of the administrative offense, and if it lasts from the day of detection.

In this case, according to Part 1 of Article 28.1 of the Code of Administrative Offenses, the reasons for initiating a case on an administrative offense are:

Direct detection officials authorized to draw up protocols on administrative offenses, sufficient data indicating the presence of an event of an administrative offense;

Received from law enforcement, as well as from other government agencies, organs local government, from public associations materials containing data indicating the presence of an event of an administrative offense;

Communications and statements by individuals and legal entities, as well as messages in the tools mass media, containing data indicating the presence of an event of an administrative offense.

Therefore, for administrative offenses under Articles 14.41 and 14.42 of the Code of Administrative Offenses, an administrative offense case is initiated immediately after the official receives sufficient data indicating that an administrative offense has been committed in the field of trade legislation (without conducting an investigation into the case of violation of antimonopoly legislation).

A.B.KASHEVAROV

In the summer of 2016, the President of the Russian Federation introduced amendments to the legislation on trade, designed to limit the "appetite" of retail chains and reduce the costs of suppliers and manufacturers. Federal Law No. 273-FZ of July 3, 2016 changes the practice of collecting bonuses by networks and creates more or less tolerable conditions for doing business. Especially for BUKH.1C, the law was analyzed by a taxation expert Igor Karmazin.

Relations between retail chains and their suppliers cannot be called fully mutually beneficial. Rather, we can talk about the dictatorship of sellers over manufacturers and suppliers, and not about equal partnership. Knowingly taking advantage of a more advantageous position in the market, chains freely impose their pricing and assortment policy, especially disregarding the interests of counterparties.

Under the guise of voluntary payments, suppliers are forced to pay out of their own pockets all kinds of premiums, bonuses and other fees for no one necessary services allegedly rendered by merchants in favor of suppliers. For example, services for the promotion of goods, services for the preparation, processing, packaging and placement of goods on racks and others.

As a result, the goods on the shelves are not the most conscientious and honest manufacturers, but those who offer the store the greatest bonus. The higher the reward, the higher the chance to sell your product. The main one who suffers from the arbitrariness of networks is the domestic commodity producer. It is he who often remains out of work, because not only cannot he find outlets to sales points, but even if he does, he cannot work on the draconian conditions that they offer.

In order to resolve the situation described above, in the summer of 2016, the President of the Russian Federation introduced amendments to the legislation on trade, designed to limit the “appetite” of retail chains and reduce the costs of suppliers and manufacturers. Federal Law No. 273-FZ of July 3, 2016 changes the practice of collecting bonuses by networks and creates more or less tolerable business conditions for suppliers. A feature of the law is that it tries not to infringe on the interests of either side. Stores will continue to collect their bonuses, and suppliers will continue to pay them. True, on a smaller scale. It turns out that both the wolves are full and the sheep are safe.

What changed

The law establishes that retail chain can take remuneration from suppliers, but with a number of limitations. The name of this legalized bonus is a reward for purchasing a certain amount of food products from a supplier.

The exact amount of the bonus is subject to mandatory agreement by the parties to the contract, inclusion in its price and is not taken into account when determining the price of food products. Moreover, the legislator has limited the total amount of all kinds of bonuses.

By the way, the reward for the purchase of goods now includes a bonus for their promotion on the market. Total value the bonus cannot exceed 5% of the value of the purchased goods (Part 4 of Article 9 of the Federal Law of December 28, 2009 N 381-FZ "On the Fundamentals of State Regulation of Trading Activities"). This also includes payment for all logistics services, services for the preparation, processing, packaging of food, giving it a presentation and other similar services. Only the amount of VAT and excise is not taken into account. Recall that earlier current rules, maximum size retro bonus (for the purchase of a certain number of goods) was 10% of the product price. Moreover, the value of other bonuses was not regulated at all. Thus, fees from suppliers have decreased not even twice, but more.

In order to prevent abuse by networks, the amendments supplement the law on trade with a rule that discloses content of promotion services(Clause 10 of Article 2 of Federal Law No. 381-FZ of December 28, 2009). They are understood as advertising of goods in booklets, mass media, etc., their special display, consumer demand research, preparation of reports containing information about these goods. Such services are included in the total 5% bonus and are not paid in excess of this amount.

All other payments to retail chains, no matter how they are called, and no matter on what basis they are charged, are now expressly prohibited. Specifically, the law prohibits retail chains from:

• charge a fee for the right to supply food products to stores;
• establish a reward for changing the range of food products;
• charge a fee to cover expenses not related to the execution of a contract for the supply of goods and the subsequent sale of a specific batch of such goods;
• reimburse suppliers for expenses in connection with the loss or damage to food products after the transfer of ownership of such goods (except in cases where the loss and damage occurred due to the fault of the supplier).

Commitment shopping actions for illegal collection of fees and reimbursement of expenses at the expense of suppliers will entail the imposition of an administrative fine. Officials (managers responsible for concluding and executing transactions) will be fined from 20 to 50 thousand rubles. The stores themselves will be liable in the form of a fine in the amount of one to 5 million rubles.

It will not be possible now to evade responsibility on the grounds that the violating subject allegedly does not belong to the trading network. Previously, such a possibility existed, for example, when several organizations were the owners of the store at once. Now, to exclude it, Article 2 of the Federal Law of December 28, 2009 N 381-FZ specifies and expands the concept of a trading network.

It is now understood as a set of two or more retail facilities owned by an economic entity or several entities that form one group of persons. Also, networks include objects that are used under a single commercial designation or other means of individualization.

Another constraint for retailers there was a limitation of the terms of payment for the delivered goods. The law establishes the exact terms of payment, taking into account the expiration date of the food. This was done in order to prevent the now widely practiced possibility of interest-free lending to networks. For example, when goods are shipped to warehouses at the beginning of the year, and paid only in the middle. Or as implementation, full or partial.

In accordance with the new rules, foodstuffs with a shelf life of less than 10 days are subject to payment no later than 8 working days. Products with a shelf life of 10 to 30 days inclusive are subject to payment no later than 25 calendar days. For food with a shelf life of more than 30 days and alcoholic products deadline payment - 40 calendar days.

These terms are calculated from the day of delivery of goods to the distribution network. Not later than three working days after that, the supplier will be obliged to transfer the documents related to the supply, and the distribution network is obliged to accept them.

Also, retail chains were forbidden to conclude contracts for the implementation of trading activities, according to which the goods are transferred for sale to a third party without transferring ownership of these goods to him. prohibited in this area. the following types contracts:

• commission agreement,
• commission agreement
• agency contract.

Violation of this prohibition is subject to a fine. A fine is imposed on officials in the amount of 10 to 50 thousand rubles; for legal entities - from 1.5 to 4.5 million rubles.

Installed at the same time ban on imposing unfavorable conditions on suppliers transactions. For example, the following conditions of concluded transactions fell under the direct ban:

• conditions on the impossibility of concluding contracts for the supply of goods with other wholesalers;
• on liability for failure to fulfill the obligation to supply goods on more favorable terms than other buyers;
• return of unsold goods;
• on discriminatory reduction in the cost of food products by suppliers;
• on providing information on concluded supply contracts with other business entities;
• all other conditions not directly related to the subject of the contracts.

In the event that such conditions were nevertheless included in the text of the agreement, they are recognized as invalid in the relevant part from the moment the transaction was made.

Amendments extended the statute of limitations for administrative liability for violations of the legislation on state regulation of trade activities. The term has been extended to 1 year. During this time, as legislators believe, it is quite possible to hold chains and their suppliers accountable for violating antitrust rules. Remember, the statute of limitations for such violations was 2 months.

An additional guarantee of compliance with the rights of suppliers is expansion of powers of the Federal Antimonopoly Service of Russia. Prior to that, it was entrusted only with control over compliance with the requirements and prohibitions of antimonopoly legislation. Now the service will conduct checks on the facts of imposing onerous terms of transactions on food suppliers. Confirmation during the verification of such a fact will be the basis for holding the trading network liable in the form of a fine. The FAS is also responsible for creating conditions for increasing demand for goods from Russian manufacturers.

What to expect for retailers, their suppliers and consumers

The law has been in effect since July 15, 2016. From now on, all new contracts concluded by retailers with their suppliers must comply with the new requirements. At the same time, the terms of supply contracts that were concluded before the entry into force of the law remain in force. But if the parties do not bring them into line with the new legislation by January 1, 2017, then such agreements will be recognized as invalid.

Legislators believe that the implementation of these amendments in practice will play into the hands of not only domestic producers who will be able to invest the funds saved on bonuses in business development, but also to end consumers. In theory, reducing the cost of extorting networkers can quite naturally lead to a decrease in the cost of food.

However, skeptics believe otherwise. The law offers measures to protect only suppliers and manufacturers. He says nothing about consumers. The new rules do not contain any effective obstacles to raising retail prices. And if suppliers really can defend their right to reduced bonuses in court, or, say, in the antimonopoly service, then buyers will not receive any advantages compared to the previous procedure. On the contrary, there is a high probability that the drop in income of networks will now be compensated just at the expense of end consumers.

Trade is the most important branch of the economy. The turnover of goods, carried out both within the state and on the international market, is the main component state economy. And yet, trade is not an economically sustainable industry. Given the rapidly changing economic environment in the country, the trade law requires regular updates.

Federal Law No. 381-FZ “On the Fundamentals of State Regulation of Trade Activities in the Russian Federation” was adopted by the State Duma on December 18 and approved by the Federation Council on December 25, 2009. The law in question came into force on December 28 of the same year.

The current regulation consists of 5 chapters and 22 articles. Like other federal laws of the Russian Federation, FZ-381 regularly undergoes a series of necessary amendments. Latest amendments entered into the actual document July 3, 2016. Changes introduced in this way to the Federal Law on Trade, with January 1, 2017 years entered into force.

The provisions of the normative act regulate financial, economic, legal and social relations arising in the sphere of trade. This Federal Law establishes the basis for the federal regulation of trading activities on the territory of the Russian Federation.

This Federal Law on Trade has the following objectives:

• Ensuring the synthesis of subjects of the economic space of the Russian Federation by establishing a set of rules in the field of trade;
• Promoting the expansion of economic ties to meet the needs of economic sectors;
• Guarantee of observance of the legal rights of participants in trading activities;
• Separation of powers of state and regional authorities regarding trade.

The standards established by the valid law on trade do not apply to relationships formed as a result of:

• Foreign trade;
• Trading organizations;
• Sales of products in retail markets;
• Acquisition and sale of shares, real estate, heat and electricity.

In addition, we suggest studying the norms of Federal Law 208 on joint-stock companies. Last revision

Basic concepts

The list of basic terminology used in this Federal Law on Trade includes the following concepts:

• Trading activity (trade)- the type of activity consisting in the purchase and sale of goods;
• Wholesale- buying or selling goods in bulk;
• Retail- sale or purchase of goods in a single copy or in small lots for personal purposes;
• Trade facility- a place intended for the demonstration and sale of products sold;
• Stationary trade facility- TO, located in the building;
• Non-stationary trade facility- mobile or mobile TO;
• Commercial network- a complex of two or more TOs belonging to a certain subject or subjects, in accordance with the provisions of the Federal Law "On Protection of Competition";
• Foodstuffs- food, alcohol and drinks;
• Services for the promotion of goods- services in the field of advertising in order to promote a particular product in the market conditions.

A complete list of the terminology used in Federal Law 381 is provided in Art. 2 of this Federal Law.

In order to study in detail the provisions of the law under consideration, it is necessary to familiarize yourself with its text. The current text of the Federal Law "On the basics of state regulation of trading activities in the Russian Federation" N 381-FZ latest version can be downloaded

Amendments to the law on trade

The last significant amendments to the Federal Law on Trade were made on July 3, 2016. The Federal Law “On Amendments to the Federal Law “On the Basics of State Regulation of Trading Activities in the Russian Federation” and the Code of the Russian Federation on Administrative Offenses” N 273-FZ became the amending document.

According to the current amendments, the text article 9, paragraph 4 states that an economic entity may be credited with a monetary reward for carrying out the necessary operations to provide food products. The amount of remuneration is determined and agreed upon by the trading parties.

The amendments made to article 13 of the current Federal Law, the prohibitions imposed on the host subject are clarified. An economic enterprise supplying food products is not authorized to:

• Violate the provisions of the current regulatory act "On Protection of Competition";
• It is unlawful to overestimate or underestimate prices;
• Prohibit the counterparty from cooperating with other suppliers;
• Block other suppliers from entering the market.

Deferment of payment under the law on trade

According to the amendments made to part 7 of the article under consideration, its text decides that the term of payment for food products is determined as follows:

• Goods with a short shelf life (up to 10 days) paid no later than 8 working days from the date of their delivery;
• Food with an average shelf life (from 10 to 30 days) paid within 25 calendar days;
• Products with an expiration date exceeds 30 days, must be paid within 40 calendar days from the date of receipt.

In comparison with the indicators of last year, the maximum installment terms for already delivered goods are reduced by 5-10 calendar days.

The main criterion for the installment plan is the period of acceptable storage of the supplied products. Thus, the relationship between the supplier and the recipient becomes more transparent, which makes it possible to improve the quality of the trading process itself.

Outbound trade

Outbound trade is an activity strictly regulated by this regulatory act. First of all, the mobile structure on which the goods are located should not interfere with vehicular traffic and pose a danger to the health and lives of buyers.

The seller-realizer must have a certificate of conformity or a declaration that allows him to engage in trading activities. In most cases, all necessary documentation provided to the seller by the supplier of goods or the owner of the mobile shop.

The mobile structure must comply with technical and sanitary standards. In case of violations, the person carrying out activities in the area in question will be called to account in accordance with the provisions of the valid law.

On July 15 this year, new amendments to the law on trade came into force, which caused a great stir in the press. Many experts called it excessively harsh and disastrous for the industry, while others called for the adoption of the law in the most stringent form. Branch agrarian and trade associations urged to abandon state regulation and give everything at the mercy of the market. However, the law was adopted with quite serious changes for the market.

Milknews got acquainted with the clarifications of the Federal Antimonopoly Service, which were sent to all territorial bodies FAS Russia for use in the work of antimonopolists.

1. Entry into force of the law

The amendments entered into force 10 days after its official publication. Thus, from July 15, a new version of the law on trade has been in force. At the same time, please note that your supply contracts or other contracts are not invalidated. They must be brought into line with the new law by January 1, 2017. Only then those contracts, the terms of which are contrary to the law on trade, will lose their force.

It is clarified that “if, after the conclusion, a law is adopted that establishes rules binding on the parties other than those that were in force at the conclusion of the contract, the terms of the concluded contract shall remain in force, unless the law establishes that its effect applies to relations arising from earlier signed agreements."

2. The effect of the law on the circle of persons

Antimonopoly requirements, according to the new rules, apply to all persons included in the same group with an economic entity.

3. The concept of "trading network"

A new concept of "trading network" has appeared. This is a combination of two or more retail facilities that legally belong to an economic entity or several economic entities included in the same group of persons in accordance with the Law on Protection of Competition, or a combination of two or more retail facilities that are used under a single commercial designation or other means individualization."

Prior to this, the concept of “trading network” meant only a set of two or more retail facilities that are under common management, or a set of two or more retail facilities that are used under a single commercial designation or other means of individualization.

4. Services for the promotion of goods

These include services provided to business entities that supply food products to retail chains in order to promote food products, including by advertising food products, carrying out their special display, researching consumer demand, preparing reports containing information about such products, or carrying out other activities aimed at their promotion.

FAS notes that this is not an exhaustive list. Services may be different. This list is open and may include similar services.

5. Access to counterparty information

Under the new law, the network is obliged to provide the supplier with access to information on the conditions for selecting counterparties on its official website.
Suppliers in relation to the network are obliged to provide access to information about the conditions for selecting a counterparty and the quality and safety of the supplied food products and publish this data on their official website.

FAS clarifies that it used to be alternative way- response to the request within 14 days from the date of its receipt. Now - only the publication on the site.

6. Aggregate remuneration

The new version provides that the network's remuneration for the purchase of goods and its promotion cannot exceed 5% of the price of the purchased goods.
When calculating the amount of remuneration, the amount of value added tax charged by the network supplier in connection with the purchase of goods is not taken into account, and in relation to excisable goods the amount of excise tax is also not taken into account.

Thus, the norm contains two components:

• reward for the purchase of goods;
• payment for the provision of promotion services.

The first - remuneration - can be included in the supply contract and can be calculated as a percentage of the price of the goods.
The second - payment for the provision of services - cannot be included in the supply contract. The payment for the provision of services must be drawn up separately - by a contract for the provision of services for a fee, and their cost must be fixed by the exact cost.

If all network services for all providers are identical (have the same content and scope of action), then the cost for all should be the same. And if the cost of these services is calculated as a percentage of the turnover, then the amount for different suppliers will be different, and this is contrary to the law, FAS writes.

There are new restrictions:

• it is impossible to charge a fee for the right to supply products to functioning or opening stores;
• you cannot charge a fee for changing the supplier's product range;
• no reimbursement can be made for loss or damage after a transfer of ownership from the network provider unless the provider is at fault;
• it is generally not possible to collect reimbursement of expenses not related to the execution of the supply and sale contract.

If the Federal Antimonopoly Service finds out that someone is still charging something, it will initiate an administrative offense case without conducting an investigation.

8. New methods of combating discrimination

The new law prohibits:

• create discriminatory conditions,
• create barriers to market access;
• violate the established procedure for pricing;
• enter into an agreement with third parties and transfer goods to them for a commission without transferring ownership of these goods, conclude an agency agreement, an agency agreement or a mixed one. This can be done only on the condition that this is one group of companies, and then the FAS must provide evidence of the admissibility of such agreements;
• impose on the supplier:

- conditions on a ban on the conclusion of supply contracts to other networks on similar terms;
- conditions on liability for non-delivery on more favorable terms than for another network;
- conditions for the supplier to provide information to the network about other contracts with networks and their conditions;
- conditions for the supplier to reduce the price to a level that, if the surcharge is established, will not exceed the minimum price in another network;
- conditions for the return of unsold products, if this is not allowed by law;
other conditions not related to the subject of the contract.

9. Responsibility for violations of the law on trade

The basis for liability under Articles 14.40 - 14.42 will be violations of antimonopoly rules, requirements for the provision of information and requirements for the conditions for concluding contracts.

The prohibition and administrative liability for violation of the rules is provided not only for those who included the prohibited conditions in the contract, but also for those who fulfill such an agreement.

The decision in the case of administrative violation cannot be issued by the FAS or Terogran after 2 months from the date of the violation. If the law on trade and antimonopoly law is violated, then the period is extended to 1 year. If the violation continues, antimonopoly officials start counting from the date the violation was discovered.

The reason for initiating a case under Article 14.40 is the adoption by the commission of the antimonopoly body of a decision, which established the fact of a violation. The limitation period for bringing to responsibility is calculated from the day the decision of the commission comes into force.

The statute of limitations under Articles 14.41-14.42 is a year from the date of discovery, and in the case of a continuing violation, also a year from the date of discovery.

Reasons:

• detection by officials of sufficient data indicating a violation,
• materials about the violation received from law enforcement agencies, government agencies and local governments, as well as public associations;
• messages and statements of legal and individuals and media reports containing data indicating the presence of an event of wrongdoing.

Cases are initiated immediately upon receipt of sufficient data - without investigation.