In particular, the Corporation may engage in entrepreneurial activity, since in Article of Law No. 139-FZ it is stipulated that the Corporation’s property “shall be formed by a contribution of property by the Russian Federation, incomes received from the Corporation’s activity; voluntary contributions and donations, and by other legal receipts, and shall be owned by the Corporation”. Besides, the Corporation has the right, at the expense of its property, “to create other not-for-profit organizations and enter in associations and unions on conditions determined by the Supervisory Board of the Corporation”. As for not-for-profit organizations, these are not, in fact, in any way restricted by existing legislation in their right to engage in commercial activity, either.
In addition, Law No. 139-FZ establishes the Corporation’s right “to form target funds” (that is, to create target capital for achieving the goals of its activity in the procedure envisaged by Federal Law of 30 December 2006, No. 275-FZ, “On the procedure for forming and using target capital by not-for-profit organizations”).
In this connection, some of the norms stipulated in Law No. 275-FZ may be regarded as contradictory to Law No. 139-FZ. The essence of the problem is that Law No. 275-FZ imposes rigid restrictions on the range of NPOs empowered to create their target capital. In accordance with this Law, target capital may be formed exclusively by the following entities:
- autonomous not-for-profit organizations;
- nongovernmental organizations;
- nongovernmental funds;
Its property is to be formed by a contribution from the Russian Federation; incomes from the Corporation’s activity; voluntary contributions and donations; and by other legal receipts. The Corporation is the owner of this property.
RUSSIAN ECONOMY IN trends and outlooks - religious organizations164.
A “public corporation”, while being a form of an NPO, does not belong to the category of organizations with the right to create target capital. And, since the Law “On the Russian Nanotechnologies Corporation” does not elaborate on the procedure for applying the norms stipulated in Federal Law No. 275-FZ to the Corporation’s activity, this may be interpreted as a ban on the formation of target capital by the Nanotechnologies Corporation.
The procedure and terms for its formation by the Corporation have been, in fact, left largely unregulated. Even if it is assumed that the Corporation, with time, will indeed become able to create own target funds, it will still be necessary to solve the problem of selection of asset managers to be assigned with the task of trust management of the Nanotechnologies Corporation’s funds, since it is envisaged in the Law “On the procedure for forming and using the target capital of not-for-profit organizations” that an external manager must be attracted for carrying out the operations with target capital.
In accordance with Article 2 of the Law, the target capital of a not-for-profit organization represents “part of property of a not-for-profit organization” formed “by the donations contributed by donor(s) in the form of monies, transferred by the not-for-profit organization into trust management to an asset manager in order to generate income to be used for financing the charter activity of the not-for-profit organization, or of other not-for-profit organizations, in the procedure envisaged by the Federal Law”.
No special norms designed to regulate the terms for selecting companies to be entrusted with the management of the Corporation’s target funds could be found either in Law No. 139FZ or in the normative acts adopted as by-laws. By way of comparison, it should be noted that the other development institutions transfer public funds to assets managers on a more transparent basis. Thus, the criteria for selecting venture companies to act as asset managers, at least in a general form, have indeed been established by the Russian Venture Company (RVC).
As a result, it can be concluded that if the norms stipulated in the Law “On the procedure for forming and using the target capital of not-for-profit organizations” will be applied to the Corporation’s target funds without any reservations, there will be only limited areas for investing its target capital.
Besides, the Corporation’s activity in some respects differs from that of other development institutions. In addition to a more “narrow” sphere for investing resources, lawmakers have also specified some conditions for their placement. Thus, while Vneshekonombank and RVC are orientated towards ensuring at least a minimum level of profitability of the projects they choose to finance, the Corporation is orientated more toward subsidizing innovative developments, while not being required to ensure their profitability.
It should be noted that at least in the sphere of subsidizing nanotechnologies the Corporation is not competing with other development institutions, while its activity, from the point of view of goals, is to a large extent duplicated by that of the bodies of state authority engaged in the implementation of the Federal Target Program “Development of infrastructure for the nanoindustry in the Russian Federation for the years 2008–2010”165. Among the state agencies In accordance with Article 2 of Law No. 275-FZ, the target capital’s owner may be only a not-for-profit organization created in the organizational-legal form of a fund, an autonomous not-for-profit organization, a nongovernmental organization, a nongovernmental fund, or a religions organization.
See the RF Government’s decree of 2 August 2007, No. 498.
Section Institutional Problems acting as the Program’s customers, the following have been designated: the Federal Agency for Science and Innovations, the Federal Agency for Public Education, the Federal Agency for Nuclear Power, the Federal Outer Space Agency, the Federal Agency for Industry, the Federal Agency for Technical Regulation and Metrology, and the Federal Service for Technical and Expert’s Control. The role of customer and coordinator has been assigned to the Ministry of Public Education and Science of the Russian Federation.
It is also noteworthy that the Russian Nanotechnologies Corporation is not mentioned among the recipients of budget funding under the Target Program, and therefore it is unclear how it interacts with the state customers for the Program.
The funding channeled through the Program, similarly to Rosnanotekh’s funding, is allocated to the elaboration and marketing of nanotechnologies.
The Public Corporation “Rostekhnologia”. In November 2007 Federal law of 23 November 2007, No. 270-FZ, “On the Public Corporation “Rostekhnologia” was adopted, which provided the basis for creating yet another state structure, to be allocated substantial funding from the federal budget for the promotion of innovations and hi-tech industries.
In accordance with Article 3 of this Law, the goal of the Public Corporation “Rostekhnologia” is to “promote the development, manufacture and export of hi-tech industrial products through providing support, on the domestic and foreign markets, to Russian organizations – developers and manufacturers of hi-tech industrial products, attracting investments to organizations belonging to different branches of industry, including the defenseindustrial complex”.
Thus, the new corporation’s activity, in addition to “civilian” innovations, also encompasses the commercialization of military and dual-purpose products. It should be noted that the Corporation’s creation at the stage of developing the law designed to regulate its activity166 was substantiated not so much by the need to make the trade in military hi-tech products more profitable, but by the general necessity to develop the hi-tech sector of exports as such.
The establishment of the SC “Rostekhnologia” was preceded by a comprehensive analysis of Russia’s position on the international hi-tech market167, which pointed to its very low market share (no more than 0.5%), as well as to the problems faced by the export of civil machinebuilding. However, as a result, the Law on the SC “Rostekhnologia” was adjusted in the main to regulate the defense-industrial sector. The SC “Rostekhnologia”’s operation, in its currently existing form, can hardly be conducive, in our opinion, to improving the situation in the sphere of civil machine-building and export of non-military technologies, since nothing is said either in Law No. 270-FZ or in any official plans and programs about investments in this sphere to be channeled through “Rostekhnologia”.
The directions of the Corporation’s activity are in many ways overlapping with those of Vneshekonombank, RVC and the Nanotechnologies Corporation. Thus, the purpose of “Rostekhnologia”, as well as of other development institutions, is to promote the export of hitech products; both “Rostekhnologia” and Vneshekonombank enjoy the right to carry out “works associated with the use of information classified as State secret”. As a consequence, the Bank for Development, alongside “Rostekhnologia”, can participate in projects implemented in the defense - industrial branch.
See, e.g., http://www.gosrf.ru/print_1486.htm.
RUSSIAN ECONOMY IN trends and outlooks However, as compared to other development institutions, the activity of “Rostekhnologia” is the least transparent. Thus, the directions of activity assigned to Vneshekonombank, RVC, and even to the Nanotechnologies Corporation are formulated with greater precision than those assigned to the SC “Rostekhnologia”.
For example, its basic functions are described in Law No. 270-FZ as follows: “aid to organizations belonging to different branches of industry, including the defense-industrial complex, in the development and production of hi-tech industrial products”; “ensuring the promotion on the domestic and foreign markets and the realization on the domestic and foreign markets of hi-tech industrial products, as well as the commodities associated with the creation of these products and the results of intellectual activity”, etc. In this connection, it is totally unclear what was meant by lawmakers as “aid to” and “participation in the implementation of state policy”. Thus the question arises as to whether the performance of these functions of the Corporation could be ensured through granting not-for-profit subsidies Or by granting credits, guarantees, or by participating in concession agreements, etc. Thus, the principal problem associated with “Rostekhnologia”’s operation is presented by its very broad powers, coupled with extremely vague goals, tasks and actual procedures envisaged for it. The problem is further aggravated by the fact that, in contrast to other development institutions, “Rostekhnologia” deals with military and dual-purpose technologies, which, due to secrecy, makes the task of “external” control even more difficult.
* * * While summing up the analysis of the legal base for the functioning of some of the development institutions created in 2007, it should be said that they all are characterized by certain common problems. The most important, in our opinion, is the insufficiently developed legal base of their activity.
The Laws adopted in 2007 – “On the Bank for Development”, “On the Russian Nanotechnologies Corporation”, and “On the Public Corporation “Rostekhnologia” – are designed to regulate the financial activity of development institutions only in most general terms, granting to the leadership of the newly established public corporations broad opportunities for spending budget funds, without creating any adequate system of control over the efficiency of their spending.
Thus, the common problem of these development institutions is that they are independent of the specialized agencies for financial control. For example, the financial operations of Vneshekonombank, after it has traded its status of a credit institution for that of a public corporation, are now beyond the sphere of financial control exercised by the RF Central Bank.
The activity of all the other newly created corporations cannot, in any practical terms, be controlled by state agencies like Rosfinnadzor and the Federal Treasury, because they are not recipients and executors of budget funds, since the allocations from the federal budget were transferred to them not as regular budget financing but as contributions to their charter capital, or in other forms which are not subject to control over targeted use of financial resources.
For this purpose, even parliamentary control exercised in the process of consideration and approval of a law on the federal budget does not apply to the activity of such corporations.
In this connection, the direct reporting by these development institutions to the RF President and Government cannot, in our opinion, ensure the necessary level of transparency Section Institutional Problems of their financial operations, since neither the President and nor the Government, as bodies of state authority, possess an apparatus adequate to effectuating detailed financial audits.
Control over the activity of such development institutions could be in part ensured by annual auditor’s control, which is mandatory for Vneshekonombank, as well as for “Rostekhnologia” and Rosnanotekh.
However, in all the three cases it is the leadership of a corporation, and not any “external” agencies, who is authorized to select the auditors. In this connection, the experience of audits conducted in respect of such big clients (e.g., the audits of “Yukos”) has demonstrated that auditors are not always prepared to generate objective conclusions, which can be contrary to their clients’ interests. Thus, problem of transparent functioning of the newly created development institutions remains open.
Equally common for all the development institutions created in 2007 has been the problem presented by overlapping areas of activity. The laws determining the range of projects to be supported by other development institutions have, in fact, duplicated one another by pointing out that the highest priority is assigned to the sphere of “innovations”.
Firstly, nowhere have the lawmakers specified what exactly is understood by “innovations’ for purposes of allocating budget support (all the attempts made so far to offer a clear definition of this sphere have not been very successful).