List of state corporations of the Russian Federation. State corporations: description, history, list
AND THEIR COMPLIANCE WITH THE NEW EDITION OF THE RF Civil Code
A state corporation is a non-profit organization that does not have membership, established by the Russian Federation on the basis of a property contribution and created to perform social, managerial or other socially useful functions. The purpose of creating a state corporation is to carry out social, managerial or other socially useful functions. In this article we will consider the legal status, the procedure for creation, as well as other legal issues relating to state corporations.
A state corporation is established on the basis of federal law. To create each state corporation, a special law must be issued.
Property transferred to a state corporation by the Russian Federation is the property of the state corporation. This norm is enshrined on the basis of paragraph 3 of Article 213 of the Civil Code of the Russian Federation (hereinafter - the Civil Code of the Russian Federation), according to which non-profit organizations, with some exceptions (except for institutions), are the owners of property transferred to them as contributions (contributions) by their founders (participants, members), as well as property acquired by these legal entities for other reasons.
The property of a state corporation can also be formed through:
Income received from the use of your property and activities;
Federal and other property transferred to a state corporation in the course of its activities;
Other legal income.
Also, sources of formation of the property of a state corporation may be regular and (or) one-time receipts (contributions) from legal entities for which the obligation to make these contributions is determined by federal law. We are talking, in particular, about such a state corporation as the Deposit Insurance Agency. According to the provisions of Article 34 of the Federal Law of December 23, 2003 N 177-FZ "On insurance of deposits of individuals in banks of the Russian Federation" (hereinafter referred to as Law N 177-FZ), commercial banks included in the deposit insurance system must pay insurance premiums to the Agency for deposit insurance.
Part 1 of Article 35 of Law N 177-FZ establishes that insurance premiums are the same for all banks and are payable by the bank from the day the bank is included in the register of banks until the day the license of the Bank of Russia is revoked (cancelled) or until the day the bank is excluded from the register of banks.
Other sources for the formation of the compulsory deposit insurance fund, according to Law No. 177-FZ, are:
Penalties for late and (or) incomplete payment of insurance premiums;
Cash and other property received from the satisfaction of the Agency's claims acquired as a result of payment of compensation for deposits;
Federal budget funds in cases provided for by Law N 177-FZ;
Income from investing temporarily free funds of the compulsory deposit insurance fund;
Initial property contribution;
Other income not prohibited by the legislation of the Russian Federation.
It should also be noted that in accordance with Article 15 of the Federal Law of August 11, 1995 N 135-FZ “On Charitable Activities and Charitable Organizations”, the sources of formation of the property of a charitable organization may be:
Contributions from the founders of a charitable organization;
Membership fees (for membership-based charities);
Charitable donations, including those of a targeted nature (charitable grants), provided by citizens and legal entities in cash or in kind;
Income from non-operating transactions, including income from securities;
Receipts from activities to attract resources (conducting campaigns to attract philanthropists and volunteers, including organizing entertainment, cultural, sports and other public events, conducting campaigns to collect charitable donations, holding lotteries and auctions in accordance with the legislation of the Russian Federation, selling property and donations, received from benefactors, in accordance with their wishes);
Income from legally permitted business activities;
Income from the activities of business entities established by a charitable organization;
Volunteer work;
Other sources not prohibited by law.
As a general rule, federal property that is the exclusive property of the Russian Federation, as well as property withdrawn from circulation, cannot be transferred as a contribution. This is understandable, since property transferred by the Russian Federation becomes the property of a state corporation. However, exceptions are possible. For example, it is obvious that the Rosatom State Corporation should include property that is the exclusive federal property (for example, equipment for nuclear research). For this reason, Article 41 of the Federal Law of December 1, 2007 N 317-FZ “On the State Atomic Energy Corporation Rosatom” states that when reorganizing the Corporation, the rules of paragraphs 1 and 2 of Article 60 of the Civil Code of the Russian Federation do not apply, the consent of creditors to their transfer no requirements are required. Upon liquidation of the Corporation, the Corporation's property becomes federal property.
According to the general rule of paragraph 2 of Article 56 of the Civil Code of the Russian Federation, the founder (participant) of a legal entity or the owner of its property is not liable for the obligations of the legal entity, and a legal entity is not liable for the obligations of the founder (participant) or owner, except for cases provided for by the Civil Code of the Russian Federation or other law .
Based on this norm, part 3 of paragraph 1 of Article 7.1 of the Federal Law of January 12, 1996 N 7-FZ “On Non-Profit Organizations” (hereinafter referred to as the Law on Non-Profit Organizations) stipulates that a state corporation is not liable for the obligations of the Russian Federation, and the Russian Federation is not liable for the obligations of the state corporation. Otherwise may be provided by federal law providing for the creation of a state corporation.
A state corporation uses property for the purposes determined by the law providing for the creation of a state corporation. A state corporation can carry out entrepreneurial activities only insofar as it serves the achievement of the goals for which it was created and is consistent with these goals. This provision is predetermined by the fact that the state corporation is a non-profit organization and, accordingly, does not have profit as the main goal of its activities.
A public corporation is required to publish annual reports on the use of its property in accordance with the law establishing the public corporation.
The annual financial statements of a state corporation are subject to a mandatory audit conducted by an audit organization selected based on the results of an open competition and approved by the highest management body of the state corporation.
The annual report of a state corporation, published taking into account the requirements of the legislation of the Russian Federation on state secrets, must contain information on the implementation of the strategy of the state corporation, other information provided for by the legislation of the Russian Federation and be approved no later than July 1 of the year following the reporting year. The Government of the Russian Federation has the right to establish additional requirements for the content of the annual report of a state corporation, including regarding investment activities.
The annual report of a state corporation is posted on the official website of the state corporation on the Internet, taking into account the requirements of the legislation of the Russian Federation on state secrets, commercial secrets no later than two weeks from the date of the decision by the highest management body of the state corporation to approve this report, if the federal law provides for creation of a state corporation, no other deadline has been established.
The official website of a state corporation on the Internet must contain the strategy of the state corporation, the procedure for purchasing goods, performing work, and providing services for the needs of the state corporation.
In accordance with Part 1 of Clause 3 of Article 7.1 of the Law on Non-Profit Organizations, the specifics of the legal status of a state corporation are established by federal law providing for the creation of a state corporation. At the same time, it has been established that the creation of a state corporation does not require constituent documents provided for in Article 52 of the Civil Code of the Russian Federation, that is, a constituent agreement or charter. In other words, the constituent document of a state corporation is a federal law providing for the creation of a state corporation.
The special law on the basis of which a state corporation is created defines:
Name of the state corporation;
Goals of the state corporation;
Location of the state corporation;
The procedure for managing the activities of a state corporation (including the governing bodies of the state corporation and the procedure for their formation, the procedure for appointing officials of the state corporation and their dismissal);
Procedure for reorganization and liquidation of a state corporation;
The procedure for using the property of a state corporation in the event of its liquidation.
Such a special law has priority over the Law on Non-Profit Organizations, since, according to paragraph 4 of Article 7.1 of the Law on Non-Profit Organizations, its provisions apply to corporations only unless otherwise provided by the said article and the law establishing the corporation.
The state corporation has the following powers:
Dispose of the property contribution of the Russian Federation in accordance with the statutory purposes;
Conclude transactions and make decisions on participation in the capital of Russian and foreign companies operating in this field.
The status of a state corporation allows it to represent the interests of the state, as well as act as a founder of joint-stock companies, buy shares, and take control of state blocks.
The first state corporation was the Agency for Restructuring of Credit Institutions. It was created in 1999 on the basis of Federal Law of July 8, 1999 N 144-FZ “On the Restructuring of Credit Institutions” (lost force) and liquidated in 2004.
After this, in accordance with Law No. 177-FZ, the Deposit Insurance Agency was formed in the form of a state corporation.
The question of the advisability of using the organizational and legal form in question did not arise either in theory or in practice until approximately 2007. However, in 2007, 6 legal entities were established in the Russian Federation in the organizational and legal form of a state corporation, these are:
Fund for Assistance to Reform of Housing and Communal Services;
Russian Nanotechnology Corporation;
State Corporation for Promoting the Development, Production and Export of High-Tech Industrial Products "Rostechnologii";
State Atomic Energy Corporation "Rosatom";
Bank for Development of Foreign Economic Activity (Vnesheconombank);
State Corporation for the construction of Olympic facilities and the development of the city of Sochi as a mountain climatic resort.
Currently, state corporations are in the process of their formation. Each of them is created on the basis of federal law (for example, Federal Law of May 17, 2007 N 82-FZ “On the Development Bank”). It should be noted that in the world, state corporations primarily include regional development banks, as well as national industry structures.
The State Atomic Energy Corporation Rosatom has the broadest administrative and management powers. Rosatom was transferred the powers of the liquidated executive body - the Federal Atomic Energy Agency (clause 4 of Article 38 of the Federal Law of December 1, 2007 N 317-FZ "On the State Atomic Energy Corporation Rosatom"). The managerial powers of other state corporations are less pronounced.
The law providing for the creation of a state corporation must determine its name and objectives, location, procedure for managing its activities, including the governing bodies of the state corporation and the procedure for their formation, the procedure for the appointment of officials of the state corporation and their dismissal, the procedure for reorganization and liquidation state corporation, as well as the use of property in the event of its liquidation.
By virtue of paragraph 3.1 of Article 7.1 of the Law on Non-Profit Organizations, it is regulated that the federal law providing for the creation of a state corporation must provide for the formation of a board of directors or a supervisory board of the state corporation (the highest management body of the state corporation).
The highest management body of a state corporation may include members who are not state civil servants. The Government of the Russian Federation establishes the procedure for the participation of members of the Government of the Russian Federation and state civil servants in the highest management bodies of state corporations.
The competence of the highest management body of a state corporation includes:
Approval of a long-term program of activity and development of a state corporation, providing for the implementation of production, investment and financial indicators, and (or) another document on long-term planning determined by the federal law providing for the creation of a state corporation (strategy for the activities of a state corporation);
Approval of a system of remuneration for employees of a state corporation, providing for the dependence of the remuneration of its employees on the achievement of key performance indicators;
Determining the procedure for using the profits of a state corporation;
Making a decision to transfer part of the property of a state corporation to the state treasury of the Russian Federation.
The federal law providing for the creation of a state corporation may also include other issues within the competence of the supreme management body of the state corporation.
The highest management body of a state corporation has the right to create committees and commissions on issues within its competence for their preliminary consideration and preparation. The procedure for the activities of such committees, commissions and their personal composition are established by decisions on the creation of committees and commissions.
From a general analysis of special federal laws on the creation of such legal entities, it follows that the governing bodies of state corporations are the supervisory board, the board, and the general director.
The internal financial control body of a state corporation is the audit commission.
The Supervisory Board is the highest governing body. Its composition, as a rule, includes representatives of the President of the Russian Federation, the Government of the Russian Federation, the general director, who is an ex-officio member of the supervisory board, who cannot be its chairman.
Members of the supervisory board are appointed by the President of the Russian Federation for a period of no more than five years. With the exception of the general director, members of the supervisory board do not work on a permanent basis and have the right to combine their membership with holding a government position or a position in the federal public service.
The main powers of the supervisory board include:
1) statement:
Directions of the corporation's activities for the next year;
Organizational structure;
Regulations on the board;
Regulations on the Audit Commission;
Annual report;
Performance indicators;
Audit organization;
Financial plan of income and expenses, as well as directions for using profits;
2) decision making:
On the creation of branches and opening representative offices;
On the appointment and dismissal of members of the board and members of the audit commission;
On the creation of reserve and other funds and the procedure for their formation and use;
On the conclusion of significant transactions related to the acquisition, alienation or possibility of alienation of the corporation’s property;
3) conclusion of an employment contract with the general director;
4) hearing reports from the General Director.
The corporation's board is a collegial executive body. The board consists of a certain number of members, the general director and his deputies.
The activities of the board are led by the general director. Based on his recommendation, the supervisory board makes decisions on the appointment and dismissal of members of the board.
The powers of the board include preparing and submitting for approval to the supervisory board:
Proposals on areas of activity for the next year;
Annual report;
Financial plan of income and expenses;
Proposals on performance indicators;
Regulations on the Audit Commission;
Proposals on directions for using profits.
The General Director is the sole executive body and manages its current activities. The General Director is appointed and dismissed by the President of the Russian Federation.
CEO:
Acts on behalf of the corporation and represents its interests without a power of attorney in relations with federal government bodies, government bodies of the constituent entities of the Federation, local governments, foreign organizations, international organizations, and other organizations;
Heads the board and organizes the implementation of its decisions;
Issues orders and instructions on issues of current activities;
Appoints and dismisses his deputies to positions in agreement with the supervisory board;
Distributes responsibilities among his deputies;
Submits proposals to the supervisory board regarding the appointment and dismissal of members of the board;
Hires and fires employees of the corporation;
Issues powers of attorney, opens bank accounts in banks and other credit organizations in the manner established by the legislation of the Russian Federation;
Reports on the activities of the corporation to the President and the Government in the manner and within the time frame determined by the President;
Approves the amount and forms of remuneration for employees in accordance with the legislation of the Russian Federation;
Makes decisions on other issues.
Federal Law No. 99-FZ of May 5, 2014 “On amendments to Chapter 4 of Part 1 of the Civil Code of the Russian Federation and on the recognition as invalid of certain provisions of legislative acts of the Russian Federation” (hereinafter referred to as Law No. 99-FZ) amended the Civil Code (hereinafter referred to as the Civil Code of the Russian Federation).
Pay special attention!
Until regulatory legal acts are brought into compliance with the provisions of the Civil Code of the Russian Federation, laws and other regulatory legal acts are applied to the extent that they do not contradict the provisions of the Civil Code of the Russian Federation. At the same time, special laws regulating the activities of non-profit legal entities, including the one whose provisions we discussed above, have not yet been changed. Law No. 7-FZ has not been brought into compliance with these changes.
In general, we can say that from September 1, 2014, all legal entities, both commercial and non-profit, will be created only in the organizational and legal forms provided for by Chapter 4 of the Civil Code of the Russian Federation. At the same time, organizations created earlier must bring their names and constituent documents into compliance with the new requirements when the constituent documents are changed for the first time.
According to Article 48 of the Civil Code of the Russian Federation, as amended, a legal entity is recognized as an organization that has separate property and is responsible for its obligations, can, in its own name, acquire and exercise civil rights and bear civil obligations, and be a plaintiff and defendant in court.
Legal entities to whose property their founders have proprietary rights include state and municipal unitary enterprises, as well as institutions.
Legal entities in respect of which their participants have corporate rights include corporate organizations (Article 65.1 of the Civil Code of the Russian Federation).
Article 50 of the Civil Code of the Russian Federation distinguishes all legal entities into commercial and non-commercial. There are many classifications of legal entities for various reasons, but this division is well-known and generally accepted, even to some extent fundamental. According to paragraph 1 of Article 50 of the Civil Code of the Russian Federation, legal entities can be organizations that pursue profit as the main goal of their activities (commercial organizations) or do not have profit as such a goal and do not distribute the profits between participants (non-profit organizations). The main criterion for differentiation in this case is the main purpose of the activity, and neither the form of ownership, nor the organizational and legal form, nor other circumstances matter at all.
Please note that Article 50 of the Civil Code of the Russian Federation provides an exhaustive list of organizational and legal forms in which non-profit legal entities can be created. Let us note that previously there was no such list (imperative).
Legal entities that are non-profit organizations can be created in the following organizational and legal forms:
Consumer cooperatives, which include, among other things, housing, housing construction and garage cooperatives, horticultural, gardening and dacha consumer cooperatives, mutual insurance societies, credit cooperatives, rental funds, agricultural consumer cooperatives;
Public organizations, which include, among other things, political parties and trade unions (trade union organizations) created as legal entities, social movements, public amateur bodies, territorial public self-governments;
Associations (unions), which include, among other things, non-profit partnerships, self-regulatory organizations, associations of employers, associations of trade unions, cooperatives and public organizations, commercial and industrial, notary and bar chambers;
Partnerships of real estate owners, which include, among other things, partnerships of homeowners (a completely new form for Russian legislation);
Cossack societies included in the state register of Cossack societies in the Russian Federation;
Communities of indigenous peoples of the Russian Federation;
Foundations, which include public and charitable foundations;
Institutions, which include government institutions (including state academies of sciences), municipal institutions and private (including public) institutions;
Autonomous non-profit organizations;
Religious organizations;
Public law companies.
Non-profit organizations may carry out income-generating activities, if provided for by their charters, only insofar as this serves the purposes for which they were created and if it is consistent with such purposes.
A non-profit organization, the charter of which provides for the implementation of income-generating activities, with the exception of state-owned and private institutions, must have property sufficient for the implementation of these activities with a market value of at least the minimum amount of authorized capital provided for limited liability companies (see paragraph 1 of Article 66.2 of the Civil Code of the Russian Federation) .
The rules of the Civil Code of the Russian Federation do not apply to relations in the implementation of their main activities by non-profit organizations, as well as to other relations with their participation that are not related to the subject of civil legislation, unless otherwise provided by law or the charter of a non-profit organization.
The approach to the types of constituent documents has changed. Now the only constituent document for all organizations (with minimal exceptions) is the charter.
By virtue of Article 52 of the Civil Code of the Russian Federation, legal entities, with the exception of business partnerships, act on the basis of charters, which are approved by their founders (participants).
Accordingly, it can be noted that the list of organizational forms of non-profit legal entities does not include state corporations. And as we noted, the list is exhaustive.
In this regard, it is worth noting that it is not at all clear why the wording of Article 65 of the Civil Code of the Russian Federation was not changed.
According to Article 65 of the Civil Code of the Russian Federation, a legal entity, with the exception of a state-owned enterprise, institution, political party and religious organization, may be declared insolvent (bankrupt) by a court decision. A state corporation or state company may be declared insolvent (bankrupt) if this is permitted by the federal law providing for its creation. A fund cannot be declared insolvent (bankrupt) if this is established by law providing for the creation and operation of such a fund.
That is, in this norm this type of legal entity is named. Most likely, the edition will be changed later.
We also believe that corresponding changes will soon be made to Law No. 7-FZ, and structures today formed in the form of state corporations will in the future be created in accessible organizational and legal forms named in Article 50 of the Civil Code of the Russian Federation.
Today, the most important role in the Russian economy is assigned to state corporations. They serve as the largest employers who ensure the full development of entire industries. Some of the state corporations (Roscosmos, for example) have a position close to a monopoly. That is why they are practically indispensable subjects for the development of the country’s economy. It is advisable to consider the main characteristics, history of appearance and the list of state corporations currently known.
The concept of a state corporation
A state corporation is a non-profit institution whose assets are owned by the Russian Federation. It is created to implement functions that are especially significant for society. Among them, for example, is the fair distribution of financial resources. In practice, the presented function can be expressed in the fact that one of the orders of the state corporation Rosatom, for example, approves the possibility of providing jobs with satisfactory wages. This stimulates the growth of people's purchasing power. Or, for example, the fact that such structures are the largest customers for private businesses. This contributes to the development of entrepreneurship in the country. State corporations are institutions that act as an incentive for monetization and growth of the economy as a whole, and also contribute to the emergence and further expansion of connections at the international level.
State corporations, state-owned enterprises and state-owned companies
Next, it is advisable to consider the similarities and distinctive features of these structures. State-owned companies and state-owned corporations are two types of non-profit institutions. They are similar in some ways, but different in others. It is worth noting that their activities are regulated through the same legal source - the Law “On Non-Profit Organizations”. In accordance with the provisions of this act, a state company should be understood as an NPO that does not have membership, formed on the basis of property investments for the provision of public services and the implementation of other functions, subject to the involvement of state property complexes in the form of management on a trust basis. The State ATM Corporation is also an NPO that does not have a membership, formed on the basis of a property contribution, however, to achieve goals that are significant for society and to perform socially important functions, as noted above. Both types of government institutions are created on the basis of the issuance of federal laws.
It is worth keeping in mind that state corporations have even more pronounced differences. The former are endowed with the status of subjects that are established by the country's power system. And state-owned enterprises do not have to be established by the state, but they own the largest part of state shares. You need to know that even private individuals can act as co-owners of state-owned enterprises.
The differences between state-owned enterprises and corporations are quite difficult to trace regarding organizational and legal forms. The reason is that state corporations are the same economic societies as state-owned enterprises. They can be open or closed. Some lawyers believe that it is correct to classify state corporations as a number of organizations. For example, to the Federal State Unitary Enterprise of the State ATM Corporation. State-owned enterprises can only exist as business entities. This means that the unitary form is absolutely not characteristic of them. Today there are experts who distinguish between the concepts of federal state unitary enterprises and state corporations. This is due to the fact that the latter are almost completely uncontrolled and do not report to government agencies. The only exception may be the need to periodically provide some information regarding the activities being implemented to the Government of the country. State structures have much more powers regarding the management of FSUE branches. This does not apply to state ATM corporations.
Today it is widely believed that a state corporation can be represented in absolutely any organizational form. Examples of state-owned enterprises are structures such as Russian Railways, Rosneft or Rostelecom. Examples of unitary-type enterprises are Mosgortrans, Russian Post and the TASS agency. State corporations, state-owned companies and state-owned enterprises need to be distinguished at least based on their mechanism of establishment. It, in turn, is predetermined by the peculiarities of the legal regulation of the relevant structures.
Legal regulation of the activities of state corporations
Next, we will study the legal aspect of the work of state corporations in ATM. State corporations belong to the branch of civil law. In other words, in transactions and legal relations of a different nature, they play the role of subjects who are legally equal to their partners. Nevertheless, the legal status of such structures is endowed with a number of features. Thus, state corporations on the territory of the Russian Federation are established on the basis of a published federal law. The main aspect of the activities of the relevant structures is that they are not obliged to bear responsibility for the obligations of the Russian Federation that may arise. And vice versa, the state is in no way responsible for the activities of state corporations (Aeronavigation, Rostec, Rosatom, and so on). An exception may be scenarios in which certain types of mutual liability are described in law.
What privileges do state corporations have?
Another notable aspect of the activities of branches of state corporations in the field of air traffic management is the exclusion of the application of legislative provisions that regulate bankruptcy. In addition, institutions have some privileges in terms of reporting: they do not have to disclose information regarding activities in the same way as economic societies are required to do; they have no obligation to submit reports to government bodies, with the exception of a number of government agencies; state corporations have the right to conduct competitions within the framework of the public procurement mechanism based on the rules that they independently establish. These rules do not have to coincide with the standards approved in the legislation regarding public procurement.
It is important to pay attention to how the bodies that manage state corporations are created. As a rule, a corresponding order of state corporations is issued, which stipulates that the head is a manager who acts according to the standards determined by a separate legislative act. Thus, in accordance with the provisions of a number of legal acts, most often the heads of state corporations are appointed directly by the President of the Russian Federation.
History of origin
State corporations, being subjects of civil law, began to appear after certain adjustments were made on 07/08/1999 to the Law that regulates the work of non-profit organizations. Thus, a basis emerged for legalizing the activities of these structures. It is believed that the first state corporation on the territory of the Russian Federation was an agency called ARCO. It was engaged in the reconstruction of banking-type institutions. The structure was registered in 1999. Nevertheless, after the establishment of the represented agency, state corporations did not immediately become a popular organizational and legal form of business in Russia, subject to the participation of the state. Since 2007, the popularity of these institutions has begun to gain momentum.
List of state corporations
The list of state corporations founded on the territory of the Russian Federation today is not very large. However, it is closed. In accordance with the tasks that individual government structures and the state as a whole set for themselves, new organizations of the type under consideration can be formed, as well as existing ones can be abolished. The largest state corporations currently include the following structures:
- State Corporation "Rosatom".
- State Corporation "Vnesheconombank".
- State Corporation "Rosnato".
- State Corporation "Rostec".
- State Corporation DIA.
It should be noted that the state corporation Olympstroy was responsible for the construction of Olympic facilities in Sochi. In addition, the Housing and Communal Services Fund is a significant state corporation in terms of the scale of its activities.
Prospects for State Corporations
What are the prospects for the further development of state corporations? There are different opinions and points of view here. Over the past 2-3 years, more and more notifications have appeared that the form of enterprise activity in question will soon be abolished. In particular, one concept regarding the improvement of the current legislation that regulates the activities of legal entities on the territory of Russia included provisions on the need to transform state corporations into other organizational and legal forms of institutions. At the same time, the current privileges that state corporations have today must be cancelled.
Despite such relative plans, today state corporations successfully fulfill their functions (state corporations Rosatom, Russian Technologies, Housing and Communal Services are currently developing increasingly large-scale activities). True, their work is under serious control by government agencies. The reason is the desire of the Government of the country to increase the efficiency of the activities of the structures in question. In particular, there is a fairly active adjustment of the current remuneration systems for employees of state-owned enterprises. There are, for example, proposals regarding linking compensation payments to employees of relevant institutions to the actual results of work. There are initiatives according to which the powers of employees of state corporations are planned to be brought closer to those characterizing the activities of civil servants. By analogy, there is an idea about the need to impose additional restrictions on specialists of state-owned companies, especially those related to the ability to conduct commercial activities.
Industry features of the development of state corporations
Today there are theses that the work of state corporations should be regulated in accordance with the specifics of a certain segment of their activity. Thus, financial state corporations are compatible to a greater extent with legal provisions that strictly regulate their activities. Innovative public corporations will likely not need such stringent regulation. By analogy, the sectoral approach can be adapted to the work of other institutions. As a result, state corporations remain relevant in terms of a popular form of activity and, according to analysts, have good prospects for development.
Features of foreign state corporations
After a full study of the characteristics of the activities of state corporations of the Russian Federation, it is advisable to move on to considering the specifics of the work of the corresponding types of enterprises abroad. Naturally, the presence of institutions of the type under consideration is presupposed not only by our political system. State corporations operate in almost all countries of the world. For example, in the USA, one of the largest structures is Amtrak. This company provides services in the field of railway transportation. It was established back in 1971, much earlier than state corporations appeared in Russia. It is interesting that American and Russian institutions of this type are somewhat similar in such an aspect as formation: state corporations in both countries are created on the basis of regulations that have been adopted. Thus, Amtrak was established by an act of the US Congress.
Another largest US government corporation is OPIC. This structure invests in foreign projects. It was created back in 1971, just like Amtrak. Many experts consider it an agency reporting to the US government. It is in this aspect that the distinctive features of Russian organizations of the corresponding plan from American ones are clearly visible.
Summary
So, we have studied the essence and features of the term “state corporations”. In addition, relevant examples and their characteristics were studied both on the territory of the Russian Federation and in foreign countries. What conclusions can be drawn from this? To begin with, you should understand that a state enterprise and a state corporation are completely different things. Close in meaning to state-owned corporations is the term “state-owned companies”. In particular, regulation of both types of organizations is carried out through the provisions of the same legislative act.
However, it is worth keeping in mind that all three of the concepts explored today are often synonymous. Of course, from a legal perspective this is not entirely correct, but in general synonymy is acceptable due to the fact that the terms presented are actually very close in meaning. State corporations in Russia, the list of which undergoes regular adjustments, in accordance with the dynamics and priorities of lawmaking of state structures, are, despite the provisions regarding the possibility of abolishing the type of legal entities in question, a rather promising form of activity. The successful development of state corporations on the territory of the Russian Federation depends on the quality of the current legislation regulating this issue, especially in the field of determining performance criteria.
Which are included in the Decree of the Government of the Russian Federation of December 27, 2016 No. 1502 “On the procedure for approval by the Ministry of the Russian Federation for the Development of the Far East of investment programs and other plans for infrastructure development implemented by state corporations, state-owned companies and other organizations with state participation” (Meeting Legislation of the Russian Federation, 2017, No. 1, Article 221).
2. Recommend to organizations according to the list provided in the appendix to the Rules for the approval by the Ministry of the Russian Federation for the Development of the Far East of planning and program-target documents of state corporations, state-owned companies and other organizations, approved by Decree of the Government of the Russian Federation of December 27, 2016 No. 1502 “On the procedure approval by the Ministry of the Russian Federation for the Development of the Far East of planning and program-target documents of state corporations, state-owned companies and other organizations" (as amended by this resolution), within 60 calendar days from the date of entry into force of this resolution, approve the procedures for approving planned and program-targeted documents documents with the Ministry of the Russian Federation for the Development of the Far East and coordinate such documents with the said Ministry.
3. The Federal Agency for State Property Management and federal executive authorities, within 30 calendar days from the date of entry into force of this resolution, prepare directives to state representatives in the management bodies of organizations with state participation on approval at the next meeting of the management bodies of organizations according to the list provided for by this resolution , the procedure for approving planning and program-target documents provided for in paragraph 2 of this resolution.
Amendments to the Decree of the Government of the Russian Federation dated December 27, 2016 No. 1502
1. In the title and paragraph 1, replace the words “investment programs and other plans for infrastructure development implemented by state corporations, state companies and other organizations with state participation” with the words “planning and program-target documents of state corporations, state companies and other organizations.”
2. Add paragraph 4 with the following content:
"4. For the purposes of applying this resolution, planning and program-target documents of state corporations, state-owned companies and other organizations mean long-term development programs, strategies, investment programs and innovative development programs of state corporations, state-owned companies and other organizations."
3. In the Rules for the approval by the Ministry of the Russian Federation for the Development of the Far East of investment programs and other plans for infrastructure development implemented by state corporations, state-owned companies and other organizations with state participation, approved by the specified resolution:
a) in the title, replace the words “investment programs and other plans for infrastructure development implemented by state corporations, state-owned companies and other organizations with state participation” with the words “planning and program-target documents of state corporations, state-owned companies and other organizations”;
b) paragraph 1 should be stated as follows:
"1. These Rules determine the procedure for approval by the Ministry of the Russian Federation for the Development of the Far East of planning and program-target documents coming from state corporations, state-owned companies and other organizations included in the list according to the Appendix (hereinafter referred to as state companies, program documents), and the procedure for agreeing on changes made to approved program documents.";
c) in paragraphs 3 - 6, replace the words “investment programs” with the words “program documents”;
d) in paragraph 7:
in paragraph one, replace the words “investment programs” with the words “program documents”;
in paragraph two, replace the words “investment program” with the words “program document”, replace the word “agreed” with the word “agreed”;
e) in paragraphs 8 - 11, replace the words “investment program” in the appropriate number and case with the words “program document” in the appropriate number and case;
f) paragraph 12 should be stated as follows:
"12. In the absence of an agreed decision on the draft program document following the results of the conciliation meeting, the issue of resolving disagreements is considered in the Government of the Russian Federation with the participation of the Deputy Chairman of the Government of the Russian Federation, who, in accordance with the distribution of responsibilities, coordinates the work of federal executive bodies on issues of state policy in the field of integrated socio-economic development of the constituent entities of the Russian Federation that are part of the Far Eastern Federal District.";
g) in paragraph 13:
in paragraph one, replace the words “approved investment program” with the words “approved program document”, replace the words “investment programs” with the words “program documents”;
in paragraph two, the words “approved investment programs” are replaced with the words “approved program documents”, the words “investment program” are replaced with the words “program document”;
h) supplement with the following annex:
"APPLICATION
to the Approval Rules
Ministry of the Russian Federation
for the development of the Far East
planned and program-targeted
government documents
corporations, state companies
and other organizations
Scroll
state corporations, state companies and other organizations, the approval of planning and program-target documents of which is carried out by the Ministry of the Russian Federation for the Development of the Far East
1. Joint Stock Company "ALROSA" (public joint stock company)
2. Joint Stock Company "Housing Mortgage Lending Agency"
3. Joint Stock Company "Gazprom Gas Distribution Far East"
4. Joint Stock Company "Far Eastern Energy Management Company"
5. Joint Stock Company "United Grain Company"
6. Joint Stock Company "United Shipbuilding Corporation"
7. Joint Stock Company "Rosagroleasing"
8. Joint Stock Company "Rosgeologiya"
9. Joint Stock Company "Russian Agricultural Bank"
10. Joint Stock Company "Russian Venture Company"
11. Joint Stock Company "Russian State Center for Inventory and Accounting of Real Estate - Federal Bureau of Technical Inventory"
12. Joint Stock Company "Federal Corporation for the Development of Small and Medium Enterprises"
13. Joint-stock company "Fund for the Development of the Far East and Baikal Region"
14. VTB Bank (public joint stock company)
15. State company "Russian Highways"
16. State Atomic Energy Corporation "Rosatom"
17. State Corporation for Space Activities "Roscosmos"
18. State corporation for promoting the development, production and export of high-tech industrial products "Rostec"
19. State Corporation "Bank for Development and Foreign Economic Affairs (Vnesheconombank)"
20. State Corporation - Fund for Assistance to Reform of Housing and Communal Services
21. Non-profit organization "Fund for the Development of Single-Industry Towns"
22. Open joint-stock company "Russian Railways"
23. Limited Liability Company "Gazprom Mezhregiongaz Far East"
24. Public Joint Stock Company "Aeroflot - Russian Airlines"
25. Public Joint Stock Company "Gazprom"
26. Public Joint Stock Company "Oil Company "Rosneft"
27. Public Joint Stock Company "Transneft"
28. Public Joint Stock Company "State Transport Leasing Company"
29. Public joint-stock company "Inter RAO UES"
30. Public Joint Stock Company "United Aircraft Corporation"
31. Public joint-stock company "Russian networks"
32. Public joint-stock company "Federal Hydrogenerating Company - RusHydro"
33. Public joint-stock company "Federal Grid Company of the Unified Energy System"
34. Federal State Autonomous Institution "Russian Fund for Technological Development".
Document overview
The rules for approval by the Russian Ministry of Eastern Development of investment programs of state-owned companies are extended to all their program documents. In addition, we are talking not only about organizations with state participation.
These documents mean long-term development programs, strategies, investment programs and innovative development programs.
The procedure for considering the issue of resolving disagreements on the draft document has been clarified.
A list of organizations has been approved (34 in total), the program documents of which are approved by the Ministry. In addition to state corporations and state-owned companies, it includes other organizations (JSC, LLC, NPO, Federal State Autonomous Institution).
Public corporations are created to perform various functions; the activities of each are regulated by a separate federal law, which defines the goals of the corporation, the general principles of the management structure, the specifics of property management, and the specifics of public reporting and auditing. At the same time, there is no liability for state corporations’ failure to post information required by law.
State Corporation "Deposit Insurance Agency"
Year of creation: 2004.
Base: Federal Law of December 23, 2003 No. 177-FZ “On insurance of deposits of individuals in banks of the Russian Federation.”
Target: ensuring the functioning of the deposit insurance system, as well as performing the functions of a bankruptcy trustee (liquidator) in the event of bankruptcy of credit institutions.
Controls: board of directors, management and general director. The highest governing body is the board of directors.
Number of staff:
CEO:
Isaev Yuri Olegovich
State Corporation "Bank for Development and Foreign Economic Affairs (Vnesheconombank)"
Year of creation: 2007.
Base: Federal Law of May 17, 2007 No. 82-FZ “On the Development Bank”.
Target: ensuring increased competitiveness of the economy of the Russian Federation, its diversification, stimulation of investment activity by carrying out investment, foreign economic, insurance, consulting and other activities provided for by law for the implementation of projects in the Russian Federation and abroad, including with the participation of foreign capital, aimed at developing infrastructure, innovation, special economic zones, environmental protection, to support the export of Russian goods, works and services, as well as to support small and medium-sized businesses.
Controls: supervisory board, board and chairman. The highest governing body is the supervisory board, headed by the Chairman of the Government of the Russian Federation.
Chairman:
Gorkov Sergey Nikolaevich
State Corporation - Fund for Assistance to Reform of Housing and Communal Services (Housing and Communal Services Fund)
Year of creation: 2007.
Base: Federal Law of July 21, 2007 No. 185-FZ “On the Fund for Assistance to the Reform of Housing and Communal Services.” The state corporation was supposed to cease operations on January 1, 2013, but the completion date was repeatedly postponed. In October 2017, the State Duma once again extended the terms of the Fund’s activities until January 1, 2019.
Target: creating safe and favorable living conditions for citizens and stimulating the reform of housing and communal services, the formation of effective mechanisms for managing the housing stock, the introduction of resource-saving technologies by providing financial support from the Fund, carrying out outreach and other activities aimed at educating citizens in the field of housing and public utilities, assistance in training personnel in the field of housing and communal services.
Controls: supervisory board, board, general director.
Number of staff: as of 01/01/2017 - 257 people.
CEO:
Tsitsin Konstantin Georgievich
State Corporation for Promoting the Development, Production and Export of High-Tech Industrial Products "Rostec"
Year of creation: 2007.
Base: Federal Law of November 23, 2007 No. 270-FZ “On the State Corporation “Russian Technologies””.
Target: promoting the development, production and export of high-tech industrial products by providing support in the domestic and foreign markets for Russian organizations - developers and manufacturers of high-tech industrial products, organizations in which the corporation due to a predominant participation in their authorized capital, or in accordance with agreements concluded between them, or otherwise has the opportunity to influence the decisions made by these organizations by attracting investments in organizations of various industries, including the military-industrial complex, as well as participation in social and other socially significant projects in the interests of the state and society in accordance with federal laws and decisions of the President Russian Federation.
Controls: supervisory board, management board and general director. The highest governing body is the supervisory board.
Number of staff: as of December 31, 2016 - 1,037 people.
CEO:
Chemezov Sergey Viktorovich
State Atomic Energy Corporation "Rosatom"
Year of creation: 2007.
Base: Federal Law of December 1, 2007 No. 317-FZ “On the State Atomic Energy Corporation Rosatom”.
Target: implementation of state policy, implementation of legal regulation, provision of public services and management of state property in the field of the use of atomic energy, development and safe operation of organizations of the nuclear energy-industrial and nuclear weapons complexes of the Russian Federation, organizations operating vessels of the nuclear icebreaker fleet (nuclear technological service vessels , as well as ships with nuclear power plants - nuclear icebreakers and transport ships), ensuring nuclear and radiation safety, non-proliferation of nuclear materials and technologies, development of nuclear science, technology and professional education, implementation of international cooperation in this area; carrying out state policy in the field of development of the nuclear industry, fulfilling the tasks of the state weapons program and state defense order.
Controls: supervisory board, general director and management board. The highest governing body is the supervisory board.
Number of staff:
CEO:
Likhachev Alexey Evgenievich
State Corporation for Space Activities "Roscosmos"
Year of creation: 2015.
Base: Federal Law of July 13, 2015 N 215-FZ “On the State Corporation for Space Activities “Roscosmos””.
Target: implementation of state policy and implementation of legal regulation in the field of space activities; provision of public services in the field of space activities and state property management; ensuring that the Corporation's organizations and organizations of the rocket and space industry carry out work on the creation of rocket and space technology for military, dual, scientific and socio-economic purposes, and military rocket technology for strategic purposes; coordination of work on the maintenance, development and use of the global navigation satellite system GLONASS in the interests of special, civil, including commercial, consumers and to expand international cooperation of the Russian Federation in the field of satellite navigation systems; implementation of international activities in the exploration and use of outer space; carrying out functions for the general coordination of work carried out at the Baikonur Cosmodrome and the Vostochny Cosmodrome, and for the management of these works.
Controls: supervisory board, general director and management board. The highest governing body is the supervisory board.
Number of staff: 249.94 thousand people (including subordinate organizations).
CEO:
Komarov Igor Anatolievich
Restrictions, prohibitions and obligations
Employees of state corporations are subject to special restrictions and responsibilities similar to the prohibitions and restrictions for government employees.
Federal Law No. 44-FZ establishes a limited list of procurement methods (10 competitive methods and the possibility of purchasing from a single supplier on the grounds specified in the law), and Federal Law No. 223-FZ allows the customer, in its procurement regulations, to independently determine the types of procurement, choose platforms for electronic trading, etc. State and municipal authorities, state and municipal budgetary institutions, state and municipal unitary enterprises operate under No. 44-FZ (except for purchases through grants, own funds, and within subcontracts). With the timely approval of procurement provisions under Law No. 223-FZ, state-owned companies with a participation share of more than 50%, their subsidiaries, natural monopolies, budgetary institutions and state and municipal enterprises operate, in the case of procurement through grants, own funds and subcontracting .
State corporations Rosatom and Roscosmos purchase mainly under No. 44-FZ, and other corporations use the law only to purchase annual audit services, which according to the law are carried out on a competitive basis.
More flexible No. 223-FZ allows state corporations to independently determine procurement methods. On the other hand, No. 44-FZ imposes an obligation on customers to publish all procurement documentation, seriously limiting the use of non-competitive procurement methods.
In 2014, Sergei Kiriyenko, who held the position of General Director of Rosatom, said that the state corporation was the first and on its own initiative to switch to No. 44-FZ. According to him, stricter procurement conditions allowed them to save 35 billion rubles.
At the time of publication of this study, all public corporations had already posted their procurement regulations in the Unified Information System:
Deposit Insurance Agency - last changes made 12/09/2016
Vnesheconombank - last changes made 03/02/2017
Housing and Communal Services Fund - last changes made 03/13/2017
Rostec - last changes made 03/31/2017
Rosatom - last changes made 04/04/2017
Roscosmos - last changes made 06/26/2017
The Roscosmos Corporation violated the deadlines for publishing in the Unified Information System changes made to the Procurement Regulations. In accordance with No. 223-FZ, the regulation and changes to it must be published no later than fifteen days from the date of approval. Roscosmos published the changes approved on June 26, 2017 only on July 14, 20 days later.
For this offense, administrative liability is provided in the form of a fine for officials in the amount of 5-10 thousand rubles, for legal entities - from 10 to 30 thousand rubles.
Conflict of interest in procurement
In 2013, the first deputy general director of the Rostec state corporation, Vladimir Artyakov, was elected chairman of the board of directors of JSC Concern Sozvezdie, which is part of the state corporation (he currently does not hold this position).
Since 2015, Vladimir Artyakov’s wife Tatyana has owned 42.5% of AFK-Service LLC, which owns a business center in Moscow.
Business center building at the address: Spiridonovka, 20, building 2
At the end of 2016, Sozvezdie Concern JSC entered into a contract with AFK-Service LLC for the rental of premises in the specified business center. The contract in the amount of 1,423,125 rubles was concluded with a single supplier within the framework of Federal Law No. 223-FZ, which does not prohibit conflicts of interest.
In our opinion, in this situation one can discern signs of a conflict of interest, which, however, does not contradict the current legislation.
The Ministry of Finance of the Russian Federation has prepared amendments to Law No. 223-FZ that provide for a ban on participation in procurement by legal entities and individuals who have a conflict of interest with the customer. The proposed amendments, in fact, repeat the definition of a conflict of interest contained in Federal Law No. 44-FZ: the restriction will not apply to the management of legal entities that own legal entities that are customers.
A significant part of medicines and medical products, the purchase of which is carried out by the federal government authorities of the Russian Federation (JSC National Immunobiological Company).
The corresponding orders were adopted in accordance with paragraph 2 of part 1 of Article 93 of Federal Law 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs.”
Having studied the government contracts of JSC Nacimbio, JSC Russian Electronics, JSC RT-Project Technologies with government authorities, on the one hand, and the documentation of these JSCs on the purchase of similar goods, works and services from suppliers, we found that all three companies act only as intermediaries, retaining up to 10% of the cost of government contracts, although they have the status of sole suppliers.
In turn, RT-Project Technologies JSC entered into agreements to perform the same work with private companies - Lanit Technologies LLC and Onlanta LLC, connected to each other through the owners. Contracts were also concluded with a single supplier. Previously, both companies entered into contracts for similar work directly with institutions subordinate to the Russian Treasury.
The average difference in the cost of a government contract and a similar contract with a subcontractor was 6%.
JSC "Nacimbio"
How the state monopoly Nacimbio made money on vaccines and who benefited from it.
The government has appointed a subsidiary of the state corporation Rostec as the sole supplier of vaccines for the National Calendar of Preventive Vaccinations.
The reliability of information about income, property and property-related obligations of employees of state corporations is not sufficiently controlled. There is no consistency in the issue of determining the circle of persons whose information on income, property and property-related obligations is subject to publication: in different corporations, the corresponding lists are published on official websites in different places, they are very different and are constantly changing. The lack of response from state corporations to the violations we identified suggests that their management may not be interested in complying with anti-corruption legislation.
Only two state corporations, Rosatom and Roscosmos, actively use Federal Law No. 44-FZ and achieve significant cost savings. We consider it appropriate at the legislative level to provide for the obligation to carry out a number of purchases under Law No. 44-FZ, for example, to conduct large purchases in this way and/or establish a share of competitive purchases from small and medium-sized businesses.
Thanks to the orders of the Government of the Russian Federation, a number of enterprises of the state corporation Rostec received a monopoly on the provision of certain types of services for government needs. Moreover, they provide services not independently, but through contractors. Such intermediary schemes lead to reduced competition and additional budget costs.
In this regard, we propose to supplement some regulations governing the activities of state corporations.
To supplement the Code of Administrative Offenses with an article on liability for violation of the duties of state corporations to prepare and post on the Internet the reporting of state corporations provided for by law. Liability must be provided for officials and legal entities, as provided for in relation to state bodies and local self-government bodies (Article 13.28 of the Administrative Code), self-regulatory organizations (Article 14.52 of the Administrative Code), organizations operating in financial markets (Article 15.19 of the Administrative Code) . Introduce administrative liability for non-publication of reports by state corporations.
Amend the Decree of the Government of the Russian Federation of August 21, 2012 No. 841 “On compliance by employees of state corporations and state companies with the provisions of Article 349.1 of the Labor Code of the Russian Federation” on establishing uniform criteria or assigning to a single state body the responsibility for approving lists of positions in state corporations, when replacing them, employees are subject to the obligation to provide information about their income, expenses, property and property obligations, as well as about the income, expenses, property and property obligations of their spouse and minor children, and are also subject to the prohibitions provided for paragraphs 1-4 and 7-11 of part four of Article 349.1 of the Labor Code of the Russian Federation. Oblige state corporations to introduce a unified list of positions, when filling which employees are subject to the obligation to provide information on their income, expenses, property and property-related liabilities, as well as on income, expenses, property and property-related liabilities of their spouse and minor children , and certain prohibitions apply.
Amend Art. 3 of the Federal Law of July 18, 2011 No. 223-FZ “On the procurement of goods, works, services by certain types of legal entities” on the ban on participation in procurement by legal entities and individuals who have a conflict of interest with the customer. Introduce a ban on participation in government procurement by state corporations for persons who are affiliated with the customer. The corresponding project has currently been developed by the Ministry of Finance of the Russian Federation. It is necessary to include in the list of potential participants the conflict of interests of managers of legal entities that own other legal entities that are customers.
Introduce changes to the federal laws on state corporations in terms of establishing the share of purchases carried out in accordance with the Federal Law of April 5, 2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs.” We also consider it advisable to amend the Federal Law of April 5, 2013 No. 44-FZ “On the contract system in the field of procurement of goods, works, services to meet state and municipal needs”, extending its effect to large purchases of state corporations.
