The Russian Ministry of Justice has proposed a means to contest the clarifications federal executive bodies issue

Currently, there is no opportunity to challenge the acts of federal executive bodies that contain clarifications of legislation pertaining to unspecified persons, for example, the letters of the Federal Tax Service (FTS) of Russia or the clarifications of the Russian Finance Ministry and the Federal Customs Service of Russia, because they are not formally legal acts, according to the Arbitration Procedure Code (AC) and Code of Civil Procedure (CP).

In addition, the interpretation of the Russian Supreme Court of paragraph 9 of the resolution of the Plenum of the Supreme Court, from 29 November 2007, No. 48, On the practice of hearing cases on challenging normative legal acts in their entirety or in part, does not consider explanations and other acts of this kind as regulatory legal acts (RA). For this reason, citizens and organizations do not have the opportunity to contest regulatory letters, explanations, and other acts of the public authorities that violate their rights and interests. There also is the risk of establishing regulatory requirements for which the legislature has not provided. As a result, the Ministry of Justice of the Russian Federation has developed a package of bills that make changes to the Constitutional Law, On the Supreme Court of the Russian Federation, the Code of Administrative Procedure of the Russian Federation (RF CAP), and the Tax Code that will establish a mechanism for challenging clarifications with regulatory properties.

The decision of the Constitutional Court of the Russian Federation of 31 March 2015, No. 6-P/2015, prompted the Russian Ministry of Justice to initiate a change in the law. The Constitutional Court considered the complaint of Gazprom Neft about the unconstitutionality of paragraph 1, part 4, article 2 of the Constitutional Law, On the Supreme Court of the Russian Federation, which does not allow challenges to letters and clarifications of federal departments and agencies. The applicant appealed to the Constitutional Court because the Supreme Court and Supreme Arbitration Court (case number BAC-898/14) declined to hear the case challenging the letters of the FTS, On the tax on extraction of mineral resources, which, according to the applicant, obliged the taxpayer to recalculate the Mineral Extraction Tax, even though the tax legislation had not required such action. The company claimed that the letter had the character of a regulatory act because it had an obligatory character. However, the higher courts decided that the FTS document had no regulatory characteristics and refused to hear the case.

The Constitutional Court, confirming the position of Gazprom Neft, rejected the formalistic approach of the higher courts to the interpretation of the term “legal act” and declared paragraph 1, part 4, article 2 of the Constitutional Law On the Supreme Court of the Russian Federation unconstitutional because it promotes legal uncertainty about the grounds and conditions for contesting acts of public authorities that contradict the true meaning of the provisions of the legislation. In addition, the Constitutional Court pointed out the lack of a mechanism to challenge such acts in principle. However, the Constitutional Court noted that not every explanation of any public authority may be subject to challenge, only those acts of executive authority with regulatory characteristics, that is, when the normative character of such acts involves the regulatory impact on social relations, the imposition of regulations on the rights and responsibilities of an indefinite number of people, and the possibility of repeated use.

When the Constitutional Court adopted Decree 6-P / 2015, of 31 March 2015, Russia’s Finance Ministry withdrew the letter of the FTS, dated 11 June 2015, that contradicted the legislation.

The Russian Ministry of Justice has developed a procedure of contesting regulatory clarifications in order to deal with the publication of regulatory clarifications that distort the law. In particular, paragraph 4, article 2 of Constitutional Law, On the Supreme Court of the Russian Federation, establishes the authority of the Supreme Court, as a court of first instance, to hear cases that challenge the acts of the federal executive bodies that are not formally regulatory legal acts but that have regulatory characteristics.

The RF CAP determines how the courts will try such cases. Under the proposed change, the Supreme Court is to resolve cases of this type, based on Chapter 21, which determines the proceedings for challenging normative acts in administrative cases. Finally, the new version of Article 333.19 of the Tax Code will determine the fees the state will charge to hear the case.

Despite the obvious need for such a mechanism to protect the rights of citizens and organizations, the legal community criticized this package of bills because the proposed changes are superficial. The Russian Ministry of Justice has not included important details in the draft, such as the mechanism to deny unreasonable administrative claims, bounds for the consideration of applications, and the criteria for normative clarification that the Decree of the Constitutional Court identified. According to experts, the bill requires significant improvement. Nevertheless, since the final text is not yet approved, legislators can correct faults during the legislative initiative stage or in the State Duma, during the consideration of draft amendments.