The FOS Expert Council’s guidelines issued at the meeting held on 14 December 2021

It is recommended that Financial Ombudsmen when determining approaches to consideration of consumers’ appeals should take into account the following.

1. On the issue of reimbursement of the assignee’s expenses on fees for the Financial Ombudsman’s consideration of the appeal.

It follows from the provisions of Part 6 of Article 16 of Federal Law No. 123-FZ that the fee for consideration of the appeal by the Financial Ombudsman is established exclusively for persons to whom the right of claim of a consumer of financial services against a financial institution is assigned.

Thus, the payment of the said fee is conditioned by the conclusion between the consumer of financial services and the assignee of the contract of assignment of the right of claim to the financial institution and is not related to improper performance (non-performance) by the financial institution of its obligations.

As a consequence, the expenses on the fee for consideration of the appeal by the Financial Ombudsman cannot be recovered from the financial institution, as the payment of the said fee is not connected with the violation by it of the person’s right, who has incurred the said expenses.

For the same reason, claims for reimbursement of expenses for the fee charged by the Financial Ombudsman cannot be considered by the Financial Ombudsman, as the competence of the Financial Ombudsman is limited to the consideration of claims arising from financial service agreements only.

In this regard, the Financial Ombudsman should be guided by the position adopted by the FOS Expert Council at its meeting of 06.10.2020 on the issue of reimbursement of the assignee’s expenses on the fee for appeal consideration by the Financial Ombudsman.

2. Concerning the recovery from a financial institution of a penalty for non-performance or improper (untimely, incomplete) performance by a financial institution of its obligation under an agreement with a consumer of financial services within a specified time period under a condition.

In accordance with Part 1 of Article 24 of Law No. 123-FZ implementation by a financial institution of the effective Financial Ombudsman’s decision is recognised as a proper performance by the financial institution of its obligations under the relevant contract with the consumer of financial services to provide him/her or in his/her favour with financial services.

In this regard, on the issue of penalty recovery from a financial institution for non-performance or improper (untimely, incomplete) performance by it of its obligation under the contract with a consumer of financial services within the established term, the Financial Ombudsman should be guided by the position adopted by the FOS Expert Council at the meeting of 28.06.2019, taking into account the need to apply this position to all financial institutions.

3. On the issue of exclusion of expenses for emergency commissioners from being reimbursed under the CMTPL insurance contract.

From the combined interpretation of the provisions of Paragraph 36 of the Resolution of the Russian Supreme Court Plenum of 26.12.2017 No. 58 “On Court Application of Legislation on Compulsory Civil Liability Insurance of Motor Vehicle Owners”, Paragraph 10 of the Review of the practice of consideration by the courts of cases related to compulsory insurance of civil liability of vehicle owners (approved by the Russian Supreme Court Presidium on 22.06.2016), it follows that the costs of payment for the emergency commissioner’s services may be reimbursed as part of the insurance payment under the contract of compulsory insurance of civil liability of vehicle owners.

The incurrence of these expenses cannot be recognised as necessary in case the emergency commissioner rendered services on drawing up a notice of road traffic accident, since the filling in of such a notice does not require special skills, and a person who passed the exam for the right to drive vehicles will have all the necessary knowledge to fill it in.

These expenses are also not necessary in case of registration of a road traffic accident by employees of the State Automobile Inspectorate, since in this case the documents necessary for realisation of the right to receive insurance indemnity are executed by such employees.

Expenses for payment for the emergency commissioner’s services related to the preparation of documents on the nature and amount of losses caused as a result of the road traffic accident are also not necessary, since the provision of such documents is not mandatory for the realisation of the right to receive insurance indemnity, taking into account the provisions of Law No. 40-FZ and Law No. 123-FZ.