Orders of the Prime Minister of the Russian Federation. Beneficial scandal
Not so long ago, companies began to receive letters of strange content. In them, counterparties require their partners to provide founding documents and information about the owners, threaten to terminate the cooperation if this is not done. The addressees refer to some order of the Government. What legislative power this paper has, Anna Koroleva found out.
Accounting and tax forums are full of messages: "Dear, who has the text of the instruction of the Chairman of the Government of the Russian Federation dated December 28, 2011 No. VP-P13-9308?". This document made a lot of noise in the business environment. It was sent to the largest state-owned companies at the end of 2011. Its goal is to make the work of enterprises more transparent. And for this you need to know with whom these organizations work. Therefore, legal entities were obliged to request from all their counterparties documents on the owners of firms and beneficiaries (beneficiaries who transferred their property to trust management). "Among the corporations that received such an order were Rosatom and RusHydro, as well as Gazprom, Aeroflot, Sberbank, Russian Railways and all energy companies," says Anton Sonichev, a lawyer for the law firm Nalogovik. It so happened that the instruction, which was supposed to affect only the activities of firms with the participation of state capital, eventually affected most of the commercial organizations.
happiness letters
The document states: "in order to ensure the transparency of financial and economic activities, including the exclusion of cases of conflict of interest and other abuses related to the position held, in month ensure unconditional disclosure by counterparties under existing agreements of information regarding the entire chain of their owners, including beneficiaries (including final ones) with confirmation by relevant documents and submit this information to the relevant federal executive authorities: Rosfinmonitoring and the Federal Tax Service of Russia.
Also now, when concluding new contracts, state corporations need to request from the counterparty all documents disclosing information "in relation to the entire chain of their owners." In the future, cooperation with a partner who refused to disclose the required information will be impossible.
As a result, state-owned companies began to put things in order in their "connections" and restore information about those firms with which deals had already been concluded. Contractors were sent "letters of happiness" with the requirement to provide the necessary information and confirm it with relevant documents. They usually state that "refusal to provide this information may significantly complicate our contractual relationship, up to their termination." The information needs to be sent to in electronic format, in two formats: pdf and excel, followed by paper delivery.
To document the legitimacy of such a request, the state-owned companies attached to the letters the following requests: "In accordance with the order of the Chairman of the Government of the Russian Federation dated December 28, 2011 No. VP-P13-9308, we ask you to conclude an additional agreement on the disclosure and timely updating by counterparties of information regarding the entire chain of their owners, including the beneficiaries (including the final ones), in connection with which I am sending the draft of the above additional agreement for signing to LLC "…".
Strict control
They will not be able to refuse to execute the order of the state-owned company. Officials will strictly monitor compliance with the document. So, data on transactions of the enterprise are obliged "on a monthly basis, no later than the 5th day of the month following the reporting one, to provide to the relevant federal executive authorities: Rosfinmonitoring and the Federal Tax Service," the government order says. Therefore, a company that is obliged to provide information will not give indulgence to its counterparties.
It is also interesting how it is proposed to fill out the form for providing information by the counterparty. So, in Appendix V "Filling out the section" Information about organizations in relation to which the person is the beneficiary ", the name of the company should be indicated, and if the ownership interest in such a company is less than 100 percent, it is necessary to write the data of all other owners of the organization (last name , name, patronymic, TIN, passport data)". That is, the list of owners must be exhaustive.
Let's become more transparent
"The meaning of the order is to compare data from several sources and make the financial and economic activities of state corporations more transparent," Anton Sonichev believes. Simply put, this all-Russian collection of information should show whether any of the officials or their close relatives is the owner or beneficiary of a company that closely interacts with a state organization. And such control is certainly necessary. However, many experts believe that the initiative is turned on its head: instead of checking 1.1 million civil servants, the regulatory authorities took up the companies, of which there are 5 million.
At the same time, as follows from the text of the instruction itself, he adds expert of the law firm "Private Law" Diana Poletaeva, it applies only to business entities with state participation, operating in monopolized sectors of the economy (a number of companies in the electric power industry, the oil industry, as well as Russian Railways, OJSC Rostelecom, OJSC Aeroflot and others), as well as - to government bodies, whose functions include the implementation of profile control (Rosfinmonitoring, the Federal Tax Service of Russia, etc.). Therefore, it would be wrong to talk about extending the provisions of the said Order to all Russian organizations.
Accordingly, enterprises not included in the list set out in the instruction do not need to collect such information about counterparties. However, if they cooperate with a state-owned enterprise, they will have to provide their partners with information about the owners and beneficiaries.
Obvious flaws
Order of the Chairman of the Government of the Russian Federation dated December 28, 2011 No. VP-P13-9308 baffled many lawyers, notes Anton Sonichev. Some quite reasonably recommended not to reply to the sent letters at all, since unpublished normative acts have no legal force. A specified document is not subject to publication, as it has been assigned the stamp "DSP". Indeed, in accordance with Part 3 of Article 15 of the Constitution of the Russian Federation, all laws, as well as any orders affecting the rights, freedoms and duties of a person and citizen, must be officially published for public information, reminds Investcafe lawyer Oleg Malkin. Otherwise, they cannot be applied and do not entail legal consequences.
Obvious shortcomings of civil servants, Sonichev notes, also manifested themselves in the fact that the document contradicts the current legislation. The concept of a beneficiary exists in the business environment, but is not spelled out in the legislation. Because of this, it is not clear what kind of information state-owned companies are requesting from their counterparties. Therefore, the requirement can be fulfilled in the form of an extract from the Unified State Register of Legal Entities on the composition of the owners of the organization. Requests to JSCs for the disclosure of such data are not possible at all, since they run counter to the norms of the Civil Code and for issuing information from the register of shareholders under part 3 of article 15.22 of the Code of Administrative Offenses, legal entities can be fined in the amount of 100-300 thousand rubles.
Meanwhile, since this order is addressed to state organizations, the very fact of the appearance of this document cannot be called illegal, the chairman of the government has the right to give such an order, but how justified are the requests addressed to contractors? "In my opinion, the requirement to provide such information is unreasonable, since it is not provided for by the current legislation. Therefore, partners of state-owned companies are not obliged to fulfill the requests sent to them," Sonichev said.
It must also be understood that Diana Poletaeva that the order of the chairman of the government is not a law and not a subordinate normative act. As follows from paragraph 46 of Decree of the Government of the Russian Federation of June 1, 2004 No. 260 "On the Regulations of the Government of the Russian Federation and the Regulations on the Office of the Government of the Russian Federation", instructions are given by the Chairman of the Government in order to organize the implementation of federal laws, decrees and orders of the President. Consequently, such administrative orders are issued for state authorities, and not for economic entities.
Order No. VP-P13-9308, the expert believes, is probably the result of an analysis of data on violations and abuses committed by officials who acted in bad faith in situations of conflict of interest. This is just the case of "manual control", which received in Lately widespread in our country when the state intervenes in market relations (in this case- transactions between counterparties), proactively monitoring compliance with the law, protecting their interests.
In essence, the Instruction is a persistent reminder to the recipient enterprises and their management of the need to comply with corporate law (the need to disclose information about the presence of signs of affiliation), antitrust laws and standards for public service. However, these obligations are not secured by specific coercive measures or sanctions, so the government takes such controversial measures.
What to do?
Anton Sonichev considers the most appropriate way out of this situation to be a written response at the place of demand indicating that all the requested data is available in the Unified State Register of Legal Entities, you can attach an extract if the company has an extra copy and such a desire. It is also necessary to request the text of the document referred to by the authors of the request and indicate the norms of the law, on the basis of which the organization is asked to disclose information protected by law, including the personal data of the owners. Prospects for further developments may be different, with the aggravation of relations between counterparties, the conflict may reach the court. In this case, the letter sent to the addressee will indicate that the company was in good faith looking for an opportunity to fulfill the requirement, but could not do it, since it would have to break the law.
Diana Poletaeva says that for enterprises to which counterparties require disclosure of information, according to the Instruction, there is only one recommendation: this can only be done voluntarily. At the same time, one should take into account the restrictions associated with the need to comply with the Federal Law "On Personal Data" and the Federal Law "On Trade Secrets". And you also need to be prepared for the fact that refusal can lead to the termination of contracts. Concerning judicial practice, so far there are no known cases of prosecution of persons who refused to provide such information.
The question remains: can this order prevent possible crimes? And here it is difficult to give an unambiguous answer, says Oleg Malkin. Perhaps, disclosure of the chain of ultimate owners of counterparties of state organizations would exclude the possibility of concluding agreements with counterparties affiliated with the management of the relevant state organizations. It just needs to be done in a different way.
From September 1, 2017 - following the results of the meeting with the heads of the enterprises of the fishery industry of the Far East
Dmitry Medvedev held a meeting on August 23, 2017 in the Sakhalin Region. Based on the results, the following decisions were made and instructions were given (list of instructions dated September 1, 2017 No. DM-P11-5784):
1. Ministry of Agriculture of Russia (A.N. Tkachev), the Ministry of Industry and Trade of Russia (D.V. Manturov), the Ministry of Economic Development of Russia (M.S. Oreshkin), the Federal Agency for Fishery (I.V. Shestakov), together with interested federal executive authorities and with the participation of industry unions (associations), to work out the issue of amending regulatory legal acts of the Government of the Russian Federation regulating the formation and distribution of quotas for the extraction (catch) of aquatic biological resources for investment purposes, in terms of the possibility of:
use of the volume of extraction (catch) quotas of aquatic biological resources equivalent to the allocated investment quota for industrial or coastal fishing, assigned to the investor, in the areas of extraction (catch) closest to the investment object (an enterprise intended for the production of fish and other products from aquatic biological resources) aquatic biological resources;
adjustments to the schedule for construction and commissioning of the investment object and the schedule for investment and commissioning of the investment object;
development of the quota for production (catch) of aquatic biological resources for investment purposes by the investor-owned fishing fleet vessels that are not the object of investment.
Report the results to the Government of the Russian Federation, if necessary, with draft regulatory legal acts.
2. Ministry of Economic Development of Russia (M.S. Oreshkin), the FSB of Russia (A.V. Bortnikov), the Ministry of Agriculture of Russia (A.N. Tkachev), the Minister of the Russian Federation M.A. the field of fisheries and the conservation of aquatic biological resources, Special attention to protect the rights of legal entities and individual entrepreneurs when exercising federal state control (supervision) in the field of fishing and the conservation of aquatic biological resources in terms of marine biological resources.
3. Ministry of Agriculture of Russia (A.N. Tkachev) when preparing an act of the Government of the Russian Federation providing for the distribution of industrial quotas and coastal quotas for the extraction (catch) of aquatic biological resources for new term, to ensure the establishment of deadlines for the submission of relevant applications, allowing to eliminate possible technical errors and re-submit an application, as well as to ensure the transparency of the calculation of the corresponding share of the harvest (catch) quota of aquatic biological resources.
4. Ministry of Agriculture of Russia (A.N. Tkachev) intensify work on introducing changes to the fishing rules in terms of accounting for the species and weight composition of catches of aquatic biological resources based on the results of unloading at the delivery points determined by the executive authorities of the relevant coastal subjects of the Russian Federation.
5. Ministry of Agriculture of Russia (A.N. Tkachev), Rosselkhoznadzor (S.A. Dankvert), the Ministry of Foreign Affairs of Russia (S.V. Lavrov), the Ministry of Economic Development of Russia (M.S. Oreshkin) with the participation of interested organizations of the fishery complex and JSC "Russian Export Center" to work out the issue of expanding international cooperation in terms of increasing export of Russian fish and other products from aquatic biological resources.
6. FAS Russia (I.Yu. Artemiev), the Ministry of Transport of Russia (M.Yu. Sokolov), the Ministry of Economic Development of Russia (M.S. Oreshkin), the state corporation Rosatom (A.E. Likhachev) to work out the issue of reducing tariffs for icebreaking assistance in the waters of the Northern Sea Route of ships transporting fish and other products from aquatic biological resources.
7. To the Ministry of Transport of Russia (M.Yu. Sokolov), the Ministry of Health of Russia (V.I. Skvortsova), the Ministry of Labor of Russia (M.A. Topilin), the Ministry of Finance of Russia (A.G. Siluanov) to work out the issue of the possibility of including courts special purpose- floating plants and mother ships to the Russian International Register of Vessels.
Report the results to the Government of the Russian Federation.
8. Ministry of Economic Development of Russia (M.S. Oreshkin), the Ministry of Finance of Russia (A.G. Siluanov), the Ministry for the Development of the Russian Far East (A.S. Galushka), the Ministry of Justice of Russia (A.V. Konovalov), the Federal Property Management Agency (D.V. Pristanskov) to submit, in the prescribed manner, to the Government of the Russian Federation a draft regulatory legal an act aimed at improving the procedure for involving in the economic circulation or disposal of ships confiscated in the prescribed manner.
9. To the Ministry of Justice of Russia (A.V. Konovalov), the Ministry of Economic Development of Russia (M.S. Oreshkin), the Ministry of Finance of Russia (A.G. Siluanov), the Ministry of Transport of Russia (M.Yu. Sokolov), with the participation of the executive authorities of the coastal subjects of the Russian Federation, to work out the issue of improving the legal regulation of activities for cleaning up water areas internal sea waters of the Russian Federation from sunken ships and report the results to the Government of the Russian Federation by November 22, 2017, if necessary - with draft regulatory legal acts.
10. FSB of Russia (to A.V. Bortnikov), the Ministry of Agriculture of Russia (A.N. Tkachev) to intensify work on the preparation and submission to the Government of the Russian Federation of the project federal law on amendments to the Federal Law "On the Exclusive Economic Zone of the Russian Federation" in terms of determining the federal government bodies authorized to establish control points (points) and the procedure for passing them Russian courts engaged in fishing and following in the exclusive economic zone of the Russian Federation and leaving it.
11. Ministry of Agriculture of Russia (A.N. Tkachev), the Federal Security Service of Russia (A.V. Bortnikov), the Ministry of Economic Development of Russia (M.S. Oreshkin), the Ministry of Justice of Russia (A.V. Konovalov) to submit proposals to the Government of the Russian Federation within ten days on establishing a notification procedure for entry (exit) into the exclusive economic zone of the Russian Federation by Russian vessels of the fishing fleet when fishing, if necessary - with a draft regulatory legal act of the Government of the Russian Federation.
12. Rospotrebnadzor (A.Yu.Popova), Rosselkhoznadzor (S.A. Dankvert) to analyze the issue of ensuring control over the quality and safety of fish and other products from aquatic biological resources imported into the territory of the Russian Federation, and report the results to the Government of the Russian Federation.
13. Ministry of Industry and Trade of Russia (D.V. Manturov), the Ministry of Finance of Russia (A.G. Siluanov), the Ministry of Economic Development of Russia (M.S. Oreshkin), the Ministry for the Development of the Russian Far East (A.S. Galushka), the Federal Agency for Fishery (I.V. Shestakov) together with interested federal executive authorities and with the participation of executive power of the constituent entities of the Russian Federation that are part of the Far Eastern Federal District, to analyze the conditions for the construction of fishing vessels, including the cost, at shipbuilding enterprises located on the territory of the Far Eastern Federal District, and shipbuilding enterprises located in other constituent entities of the Russian Federation, and the results of the analysis, by October 5, 2017, submit to the Government of the Russian Federation agreed proposals on possible measures(mechanisms) to stimulate the construction of fishing vessels at shipbuilding enterprises located on the territory of the Far Eastern Federal District.
14. Ministry of Agriculture of Russia (A.N. Tkachev), the Ministry for the Development of the Far East of Russia (A.S. Galushka), together with interested federal executive authorities and with the participation of state authorities of the constituent entities of the Russian Federation, analyze the work of commissions for regulating the production (catch) of anadromous fish species and submit proposals to the Government of the Russian Federation to improve the work of these commissions .
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RESOLUTION of the Government of the Russian Federation dated 01-06-2004 260 (as amended on 08-10-2012 with changes that entered into force on 23-10-2012) ON REGULATIONS ... Relevant in 2017
III. The procedure for the execution of instructions contained in acts of the Government and minutes of Government meetings, as well as instructions and instructions of the President of the Russian Federation, instructions of the Prime Minister, Deputy Prime Ministers
46. In order to organize the implementation of federal laws, decrees and orders of the President of the Russian Federation, as well as instructions and instructions of the President of the Russian Federation, orders of the Government are issued to the Government, instructions are given to the Prime Minister and Deputy Prime Ministers (in accordance with the distribution of responsibilities) to federal ministries, other federal bodies executive power, the management of which is carried out by the President of the Russian Federation or the Government.
No. 492 dated July 31, 2007 , dated 01.07.2011 N 530)
Execution of instructions contained in acts of the Government, minutes of meetings of the Government, coordinating and advisory bodies of the Government headed by the Prime Minister or one of the Deputy Prime Ministers (in accordance with the distribution of duties), Deputy Prime Minister - Head of the Government Staff, as well as instructions of the Prime Minister and his deputies contained in the minutes of meetings held by them and in resolutions (hereinafter referred to as instructions), is organized by federal ministers, heads of other federal executive bodies, which are managed by the President of the Russian Federation or the Government, and heads of executive bodies of the constituent entities of the Russian Federation to whom instructions are addressed .
(as amended by Decrees of the Government of the Russian Federation No. 492 dated July 31, 2007 , dated 28.03.2008 N 221)
47. The communication of instructions to the executors and control of their execution are provided by the Government Office, as a rule, within 2 days, and urgent and operational instructions - immediately, but no later than within 12 hours from the moment of their signing.
The instructions contained in the acts of the Government are communicated to the executors by sending them a copy of the act.
Instructions contained in the minutes of the meetings of the Government are communicated to the executors by sending them an extract from the minutes of the meeting.
Instructions contained in the minutes of the meetings held by the Prime Minister or Deputy Chairmen of the Government (in accordance with the distribution of duties) meetings and in resolutions on the documents considered by them, are communicated to the executors by sending them the minutes of the meeting, or an extract from it, or a resolution drawn up in the prescribed manner.
(as amended by Decree of the Government of the Russian Federation No. 492 dated July 31, 2007 )
48. The order, as a rule, sets a deadline ( calendar date) its execution, and if the deadline for the execution of the order exceeds 1 month, then the deadlines for submitting reports on the progress of its execution. If a period of time is set as the deadline, the date of signing the instruction is considered to be its beginning.
If the text of the instruction contains the indication "urgently", "immediately" or a similar indication instead of the execution date or period of time, the instruction shall be executed within 3 days. The indication "promptly" provides for a 10-day deadline for the execution of the order. In other cases, if the deadline for execution is not specified, the instruction is subject to execution within a period of up to 1 month (until the corresponding date of the next month, and if next month there is no such number, then last day months), counting from the date of signing the order (decision). If the last day of the term for execution of an instruction falls on a non-working day, it shall be subject to execution on the preceding business day.
In the event that by objective reasons execution of an order in fixed time is impossible, the relevant heads of executive authorities submit proposals to the Government on the extension of the deadline, indicating the reasons for the extension and the planned date of execution.
Such proposals shall be submitted no later than 10 days before the expiration of the period allotted for the execution of the instruction (decision). If the deadline for the execution of an instruction (decision) exceeds 2 months, proposals for its extension shall be submitted in the first half of the period allotted for the execution of an instruction (decision). The deadline for the execution of urgent and operational orders is not extended.
(as amended by Decree of the Government of the Russian Federation No. 492 dated July 31, 2007 )
49. If an instruction is given to several executive authorities, then the head of the executive authority, indicated first in the instruction or indicated by the word "convocation", is the main executor of the instruction, organizes the work and bears personal responsibility for its timely and proper execution. Co-executors submit proposals signed by the head of the relevant body (his deputy) to the head executor during the first half of the period allotted for the execution of the assignment. The lead contractor determines the procedure for agreeing and preparing the final draft document. If it is necessary to execute the order in a short time, the head executor organizes the execution of the order in an expeditious manner, for which he creates working groups and holds conciliation meetings.
(as amended by Decree of the Government of the Russian Federation dated 01.07.2011 N 530)
When submitting documents to the Government, the lead executor indicates the date of sending the corresponding proposals by the co-executors.
(as amended by Decree of the Government of the Russian Federation No. 492 dated July 31, 2007 )
50. An appropriate report is sent to the President of the Russian Federation on the results of the execution of an instruction or instruction given by the President of the Russian Federation to the Government, which is signed by the Prime Minister or, on his instructions, by one of the Deputy Prime Ministers (in accordance with the distribution of duties) with the appropriate informing of the Prime Minister.
(as amended by Decrees of the Government of the Russian Federation No. 492 dated July 31, 2007 , dated 01.07.2011 N 530)
If, as a result of the execution of an instruction or instruction of the President of the Russian Federation, a draft federal law was submitted to the State Duma or an act of the President of the Russian Federation or the Government was issued, then instead of a report addressed to the President of the Russian Federation, information on the execution of the instruction or instructions signed by the head of the structural subdivision of the Government Office responsible for its implementation.
(as amended by Decree of the Government of the Russian Federation dated 01.07.2011 N 530)
The head executor of the instruction given in pursuance of the instruction or instruction of the President of the Russian Federation to the Government shall submit to the Government a report on the execution of the instruction 5 days before the expiration of the period established by the President of the Russian Federation, unless a different period is indicated in the instruction of the Prime Minister or Deputy Prime Minister, with the draft attached report to the President of the Russian Federation.
(as amended by Decrees of the Government of the Russian Federation No. 492 dated July 31, 2007 , dated 01.07.2011 N 530 )
If the President of the Russian Federation has given an instruction or an instruction to the Prime Minister or Deputy Prime Minister and at the same time to the heads of federal executive bodies, then an additional instruction may not be given, and a report on execution with a draft report attached to the President of the Russian Federation and other necessary materials submitted to the Government 5 days before the expiration of the period established by the President of the Russian Federation.
(as amended by Decree of the Government of the Russian Federation dated 01.07.2011 N 530)
50.1. If there are circumstances that prevent the execution of the order of the President of the Russian Federation to the Government within the prescribed period, the head executor to whom the order of the Chairman of the Government or his deputies is addressed, given in pursuance of the order of the President of the Russian Federation, no later than 5 days before the expiration of half of the period established by the President of the Russian Federation, submits substantiated proposals to the Government on adjusting the deadline for implementation with the attachment of a draft report to the President of the Russian Federation.
If, in the course of executing an instruction or instruction of the President of the Russian Federation to the Government, circumstances arise that impede its proper execution within the established time limit, the head executor of the instruction of the Chairman of the Government or his deputies given in pursuance of the instruction or instruction of the President of the Russian Federation shall submit to the Government no later than 10 days before the expiration of the deadline set by the President of the Russian Federation for a proposal to extend the deadline for execution, indicating the reasons preventing the timely execution of this instruction or instruction, as well as specific measures taken to ensure its execution, with a draft report to the President of the Russian Federation attached.
In both cases, a corresponding report is sent to the President of the Russian Federation, which is signed by the Prime Minister or, at his direction, by one of the Deputy Prime Ministers (in accordance with the distribution of duties) with the appropriate informing of the Prime Minister.
(as amended by Decree of the Government of the Russian Federation dated 01.07.2011 N 530)
51. If the President of the Russian Federation has given an instruction or instruction directly to the federal minister or the head of the federal executive body, which is managed by the Government, or if the instruction or instruction on issues under the jurisdiction of the Government is given to the federal minister or the head of the federal executive authority , whose activities are managed by the President of the Russian Federation, the federal minister or the head of the said body shall report to the Prime Minister simultaneously with the submission to the President of the Russian Federation of a report on the execution of his instructions or instructions.
(as amended by Decree of the Government of the Russian Federation dated 01.07.2011 N 530)
52. If the order is not executed within the prescribed period, the executor (head executor) of the order, within 3 days after the expiration of the period given for the execution of the order, submits to the Government an explanation on the state of execution of the order, the reasons for its non-execution within the prescribed period, indicating officials who are entrusted with the execution of the order, and on the measures of responsibility taken against employees guilty of failure to fulfill the order.
In case of systematic non-compliance with the deadlines for the execution of instructions, the Deputy Prime Minister - Head of the Government Staff prepares a corresponding report to the Prime Minister.
