The peculiarities of the organizational-legal form “state corporation” are analyzed in detail in the corresponding section of the present survey. In the main, this status, openly or otherwise, is characterized by features typical of various organizational-legal forms, and is fraught with the inevitable misunderstandings as to the use of the concept of “corporation”.
In this connection, it should be mentioned that this term is present in the name “The State Corporation for the Control of Air Traffic”, which is a federal state unitary enterprise, and in the names of the recently created “The United Aircraft-Building Corporation” (UABC) and “The United Shipbuilding Corporation” (USC), which are open-end joint-stock companies (OJS), and therefore are obliged (at least formally) to comply with the requirements of corporate legislation. This same status of an OJSC is accorded to a number of other enterprises which, by their goals and objectives, can be classed with the companies designed to tackle issues of structural and industrial policy, like the state corporations of the year 2007.
These enterprises include: the Agency for the Mortgage Crediting of Housing (AMCH), established as early as 1996 with 100% of shares in state ownership (in 2004, it was included in the list of strategic JSCs); the company “Iliushin Finance Co” and “The Financial Leasing ComSection Institutional Problems pany” (both companies were winners in a tender for the best investment project with regard to the leasing of Russian airliners), whose authorized capital was increased in 2002, in the process of which large shares in their capital passed into federal ownership at the expense of budget funds (in 2006–07 they were contributed to the authorized capital of the UABC); and the recently created “The Russian Venture Company” and “The Russian Investment Fund for Information-Communication Technologies”, with all shares in federal ownership.
However, there remains one question yet unanswered: what will be the real mechanism for controlling the activity of such organizations, and how detailed its description is going to be in the applied documents establishing various rights, first of all from the point of view of preserving state property and public funds, and of guaranteeing that they would be used for the specified purposes, as well as from the viewpoint of the conformity of the corporations’ actual activity with the objectives specified in their Charters So far, the status of newly created state corporations has remained unclear – even from the point of view of their being classed with one or other form of ownership, because, in contrast to unitary enterprises, the property transferred to a state corporation by the Russian Federation is deemed to be in ownership of the state corporation27. And this, in its turn, is closely related to the difficult problem of accurately defining the boundaries of the state sector in the Russian economy as a whole.
5. 1. 6. Changes in the Normative-Legal Base Regulating the Functioning of the State Sector In contrast to the year 2006, which was marked by the emergence of a number of innovations in the normative-legal base with regard to the activity of the state sector’s economic subjects (the establishment of the procedure for increasing the authorized capital of the OJSC created in the process of privatization with 25 and more percent of shares in state or municipal ownership, the threshold values of the size of the state-owned block of shares being preserved;
and the adoption of a special document concerning the approaches to dividend policy in companies with state stakes, and the termination of the Federal Fund for Federal Property Management’s independence), the past year saw no changes of similar importance with respect to unitary enterprises and economic societies with the State’s participation28.
The most important event in this sphere was the adoption of Decree of the RF Government of 15 December 2007, No. 872, “On the Creation of Federal Treasure Enterprises and on the Regulation of the Activity Thereof”, which confirmed the Procedure for Regulating the Activity of Federal State Enterprises (FTE).
The aforesaid document establishes that economic subjects of this type can be created by three ways:
1) by way of establishment;
However imperfect the right of economic jurisdiction might be, existing legislation recognizes that the assets being subject to this legal regime should remain in state ownership (of a RF subject, or of a body of local selfgovernment), while unitary enterprises have the right to dispose of such assets only within those limits that do not prevent them from carrying out their activity, the objectives, the subject, and the types of which are determined by their Charters. Any transactions concluded in violation of this requirement must be deemed to be null and void.
The emergence of a vast normative-legal base concerning state corporations is an issue in its own right, which is analyzed in detail in a separate section.
RUSSIAN ECONOMY IN trends and outlooks 2) by way of reorganizing an existing unitary enterprise (through splitting, spinning-off, or merger);
3) by way of changing the type of a FSUE based on the right of economic jurisdiction.
When a FTE is being created, the federal executive body under whose jurisdiction the enterprise will be placed (the empowered body) should submit to the government: a draft of the deed of creation, and a whole package of specially prepared documents, including the feasibility study justifying the creation of the enterprise29; drafts of its Charter and of the programs for the enterprise’s activity in the next year and in the next planning period; the list of assets to be consolidated to the enterprise by right of operative management for the purpose of fulfilling the State’s orders for manufacture of products (or for work, or services); and the report on valuating the assets to be consolidated to the enterprise by right of operative management, including the data on the market value of these assets. When an enterprise is being created by way of reorganizing an existing unitary enterprise or by way of changing the type thereof, the submitted documents should also include notarially attested copies of the constituent documents of the unitary enterprise, copies of its accounts as of the last reporting date and of its annual accounts for the 3 previous years (with a notation of a corresponding taxation body), the statement issued by the taxation body at the place of tax registration with regard to the unitary enterprise’s position concerning the payment of taxes, charges, and contributions as of the last reporting date, a draft of the division balance sheet or of the transfer deed (in the event of the enterprise being created by way of reorganizing a unitary enterprise), and the list of assets consolidated to the unitary enterprise, authenticated by a corresponding territorial body of the federal executive body performing the functions of federal property management (The Federal Agency for Federal Property Management).
A FTE’s relations with the supervisory body should be based on the following principles: the supervisory body should approve the enterprise’s program of activity, its cost-benefit calculation (in accordance with the established forms), and the appointment of its head; the appointment of the enterprise’ senior accountant should also be made by the supervisory body’s consent. The head of the FTE should annually submit, to the said body, a draft of the FTE’s program of activity, its cost-benefit calculations and the reports on implementing thereof, its annual accounts with the auditor’s resolutions thereon, and proposals on the distribution of the net profit obtained by the enterprise by the results of a reporting year.
Apart from this, the said Regulations determine the financial mechanism of the FTC’s functioning. The enterprise should carry out its activity in accordance with the program of activity and the cost-benefit calculation prepared on the basis of the program of activity, so as to determine the spending of the enterprise’s revenues; both the program and the calculation should be approved by the empowered body in the established procedure.
In the event when, in the course of carrying out the enterprise’s activity, there emerges an opportunity to obtain revenues, or a necessity to incur expenses, which have not been taken A feasibility study should include a financial and economic analysis of the unitary enterprise’s state of affairs, with the structure of its accounts payable and receivable being pointed out, and the explanation given as to the sources and conditions of their emergence. Also, it should specify the forecasted volume of production (or work, or services) produced under the State’s order for the purpose of meeting the federal state needs, and offer justification for the production of individual types of products (or work, or services) within the framework of independent economic activity. And it should include a forecast of the enterprise’s revenues and expenses in the forthcoming year and in the next planning period, as well as proposals concerning the organizational and personnel structure of the enterprise.
Section Institutional Problems into account while forming the cost-benefit calculation, or when the actual expenses exceed the planned ones, the empowered body, on having received the information to this effect from the head of the enterprise, submitted in the established procedure, should introduce appropriate alterations into the cost-benefit calculation.
The financing of the activity of the enterprise should be carried out at the expense of the revenues from the enterprise’s realizing, on its own, the products (or work, or services) produced by it, unless established otherwise by federal laws and other normative acts of the RF.
In the event of the enterprise’s revenues being insufficient to cover the expenses envisaged in the cost-benefit calculation, the empowered body should carry out, on a quarterly basis, in the established procedure, the financing of the purpose-oriented expenses dealing with the functioning of the enterprise. The procedure for allocating the federal budget’s funds to the enterprise is determined by budget legislation.
The enterprise has the right to resort to borrowing only on condition that the volume and the avenues of use of the borrowed means have been agreed upon with the empowered body, which should either give its consent to the planned borrowing, or respond with a motivated refusal to agree therewith; in both cases the response must be given within one week from the date of the enterprise’s submitting its petition. Also, the empowered body should keep records of the enterprise’s liabilities.
Based on the data contained in the accounts, in the report on the implementing the program of activity, in the cost-benefit calculation, and in the proposals on the distribution of the net profit obtained by the enterprise by the results of the reporting year, the empowered body should determine the amount of the enterprise’s net profit to be transferred to the federal budget (with the understanding that no less than 1/4 of the acquired net profit should be transferred thereto), while the rest of the monetary means should be transferred to the reserve fund and other funds in accordance with the Charter of the enterprise, and also be spent for the purposes, including investment, to be agreed upon with the empowered body. The empowered body should submit, in the established procedure, to the Federal Fund for Federal Property Management the decision on the transfer of profit to the federal budget, and then should supervise its implementation.
With the adoption of this document, one could believe that the long-standing issue of renovating the normative-legal base, which regulates the functioning of treasury enterprises, has at last been resolved, at least formally30. The corresponding prior documents (Decree of the RF Government of 12 August 1994, No. 908, “On the Confirmation of the Standard Charter of a Treasury Plant (or a Treasury Factory, or a Treasury Enterprise), and Decree of the RF Government, of 6 October, No. 1138, “On the Procedure for Planning and Financing the Activity of Treasury Plants (or Treasury Factories, or Treasury Enterprises”), adopted before the entry into force of the RF Civil Code, were deemed to be null and void.
Also, mention may be made of the confirmation of the new Regulation on the Registration of Federal Property and on the Procedure for Its Registration (Decree of the RF Government, of 16 July 2007, No. 447)31, and of the simplification of the Procedure for the alienation of shares owned by the Russian Federation in the event of the emergence of a situation when For example, it was mentioned in the Materials for the RF Government’s meeting, of 17 March 2005, “On the Measures Designed to Increase the Efficiency of Federal Property Management”, prepared by the RF Ministry of Economic Development and Trade.
Superseded a similar document dating back to 1998.
RUSSIAN ECONOMY IN trends and outlooks the Russian Federation has the right to demand that they be redeemed by the joint-stock society (Decree of the RF Government, of 21 March 2007, No. 170).
It should be recalled that the Law on Joint-Stock Societies (Article 75) permits to demand that the society should buy out, from the shareholders, all of the shares, or part of the shares owned by them, in the event of:
– the society’s reorganization, or it handling a big transaction, the approval of which should be decided upon by the general meeting of shareholders, if they have voted against the adoption of the decision on its reorganization, or have not participated in voting on these issues;
– the introduction of alterations in and amendments to the Charter of the society, or the approval of a new version of the Charter of the society, which restrict their rights if they have voted against the adoption of the corresponding decision, or have not taken part in voting.