Licensing activities in the sphere of turnover of alcoholic and alcohol-containing products.

Subanova Natalia Viktorovna Doctor of Law Associate Professor, Vice-Rector of the University of the Prosecutor's Office of the Russian Federation 117638, Russia, Moskovskaya oblast', g. Moscow, ul. Azovskaya, 2, korpus 1 9991888@mail.ru Other publications by this author

 The sphere of production and turnover of alcoholic and alcohol–containing products continues to be one of the most criminalized areas of the Russian economy, the high proportion of permissive regulation of which is due to the peculiarities of this market sector - high profitability and turnover of goods, the presence of steady demand, as well as risks associated with damage to the life or health of citizens, the influence of alcoholization of the population on the demographic situation in the the country, its close relationship with crime.

Alcohol abuse is one of the conditions (criminogenic "background phenomena") that contribute to the commission of socially dangerous acts, and above all, mercenary crimes (from the general demoralization of the individual), violent intentional crimes ^[1]. In our country, almost every third (2020 – 30.6%, 2021 – 28.1%) investigated crime is committed by persons who are intoxicated. In 2021, according to the data on Form No. 494 "Summary report on the state of crime and the results of the investigation of crimes", 21.7% of the investigated especially serious crimes were committed by persons who are intoxicated.

The sphere of production and turnover of alcoholic and alcohol-containing products has traditionally been the subject of permissive regulation, the format of which has always been determined taking into account the "cyclical" introduction of a state monopoly on the relevant activities. Thus, taking into account the inefficiency of the control influence, the need to suppress illegal production and trade, the wine monopoly was introduced in 1894. As E. Nolde noted before in 1882: "In other provinces, even now, with the help of denunciations, a hundred or two acts on patent-free trade are drawn up a year, but this is done by both police and excise officials more to clear their conscience, and anyone a little familiar with these denunciations knows that, according to the results, such acts are no more transfusions of empty into empty…A wine producer who wants to remain completely honest between factories that live by abuse cannot hold back or will hold on unless under absolutely exceptional conditions."^[2] After the revolution of 1917, the state alcohol monopoly became an integral element of the anti-alcohol policy. In tsarist Russia, the income from alcohol was 30% of budget revenues, during the USSR – about 20%. Currently, Article 4 of Federal Law No. 171-FZ of 22.11.1995 "On State Regulation of production and turnover of Ethyl alcohol, alcoholic and Alcohol–containing products and on Restriction of Consumption (Drinking) of alcoholic products" (hereinafter - Federal Law No. 171-FZ) also provides for the possibility of introducing a state monopoly on production and (or) turnover ethyl alcohol, alcoholic and alcohol-containing products. Proposals for the introduction of such a monopoly have been repeatedly implemented in the form of bills, but they have not found support from the legislator.

Currently, the progressive complication of the public-legal elements of alcohol market regulation by Federal Law No. 171-FZ, aimed at protecting common (public) interests that do not exclude (as the Constitutional Court of the Russian Federation indicated in its Ruling of 24.02.2011 No. 199-O-O) and fiscal interest, is carried out in the direction of detailing the order of turnover of such products and conditions of licensees' activity. For a long time, the legislator has been following the path of strengthening responsibility for offenses in this area, which, according to the legal position of the Constitutional Court of the Russian Federation, have an increased danger. The sale of alcoholic beverages without an appropriate license and compliance with other requirements is dangerous to human life and health and thereby affects both constitutional rights, in particular the right to health protection enshrined in Part 1 of Article 41 of the Constitution of the Russian Federation, and the interests of the state, which is obliged to ensure their observance and protection (Article 2 of the Constitution of the Russian Federation).

The administrative and legal regime of turnover of alcoholic and alcohol–containing products combines the impact of various forms of licensing activities - first of all, we are talking about licensing. In addition, the elements of the licensing procedure (in relation to the turnover of alcoholic beverages) contain the receipt of notifications about the beginning of the turnover of these products on the territory of the Russian Federation, as well as the issuance of federal special stamps.

The powers of federal government bodies include licensing the production and turnover of ethyl alcohol, alcoholic and alcohol-containing products, licensing the production, purchase, storage, supply and transportation of ethyl alcohol, alcoholic and alcohol-containing products, as well as the retail sale of wine, sparkling wine, carried out by agricultural producers (Article 5 of Federal Law No. 171-FZ).

At the regional level, licensing of the retail sale of alcoholic beverages is carried out (with the exception of licensing the retail sale of wine products produced by agricultural producers) (Article 6).

According to the provisions of paragraph 10 of Article 18 of Federal Law No. 171-FZ, a license for the retail sale of alcoholic beverages issued by one subject of the Russian Federation may operate on the territory of another subject of the Russian Federation only if there is a corresponding agreement between them. At the same time, Federal Law No. 99-FZ of 04.05.2011 "On Licensing of Certain Types of Activities" resolves the issue of the validity of regional licenses in a different way – activities for which a license is granted by the licensing authority of a subject of the Russian Federation may be carried out on the territories of other subjects of the Russian Federation, provided that the licensee notifies the licensing authorities of the respective regions (Part 5 of Article 9). The procedure and details of such notification are provided at the federal level. In order to conclude agreements concerning the extension of licenses for the retail sale of alcoholic beverages on the territory of other subjects of the Russian Federation, regional laws are issued. As a rule, various executive bodies or (much less often) legislative bodies of the constituent entities of the Russian Federation are empowered to conclude agreements.

The authority to license the retail sale of alcoholic beverages may be transferred by a subject of the Russian Federation to local self-government bodies (clause 10 of Article 18 of Federal Law No. 171-FZ). In most regions, local governments are not currently empowered to license the retail sale of alcoholic beverages, but some examples of this practice remain. Thus, in the Republic of Altai, local self-government authorities have been delegated the authority to license the retail sale of alcoholic beverages and the implementation of regional state control (supervision) in this area (including in terms of compliance by organizations with licensing requirements for the retail sale of alcoholic beverages and the retail sale of alcoholic beverages in the provision of catering services, with the exception of licensing requirements for production, supplies, storage and retail sale of wine products produced by agricultural producers). In the Amur Region, some local self-government bodies are empowered to state control (supervision) over compliance by business entities with mandatory requirements for the retail sale of alcoholic beverages and the retail sale of alcoholic beverages in the provision of catering services, established by Article 16 of Federal Law No. 171-FZ, mandatory requirements for the retail sale of alcohol-containing products, fixation in the unified state automated the information system (hereinafter – USAIS) of information on the turnover of alcoholic beverages by persons engaged in its retail sale, with the exception of mandatory requirements established by technical regulations.

Undoubtedly, the trend of improving its legal framework, unification and centralization of legal regulation, noted over the past decade, had a positive impact on the state of legality in the implementation of licensing activities in the sphere of turnover of ethyl alcohol, alcoholic and alcohol-containing products. In particular, numerous violations of the law gave rise to an unjustified concentration of powers to consolidate the procedure for licensing and issuing licenses for the retail sale of alcoholic beverages in the competence of state authorities of the subjects of the Russian Federation (according to paragraph 10 of Article 18 of Federal Law No. 171-FZ, licenses for the retail sale of alcoholic beverages were issued by the subjects of the Russian Federation in accordance with the procedure established by them, taking into account the provisions of this law the law); the disparate legislative use of special terminology; the absence of a single amount of state duty for granting a license for the retail sale of alcoholic beverages (until 2010, the fee for licensing this type of activity was set by the regions independently, law enforcement practice based on extremely vague provisions of Federal Law No. 171-FZ had a contradictory character – from the complete denial of the right subjects of the Russian Federation to establish fees until the need to reimburse the costs of executive authorities related to licensing is established^[3]).

The researchers note the validity of fixing in the law the right of a licensee engaged in the retail sale of alcoholic beverages to store the remnants of alcoholic beverages, return them to the supplier, supply another licensed organization for the purchase, storage and supply of alcoholic and alcohol-containing products, which are carried out under the control of the licensing authority, within two months from the date of cancellation of the license (termination of its validity) (Clause 5 of Article 20 of Federal Law No. 171-FZ), as well as amendments to Clause 11 of Article 16, according to which if the location of a stationary retail facility (catering facility) ceases to meet the established requirements during the license period, then such organizations have the right to continue retail sale of alcoholic beverages; further extension of the term the license is valid by the licensing authority without taking into account the restrictions that have arisen, but not for more than five years ^[4].

  A certain contribution to the development of the alcohol market can also serve as the elimination of the need to submit, for obtaining a license, conclusions of authorized bodies having a pronounced permissive nature on the compliance of the organization's production and storage facilities with sanitary-epidemiological, fire-fighting, environmental standards and requirements, as well as safety requirements ("intermediate permits"), which gave the permitting procedures a multi-stage character, contributing to violations of the rights of business entities. The need to submit, in order to obtain a license, the conclusions of authorized bodies on the compliance of the organization's production and warehouse premises with fire safety requirements was canceled by Federal Law No. 74-FZ of 26.03.2022 "On Amendments to Certain Legislative Acts of the Russian Federation and on the Suspension of Certain Provisions of Legislative Acts of the Russian Federation".

The specifics of licensing activities for the production and turnover of ethyl alcohol, alcoholic and alcohol-containing products are currently determined by the regulations of a special law that are not limited to the scope of Federal Law No. 99-FZ dated 04.05.2011 "On Licensing of certain types of activities". At the same time, there are certain arguments in favor of the norms of Federal Law No. 99-FZ dated 04.05.2011 "On licensing of certain types of activities" being taken into account in this case as having a general character. Judicial practice follows this path regardless of the specific sphere in which licensing is carried out (taking into account the fundamental nature of the said legislative act for regulating licensing legal relations).

According to clause 17 of Article 19 of Federal Law No. 171-FZ, a license for the production and turnover of ethyl alcohol, alcoholic and alcohol-containing products is issued for a period specified by the licensee, but not more than five years, unless otherwise established by this Federal Law. A license for the production, storage and supply of wine with a protected geographical indication, wine with a protected designation of origin, sparkling wine with a protected geographical indication, sparkling wine with a protected designation of origin, as well as a license for the production, storage, supply and retail sale of wine products produced by agricultural producers is issued for the period specified by the license applicant, but not for more than fifteen years.

Federal Law No. 171-FZ does not contain a clear concept and procedure for determining licensing requirements, while clarifying the meaning of this category is of fundamental nature for the implementation of coercive measures. At the same time, Article 20 of the law mentions the licensee's failure to comply with the licensing authority's instructions to eliminate violations of the "license terms". The logical relationship between "requirements" and "conditions" is not entirely clear. Within the meaning of clause 9 of Article 19, licensing requirements, in addition to those expressly listed in this paragraph, are established in accordance with the provisions of Article 19. 2, 8, 9, 10.1, 11, 14.1, 16, 19, 20, 25 and 26 of the law (that is, in fact, licensing requirements may be contained in many other regulatory legal acts of the federal level, including those of a subordinate nature). The mechanism for determining licensing requirements is not legislatively designated, the possibility of suspension and cancellation of the license is also associated with violations of many other provisions of Federal Law No. 171-FZ (Article 20) (although according to Part 2 of Article 2 of the basic Federal Law No. 99-FZ dated 04.05.2011 "On Licensing of certain types of Activities", the performance of licensing tasks refers to prevention, identification and suppression of violations of licensing requirements). According to Article 23.2 of Federal Law No. 171-FZ, as part of the provision of a state service for the issuance of a license by an authoritative participant of the licensing system in the production and turnover of ethyl alcohol, alcoholic and alcohol–containing products of the federal level (Rosalkogolregulirovanie), an assessment of the applicant's compliance with mandatory requirements is carried out, the executive authorities of the subjects of the Russian Federation - an assessment of the applicant's compliance with licensing requirements and (or) mandatory requirements.

Thus, in practice, almost any norms of the said law can be recognized as licensing requirements, which imperatively establish the procedure for the licensed production and turnover of ethyl alcohol, alcoholic and alcohol-containing products, which, of course, creates prerequisites for expanding administrative discretion. It is possible to establish a clear relationship between the attribution of certain requirements to the number of licensing requirements and, accordingly, the existence of grounds for granting a license (refusal to grant, extension of validity, etc.) only by a comprehensive interpretation of the norms governing the licensing process, taking into account the basic principles and objectives of legislation on the production and turnover of ethyl alcohol, alcoholic and alcohol-containing products. In this regard, in his dissenting opinion to the resolution of the Constitutional Court of the Russian Federation dated 23.05.2013 No. 11-P, the judge of the Constitutional Court of the Russian Federation K. V. Aranovsky pointed out the unpredictability of the administrative practice of considering applications for licenses in the area under consideration, since "the law allows you to refuse a license on many occasions and on grounds, quite freely, if not vaguely stated. It also does not add predictability that the multitude of grounds for refusal allows them to be presented not only individually, but also in combinations – it is not easy to get protection from them even in court." At the same time, some guidelines here are formed by judicial practice and explanations of the highest judicial bodies^[5].

For example, in 2015, a legal entity applied to the licensing authority with an application for a license for the retail sale of alcoholic beverages. During an unscheduled on-site inspection to assess the compliance of the submitted information with licensing requirements, the fact of unlicensed turnover of alcoholic and alcohol-containing products was established, which served as the basis for refusal to issue a license. The courts, satisfying the requirements of the business entity that challenged the decision, pointed out that the legislation establishes an exhaustive list of grounds for refusing to issue a license for the production and turnover of ethyl alcohol, alcoholic and alcohol-containing products; such a basis for refusing to grant a license as the unlicensed sale of alcoholic products is not contained in the list, and a ban on production and the turnover of ethyl alcohol, alcoholic and alcohol-containing products without appropriate licenses in Article 26 of Federal Law No. 171-FZ is a general norm regardless of the applicant's intention to obtain the appropriate license and does not relate to licensing requirements. However, the Judicial Board for Economic Disputes of the Supreme Court of the Russian Federation in its Ruling (dated 02/21/2017 in case No. 306-KG16-15245, A12-2459/2016) canceled earlier decisions taken by the courts based on a logical, systematic and teleological interpretation of legislative norms, since the provisions of paragraph 9 of Article 19 of Federal Law No. 171-FZ as establishing the grounds for refusal to issue a license must be applied in conjunction with the provisions of the articles specified therein, including paragraph 1 of article 26.

The specifics of licensing activities in the area under consideration reflect the powers of the Federal Alcohol Regulation Agency for the extrajudicial suspension and cancellation of licenses, applied along with the judicial procedure. According to the Final Report on the results of the activities of the Federal Service for Alcohol Market Regulation for 2021, the main violations that served as the grounds for the appeal of this body to the court with applications for the cancellation of licenses for the production of ethyl alcohol, alcoholic and alcohol-containing products were the production of alcoholic beverages that do not comply with state, national or international standards; failure to the established period of circumstances that led to the suspension of the license; turnover of alcoholic beverages, information about which is not recorded in accordance with the established procedure in the USAIS. As part of the exercise of the authority to make decisions on the cancellation of licenses for the production and turnover of ethyl alcohol, alcoholic and alcohol–containing products out of court, 220 materials were received by Rosalkogolregulirovanie in 2021 (443 in 2020), as a result of which 92 decisions were made (69 in 2020) on the cancellation of licenses (41, 82% of the total number of cases).

As the Constitutional Court of the Russian Federation has repeatedly noted, the cancellation of a license in connection with a violation must meet the requirements of justice. This measure must be adequate, proportionate, proportionate and necessary to protect the economic interests of the Russian Federation, the rights and legitimate interests of consumers of alcoholic and alcohol-containing products and other persons. It is unacceptable to suppress the economic independence and initiative of economic entities, excessively restrict the right of everyone to freely use their abilities and property for entrepreneurial and other economic activities not prohibited by law, as well as the right of private property. Applying this measure of coercion, the authorized body is obliged to establish the degree of guilt of the offender, the amount of damage caused and other circumstances significant for a particular case. Moreover, the establishment of the fact of violation of the licensee, with which the law connects the possibility of revocation of the license, in itself is not yet an unconditional basis for its cancellation. The courts assess the materiality of the violation committed and only taking into account this circumstance make a decision on the need to apply such a consequence (Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 47 of 11.07.2014).

In support of the refusal to satisfy the requirements for the cancellation of licenses, the courts, in particular, pointed out that:

the revealed violations do not indicate that the company is carrying out systematic illegal activities and its intentional nature, the company has eliminated the misrepresentations of reporting;

preliminary judicial acts established that the organization submitted corrected declarations in a timely manner, and the errors identified by the audit were of a technical nature and did not lead to an underestimation of deductions;

violation exclusively of the rules for declaring the volume of retail sale of beer and beer drinks cannot be grounds for revocation of the license for the retail sale of alcohol, since the activity of retail sale of beer and beer drinks is not subject to licensing;

the revealed violation is of a one-time nature, evidence that the organization was previously brought to administrative responsibility has not been presented in the case materials, the licensing authority does not have information about the licensee committing any violations in the field of alcohol turnover in previous periods, as well as about the presence of complaints from consumers about its activities;

non-payment of an administrative fine, the possibility of recovery of which has not been forcibly lost, in this particular case does not violate the economic interests of the Russian Federation, the rights and legitimate interests of consumers and other persons, and therefore in this case the cancellation of the license cannot be recognized as a measure of state response, proportionate and appropriate to the nature of the committed act.

Scientists and practitioners pay attention to gaps and conflicts of licensing regulations that complicate law enforcement. The reduction of the powers of the state authorities of the constituent entities of the Russian Federation to regulate licensing relations did not lead to the full exclusion of the facts of the adoption by regions and local self-government bodies of regulatory legal acts contrary to federal legislation, violating the established procedure for the implementation of the licensing system, the unlawful granting (refusal to grant) licenses, the application of operational measures to licensees, bringing them to responsibility.

Taking into account the above, the further elimination of uncertainty and contradictions of industry regulation, which create prerequisites for unjustified restrictions on the freedom of economic activity, remains relevant.