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Food Industry News

"New topics" circumvention of the law "On Trade"

In the scheme of payment of bonuses and rewards between grocery chains and suppliers, a new element may appear - charitable foundations. But the FAS is already preparing to look for “new plots” in the operation of networks from January 1 and 2017.

"The monitoring [of retail chains], which will be carried out on January 1, may show new stories that we do not yet know about," announced Timofey Nizhegorodtsev, head of the social sphere and trade control department of the Federal Antimonopoly Service, commenting on the latest changes in the antimonopoly regulation of retail trade and upcoming checks.

As a reminder, from January 1, 2017, amendments to the Law "On Trade" and the Administrative Offenses Code will fully work, providing, in particular, a 5% limit on the aggregate amount of remuneration for networks (previously, payments reached 10%). This reward also includes expenses for marketing campaigns and a logistics bonus. Previously, suppliers paid extra for them.

How exactly the networks and suppliers will bypass this limitation, the FAS does not make forecasts yet. “Our task is to see all this and, if this practice is unfair, to reflect it accordingly in the legislation,” said Nizhegorodtsev. According to him, the inspections of the networks will be "continuous and unscheduled": "We are awaiting a corresponding order from the government."

Retailers have already begun to prepare for a new supply campaign in 2017 and, as RBC found out, schemes have already appeared on the market that allow chains and suppliers to regulate the amount of remuneration - the main element of the law, for which there has been a dispute between chains and the regulator for many years.

Margarita Semikova, director of the Novosibirsk charitable foundation "Constellation of Hearts", told RBC that in early September a representative from a group of manufacturers approached her organization with a proposal to conclude an agreement. The subject of the agreement was that a large retail chain (Semikova refused to name its name) would provide assistance to the charitable foundation in the form of a gratuitous transfer of gift cards in the amount of 1 million rubles. At the same time, in reality, the cards were purchased from a retailer using funds from a group of manufacturers that did not appear in the contract in any way.

The negotiator who applied to the fund explained that the cards are returned to the store, and the fund for intermediary services would keep 10% of the indicated amount. According to Semikova, the documents and the scheme itself were developed by lawyers of the trading network.

In "Constellation of Hearts" they refused such cooperation. “We help in different directions - cancer patients, children; we go through a regular audit, and we need to show that specific people really received help, ”explains Semikova. In response, she said, the negotiator confessed that Constellation of Hearts had become the sixth charity to be rejected. At the same time, in the future, he intended to turn to animal rights activists. It is much more difficult to check that the animals received targeted assistance in full, Semikova explains.

A representative of the Helping Hand charitable foundation, which also operates in Novosibirsk, confirmed that a similar proposal was addressed to them and was also refused.

GOOD ROLLBACK

A representative of a major player in the food market is also aware of the appearance of proposals to charitable organizations. “When they began to develop the amendments, the lawyers of many retail chains tried to find a solution in free, in fact, formats of money laundering. Antimonopoly authorities usually do not check work with charitable organizations, since this is not included in the inspection zone, ”said the interlocutor of RBC.

A representative of another manufacturing company noted that the scheme with gift cards and funds is possible, however, only for small suppliers and not the largest contracts. “Neither large funds nor large retailers can use this scheme, since in both cases an audit is passed and this data is included in the reporting,” says the interlocutor of RBC.

As noted by several manufacturers, at the moment they saw the movement towards a "new life" only from the side of X5 Retail Group, which has already announced all the conditions for deliveries for the next year. “The rest of the participants have so far taken a wait-and-see attitude and are not offering anything,” market participants shared their impressions. As noted in the press service of the Dixy Group of Companies, the company is now discussing "draft contracts and is in contact with the FAS."

Timofey Nizhegorodtsev told RBC that so far the antimonopoly service does not know anything about the new scheme with funds and has not yet been analyzed.

Lawyers interviewed by RBC are confident that charitable organizations did the right thing. “Forcing entrepreneurs to buy a card is a difficult to prove fact, because the networks do not send any formal written requirements to suppliers,” says Grigory Sarbaev, director of the Moscow law firm “Zakonved”. - But the very connection between an entrepreneur and some funds in order to return the rest of the network is a criminal offense in the field of fraud. And the fund and trading networks can become direct accomplices in the crime. "

According to Anton Babenko, partner of the Padva & Epstein Law Office, the return of cards not to the seller, but to the fund slightly camouflages the illegality of the payment of remuneration to the network itself, but does not eliminate the risk of recognition of such payments as illegal. At the same time, as the managing partner of the Center for Legal Relations Ivan Khapalin notes, such a "kickback", developed by the lawyers of the trading network, is "transparent, and you can always see it."

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