Evolution of legislation on administrative liability for violation of consumer rights

Chagina Elizaveta Mihailovna Junior Researcher ; Center of Private Law ; Institute of Legislation and Comparative Law under the Government of the Russian Federation 31 Bolshaya Cheremushkinskaya str., Moscow, 117218, Russia chagina.elizaveta1997@mail.ru Other publications by this author

Lubyannikova Anna Sergeevna Lecturer; Department of Organization of activities of road safety units; Moscow Regional Branch of the Moscow University of the Ministry of Internal Affairs named after V.Ya. Kikot 117437, Russia, Moscow, Akademika Volgina str., 12 support_mosu@mvd.ru

In 2017, the Strategy of the State Policy of the Russian Federation in the field of consumer protection for the period up to 2030 was approved, in which the main task was to improve regulation in the field of consumer protection and protection in order to ensure an appropriate and, last but not least, an undiminished level of protection of basic consumer rights of citizens, taking into account the development of economics and technology. The main emphasis in the Strategy was placed precisely on the improvement, as well as the subsequent codification of legislation on consumer protection, i.e. the sub-sector regulating civil law relations, the parties to which are consumer citizens and sellers, performers, as well as some other persons. However, despite the fact that such legal relations are of a private legal nature, the protection and protection of consumer rights is not provided only by civil law means. Article 43 of the Law of the Russian Federation No. 2300-1 dated 07.02.1992 "On Consumer Rights Protection" (hereinafter referred to as Law No. 2300-1) explicitly states that violation of consumer rights entails the application of measures of both civil and criminal or administrative liability.

Administrative responsibility plays an important role in ensuring an adequate level of consumer protection. As noted in the literature, this is aimed at protecting consumer citizens from the most serious encroachments on their rights and legitimate interests. ^{[1, p. 72]} In this regard, the improvement of civil law regulation of consumer relations inevitably actualizes the issue of the need to amend the relevant provisions of the Code of Administrative Offences of the Russian Federation (hereinafter - the Administrative Code of the Russian Federation).

In order to implement the above-mentioned Strategy, a number of significant innovations were introduced into Law No. 2300-1 in 2022. At the same time, the provisions of the Administrative Code of the Russian Federation, which establish sanctions for violation of consumer rights, have also changed. At the same time, the evolution of norms on administrative liability for violation of consumer rights is not limited to this stage only, although it certainly has special significance. The relevant norms of the Administrative Code of the Russian Federation were improved both before the reform in 2022 and after. In the legal literature, however, not much attention is paid to improving legislation on administrative liability for violations in the field of consumer protection. In addition, most of the research on the problems of administrative liability for violation of consumer rights was published before the adoption of the above-mentioned amendments to Law No. 2300-1 of 2022 and, accordingly, the Administrative Code of the Russian Federation. At the same time, it seems that the process of transformation of the norms on administrative responsibility for violation of consumer rights, its prerequisites and connection with the evolution of legislation on consumer protection deserves a more detailed consideration, which is of interest to both science and law enforcement practice.

In order to determine the scope of further research, it seems necessary to note the following.

The Administrative Code of the Russian Federation includes a whole range of norms that are aimed at protecting and protecting consumer rights both directly and indirectly. In the event that an administrative offense harms the actual civil law relations with the participation of the consumer, which is expressed in a direct violation or diminution of the rights guaranteed to a citizen under Law No. 2300-1, it should be concluded that the relevant norm of the Administrative Code of the Russian Federation, establishing legal responsibility for such an act, is aimed at protecting and protecting consumer rights directly. These are, for example, the norms of Article 14.7 of the Administrative Code of the Russian Federation, which establish penalties for deceiving consumers, or Article 14.8, which establishes sanctions for unlawful refusal to conclude a contract with a consumer, for imposing contractual conditions that infringe on his rights, as well as for a number of other actions. However, there are also norms that protect the rights of consumers only indirectly, through the protection of other legal relations. For example, the norms on liability for violations in the field of technical regulation are aimed at protecting the actual administrative legal relations in the field of technical regulation, which, in turn, have the main purpose of protecting human health and life from threats posed by unsafe products. ^{[2, p. 180]} Accordingly, ensuring the enforcement of legislation on technical regulation by measures of administrative responsibility indirectly contributes to better protection of consumer rights, in particular, the right to safety of goods for health and life (Article 7 of Law No. 2300-1). Another example is Article 14.4.2 of the Administrative Code of the Russian Federation, which, being aimed at protecting the established procedure for the retail sale of medicines, indirectly protects the rights of consumers when purchasing medicines. In this regard, different opinions are expressed in the literature on the question of which norms of the Code should be attributed to the norms on liability for violation of consumer rights, and the difference in views is mainly due to whether the authors include in this group only norms on liability for violations in which contractual relations involving consumers are the direct object of encroachment ^{[3, pp. 61-66]}, or also include provisions establishing liability for other violations that infringe on consumer rights only indirectly. ^{[4, p. 167; 5, pp. 48-56; 6, pp. 174-175]}

In this paper, we will proceed from the fact that the subject of analysis will be the process of evolutionary transformation of the provisions of the Administrative Code of the Russian Federation, which establish responsibility for offenses, the direct object of illegal influence for which are civil legal relations, one of the parties to which is the consumer. Within the framework of the most detailed research, it is planned to consider the course of the historical development of these legislative provisions, including the prerequisites for their change that have developed during the practical application of these norms, identify the relationship of this process with the course of transformation of legislation on consumer protection, as well as determine the significance of advisory acts adopted within the framework of regional associations for the development of domestic legislation on administrative liability for violation of consumer rights. It also seems necessary to dogmatically analyze the current norms of the Administrative Code of the Russian Federation, as well as to study the practice of their application in order to determine how much the existing legislative changes contribute to achieving the goals specified in the Strategy of the State Policy of the Russian Federation in the field of consumer protection.

It is important to note that liability for violation of consumer rights was introduced in the very first edition of the Administrative Code of the Russian Federation. An unambiguous indication of responsibility for violation of consumer rights was contained in two articles of the Code – Articles 14.7 and 14.8.

The content of Article 14.7 has not undergone many changes in recent years. Initially, it fixed a single administrative offense – consumer deception – which covered the illegal actions of the seller, contractor, related, firstly, to measuring, weighing or shortchanging consumers, secondly, to misleading them about the properties or quality of goods, work or services, and thirdly, with other deception of consumers. At the same time, the article stated that such actions are committed "in organizations that sell goods, perform work or provide services to the public, as well as citizens registered as individual entrepreneurs in the field of trade (services)," which limited the range of subjects of administrative offense only to sellers of goods and performers of works (services) or their officials. In particular, in fact, the responsibility of the manufacturer of goods for these actions was excluded, although according to Law No. 2300-1 he is entrusted with certain duties towards the consumer, despite the fact that the manufacturer, as a rule, does not act directly as a party to the contract with him, for example, duties of an informational nature (Article 10 of Law No. 2300-1). Subsequently, with the adoption of Federal Law No. 194-FZ of 07/23/2013, this gap was eliminated: a direct indication of the range of possible subjects of the offense was excluded from the disposition of the norm, however, an addition appeared that consumer deception in any form is punishable not only at the stage of sale of goods, but also at the stage of their production, which in essence led to the spread of responsibility for manufacturers, as well as other persons involved in legal relations with consumer citizens.

The following change was introduced by Federal Law No. 530-FZ of December 31, 2014 and was associated with the allocation of an administrative offense to a special structure, expressed in misleading the consumer about consumer properties or the quality of goods, for which stricter liability was established. This measure, as indicated in the explanatory note to the draft law, was aimed at countering the sale to consumers of counterfeit, that is, counterfeit products with an illegally applied means of individualization, and the establishment of a greater amount of liability was due to the fact that the sale of such products in some cases may entail not only violation of the rights of citizens as consumers, but also direct harm to their life or health. In addition, it should be taken into account that information about the consumer properties of the product and the quality of the product is the most important information for the consumer, on the basis of which they make a choice. The consumer has the right to demand the provision of all necessary and, importantly, reliable information about goods, works or services (Article 8 of Law No. 2300-1). In addition, the Law has a direct indication that the information provided about goods, works or services must ensure that they can be chosen correctly (Article 11 of Law No. 2300-1). This fully applies to information about the quality of goods, the reliability of which provides not only the opportunity for the consumer to make an informed choice, but also his right to purchase goods, works or services that are safe for health and life (Article 7 of Law No. 2300-1).

Speaking about an administrative offense expressed in consumer deception, it is necessary to pay attention that the Administrative Code of the Russian Federation contains precise definitions of consumer deception, highlighting only certain types of it, such as measuring and weighing. However, consumer deception is not limited to these actions. In particular, the Guidelines on Compliance with Mandatory Requirements in the Implementation of Federal State control (supervision) in the field of consumer protection (approved by Rospotrebnadzor 10.11.2022) also provide examples of actions that may qualify as consumer fraud, which, in turn, may consist in committing various actions, for example, during charging the consumer an amount greater than provided for in the contract, or in non-repayment in full or in part of the amount overpaid by the consumer, etc. A special case of overcharging the consumer in judicial practice is also recognized as debiting monetary funds from his account to pay for the delivery of goods when the consumer cancels an order made remotely, in a situation where delivery services were not actually provided rendered (see Resolution of the Arbitration Court of the Moscow District dated 07/08/2020 No. F05-5694/2020 in case No. A41-69950/2019; Resolution of the Arbitration Court of the Moscow District dated 12/08/2020 No. F05-16466/2020 in case No. A41-69947/2019).

In general, consumer deception in judicial practice is defined as deliberate misleading, which can be expressed in a false statement or promise, as well as in omission of facts that may affect the transaction, and such actions are hidden, invisible to the consumer (see, for example, the decision of the Arbitration Court of the Volga Region dated 03/16/2021 No. F06-1956/2021 in case no. A06-2983/2020, etc.). This view of the concept of consumer deception is also supported in the doctrine. ^{[7, c. 106]}

With regard to Article 14.8 of the Administrative Code, it is impossible not to pay attention to the significant change in its content since the adoption of the current Code: if initially its provisions provided for only three types of administrative offenses, by now their number has increased to nine.

The first part of the administrative offense, provided for in the original version of this article, covers the violation of the consumer's right to receive necessary and reliable information, firstly, about the product being sold (work, service), and secondly, about the manufacturer, seller or performer, as well as their working hours.

Attention should be paid to the problem of determining the ratio of this composition with the above-mentioned misleading of the consumer regarding the consumer properties of the product. Reliable and complete information about the latter must necessarily be provided to the consumer (Article 10 of Law No. 2300-1), and in this context, its distortion can in principle be regarded as a violation of the consumer's right to receive reliable information. In practice, according to Part 2 of Article 14.7 of the Administrative Code of the Russian Federation, they are more often prosecuted in cases where there is a communication to the consumer of information about a product or service that is not true (see for example. The ruling of the Second Cassation Court of General Jurisdiction dated 09/03/2021 in case No. 88-19583/2021; the ruling of the Seventh Cassation Court of General Jurisdiction dated 05.05.2023 No. 88-8807/2023 in case No. 2-5673/2022; the ruling of the Sixth Cassation Court of General Jurisdiction dated 06/13/2023 in case No. 88-13561/2023). In the case when certain information about a product or service has been withheld from the consumer, it is possible to bring the guilty person to responsibility simultaneously under Part 1 of Article 14.8 of the Administrative Code of the Russian Federation for actually failing to inform the consumer of information, the provision of which is mandatory by law, as well as under part 2 of Article 14.7 of the Administrative Code of the Russian Federation, if these actions were related by misleading him about the consumer properties of a product or service (see e.g. The ruling of the Sixth Court of Cassation of General Jurisdiction dated 04/09/2024 No. 88-9133/2024).

It is also important to correctly distinguish between administrative offenses provided for in Part 1 of Article 14.8 of the Administrative Code of the Russian Federation and Part 1 of Article 14.5 of the Administrative Code of the Russian Federation, which establishes responsibility for the sale of goods, performance of works, provision of services in the absence of established information about the manufacturer, seller or performer or other information, the provision of which is mandatory in accordance with the law. When deciding this issue, the Supreme Court of the Russian Federation proceeded from the fact that these offenses have a single object of encroachment – legal relations arising between consumer citizens on the one hand and sellers (performers, other persons) on the other - however, they differ in that in order to incur liability under Part 1 of Article 14.5 of the Administrative Code of the Russian Federation, it is necessary that the sale of goods in the absence of the required information, it took place, whereas it is not required to bring to administrative responsibility under Part 1 of Article 14.8 of the Administrative Code of the Russian Federation (see paragraph 39 of the Review of Judicial Practice of the Supreme Court of the Russian Federation No. 3 (2020), approved. By the Presidium of the Supreme Court of the Russian Federation on 11/25/2020).

Tsch. Article 14.8 of the Administrative Code establishes liability for the inclusion of conditions in the contract that infringe on the rights of the consumer. The disposition of the norm contains a reference to Article 16 of Law No. 2300-1, which largely caused difficulties in judicial practice when bringing business entities to responsibility for the said administrative offense. Until 2022, Article 16 of Law No. 2300-1 contained only a general indication that the terms of contracts that infringe on consumer rights in comparison with the norms established by the legislation of the Russian Federation are invalid. Due to the lack of a clear definition in the Law of what constitutes infringement of consumer rights, as well as criteria on the basis of which a particular contractual condition could be invalidated, consumer protection of their rights was often difficult. ^{[6, p. 127]} In this regard, Rospotrebnadzor noted that the existing legal regulation led to the fact that business entities continued to include conditions in contracts that were repeatedly recognized by courts as violating consumer rights (see Consumer Protection in the Russian Federation in 2019: State Report. – M.: Federal Service for Supervision in the field of consumer rights protection and human well–being, 2020. pp. 127; 150-151; Consumer rights protection in the Russian Federation in 2018: State Report. - Moscow: Federal Service for Supervision of Consumer Rights Protection and Human Well-being, 2019. pp. 79-81, 114-115.). In this regard, in 2019 Rospotrebnadzor prepared a draft amendment to Article 16 of Law No. 2300-1, which provided for both clarifying the concept of contract terms that infringe on consumer rights and developing a list of contractual terms that are knowingly illegal and invalid, which was supposed to reduce the number of cases of violation of consumer rights.

It should also be noted that the ideas that formed the basis of the draft law also influenced the development of advisory acts at the level of the Eurasian Economic Union (hereinafter referred to as the EAEU), of which the Russian Federation is a member. In accordance with Article 61 of the 2014 Treaty on the Eurasian Economic Union, the member States pursue a coordinated policy in the field of consumer protection based on the principles set out in Annex No. 13 to the Treaty on the EAEU – Protocol on the implementation of a coordinated policy in the field of consumer protection (hereinafter referred to as the Protocol). Paragraph 6 of the Protocol provides for the powers of the Eurasian Economic Commission (hereinafter referred to as the EEC) to develop recommendations for the participating countries on the implementation of the provisions of the Protocol. Within the framework of these powers, the EEC Board adopted Recommendation No. 1 of 12.01.2021 "On Principles and criteria of fair business practice in relation to consumers in the field of retail trade in goods" (hereinafter – Recommendation of the EEC Board No. 1). One of the criteria for good business practice according to this document is to prevent the inclusion in a contract with a consumer of conditions that infringe on his rights (paragraph 5). The text of the Recommendation also includes an approximate list of contractual terms that violate consumer rights, which Member States should focus on when improving national legislation (paragraph 6).

The corresponding changes were introduced by Federal Law No. 135-FZ dated 05/01/2022. The new version of Part 1 of Article 16 of Law No. 2300-1 establishes a general rule, based on which any terms of the contract that violate the rules established by international treaties of the Russian Federation, laws and other regulatory legal acts of the Russian Federation adopted in accordance with them regulating relations in the field of consumer protection are considered infringing on consumer rights. Also, Part 2 of Article 16 provides for a list of contractual terms that are knowingly violating consumer rights, and, accordingly, are always recognized as invalid. These are, for example, conditions that grant the seller (contractor, other person) the right to unilaterally refuse to fulfill an obligation to a consumer citizen, or conditions that exclude or limit the liability of the seller (contractor, other persons) for non-fulfillment or improper fulfillment of obligations to the consumer on grounds not provided for by law, and others . The inclusion in the contract of any of the conditions contained in this list, as well as other conditions that contradict the requirements of the legislation of the Russian Federation, constitutes an offense provided for in Part 2 of Article 14.8 of the Administrative Code of the Russian Federation (see e.g. Resolution of the Arbitration Court of the North Caucasus District dated 04/10/2023 No. F08-135/2023 in case No. A53-20284/2022; Resolution of the Arbitration Court of the Volga District dated 11/15/2023 No. F06-10102/2023 in case No. A57-35221/2022).

Thus, the strengthening of the responsibility of business entities for the inclusion of unfair conditions in the contract with the consumer was associated not only with the reform of domestic legislation on consumer protection, but also aimed at bringing legal norms into line with the recommendation acts of the EAEU.

Separately, it should be noted that in the new version of Article 16 of Law No. 2300-1 it is stated that the terms of the contract are considered unacceptable, which condition the purchase of some goods (works, services) by compulsory purchase of other goods (works, services), including the mandatory conclusion of other contracts, unless otherwise provided by law. The inclusion of such a condition in the contract forms a special part of an administrative offense provided for in Part 2.1 of Article 14.8 of the Administrative Code, for which stricter liability is established than simply for the inclusion of conditions infringing on the rights of consumers in the contract. This decision of the legislator was due to the massive nature of such violations of consumer rights. It should also be noted that the Recommendation of the EEC Board No. 1 indicates that one of the criteria for good business practice in relations with consumers is, in particular, preventing the imposition of additional services on the consumer for a fee or forcing the conclusion of additional agreements to the contract under threat of refusal to execute the transaction.

Finally, the third element of an administrative offense, which was provided for in the original version of Article 14.8 of the Administrative Code of the Russian Federation, is the refusal to provide the consumer with benefits and benefits established by law (Part 3 of Article 14.8 of the Administrative Code of the Russian Federation). This rule has not undergone any significant changes.

However, it should be taken into account that the expansion of the number of administrative offenses, the responsibility for which is established by Article 14.8 of the Administrative Code of the Russian Federation, began long before the reform of Law No. 2300-1. In 2014, Federal Law No. 112-FZ of 05.05.2014 supplemented this article with Part 4, which established liability for failure to fulfill the obligation to ensure the possibility of paying for goods, works or services by cash payments or using national payment instruments within the national payment card system at the consumer's choice. The introduction of this norm was due to the addition of Federal Law No. 161-FZ dated 06/27/2011 "On the National Payment System" with provisions concerning the organization of the national payment card system, as well as the introduction of corresponding amendments to Law No. 2300-1, imposing on economic entities the obligation to provide consumers with the opportunity to pay for goods, works or services using national payment instruments or cash payments (part 1 of Article 16.1).

In 2020, administrative liability was introduced for refusing to provide goods, work, services or access to consumers for reasons related to their health, age or other grounds that are not provided for by law and are discriminatory (Part 5 of Article 14.8 of the Administrative Code of the Russian Federation). Attention should be paid to the difference between this offense and the one provided for in Part 3 of Article 14.8 of the Administrative Code of the Russian Federation. Both norms are essentially aimed at protecting the rights of vulnerable categories of consumers, however, Part 3 of Article 14.8 of the Administrative Code of the Russian Federation establishes liability for refusing to provide consumers with legally prescribed benefits or advantages in a situation where a contract has already been concluded with them (see for example. Resolution of the Thirteenth Arbitration Court of Appeal dated 04/10/2018 No. 13AP-4000/2018 in case No. A56-51691/2017), whereas liability under Part 5 of Article 14.8 of the Administrative Code of the Russian Federation occurs precisely for refusal to conclude a contract with a consumer (see for example. Resolution of the Fifth Arbitration Court of Appeal dated 06/11/2024 No. 05AP-2183/2024, 05-AP-2320/2024 in case No. A24-4958/2023).

It should be noted that at the level of the EAEU, attention was also drawn to the importance of special protection of vulnerable categories of consumers. Thus, the Recommendation of the EEC Board dated 05/21/2019 No. 15 "On General approaches to the establishment of special measures to protect the rights and interests of certain categories of consumers" draws attention to the need for the EAEU member States to implement measures aimed at protecting the rights and interests of certain categories of consumers, for example, persons with disabilities, minors (under which the Recommendations persons under 14 years of age are understood), the elderly (persons over 65 years of age), which is due to their age, physical and mental characteristics that affect the ability to adequately assess the consequences of a transaction and lead to consumer risk associated with increased consumer damage. The EEC Board recommended that special liability measures be established in national legislation for unjustified refusal to conclude a contract with consumers belonging to these groups. Thus, the aforementioned amendments to the Code were related, among other things, to the implementation of the provisions of the said Recommendation.

Federal Law No. 54-FZ dated 03/24/2021 introduced Part 6 in Article 14.8 of the Administrative Code of the Russian Federation, which established responsibility for the sale of certain types of technically complex goods with pre-installed computer programs in violation of the requirement established by law to ensure the possibility of using certain types of technically complex goods with pre-installed computer programs, the countries of origin of which are the Russian Federation or other EAEU member states. This change was aimed at ensuring compliance with the requirements of Article 4.1 of Law No. 2300-1, which was introduced in 2019 and had the ultimate goal of protecting the interests of Russian software development companies and countering abuse by large foreign corporations operating in the field of information technology. In essence, these amendments to the law were intended to provide domestic companies with legal mechanisms to promote their programs and services to Russian users.

Federal Law No. 145-FZ of 05/28/2022, Article 14.8 of the Administrative Code of the Russian Federation was supplemented by Part 7, which establishes liability for refusal to conclude, execute, amend or terminate an agreement with a consumer in connection with the latter's refusal to provide personal data, except in cases where their provision is mandatory in accordance with the law or is directly related to the performance of the contract.

The draft of this law was developed by Rospotrebnadzor back in 2021. Previously, they repeatedly drew attention to a significant number of violations related to the refusal of a consumer to conclude a contract based on the failure to provide personal data, and sellers or performers could refuse to explain to him the purposes of collecting personal data and the purposes of their processing. The need to protect consumers in a situation of unlawful refusal to conclude a contract due to the failure to provide them with personal data was also highlighted in the literature, including the need to "consolidate the rule on the inadmissibility of the refusal of a person engaged in entrepreneurial activity to conclude a contract with a consumer in the event that the consumer does not provide his personal data, provided that the processing of such data is not it is necessary for the fulfillment of obligations under the contract." ^{[6, c. 119-120.]}

In 2022, Article 16 of Law No. 2300-1 prohibited the refusal to conclude a contract with a consumer in connection with the failure to provide them with personal data, except in cases where the obligation to provide them is provided for by Russian legislation or is directly related to the performance of the contract. At the same time, when the consumer demands to provide information on specific reasons and legal grounds determining the impossibility of concluding, executing, changing or terminating the contract without providing personal data, the seller is obliged to provide it within the time limits specified by Law. Thus, the introduction of administrative responsibility was aimed at ensuring proper protection of consumer rights, as well as the rights of citizens in the field of personal data processing. It should be noted that this measure also complies with the Recommendation of the EEC Colleague No. 1, according to which good business practice in relation to consumers is based, inter alia, on the protection of personal (personal) information of the consumer, which implies, in particular, limiting the seller's right to condition the conclusion of a contract by providing the consumer with his personal data if this is not necessary for the execution of the contract or is not required by law.

The latest novel is related to the introduction by Federal Law No. 505-FZ of 10/19/2023 in Article 14.8 of the Administrative Code of Part 4.1, which establishes liability for unjustified refusal to consider consumer claims related to violation of his rights, or evasion from their consideration in accordance with the procedure established by law. Rospotrebnadzor noted that consumers often receive an unjustified refusal to consider claims (see Consumer Protection in the Russian Federation in 2019: State Report. – Moscow: Federal Service for Supervision of Consumer Rights Protection and Human Welfare, 2020. p. 74.). Previously, there was no administrative responsibility for such acts, as a result of which the only way for consumers to protect their rights was to go to court, which did not contribute to reducing the number of such violations of their rights. The adoption of these amendments was intended to facilitate the voluntary satisfaction of consumer requirements by business entities and to prevent evasion from fulfilling the requirements of Law No. 2300-1.

Based on the above, it can be concluded that the result of the transformation of the provisions of the Administrative Code of the Russian Federation was a serious strengthening of administrative and legal protection of consumer rights, as evidenced by the expansion of the number of acts for which administrative responsibility is established, and tougher penalties for certain types of offenses. The considered changes in legislation establishing administrative liability for violation of consumer rights are inextricably linked with the improvement of legislation in the field of protection and protection of consumer rights. In this regard, administrative liability measures are the most important means of ensuring an adequate level of consumer rights guarantees. It should also be noted that the adoption of advisory acts at the EAEU level, which set guidelines for further improvement of national legislation, played a significant role in this process.