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FAS exceeds authority when issuing clarifying provisions of Federal law “On advertising”


It is a rather known fact that some time ago Federal Antimonopoly Service of the Russian Federation (hereinafter – “FAS of Russia”) issued a letter dated 28.05.2015 N AD/26584/15 on clarification of certain provisions of the Federal law N 38-FZ “On advertising” dated 13.03.2006 (hereinafter – “Letter”).

In the Letter FAS provided clarifications in relation to the terms contained in para. 8 art. 24 of the aforementioned law, in particular  normative content of the term “methods of prevention, diagnostics, treatment and medical rehabilitation”. These clarifications of FAS formed the subject matter of a specific case in the Supreme court of the Russian Federation and were recognized as invalid by the Decision of Supreme court of the Russian Federation dated 18.08.20161.

In particular, the Supreme court of the Russian Federation ruled:

  • confirmed that FAS of Russia is not authorized to elaborate on normative definitions of terms, outlined in the Federal law dated 21.11.2011 N 323-FZ “On the basics of the public healthcare in the Russian Federation”;
  • arrived at a conclusion that FAS of Russia acted ultra vires when trying to define terms, outlined in the legislation on public healthcare;
  • acknowledged the Letter in the part of provided clarifications (para. 10 clause 1 of the Letter) as possessing normative nature and thus invalid. In its decision the Supreme Court of the Russian Federation found that FAS of Russia acted ultra vires.

In this case claim for invalidation of provisions of the FAS’s Letter was upheld by the Ministry of Justice of the Russian Federation, which also found, that the Letter contains clarifications of legislation in the public health protection area, which does not fall within the jurisdiction of FAS.

FAS Letter was issued not in connection with implementation by FAS of its authorities, hence does not comply in the contested part with the actual meaning of the clarified normative provisions. Also, we can arrive at a conclusion, that in order to justify the existence of “regulatory properties” in an act, issued by FAS, it is sufficient for the party to refer to at least one court decision, where such act was applied.

_____

1Decision of the Supreme court of the Russian Federation dated 18.08.2016 N AKPI16-546 “On invalidation of sub-paragraph 10 paragraph 1 of the FAS’s letter dated 28.05.2015 N AD/26584/15 “On clarification of certain provisions of the Federal law “On advertising”



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