The Moscow Arbitration Court is considering a case on the recovery of excessive "discounts"

The Moscow Arbitration Court is considering a case on the recovery of excessive "discounts".

If the Moscow Arbitration Court satisfies the suit, a dangerous precedent for the wholesale trade industry will be created for collecting "discounts" in excess of the distributor's fee for services rendered, established by law. Moreover, the application of the norms of FZ-381 (Law on Trade) has been repeatedly clarified by the regulatory body - the Federal Antimonopoly Service.

The dispute arose between LLC Palmira Volga, which filed a lawsuit against the manufacturer and supplier of alcoholic and non-alcoholic products, JSC AB InBev Efes, with which it had a distribution agreement.

The plaintiff intends to recover from the defendant about 700 million rubles of debt under the distribution agreement and about 40 million more penalties. The requirements of LLC "Palmira Volga" are in direct conflict with the norms of the law. In paragraph 4 of Art. 9 FZ-381 states that the distributor's total payment for services rendered (including remuneration for the purchase of a certain product size and promotion fee) cannot exceed 5% of the value of the goods.

Meanwhile, Palmira LLC presents "discounts" and "stimulating payments" to JSC "AB InBev Efes" and believes that it did not receive 700 million rubles under the contract. The lawsuit also ignored the repeated explanations of the FAS, the regulator has repeatedly confirmed that the establishment in the contract by the distributor of a fee for its services in excess of 5% does not comply with the law.

The decision of the court in the case can significantly affect the entire wholesale trade, create a new judicial practice. An increase in supplier costs, caused by an increase in rates under an agreement with a distributor, will inevitably lead to higher prices for goods and, possibly, in the long term, to a reduction in jobs.

A similar case has already been considered by the Arbitration Court in the capital, case A12-39543/2018. Then all three instances agreed that from the moment the distributor purchases the goods, he independently makes decisions regarding the conclusion of contracts and the provision of discounts to end consumers, that is, he bears all possible entrepreneurial risks.

Currently, an expert examination has been carried out in case A40-86365/21 to establish the volume of services rendered and unpaid, the hearing on the case has been resumed.

At the same time, the defendant is one of the largest beverage producers in Russia and the largest taxpayer. Despite the revocation of the license for the production of beer (Bud brand) in the Russian Federation by foreign partners, the company continues to develop a line of non-alcoholic products and support employees in Russia and Ukraine, where it has three breweries.

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