Comments made by lawyer Sergei Zakharov to an article titled “Criminal vehicle maintenance checkup”
5 April 2012
Improvidence of lawmakers brought into challenge the legality of the majority of motor vehicle maintenance checkup stations. Lawyers are persuaded that almost all “old” operators are not entitled to issue vehicle test certificate, however it should not have an impact on motorists – at this point...
There is only one day between past and future
Reforming of the motor vehicle maintenance checkup system was preceded by Dmitry Medvedev's ambitious statement of intent to release motorist from an obligation to perform annual security checks of their “four-wheel friends”. He said, almost 70 % motorists, including owners of clunkers, simply bought their vehicle test certificates, so it would be better to cancel such an inefficient system.
However, the President of Russia failed to fulfill such a bold political promise - our country is bound by international commitments and therefore should supervise vehicles having access to domestic roads. It was decided that the new and hastily made law should be put to execution on January 1, 2012. To avoid shock effects, lawmakers provided for a transition period: they allowed “old” operators (companies having valid contract with the Ministry of Interior as of date of entry into force of the new law) to work up to 2014. The Russian Association of Motor insurers (RSA) “automatically” included such operators into the register to confirm their status.
However, due to a small omission, this seemingly logical provision of law endangered the whole system. The point is, contracts held by 2558 stations (of 2594 in total) expired on December 31, 2011. Formally it means that these contracts were invalid on January 1 (the date of entry into force of the law)!
The interviewed lawyers share the opinion that all these operators should stop working from the beginning of the year. According to the letter of the law, maintenance checkup stations holding contracts which would expire before January 1, 2012 (including those which would expire on December, 31), are not entitled to continue their activity. Consequently, certificates issued by such stations during the new year shall be deemed as invalid” said Ekaterina Smirnova, a lawyer of Kachkin & Partners
RSA has actually disregarded the provision of law (if only a formal one), RSA included all the “old” stations into the register without any check ups. The BaltInfo reporter asked Mikhail Porvatov (the Head of department for insurance methodology of RSA) to give legal grounds for such action, however, Mikhail Porvatov said he has not time to answer since he is going to miss the train. The press-service of RSA made the following comments on the matter:
Subject to the new law on vehicle maintenance checkup, powers of the RF Ministry of the Interior relating to making contracts with entities which provide services involving motor vehicle maintenance checkup expired on January 1, 2012. Therefore, from January 1, 2012 the RF Ministry of the Interior cannot act as a party to such contracts, and these contracts will automatically terminate even for stations which concluded contracts valid up to 2014. The RF Ministry of the Interior has provided RSA with information on existing motor vehicle maintenance checkup stations, and upon receipt of application the RSA automatically entered these organizations into the register of vehicle maintenance checkup operators.
In accordance with law, RSA started accreditation of entities wishing to provide services relating to motor vehicle maintenance checkup from January 1, 2012.
Any organizations willing to become vehicle maintenance checkup stations could submit accreditation documents for preliminary examination to RSA before January 1, 2012.
ChukotKhozTorg OOO was the first entity to obtain accreditation. All the companies which filed applications and obtained accreditation with RSA were issued vehicle test certificate forms. Currently, the RSA register includes 2523 operators (3319 items concerning vehicle maintenance checkup stations). Of these 2523 entities, 557 were accredited in compliance with the new rules (720 items concerning vehicle maintenance checkup stations). Over 200 applications are still under consideration. Applications for 14,056,500 vehicle test certificate forms were filed to Goznak, and applications for 7,282,954 vehicle test certificate forms (old style forms) were filed to the territorial agencies of the Ministry of the Inferior”.
And how will the “old” companies size up the situation? For instance, Marina Glazneva, Director of non-commercial partnership “Tekhnicheskiil kontrol i diagnostika” which includes 24 vehicle maintenance checkup stations of St. Petersburg, declared that all members of the company had contracts with Ministry of the Interior valid up to 2014. Marina Glazneva did not deny information contained in the official register of RSA, according to which contracts of 15 partnership members expired in 2011. At the same time, she refused to make comments on the situation.
From this year, the absence of valid vehicle test certificate will not be deemed as an administrative offence, and GIBDD (the State Traffic Safety Inspectorate) is not even entitled to demand for production of this document. Car owners are only obliged to produce vehicle test certificate when making out an OSAGO policy with their insurance company. This being said, should a car owner hold an expired vehicle test certificate as of the date of road traffic accident, an insurance company which paid compensation to accident victims shall be entitled to recourse against the party in fault (insured party).
Nevertheless, lawyers believe that twists and turns in the affair with legality of vehicle maintenance checkup stations will not affect the rights of car owners. “A citizen which was given vehicle test certificate by a company included in the register should not be affected by the fact that Professional Association of Insurers has (legally or not) accredited the vehicle maintenance checkup station, and has issued strict reporting forms to them. That is, insurers should be held liable for that,” believes Sergei Zakharov, representative of lawyer consultation of Vertical. “However, as practice in the application of the new law is not yet formed, I would recommend car owners to check whether the company is in the register of vehicle maintenance checkup stations”.
According to Maria Kozlova, a lawyer of business practice of Rightmark group, motor insurer should check up for “legality” of vehicle test certificate when executing an OSAGO contract: “Therefore, an insurance company will not be entitled to recourse against an insured party (car owner) in the future”.
Aleksandr Kholodov, member of Coordinating Council of the МООА “Svoboda Vybora”, has the same opinion: “By including “old” operators into the register the Professional Association of Insurers actually confirmed the legality of such vehicle maintenance checkup stations. Insurers will not get into arguments with RSA relating to the issue, therefore nobody will legality of issued vehicle test certificates. In my opinion, motorists should not be concerned about such legal niceties”.
However, insurance companies are not so willing to check for legality of vehicle maintenance checkup stations, and even for authenticity of documents issued by the latter. “We are neither able, nor entitled to control the legality of vehicle test certificates,” explained Tatiana Dolinina.” Should a client submit even a photocopy of vehicle test certificate, we shall issue an OSAGO policy. We are only entitled to recourse against an insured to the extent permitted by applicable law, i.e. – against owners of buses, light weight taxi cabs, and vehicles intended for the transport of dangerous goods and having passenger accommodation for more than 8 persons.
How will the situation change for motorists in the near future is anyone's guess.