of April 4, 2008 No. 01-8/205
About practice of application by economic courts of the legislation on advertizing
(on the materials considered in cassation procedure by the Supreme Economic Court of Ukraine)
According to the procedure of information and for accounting in hearing of cases on the disputes connected using the legislation on advertizing the overview of the cases solved by economic courts on which judgments are reviewed in cassation procedure by the Supreme Economic Court of Ukraine is sent.
1. The fact of placement of external advertizing shall be without the permission proved by due means of proof.
The executive committee of city council appealed to economic court with the claim for duty of the subject of business activity to execute the decision of executive committee of city council concerning establishing order in placement of objects of external advertizing in the territory of the city by dismantling of advertizing means.
The decision of local economic court of the subject of business activity decisions of executive committee of city council by dismantling of advertizing means obliged to fulfill requirements in a month. In adoption of the specified decision the court with reference to article 16 of the Law of Ukraine "About advertizing" (further - the Law), article 42 of the Law of Ukraine "About improvement of settlements", instructions of Standard rules of placement of external advertizing (N 2067, - Standard rules are approved further by the resolution of the Cabinet of Ministers of Ukraine of 29.12.2003), etc. recognized that the defendant breaks procedure for placement of external advertizing and requirements of the decision of executive committee of city council are not fulfilled.
Appeal economic the decision of local economic court on this case is cancelled by the resolution, is refused the claim. The specified resolution with reference to Articles 1, 26 Laws, instructions of Articles 32, to 33 Economic procedural code of Ukraine (further HPK of Ukraine) is motivated that the claimant does not establish the owner of object of external advertizing, and the conclusions of the claimant are based only on assumptions.
As was established by Trial Court, decisions of executive committee of city council are made for the purpose of ordering of placement of objects of external advertizing and their reduction in compliance with the legislation on advertizing; according to this decision subjects of maintaining hozyaystvarasprostranitel of advertizing shall perform dismantle of the advertizing means established in the territory of the city without proper documents with the subsequent recovery of green plantings.
The executive committee of city council approves regulations on procedure for placement of external advertizing in the territory of the city according to which external advertizing is placed based on permissions according to the procedure, established by the legislation. According to Item 25 of the specified Provision the permission issued in accordance with the established procedure is the basis for placement of external advertizing and implementation of the works connected with placement of advertizing means, and according to Item 21 of the same Provision the executive committee of city council makes the decision on provision of such permission or on refusal in its provision.
Permission to placement of external advertizing was not issued to the subject of business activity.
The executive committee of city council came to conclusion that the owner and the distributor of advertizing in this case is the subject of business activity - the defendant, that advertizing means are located near restaurant which belongs to the defendant, and on their designs the logo of this restaurant is placed. As the proof pictures on which the advertizing structures with logo of restaurant are represented were attached to case papers and this information has no relation to restaurant; from the provided pictures it is not visible where and when they are made;
The documents attached to the petition for appeal demonstrated that the premises of restaurant are leased by the subject of business activity to other person.
In further explanations to response the executive committee of city council specified the petition for appeal that the working body for external advertizing found illegally the established advertizing structures in the territory which adjoins to the parcel of land allocated for the defendant, i.e. outside the boundaries of the parcel of land which is provided to the subject of business activity in use.
The court of cassation instance left without changes the court order of appellate instance, and the writ of appeal - without satisfaction, proceeding from the following.
According to article 1 of the Law:
- advertizing is the information on person or goods widespread in any form and in any manner and intended to create or support awareness of consumers of advertizing and their interest concerning such person or goods;
- advertizing means are means which are used for bringing advertizing to her consumer;
- the distributor of advertizing is person who performs advertizing distribution;
- advertizing which is placed on the special temporary and stationary designs located on the open area, and also on the external surfaces of houses, constructions, on elements of the street equipment over the carriageway of streets and roads is external.
According to part one of article 16 of the Law:
placement of external advertizing in settlements is performed based on permissions which are provided by executive bodies of village, settlement, city councils, and according to the procedure, established by these bodies based on standard rules which affirm the Cabinet of Ministers of Ukraine.
- each party shall prove those circumstances on which it refers as to the basis of the requirements and objections;
- proofs go the parties and other participants of legal procedure;
- the economic court accepts only those proofs which matter for case.
By results of assessment served the parties and available in proofs the Appeal Court came to reasonable conclusion that accessory of means of external advertizing concerning which there was dispute on this to case is properly not confirmed to the defendant and consequently, he also cannot be considered as the distributor of advertizing in understanding of the Law; respectively there are also no bases for assignment obligation on it concerning dismantling of the specified advertizing means.
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