BASE MODEL DECISION. THE COURT OVERTURNED THE INJUNCTION TO RECOVER 245 MILLION RUB FROM UFA-INVEST

Elena Gladysheva, Managing Partner of RI-Consulting, comments to Kommersant on the dispute about the violation of the Federal Law "On Protection of Competition". Are there any prospects for consideration by the RF Supreme Court and how justified and lawful is the decision of the cassation, given that the two previous instances denied Ufa-Invest?

"Based on the texts of judicial acts in the case, there are indeed violations at the conclusion of disputed transactions. As it can be seen from the decision of the Arbitration Court of the Ural district dd. 16.11.2022, the exchange, aimed at obtaining a warehouse complex and the land under it, is sham.
Moreover, the subsequent allocation and alienation of the land plot under the warehouse complex acquired by Ufa-Invest LLC was also inadmissible, given the existence of a valid agreement on integrated development of the land plot territory from which the plot under the disputed object was allocated, as well as the lack of competitive procedures. The courts also reasonably established that the allocation of the land for a warehouse complex does not correspond to the main types of permitted use for the specified territorial zone, the said site could not be granted to Ufa-Invest LLC.
In this case, the reasons that led to the cancellation of judicial acts of the first and second instance, are significant and irremovable in the proceedings: the FAS issued the prescription to eliminate violations only to Ufa-Invest LLC; no such order was issued in respect of the second party transaction (the Ministry of Land and Property Relations of the Republic of Bashkortostan).
Therefore, in the absence of appropriate actions on the part of the Ministry of Property, it seems impossible to eliminate the violations (according to the FAS order) for Ufa-Invest LLC, even if Ufa-Invest LLC terminates the exchange agreement, this will not bring the parties to the original situation. This will require actions to terminate / contest the exchange agreement, bilateral restitution, registration of the ownership transfer to the warehouse complex and the allocated land plot, changing the permitted use of the land plot, etc. Consequently, in the absence of these actions, the requirements of the FAS order cannot be unilaterally fulfilled by Ufa-Invest LLC.
The position of the RF Supreme Court on this dispute will certainly be very useful in terms of eliminating legal uncertainty: on the one hand there is a violation of the Federal Law "On Protection of Competition" and it is obvious, but on the other hand one person, with inaction of the other, cannot eliminate the violations on their own," - noted the advocate.

READ MORE ABOUT THE CASE IN THE PUBLICATION

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