Document from CIS Legislation database © 2003-2019 SojuzPravoInform LLC

On behalf of the Russian Federation

RESOLUTION OF THE CONSTITUTIONAL COURT OF THE RUSSIAN FEDERATION

of July 16, 2018 No. 32-P

On the case of check of constitutionality of Item 3 of article 69 of the Air code of the Russian Federation, the subitem 1 of Item 2 of Article 78 of the Budget code of the Russian Federation, and also Items 3 and 6 of Rules of provision of subsidies from the federal budget to the organizations on compensation of the income from provision of services half-received by them for airport and land ensuring flights of aircrafts of the users of airspace exempted in accordance with the legislation of the Russian Federation from payment for these services in connection with claims of Koltsovo Airport public joint stock company and "International Airport Nizhny Novgorod" joint-stock company

Constitutional court of the Russian Federation as a part of the Chairman V. D. Zorkin, K. V. Aranovsky's judges, A. I. Boytsova, N. S. Bondar, G. A. Gadzhiyev, Yu. M. Danilov, L. M. Zharkova, S. M. Kazantsev, S. D. Knyazev, A. N. Kokotov, L. O. Krasavchikova, S. P. Mavrin, N. V. Melnikov, Yu. D. Rudkin, O. S. Hokhryakova, V. G. Yaroslavtsev,

being guided by Article 125 (part 4) Constitutions of the Russian Federation, Item 3 parts one, parts three and the fourth Article 3, Article part one 21, Articles 36, 47.1, 74, 86, 96, 97 and 99 Federal constitutional Laws "About the Constitutional Court of the Russian Federation",

considered in meeting without carrying out hearing case on check of constitutionality of Item 3 of article 69 of the Air code of the Russian Federation, the subitem 1 of Item 2 of Article 78 of the Budget code of the Russian Federation, and also Items 3 and 6 of Rules of provision of subsidies from the federal budget to the organizations on compensation of the income from provision of services half-received by them for airport and land ensuring flights of aircrafts of the users of airspace exempted in accordance with the legislation of the Russian Federation from payment for these services.

Reason for consideration of the case were claims of PJSC Koltsovo Airport and JSC International Airport Nizhny Novgorod. The basis to consideration of the case was the found uncertainty in question of whether there correspond Constitutions of the Russian Federation the normative provisions challenged by applicants.

As both claims concern the same subject, the Constitutional Court of the Russian Federation, being guided by article 48 of the Federal constitutional Law "About the Constitutional Court of the Russian Federation", connected cases on these claims in one production.

Having heard the message of the judge-speaker L. O. Krasavchikova, having researched the submitted documents and other materials, the Constitutional Court of the Russian Federation

established:

1. According to Item 3 of article 69 of the Air code of the Russian Federation the procedure for expense recovery for aeronautical servicing, ensuring flights of aircrafts of the users of airspace exempted in accordance with the legislation of the Russian Federation from collection of payment for aeronautical servicing, ensuring flights of aircrafts is established by the Government of the Russian Federation.

According to the subitem 1 of Item 2 of Article 78 of the Budget code of the Russian Federation subsidies are provided to legal entities from the federal budget and budgets of state non-budgetary funds of the Russian Federation in the cases and procedure provided by the Federal Law on the federal budget, the Federal Laws on budgets of state non-budgetary funds of the Russian Federation and the regulatory legal acts of the Government of the Russian Federation or acts of the federal bodies of the government (federal state bodies) authorized by it adopted according to them.

According to Rules of provision of subsidies from the federal budget to the organizations on compensation of the income from provision of services half-received by them for airport and land ensuring flights of aircrafts of the users of airspace exempted in accordance with the legislation of the Russian Federation from payment for these services (No. 37) are approved by the order of the Government of the Russian Federation of January 25, 2013, subsidies from the federal budget are provided within the budgetary appropriations provided by the Federal Law on the federal budget for the corresponding financial year and planning period and limits of the budget obligations approved in accordance with the established procedure to Federal Air Transport Agency on compensation of the income from provision of services half-received by the organizations for airport and land ensuring flights of aircrafts of users of airspace exempted in accordance with the legislation of the Russian Federation from payment for these services (Item 3); provision of subsidies is performed one-timely according to the procedure of priority of receipt from the organizations of statements for provision of subsidy in Federal Air Transport Agency (Item 6).

1.1. The decision of Arbitration Court of the city of Moscow of June 16, 2016 left without change by courts of appeal and cassation instances, PJSC Koltsovo Airport was refused satisfaction of requirements to the Russian Federation on behalf of the Ministry of Finance of the Russian Federation about claiming damages in the amount of cost of the services in airport and land ensuring flights of aircrafts of the users of airspace exempted according to the legislation from payment for these services rendered in 2014 (by calculation of the applicant - 35 646 981, 80 rub).

The decision of Arbitration Court of the city of Moscow of April 27, 2016 which is also left without change by courts of appeal and cassation instances, JSC International Airport Nizhny Novgorod was refused satisfaction of requirements to the Ministry of Finance of the Russian Federation and to Federal Air Transport Agency about claiming damages in the amount of cost of the services in airport and land ensuring flights of aircrafts of the users of airspace exempted according to the legislation from payment for these services rendered in 2014 (by calculation of the applicant - 19 679 892, 39 rub).

At the same time courts recognized that failure to provide by authorized state body - Federal Air Transport Agency of subsidies based on regulations of the budget legislation for compensation of the corresponding income half-received by claimants not identically by the legal nature to non-execution of obligations. Besides, according to courts, applicants chose inadequate method of protection of the right as activities of authorized state bodies for provision of subsidies to legal entities assume implementation of the state powers, and therefore contest of decisions of authorized state body on refusal in the provision of subsidies perhaps according to the procedure provided by Chapter of 24 AIC of the Russian Federation.

JSC International Airport Nizhny Novgorod is refused by determination of the judge of the Supreme Court of the Russian Federation of June 2, 2017 transfer of the writ of appeal for consideration in judicial session of Judicial board on economic disputes of the Supreme Court of the Russian Federation.

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