The "moratorium" is not for everyone ...


On April 3 of this year, as a measure to support business during the COVID-19 pandemic, the Government decree introduced the so-called "moratorium on bankruptcy" - not only bankruptcy proceedings are not initiated against certain categories of debtors, in addition, creditors have no opportunity to  to receive forcibly the debt collected by the court.

As of the current date, the moratorium has been introduced until October 03.  Now the issue of its extension until next March is being considered, and, as we all understand, this will most likely happen.

That is, in the current very difficult period for all, creditors are deprived of the actual opportunity to receive the money owed to them only if the debtor does not voluntarily execute the court decision.  The moratorium not only prohibited creditors from bankrupting debtors from affected industries, but also limited debt collection.

And all would be nothing, the initiative of the state to support system-forming and strategically important organizations is quite logical, and the purpose of these measures is good - to prevent bankruptcy.

In doing so, it is assumed that the organizations subject to the moratorium will act in good faith and reasonably.  To prevent unfair actions on the part of the debtor, the legislator has provided for certain guarantees in the form of restrictions for persons against whom the moratorium applies, including the payment of dividends (distribution of profits).

But if a debtor from an affected industry suffers a pandemic without financial difficulties, then should he receive moratorium privileges?

Some large companies have abandoned the moratorium, thereby removing a number of restrictions on rights and obligations, including a ban on the payment of dividends, since this significantly restricts the company's financial activities and reduces the liquidity of assets.

Not all large companies demonstrate good behavior.  Thus, FGC UES, PJSC, while continuing to enjoy the privileges of being on the “moratorium” list, at the next annual general meeting of shareholders decides to pay dividends based on the results of the reporting period of 2019, while paying the company's shareholders an amount exceeding 23 billion rubles.

Meanwhile, PJSC FGC UES has a debt to one of its former contractors (LLC Rusengineering) in excess of half a billion rubles.
The actions of FGC UES PJSC to pay dividends during the moratorium (in violation of the prohibition established by law), taking into account the presence of unfulfilled obligations to other independent creditors (including Rusengineering LLC), indicate the illegality and dishonesty of FGC UES
PJSC actions  and violation of the balance of interests of the parties, established by the legislator, for the period of the moratorium on bankruptcy.

Tenzor Consulting Group's lawyers, in order to protect the interests of the principal LLC Rusengineering, filed a statement of claim to invalidate the decision of the annual general meeting of shareholders of FGC UES PJSC to pay dividends.

Article 174.1 of the Civil Code of the Russian Federation provides for special grounds - a transaction made in violation of the prohibition or restriction of the disposal of property arising from the law, in particular from the legislation on insolvency (bankruptcy), is void to the extent that it provides for the disposal of such property.

In addition, there are all the circumstances associated with the invalidity of the transaction under Article 10, 168 of the Civil Code of the Russian Federation.  The transaction was made in violation of the law with the aim of causing damage to the property rights of creditors and in case of abuse by the defendant of the right.

The court will have to establish a fair balance of interests of the parties.  The practice of applying the norm is just beginning to take shape, and there is still no single interpretation of it.

21 September 2020