The Possible Occurrence of Negative Consequences Is Not Conclusive Evidence for Taking Measures to Secure a Claim: Position of the Administrative Cassation Court of the Supreme Court
The Administrative Cassation Court of the Supreme Court considered case No. 420/20829/25 on a claim against the State Tax Service to recognize its actions as unlawful and to cancel the order to terminate the license for wholesale trade of alcoholic beverages.
The subject of the dispute was the question of the presence or absence of grounds for securing the claim, taking into account the factual circumstances of the case and the stated claims.
The purpose of securing the claim is for the court handling the case to take measures to protect the material and legal interests of the plaintiff from possible unfair actions by the defendant, in order to ensure the plaintiff's real and effective enforcement of the court decision if it is made in favor of the plaintiff, including to prevent potential difficulties in the further execution of such a decision.
When deciding on taking measures to secure the claim, the court in the ruling on securing the claim must state the reasons why it concluded that failure to take such measures may significantly complicate or make impossible the execution of the court decision or effective protection or restoration of the violated or disputed rights and interests of the plaintiff. The court must also indicate what actions will be aimed at restoring the plaintiff's rights, assess the complexity of performing these actions, and establish that the costs associated with restoring the rights will be significant.
The court concluded that the findings of the lower courts that suspension/revocation/termination of licenses issued to the LLC would lead to the actual cessation of the enterprise's operation were unfounded, since termination of the license concerning one type of activity of the business entity (including the main one), given the presence of other open economic activity codes (NASU) according to the Unified State Register of Legal Entities, Individual Entrepreneurs, and Public Formations, cannot serve as the sole and indisputable evidence supporting the conclusion that there are grounds for securing the claim.
Moreover, when proving the circumstances of the controlling authority's decision affecting the business entity's economic relations with third parties, it is insufficient to provide the court only with contracts with counterparties, considering that the contracts available in the case materials do not contain detailed information regarding which goods (alcoholic or non-alcoholic beverages, other material assets) the LLC distributes. Given that the enterprise has other types of activities, including those that allow the sale of other goods (not only alcoholic beverages), there are no grounds to assert the objective impossibility for such a business entity to fulfill its economic obligations to third parties. For the same reasons, the applicant's arguments about employee layoffs, inability to pay taxes and fees, etc., cannot be recognized as justified.
Thus, the LLC has not proven the necessity of the measure to secure the claim applied by the courts, which is a basis for refusing the application for securing the claim, since a mandatory prerequisite for balancing the interests of the parties is establishing the reality of the impact or possibility of impact on such interests of the disputed legal relations, while in this case there is currently no evidence confirming the occurrence of the circumstances indicated by the LLC, and the possible occurrence of negative consequences is not conclusive evidence for taking measures to secure an administrative claim. The court protects rights that have actually been violated, not those that may possibly be violated in the future.
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