Ad p11 1304 dated 02.03 Government instructions given in order to ensure the execution of the instructions of the President of Russia
In 2017, 12 unscheduled inspections were carried out on the above grounds, of which 11 revealed violations of sanitary legislation and requirements technical regulations, i.e. The share of inspections with violations is 91.6%.
During inspections, violations of the law were revealed: lack of necessary product labeling; violation of deadlines for the sale of semi-finished meat products and sausages; sale of semi-finished meat products and sausages without accompanying documents; persons selling food products have not undergone periodic medical examinations and sanitary and hygienic training; V production premises diner has no eyeliner hot water to the washing bath, the organization uses imported water, technological processes are carried out with a violation of their flow, a crossover of counter flows of raw materials, raw semi-finished products and finished products, used and clean dishes. In addition, it is allowed to accept food raw materials and food products into cafes without the necessary accompanying documentation; production control is not organized, a program is not developed production control; the enterprise operates on raw materials in the absence of functional washing baths for the primary processing of raw root vegetables, vegetables, meat, fish, poultry, and herbs. The diner does not have space or equipment allocated for egg processing. The enterprise uses one two-section bath for washing kitchen and tableware, processing raw root vegetables, vegetables, fish, herbs, washing hands, rinsing eggs, etc. These violations can lead to the emergence and spread of infectious and non-infectious diseases (poisoning).
During the inspections, 24 samples of meat, meat products and poultry were examined, of which 5 samples (20.8%) did not meet the requirements sanitary rules according to microbiological indicators; in terms of chemical, physicochemical indicators (antibiotics, taste, color, smell, consistency, skin condition, etc.) all samples comply with the declared standards.
As a result of inspections, out of 360.336 kg of pig meat, poultry and their processed products, 120.336 kg (33.3%) were rejected and removed from sale.
For identified violations of sanitary legislation and the law on the protection of consumer rights, in relation to the perpetrators (enterprises and officials) 15 protocols on administrative violations were drawn up, orders were issued to remove unsatisfactory products from sale and orders to develop a harm program. When carrying out the above inspections, one enterprise Catering didn't answer sanitary standards and posed a direct threat of harm to the life and health of citizens, specialists from the Talitsky department of the Rospotrebnadzor Office drew up a protocol on a temporary ban on the activities of the enterprise, the case materials were transferred to the Kamyshlovsky District Court to resolve the issue of administrative suspension of activities. Kamyshlovsky's resolution district court a punishment was imposed in the form of administrative suspension of activities for a period of 60 days.
Deputy Prime Minister Arkady Dvorkovich gave instructions (resolution No. AD-P11-5456 dated August 21, 2017) in pursuance of the instructions of the President of Russia following a meeting with members of the Government on July 28, 2017 (list of instructions dated August 15, 2017 No. Pr-1603), namely:
The Ministry of Agriculture of Russia (A.N. Tkachev), the Ministry of Natural Resources of Russia (S.E. Donskoy), Rosselkhoznadzor (S.A. Dankvert), the Ministry of Economic Development of Russia (M.S. Oreshkin), the Ministry of Justice of Russia (A.V. Konovalov) to ensure the introduction into legislation Russian Federation changes provided for by the action plan to prevent the introduction of African swine fever into the territory of the Russian Federation and its spread on the territory of the Russian Federation, as well as aimed at:
to strengthen control over the implementation by authorities executive power subjects of the Russian Federation delegated to them the powers of the Russian Federation in the field of veterinary medicine and hunting;
to establish administrative liability of officials of executive authorities of the constituent entities of the Russian Federation exercising powers in the field of veterinary medicine and hunting for failure to fulfill obligations to prevent the occurrence and spread of African swine fever.
The Ministry of Justice of Russia (A.V. Konovalov), the Ministry of Natural Resources of Russia (S.E. Donskoy), the Ministry of Economic Development of Russia (M.S. Oreshkin), the Ministry of Finance of Russia (A.G. Siluanov) to ensure that the changes provided for in the action plan are introduced into the legislation of the Russian Federation to prevent the introduction of African swine fever into the territory of the Russian Federation and its spread on the territory of the Russian Federation, as well as aimed at improving legal regulation insofar as it concerns administrative responsibility for offenses in the field of hunting and game management, including increased administrative liability of persons who have entered into hunting agreements for failure to provide information or false information on the number of hunting resources in the relevant hunting areas.
Ministry of Agriculture of Russia (A.N. Tkachev), Rosselkhoznadzor (S.A. Dankvert), Ministry of Natural Resources of Russia (S.E. Donskoy), Ministry of Economic Development of Russia (M.S. Oreshkin), Ministry of Finance of Russia (A.G. Siluanov), Ministry of Justice Russia (A.V. Konovalova) to give Rosselkhoznadzor the powers to control the implementation of anti-epizootic measures and regulate the number of wild boars in designated and publicly accessible hunting grounds, as well as in specially protected natural areas of federal and regional significance.
The Ministry of Natural Resources of Russia (S.E. Donskoy), the Ministry of Agriculture of Russia (A.N. Tkachev), Rosselkhoznadzor (S.A. Dankvert) to consider the issue of possible forms and procedures for the participation of persons recognized as hunters in carrying out measures to regulate the number of wild boars in public hunting grounds and other areas where wild boars live, in order to prevent the spread of African swine fever.
The Ministry of Agriculture of Russia (A.N. Tkachev), the Ministry of Economic Development of Russia (M.S. Oreshkin), Rosselkhoznadzor (S.A. Dankvert) with the participation of the Prosecutor General's Office of the Russian Federation, submit proposals to simplify the procedure for conducting unscheduled on-site inspections during the period of validity in the territory of one or in the territories of several municipalities restrictive measures (quarantine) aimed at preventing the spread and eliminating outbreaks of African swine fever and other particularly dangerous animal diseases.
ARBITRATION COURT OF KIROV REGION
610017, Kirov, st. K. Liebknecht, 102
http://kirov.arbitr.ru
In the name of the Russian Federation
SOLUTION
Case No. A28-10021/2017
Kirov
December 22, 2017
The operative part of the decision was announced on December 14, 2017
Arbitration court Kirov region composed of judge Shmyrin S.Yu.
when keeping the minutes of the court session using audio recording equipment by the secretary of the court session A.V. Pikozov,
having considered in court hearing case on application
Limited Liability Company "Soviet Agrofirm" (TIN: 4330004233, OGRN: 1024301113803, legal address: 613340, Kirov region, Sovetsk, Novy village)
to the Office Federal service in veterinary and phytosanitary supervision in the Kirov region and Udmurt Republic(TIN: 4345353389, OGRN: 1134345007103, legal address: Russia, Kirov region, Kirov, Melkombinatovsky proezd, 8)
third party: Prosecutor's Office of the Kirov Region (location: 610000, Kirov Region, Kirov, Volodarsky St., 98)
on invalidating the order dated July 17, 2017 No. 699 on conducting an unscheduled on-site inspection
with the participation of representatives at the court hearing:
from the applicant – Bessonov V.A. by power of attorney dated March 22, 2017, S.A. Baramzina, by power of attorney dated December 11, 2017,
from the defendant – Vesnina V.A. by power of attorney dated 10/03/2017,
from a third party – Momotyuk V.V. by power of attorney dated July 24, 2017,
installed:
Limited Liability Company "Soviet Agrofirm" (hereinafter referred to as the applicant, the company, LLC "Sovetskaya Agrofirm") filed an application with the Arbitration Court against the Office of the Federal Service for Veterinary and Phytosanitary Supervision for the Kirov Region and the Udmurt Republic (hereinafter referred to as the defendant, supervisory authority, Office of Rosselkhoznadzor), specifying the requirements in accordance with the article of the Arbitration procedural code of the Russian Federation, to invalidate the order of the Office of Rosselkhoznadzor dated July 27, 2017 No. 699 on conducting an unscheduled on-site inspection (hereinafter referred to as order dated July 27, 2017 No. 699).
The applicant believes that the order dated July 27, 2017 No. 699 was issued in the absence provided by law grounds for conducting an unscheduled on-site inspection. The application to challenge this order is within the jurisdiction of the arbitration court. The company explains that the inspection of veterinary legislation appointed by the defendant for the company is the third in a year. The circumstances indicated as grounds for ordering an unscheduled inspection of the company are not included in the list of grounds provided for in Part 2 of Article of the Federal Law of December 26, 2008 No. 294-FZ “On the Protection of Rights legal entities And individual entrepreneurs when implementing state control(supervision) and municipal control" (hereinafter referred to as Law No. 294-FZ). The issuance of order No. 699 dated July 27, 2017 in relation to the applicant was allowed without the use of a risk-based approach, the procedure for the application of which was approved by Decree of the Government of the Russian Federation dated August 17, 2016 No. 806 “On the use of a risk-based approach when organizing individual species state control (supervision) and amendments to certain acts of the Government of the Russian Federation.” According to Sovetskaya Agrofirma LLC, the disputed order imposed on the company additional responsibilities, inextricably linked with his economic activity.
The position of the Rosselkhoznadzor Office on the stated requirement is reflected in the review and in the addition to the review. The supervisory authority believes that the contested order is not a non-normative act and is not subject to consideration in the arbitration court.
The Prosecutor's Office of the Kirov Region (hereinafter referred to as the third party, the Prosecutor's Office) was involved in the case as a third party.
The prosecutor's office did not provide a response to the company's statement.
Trial delayed until 09:00. 20 minutes. 11/17/2017 and until 11 o’clock. 00 min. 12/14/2017.
At the court hearing, representatives of the parties supported their positions. A representative of the Prosecutor's Office explained that the grounds for organizing a repeat inspection in relation to Sovetskaya Agrofirm LLC as part of the execution of the order of the Federal Service for Veterinary and Phytosanitary Surveillance dated March 16, 2017 No. 252 supervisory authority there was none.
Having heard representatives of the parties and a third party, and having studied the case materials, the arbitration court found the following.
On 03/02/2017, the Deputy Prime Minister of the Russian Federation gave instruction No. AD-P11-1304 (hereinafter referred to as the instruction dated 03/02/2017), including the Federal Service for Veterinary and Phytosanitary Surveillance, on organizing in 2017, based on a risk-oriented approach, unscheduled inspections in relation to legal entities and individual entrepreneurs carrying out activities for keeping and breeding pigs, production and sale of pork meat and its processed products, as well as legal entities and individual entrepreneurs carrying out activities for keeping and breeding poultry, production and sale of poultry meat and products its processing.
On March 16, 2017, the Federal Service for Veterinary and Phytosanitary Surveillance issued Order No. 252 on inspections (hereinafter referred to as Order No. 252 dated March 16, 2017). This order orders the heads of the territorial departments of the Federal Service for Veterinary and Phytosanitary Surveillance, in accordance with the procedure established by the legislation of the Russian Federation, to ensure that unscheduled inspections are carried out on the basis of a risk-based approach in 2017 in relation to legal entities and individual entrepreneurs engaged in keeping and breeding pigs, production and sales of pork meat and its processed products, as well as legal entities and individual entrepreneurs engaged in keeping and breeding poultry, production and sale of poultry meat and its processed products.
On July 27, 2017, the Rosselkhoznadzor Department issued order No. 699 to conduct an unscheduled on-site inspection of Sovetskaya Agrofirm LLC. It follows from this order that the inspection is carried out in order to prevent the spread and elimination of African swine fever and bird flu on the territory of the Russian Federation and on the basis of the order of the Federal Service for Veterinary and Phytosanitary Surveillance dated March 16, 2017 No. 252 received by the Rosselkhoznadzor Office on behalf of the Deputy Prime Minister Russian Federation. The objectives of the inspection are to prevent, identify and suppress violations mandatory requirements in the field of veterinary medicine, as well as establishing the causes and conditions conducive to their occurrence.
In August 2017, a specialist from the supervisory authority conducted an unscheduled on-site inspection of Sovetskaya Agrofirm LLC.
08/30/2017 The Rosselkhoznadzor Office drew up protocol No. 02-10-01/11-20 regarding the company administrative offense under Part 1 of Article RF.
On August 30, 2017, the supervisory authority issued order No. 02-10-01/07 to the applicant to eliminate the identified violations of the legislation of the Russian Federation.
09.11.2017 The prosecutor's office issued a notice to the head of the Rosselkhoznadzor Office to eliminate violations of legislation in the field of protecting the rights of subjects entrepreneurial activity.
09/11/2017 The prosecutor's office issued the head of the department veterinary supervision The Rosselkhoznadzor Office issued a warning about the inadmissibility of violating the law.
From the mentioned documents of the Prosecutor's Office it follows that in accordance with the act of a planned inspection of the compliance of Sovetskaya Agrofirm LLC with mandatory requirements in the field of veterinary medicine, carried out by the veterinary department of the Kirov region in the period from 08/17/2016 to 08/26/2016, no violations of veterinary legislation were identified in the company's activities. Sovetskaya Agrofirma LLC is free from contagious poultry diseases. Taking into account that during an inspection in 2016 with a similar subject of inspection, no violations were identified in the activities of Sovetskaya Agrofirma LLC, risk criteria in the field of veterinary supervision are not defined by the current legislation, there are no legal grounds for organizing a repeat inspection (order dated July 27, 2017 No. 699) within the framework of execution of the order dated March 16, 2017 No. 252, the supervisory authority did not have it.
09.12.2017 The Office of Rosselkhoznadzor issued a resolution against Sovetskaya Agrofirm LLC to terminate proceedings in the case of an administrative offense under Part 1 of Article of the Russian Federation.
Sovetskaya Agrofirma LLC appealed the order No. 699 dated July 27, 2017 to the arbitration court.
According to Part 1 of Article Section III. Proceedings in the arbitration court of first instance in cases arising from administrative and other public legal relations > Chapter 24. Consideration of cases challenging non-normative legal acts, decisions and actions (inaction) government agencies, organs local government, other bodies, organizations empowered federal law individual state or other public powers, officials > Article 198. The right to appeal to the arbitration court with an application to declare non-normative legal acts invalid, decisions and actions (inaction) illegal" target="_blank">198 of the Arbitration Procedural Code of the Russian Federation citizens, organizations and other persons have the right to apply to the arbitration court to invalidate non-normative legal acts, illegal decisions and actions (inaction) of bodies implementing public powers, officials, if they believe that the contested non-normative legal act, decision and action (inaction) do not comply with the law or other regulatory legal act and violate their rights and legitimate interests in the field of entrepreneurial and other economic activities, illegally impose any duties on them, create other obstacles to the implementation of entrepreneurial and other economic activities.
Thus, in order to recognize a non-normative act as invalid, decisions and actions (inactions) as illegal, two conditions must exist simultaneously: their non-compliance with the law or other regulatory legal act and a violation of the rights and legitimate interests of the applicant in the field of entrepreneurial or other economic activity, which is also reflected in paragraph 6 of the joint resolution of the Plenums of the Supreme Court of the Russian Federation and the Supreme Arbitration Court of the Russian Federation dated 07/01/1996 No. 6/8 “On some issues related to the application of part one Civil Code Russian Federation".
Absence of Section III. Proceedings in the arbitration court of first instance in cases arising from administrative and other public legal relations > Chapter 24. Consideration of cases challenging non-normative legal acts, decisions and actions (inaction) of state bodies, local government bodies, other bodies, organizations vested with separate functions by federal law state or other public powers, officials > Article 198. The right to apply to the arbitration court with an application to declare non-normative legal acts invalid, decisions and actions (inaction) illegal" target="_blank">198 of the Arbitration Procedural Code of the Russian Federation set of conditions, necessary to challenge a non-normative legal act, action, decision, entails, by virtue of Part 3 of the article, Section III. Proceedings in the arbitration court of first instance in cases arising from administrative and other public legal relations > Chapter 24. Consideration of cases challenging non-normative legal acts, decisions and actions (inaction) of state bodies, local government bodies, other bodies, organizations vested by federal law with certain state or other public powers, officials > Article 201. Arbitration court decision in a case challenging non-normative legal acts, decisions and actions (inaction) of bodies , exercising public powers, officials" target="_blank">201 of the Arbitration Procedural Code of the Russian Federation, refusal to satisfy the stated requirements.
According to part 4 of article Section III. Proceedings in the arbitration court of first instance in cases arising from administrative and other public legal relations > Chapter 24. Consideration of cases challenging non-normative legal acts, decisions and actions (inaction) of state bodies, local government bodies, other bodies, organizations vested with separate functions by federal law state or other public powers, officials > Article 201. Arbitration court decision in the case of challenging non-normative legal acts, decisions and actions (inaction) of bodies exercising public powers, officials" target="_blank">201 of the Arbitration Procedural Code of the Russian Federation The operative part of the decision in a case challenging non-normative legal acts, decisions of bodies exercising public powers, officials must contain an indication of the recognition of the contested act as invalid or the decision as illegal in whole or in part and the obligation to eliminate the violations of the rights and legitimate interests of the applicant or to refuse satisfaction of the applicant's claim in whole or in part.
Within the meaning of Article of the Civil Code of the Russian Federation and Part 1 of Article of the Arbitration Procedural Code of the Russian Federation, an interested person has the right to apply to an arbitration court for the protection of his violated rights and legitimate interests and to choose only that method of protecting the right that will lead to the restoration of violated rights and interests protected by law.
The applicant is free to choose the method of protecting his violated right; however, the method of protection he chooses must correspond to the content of the violated right and the disputed legal relationship, and the nature of the violation.
In accordance with paragraph 3 of part 2 of Article of Law No. 294-FZ, the basis for conducting an unscheduled inspection, including an order (instruction) of the head of the state control (supervision) body, issued in accordance with the instructions of the President of the Russian Federation, the Government of the Russian Federation and on the basis demands of the prosecutor to conduct an unscheduled inspection as part of supervision over the implementation of laws based on materials and appeals received by the prosecutor's office.
Part 1 of Article No. 294-FZ stipulates that the subject of an on-site inspection is the information contained in the documents of a legal entity, individual entrepreneur, as well as the compliance of their employees, the condition of the territories, buildings, structures, structures, premises, equipment used by these persons in carrying out their activities, similar objects, Vehicle goods produced and sold by a legal entity, individual entrepreneur (work performed, services provided) and measures taken by them to comply with mandatory requirements and requirements established by municipal legal acts.
According to Part 4 of Article of Law No. 294-FZ, an on-site inspection begins with the presentation service ID officials of the state control (supervision) body, municipal control body, mandatory familiarization of the head or other official of a legal entity, individual entrepreneur, his authorized representative with the order or order of the head, deputy head of the state control (supervision) body, municipal control body on the appointment of an on-site inspection and with the powers of the persons conducting the on-site inspection, as well as with the goals, objectives, grounds for conducting an on-site inspection, types and scope of control measures, composition experts, representatives expert organizations involved in the on-site inspection, with the terms and conditions of its conduct.
By virtue of Article of Law No. 294-FZ, the inspection is carried out on the basis of an order or order of the head, deputy head of the state control (supervision) body, municipal control body. The standard form of an order or order of the head, deputy head of a state control (supervision) body, municipal control body is established by the federal executive body authorized by the Government of the Russian Federation. The inspection can be carried out only by an official or officials who are specified in the order or order of the head, deputy head of the state control (supervision) body, municipal control body (Part 1). The order or order of the head, deputy head of the state control (supervision) body, municipal control body indicates: 1) the name of the state control (supervision) body or municipal control body, as well as the type (types) of state control (supervision), municipal control; 2) last names, first names, patronymics, positions of the official or officials authorized to conduct the inspection, as well as experts and representatives of expert organizations involved in the inspection; 3) the name of the legal entity or the surname, first name, patronymic of the individual entrepreneur, the inspection of which is carried out, the location of legal entities (their branches, representative offices, separate structural divisions) or the place of actual activity of individual entrepreneurs; 4) goals, objectives, subject of the inspection and the period for its implementation; 5) legal basis conducting an inspection; 5.1) mandatory requirements to be verified and requirements established by municipal legal acts, including details of the checklist (list test questions), if a checklist (list of check questions) must be used when conducting a scheduled inspection; 6) timing and list of control measures necessary to achieve the goals and objectives of the audit; 7) list administrative regulations on the implementation of state control (supervision), the implementation of municipal control; 8) a list of documents, the submission of which by a legal entity or individual entrepreneur is necessary to achieve the goals and objectives of the audit; 9) start and end dates of the inspection; 10) other information, if provided standard form order or order of the head, deputy head of the state control (supervision) body, municipal control body.
By virtue of Part 1 of Article of Law No. 294-FZ, the results of an inspection conducted by a state control (supervision) body or a municipal control body in gross violation of the requirements established by this Federal Law for the organization and conduct of inspections cannot be evidence of a violation by a legal entity or individual entrepreneur of mandatory requirements and requirements established by municipal legal acts and are subject to cancellation higher authority state control (supervision) or the court on the basis of an application from a legal entity or individual entrepreneur.
The list of gross violations is contained in Part 2 of Article of Law No. 294-FZ.
According to part 1 of the article (as amended on 08/02/2019) > "> (as amended and supplemented, entered into force on 01/01/2020) > Chapter 3. Rights of legal entities and individual entrepreneurs in the exercise of state control (supervision), municipal control and protection of their rights > Article 22. The right of legal entities, individual entrepreneurs to compensation for harm caused during the exercise of state control (supervision), municipal control" target="_blank">22 of Law 294-FZ harm caused to legal entities, individual entrepreneurs, as a result of the actions (inaction) of officials of the state control (supervision) body, municipal control body, recognized as unlawful in the manner prescribed by the legislation of the Russian Federation, are subject to compensation, including lost profits (lost income), from the funds of the relevant budgets in accordance with civil legislation.
In accordance with the article (as amended on 08/02/2019) > "> (as amended and supplemented, entered into force on 01/01/2020) > Chapter 3. Rights of legal entities and individual entrepreneurs in the exercise of state control (supervision), municipal control and protection of their rights > Article 23. Protection of the rights of legal entities, individual entrepreneurs in the exercise of state control (supervision), municipal control" target="_blank">23 of Law No. 294-FZ protection of the rights of legal entities, individual entrepreneurs in the exercise of state control (supervision), municipal control is carried out in administrative and (or) judicial procedure in accordance with the legislation of the Russian Federation (part 1). An application to appeal against actions (inaction) of a state control (supervision) body or municipal control body or their officials is subject to consideration in the manner established by the legislation of the Russian Federation (Part 2). Regulatory legal acts of state control (supervision) bodies or municipal legal acts of municipal control bodies that violate the rights and (or) legitimate interests of legal entities, individual entrepreneurs and do not comply with the legislation of the Russian Federation may be declared invalid in whole or in part in the manner established by the legislation of the Russian Federation Federations (part 3).
Article of Law No. 294-FZ establishes that in order to optimally use labor, material and financial resources involved in the implementation of state control (supervision), reduce costs of legal entities, individual entrepreneurs and increase the effectiveness of their activities, state control (supervision) bodies when organizing individual types of state control (supervision), determined by the Government of the Russian Federation, apply a risk-based approach (part 1). The risk-based approach is a method of organizing and implementing state control (supervision), in which, in the cases provided for by this Federal Law, the choice of intensity (form, duration, frequency) of control measures, measures to prevent violations of mandatory requirements is determined by the classification of the activities of the legal entity, individual entrepreneur and (or) used by them in carrying out such activities production facilities to a certain risk category or a certain class (category) of hazard (Part 2). Attribution to a certain class (category) of danger is carried out by the state control (supervision) body, taking into account the severity of potential negative consequences possible non-compliance by legal entities and individual entrepreneurs with mandatory requirements, and for a certain risk category - also taking into account the assessment of the likelihood of non-compliance with the relevant mandatory requirements (Part 3). The criteria for classifying the activities of legal entities, individual entrepreneurs and (or) the production facilities they use to a certain risk category or a certain class (category) of danger are determined by the Government of the Russian Federation, unless such criteria are established by federal law (Part 4). If the criteria for classifying the activities of legal entities, individual entrepreneurs and (or) the production facilities they use to a certain risk category provide for the state control (supervision) body to calculate the values of indicators used to assess the severity of the potential negative consequences of possible non-compliance with mandatory requirements, assessing the likelihood their non-compliance, methods for such calculations are approved federal authorities executive power, carrying out the functions of developing public policy and legal regulation in the relevant field of activity (Part 5). The rules for classifying the activities of legal entities, individual entrepreneurs and (or) production facilities used by them to a certain risk category, a certain class (category) of danger are determined by the Government of the Russian Federation. These rules should provide for the possibility of a legal entity or individual entrepreneur filing an application to change the risk category or hazard class (category) previously assigned to them (Part 6). If, in accordance with federal law, the classification of the activities of legal entities, individual entrepreneurs and (or) production facilities used by them to a certain risk category, a certain class (category) of danger is carried out within the framework of the powers exercised by the state control (supervision) body state registration, issuing a permit ( special law) or other similar powers, the rules for classifying the activities of legal entities, individual entrepreneurs and (or) production facilities used by them to a certain risk category, a certain class (category) of danger are determined by the regulatory legal act, establishing the procedure for exercising the specified powers of such a government body (Part 7).
Decree of the Government of the Russian Federation dated August 17, 2016 No. 806 “On the application of a risk-oriented approach when organizing certain types of state control (supervision) and introducing amendments to certain acts of the Government of the Russian Federation” (hereinafter referred to as Decree No. 806) approved the Rules for classifying the activities of legal entities and individual entrepreneurs and (or) the production facilities they use to a certain risk category or a certain class (category) of danger (hereinafter referred to as the Rules), as well as the List of types of state control (supervision) that are carried out using a risk-based approach (hereinafter referred to as the List).
Federal state veterinary supervision and regional state veterinary supervision are included in this List(items 12, 13 of the List).
The case materials indicate that the contested order was issued in connection with the order of the Federal Service for Veterinary and Phytosanitary Surveillance dated March 16, 2017 No. 252, issued in accordance with the order of the Deputy Chairman of the Government of the Russian Federation dated March 2, 2017. The contents of the order correspond to the provisions of Article of Law No. 294-FZ.
The company points out that the issuance of order No. 699 dated July 27, 2017 in relation to the applicant was allowed without using a risk-based approach, the procedure for applying which was approved by resolution No. 806.
Meanwhile, the arbitration court believes that order No. 699 dated July 27, 2017 does not in itself violate the legally protected rights and interests of society in the field of entrepreneurial activity. At the stage of issuing an order to conduct an inspection, the fact of a violation of the law is not established, a mandatory order is not issued, and the subject subject to prosecution and specific sanctions are not established.
The contested order is addressed to a subordinate official of the supervisory authority, who is vested with certain rights and assigned certain responsibilities. This order gives grounds for the official to carry out the control measures specified in it during the inspection process. The contested order is not aimed at changing the scope of the company's rights and obligations in the field of entrepreneurial activity and is not addressed to the applicant.
In addition, the Prosecutor's Office issued a notice dated September 11, 2017 to the head of the Rosselkhoznadzor Office to eliminate violations of the law in the field of protecting the rights of business entities, and a warning to the head of the veterinary supervision department of the Rosselkhoznadzor Office on September 11, 2017 about the inadmissibility of violating the law.
The Rosselkhoznadzor Office terminated the proceedings on the administrative violation case initiated as a result of the inspection. The person who made the decision to conduct an unscheduled on-site inspection of the company is punished. Training was conducted with supervisory authority employees on the use of a risk-based approach. These circumstances follow from the resolution of the Office of Rosselkhoznadzor dated September 12, 2017 on the termination of proceedings in the case of an administrative offense under Part 1 of Article RF, as well as from the letter of the supervisory authority dated November 20, 2017 No. 06-22/958.
Thus, the defendant agreed with the conclusions of the Prosecutor's Office that there were no grounds for organizing an inspection of Sovetskaya Agrofirma LLC and eliminated its consequences by terminating the administrative violation case against Sovetskaya Agrofirma LLC.
Taking into account the above, the arbitration court believes that the order dated July 27, 2017 No. 699 does not violate the rights and legitimate interests of society in the field of entrepreneurial and other economic activities, does not impose any obligations on the applicant, and does not create other obstacles for the company to carry out entrepreneurial and other economic activities. activities.
The applicant's argument that the contested order imposed additional responsibilities on the company that are inextricably linked with its economic activities is not accepted by the arbitration court as groundless.
The claim of representatives of Sovetskaya Agrofirm LLC that the unscheduled inspection caused damage to the company is rejected by the arbitration court as not supported by the case materials.
From the provisions of Part 1 of the article (as amended on 08/02/2019) > "> (as amended and additionally, entered into force on 01/01/2020) > Chapter 3. Rights of legal entities and individual entrepreneurs in the exercise of state control (supervision) , municipal control and protection of their rights > Article 22. The right of legal entities and individual entrepreneurs to compensation for damage caused during the exercise of state control (supervision), municipal control" target="_blank">22, parts 1, 2 of the article (ed. from 02.08.2019) > "> (with amendments and additions, entered into force from 01.01.2020) > Chapter 3. Rights of legal entities, individual entrepreneurs in the exercise of state control (supervision), municipal control and protection of their rights > Article 23. Protection of the rights of legal entities and individual entrepreneurs in the exercise of state control (supervision), municipal control" target="_blank">23 of Law No. 294-FZ it follows that the protection of the rights of subjects of inspection can be carried out by appealing the actions (inaction) of officials carrying out appropriate control activities, and the results of the inspection.
Thus, the method chosen by the applicant to protect his rights does not comply with the specified provisions of Law No. 294-FZ.
Taking into account the above circumstances, the arbitration court believes that the stated request to invalidate the order of the supervisory authority dated July 27, 2017 No. 699 should be refused.
In accordance with the article of the Arbitration Procedural Code of the Russian Federation court expenses upon payment state duty relate to the applicant.
Guided by the articles - Section III. Proceedings in the arbitration court of first instance in cases arising from administrative and other public legal relations > Chapter 24. Consideration of cases challenging non-normative legal acts, decisions and actions (inaction) of state bodies, local government bodies, other bodies, organizations vested with separate functions by federal law state or other public powers, officials > Article 200. Trial in cases of challenging non-normative legal acts, decisions and actions (inactions) of bodies exercising public powers, officials" target="_blank">200, Section III. Proceedings in arbitration court of first instance in cases arising from administrative and other public legal relations > Chapter 24. Consideration of cases challenging non-normative legal acts, decisions and actions (inaction) of state bodies, local government bodies, other bodies, organizations vested by federal law with individual state or other public powers, officials > Article 201. Arbitration court decision in the case of challenging non-normative legal acts, decisions and actions (inactions) of bodies exercising public powers, officials" target="_blank">201 of the Arbitration Procedure Code of the Russian Federation, arbitration court
DECIDED:
refuse to satisfy the request of the limited liability company "Soviet Agrofirm" (TIN: 4330004233, OGRN: 1024301113803, legal address: 613340, Kirov region, Sovetsk, Novy) to invalidate the order of the Office of the Federal Service for Veterinary and Phytosanitary Surveillance on Kirov region and the Udmurt Republic (TIN: 4345353389, OGRN: 1134345007103, legal address: Russia, Kirov region, Kirov, Melkombinatovsky proezd, 8) dated July 17, 2017 No. 699 on conducting an unscheduled on-site inspection.
The decision can be appealed to the Second Arbitration Court Court of Appeal within a month in accordance with articles of the Arbitration Procedural Code of the Russian Federation.
The decision can be appealed to the Arbitration Court of the Volga-Vyatka District within two months from the date the decision entered into force. legal force in accordance with articles of the Arbitration Procedural Code of the Russian Federation, provided that it was the subject of consideration by the arbitration court appellate court or the appellate court refused to reinstate the missed filing deadline appeal.
Complaints are filed through the Arbitration Court of the Kirov Region.
Reconsideration of the decision of the arbitration court by way of cassation proceedings in the Judicial Collegium of the Supreme Court of the Russian Federation is carried out in the manner and within the time limits provided for in Articles - Section VI. Proceedings to review judicial acts arbitration courts> Chapter 35. Proceedings in the court of cassation > Article 291.15. Entry into legal force of the ruling of the Judicial Collegium of the Supreme Court of the Russian Federation, issued based on the results of consideration of the cassation appeal, presentation together with the case" target="_blank">291.15 of the Arbitration Procedural Code of the Russian Federation. Appeal in this case it is fed directly to Supreme Court Russian Federation.
Judge S.Yu. Shmyrin