The FOS Expert Council’s guidelines issued at the meeting held on 06 October 2020

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

1. Concerning the recovery from a financial institution of a penalty for improper performance of obligations to a consumer when the amount of the obligation established by the court is higher than the amount established by the Financial Ombudsman.

According to Part 1 of Article 24 of Federal Law No. 123-FZ, the compliance by a financial institution with an effective Financial Ombudsman’s decision shall be deemed to be a proper performance by the financial institution of its obligations under the relevant contract with a consumer of financial services on the provision of financial services to him/her or for his/her benefit.

Thus, voluntary implementation of the Financial Ombudsman’s decision completely terminates the obligation incurred by the financial institution under the relevant agreement with the consumer of financial services in connection with its proper performance, which excludes the imposition of liability measures against the financial institution for the violation of the term of performance of the obligation.

Recovery from the financial institution of penalties for improper performance of the obligation in case the court subsequently changes the amount of the obligation established by the Financial Ombudsman’s decision upwards, will lead to violation of the principle of legal certainty and will level the effect of Part 1 of Article 24 of Law No. 123-FZ and its incentive effect.

Considering the aforesaid, there are no grounds for penalty recovery in cases when the consumer’s claims for penalty recovery contained in the appeal to the Financial Ombudsman are based on a judicial act that has entered into legal force and establishes the amount of the financial institution’s obligation larger than the amount that was established by the Financial Ombudsman’s decision upon consideration of the applicant’s appeal on the same subject and grounds, for the period until the date of entry into force of the court decision.

2. Concerning the recovery from a financial institution of a penalty for breach of the terms of voluntary fulfilment of obligations to a consumer in a case where the Financial Ombudsman has established a different amount of the obligation or the absence thereof.

According to Paragraph 1 of Article 330 of the Russian Civil Code, a penalty (fine, forfeit) is a sum of money determined by law or contract, which the debtor is obliged to pay to the creditor in case of non-performance or improper performance of an obligation, in particular, in case of delay in performance.

The basis for collecting a penalty from a financial institution is the violation of the term of fulfilment of an obligation stipulated by a contract or a regulatory legal act.

In the case when, after the financial institution has voluntarily fulfilled its obligation in violation of the terms stipulated by the agreement or regulatory legal act, the Financial Ombudsman establishes the fact that there is such an obligation in a smaller amount or the fact that there is no such obligation, there are no grounds for collecting a penalty for violation of the terms of voluntary fulfilment of the obligation, calculated for the amount exceeding the appropriate amount of the obligation established by the Financial Ombudsman, due to the absence of obligations.

Thus, if in the course of consideration of consumers’ appeals containing claims for penalty for violation of terms of fulfilment of obligation under the agreement on rendering financial services, the Financial Ombudsman establishes the fact of fulfilment of such obligation with violation of terms established by the agreement or regulatory legal act, the base for calculation of penalty should be the amount of obligation, which was determined by the Financial Ombudsman.

In case the Financial Ombudsman establishes the fact that there is no obligation under the agreement on provision of financial services, the claim for recovery of the penalty shall be rejected in full.

3. On the issue of reimbursement of the assignee’s expenses on payment of the fee for appeal consideration by the Financial Ombudsman.

According to Part 2 of Article 15 of the Russian Civil Code, the losses are understood as the expenses that the person whose right has been violated has made or will have to make to restore the violated right, destruction or damage to his property (real damage), as well as income not received, which this person would have received under normal conditions of civil turnover, if his or her right had not been violated (loss of profit).

The requirement to pay the fee provided for in Part 6 of Article 16 of Law No. 123-FZ for consideration by the Financial Ombudsman of appeals of third parties to whom the right of claim of a consumer of financial services against a financial institution (assignee) has been assigned is not due to improper performance (non-performance) by the financial institution of its obligations, but due to the conclusion between the assignor (consumer of financial services) and the assignee of the contract of assignment of the right of claim against the financial institution.

Thus, the said fee cannot be recognised as a loss subject to compensation within the legal relations arisen between the assignee and the financial institution under the agreement on provision of financial services to the consumer.

In this regard, as well as taking into account that the fee for the Financial Ombudsman’s consideration of third parties’ appeals is a payment for the services of the Financial Ombudsman to consider the appeals of these persons accepted for consideration by the Financial Ombudsman, taking into account that the obligation to pay such a fee is not made dependent on the results of consideration of the assignees’ appeals, and in connection with the fact that the stipulations of the Law No. 123-FZ do not provide for the obligation and procedure of refunding the assignee’s fee for the Financial Ombudsman’s consideration of appeals, the said fee is not subject to refund and reimbursement.