Advisor to the Department of Regulation of Issue and Circulation
emission valuable papers FCSM of Russia,
www.profconsalt.ru In accordance with paragraph 4 of Article 93 of the Federal Law of December 26, 1995 No. 208-FZ "On joint-stock companies ah" a joint-stock company is obliged to keep records of its affiliates and submit reports on them in accordance with the requirements of the law Russian Federation.
According to paragraph 1 of Article 92 of the Federal Law "On Joint Stock Companies", an open joint stock company is obliged to annually publish in the mass media accessible to all shareholders of this company, lists of affiliated persons of the joint stock company indicating the number and categories (types) of shares they own.
The procedure for keeping records, drawing up a list of affiliates and providing information on affiliates are regulated by Resolution No. 7 of the Federal Commission for Securities of Russia dated September 30, 1999 "On the Procedure for Keeping Accounts of Affiliates and Providing Information on Affiliates of Joint-Stock Companies".
In accordance with paragraph 2 of the said resolution of the Federal Securities Commission of Russia, for each of the affiliated persons, the joint-stock company must indicate:
- full company name, location and mailing address legal entity or name (surname, name, patronymic) and place of residence of an individual. At the same time, under the place of residence of an individual, taking into account the requirements of the Federal Law of February 20, 1995 No. 24-FZ "On Information, Informatization and Information Protection", in accordance with paragraph 1 of Article 11 of which the collection, storage, use and dissemination of information about private life, as well as information that violates personal secrets, family secrets, privacy of correspondence, telephone conversations, postal, telegraphic and other messages of an individual without his consent, except on the basis of a court decision, should be understood not as a specific address at which this person lives, but as an indication of the subject of the Russian Federation, region, district, city, village in which he lives said affiliate;
- the date of occurrence of the grounds by virtue of which the person is an affiliated person of the joint-stock company. At the same time, the date of the occurrence of such a ground should be understood as the date of the occurrence of a certain event or the performance of a specific action, which resulted in the assignment of this person to the affiliated persons of the joint-stock company in accordance with the legislation of the Russian Federation. If the specified person is an affiliated person of the joint-stock company due to several grounds, the date of occurrence of each of such grounds should be indicated;
- the basis (grounds), by virtue of which (which) the person is an affiliated person of the joint-stock company. In accordance with paragraph 1 of Article 93 of the Federal Law "On Joint Stock Companies", a person is recognized as affiliated in accordance with the requirements of the antimonopoly legislation of the Russian Federation. The grounds for classifying persons as affiliated persons of a joint-stock company are contained in Article 4 of the Law of the Russian Federation dated March 22, 1991 No. 948-1 (as amended on May 6, 1998) "On Competition and Restriction of Monopolistic Activities in Commodity Markets". In accordance with the said law under the affiliates in general plan refers to individuals and legal entities capable of influencing the activities of legal entities and (or) individuals engaged in entrepreneurial activities. For joint-stock companies, the following grounds for classifying persons as affiliated persons of a joint-stock company can be distinguished:
· election (appointment) of a person as a member of the Board of Directors (Supervisory Board) of a joint-stock company, a member of its collegial executive body (board, directorate) or its sole executive body (director, general director, president). In view of the foregoing, an affiliated person of a joint-stock company is, in particular, a managing organization or a manager to whom the powers of the executive body of this joint-stock company have been transferred;
· assigning a person to the same group of persons to which the joint-stock company belongs;
acquisition by a person of more than 20 percent of the shares of a joint-stock company or the conclusion by him of a civil law agreement (for example, a trust management agreement) with a shareholder of this joint-stock company, by virtue of which this person acquires the right to dispose of more than 20 percent of the shares of a joint-stock company;
acquisition by a joint-stock company of more than 20 percent of the authorized (share) capital (share fund) (shares) of this person (makes sense only for legal entities);
state registration authorized government agency financial - industrial group, a member of which is a joint-stock company. At the same time, in the case under consideration, the affiliated persons of the joint-stock company include members of the Boards of Directors (supervisory boards) or other collegial management bodies, collegial executive bodies of participants in the financial and industrial group, as well as persons exercising the powers of sole executive bodies of participants in the financial and industrial group.
Let us consider in more detail the grounds for referring a person to the same group of persons to which the joint-stock company belongs. In accordance with Article 4 of the Law, a group of persons means a group of legal entities and (or) individuals, in relation to which one or more of the conditions (grounds) established by it are met.
The law indicates the following grounds for referring a person to the same group of persons to which a joint-stock company belongs:
A) The conclusion by a person of an agreement with other persons, according to which this person or persons acquire the right to directly or indirectly dispose (including on the basis of purchase and sale agreements, trust management, joint activities, assignments or other transactions) of more than 50 percent of the shares of a joint-stock company . At the same time, indirect disposal of shares of a joint-stock company must be understood as the possibility of actual disposal of them through third parties, in relation to which a person or persons have the right to dispose of more than 50 percent of the authorized (share) capital (share fund) (shares) of a third party;
B) Conclusion of an agreement by a person or election (appointment) of a person as a member of the board of directors ( supervisory board), a collegial executive body (board, directorate), the sole executive body (director, general director, president) of a joint-stock company, as a result of which this person, independently or jointly with other persons, gets the opportunity to determine the conditions for conducting entrepreneurial activities by this joint-stock company. In accordance with the said grounds, one and the same group of persons are, in particular, Management Company or the manager and all legal entities in which they exercise the functions of their executive bodies;
C) Acquisition by a person of a certain percentage of shares of a joint-stock company or conclusion by a person of a civil law contract (trust management, subsidiaries and dependent companies), as a result of which it acquires the right to appoint a sole executive agency(director, general director, president) and (or) more than 50 percent of the composition of the collegial executive body (board, directorate) of this joint-stock company;
D) Election, at the suggestion of a person, of more than 50 percent of the composition of the Board of Directors (Supervisory Board) of a joint-stock company;
E) Appointment or election of a person as the sole executive body (director, general director, president) of a joint-stock company;
E) Appointment or election of a person, his spouse, parents, children, brothers, sisters and (or) other persons, but proposed by the same legal entity, members of the board of directors (supervisory board) or collegial executive body (board, directorate) of the joint-stock company a company, as a result of which the said persons will make up more than 50 percent of the composition of at least one of the said management bodies of this joint-stock company, provided that the above condition is also met in relation to at least one of the other legal entities;
G) The acquisition by a person, his spouse, parents, children, brothers, sisters and (or) legal entities of shares in a joint-stock company or the conclusion by these persons of a civil legal contracts as a result of which these persons acquire the right, independently or through representatives (attorneys), to dispose of more than 50 percent of the shares of this joint-stock company, provided that the above condition is met in relation to at least one of the other legal entities;
H) Acquisition by a person of shares of a joint-stock company or conclusion by a person of civil law contracts, as a result of which the said person, together with other individuals and (or) legal entities, acquires the right, independently or through representatives (attorneys), to dispose of more than 50 percent of the shares of this joint-stock company in the amount of provided that these individuals, their spouses, parents, children, brothers, sisters and (or) persons proposed by the same legal entity constitute more than 50 percent of the composition of the collegial executive body and (or) the Board of Directors (Supervisory Board) or other collegiate body management of at least one of the other legal entities;
I) Appointment or election of a person as a member of the board of directors (supervisory board) and (or) collegial executive body (board, directorate) of a joint-stock company, as a result of which the said person, his spouse, parents, children, brothers, sisters, together with other individuals and their spouses, parents, children, brothers and sisters, and persons proposed by the same legal entity will constitute more than 50 percent of the composition of at least one of the specified management bodies of this joint-stock company, provided that these individuals, together with other legal entities have the right, independently or through representatives (attorneys), to manage in the amount of more than 50 percent of the authorized (reserve) capital (share fund) (shares) of at least one of their other legal entities;
J) State registration by an authorized state body of a financial and industrial group, one of the participants of which is a joint-stock company.
You should also pay attention to the fact that in accordance with paragraph 1 of the mentioned resolution of the FCSM of Russia, a joint-stock company is obliged to indicate only those information about its affiliates that are known or should have become known to this joint-stock company.
This means that in a number of cases, when a joint-stock company does not have information and (or) does not even know and is not obliged to know about the existence of its affiliated persons (this especially applies to those affiliated persons of a joint-stock company who are recognized as such by virtue of belonging to the same group of persons to which this joint-stock company belongs), it has the right not to indicate this information in the list of affiliated persons compiled and disclosed in accordance with the requirements of the mentioned regulatory act of the FCSM of Russia. The list of affiliated persons of a joint-stock company must include only that information that became known to this joint-stock company as of the date of compiling the list, or should have become known in accordance with the legislation of the Russian Federation, for example, by virtue of the requirements of paragraph 2 of Article 93 of the Federal Law "On joint-stock companies", according to which affiliates of a joint-stock company are obliged to notify this joint-stock company in writing about the shares of the joint-stock company they own, indicating their number and categories (types) no later than 10 days from the date of acquisition of shares.
08.02.2018
Events. The Central Bank adjusted the dictionary. New concepts have appeared in the program document of the Bank of Russia. Yesterday the policy document of the Bank of Russia was published, describing plans for the development and application of new technologies in the financial market in the coming years. The main ideas, concepts and projects have already been announced by the regulator in one way or another. At the same time, the Central Bank introduces and discloses new terms, in particular, RegTech, SupTech and “through identifier”. Experts note that these areas have been successfully developing in Europe for a long time.
08.02.2018
Events. The State Duma issued a pass to Russia for capital. It was decided to repeat the one-time business amnesty. The State Duma of Russia adopted on Wednesday in the first, and a few hours later in the second reading, a package of bills initiated by Vladimir Putin on the resumption of the capital amnesty. The new act of “forgiveness” was announced as the second stage of the 2016 campaign, which was then presented as a one-time campaign and was actually ignored by the business. Since the attractiveness of the Russian jurisdiction and confidence in its law enforcement officers have not increased over the past two years, now the stake is placed on the thesis that capital must be returned to the country because it is worse for them abroad than in Russia.
07.02.2018
Events. Control and supervision are customized. Business and authorities compared approaches to reform. The results and prospects of the reform of control and supervisory activities were discussed yesterday by representatives of the business community and regulators as part of the Week Russian business» under the auspices of the Russian Union of Industrialists and Entrepreneurs. Despite a 30% decrease in the number of scheduled inspections, businesses complain about the administrative burden and call on the authorities to respond more quickly to entrepreneurs' proposals. The government, in turn, plans to revise the mandatory requirements, reform the Code of Administrative Offenses, digitalize and accept reports in the "one window" mode.
07.02.2018
Events. Issuers will add transparency. But investors are waiting for additions to the meetings of shareholders. The Moscow Exchange is preparing changes to the listing rules for issuers whose shares are on the highest quotation lists. In particular, companies will be required to create special sections on their websites for shareholders and investors, the maintenance of which will be controlled by the exchange. Large issuers already meet these requirements, but investors consider it important to fix these obligations in the document. In addition, in their opinion, the exchange should pay attention to the disclosure of information to shareholders' meetings, which is the most painful issue in the relationship between issuers and investors.
07.02.2018
Events. The Central Bank of Russia gets a grasp of advertising. The financial regulator has found a new field for supervision. The honesty of financial advertising will soon begin to be assessed not only by the Federal Antimonopoly Service, but also by the Central Bank. Starting this year, as part of behavioral supervision, the Bank of Russia will detect advertising financial companies and banks, containing signs of violations, and report this to the FAS. If banks receive not only fines from the FAS, but also recommendations from the Central Bank, this could change the situation with advertising on the financial market, experts say, but the procedure for applying supervisory measures of the Central Bank in new sphere not yet described.
06.02.2018
Events. Not by accent, but by passport. Foreign investments under the control of the Russians will be left without international protection in the spring. A government bill depriving Russian-controlled foreign companies and persons with dual citizenship of the protection of the foreign investment law, in particular, guarantees of freedom of profit withdrawal, will be adopted by the State Duma of Russia in early March. The document does not recognize as foreign and investments through trusts and other trust institutions. Russian-controlled structures investing in strategic assets in the Russian Federation, the White House is still ready to consider foreign investors - but for them, as before, this only means the need to coordinate transactions with the Foreign Investment Commission.
06.02.2018
Events. Banks are not given to state structures. FAS Russia intends to limit the expansion of the public sector in the financial market. The Federal Antimonopoly Service has developed proposals to limit the purchases of banks by government agencies. The FAS plans to amend the law "On Banks and Banking Activities" and is currently working on them with the Central Bank (CB). An exception may be the reorganization of banks, ensuring the availability of banking services in areas that need it, as well as issues of the country's security. The head of the Central Bank, Elvira Nabiullina, has already supported this initiative.
06.02.2018
Events. Online audit was given a chance. IIDF is ready to support remote checks. Online auditing, hitherto a side branch of this business, which was carried out mainly by unscrupulous companies, has received support at the state level. The Internet Initiatives Development Fund invested 2.5 million rubles in AuditOnline, thus recognizing the prospects of this area. However, market participants are sure that online audit has no legitimate future - remote audits contradict international standards audit.
05.02.2018
Events. It is recommended to refrain from legitimate transactions. The Central Bank of Russia considered the "hidden trust management" unethical. The Bank of Russia warns professional participants against using some popular, but not entirely ethical practices in relation to clients on stock market. The schemes described in the letter of the regulator lie in the legal plane, so the Central Bank limited itself to recommendations. But in fact, the regulator is testing the application of a motivated judgment, the right to use which has not yet been legally approved.
05.02.2018
Events. Absorption will be less entertaining. The Central Bank of Russia encourages banks to reduce lending to M&A transactions. The idea of the Central Bank to encourage banks to lend not to mergers and acquisitions of companies, but to the development of production takes on concrete features. The first step could be to instruct banks to form increased reserves for loans issued for M&A transactions. According to experts, this will reduce such lending, but in order for bank resources to go to the development of production, additional stimulus measures will be required.
About affiliated persons of the joint-stock company and the procedure for disclosing information about them
Each joint-stock company is obliged to keep records of its affiliates, and some companies also submit reports on them.
A person is recognized as affiliated with respect to a joint-stock company in accordance with the requirements of the legislation of the Russian Federation.
The definition of an affiliated person is given in the Law of the RSFSR dated March 22, 1991 N 948-1 “On Competition and Restriction of Monopolistic Activities in Commodity Markets”. In accordance with it, affiliates are individuals and legal entities capable of influencing the activities of legal entities and (or) individuals engaged in entrepreneurial activities. Affiliates of a legal entity are:
1) a member of its Board of Directors (supervisory board) or other collegial management body, a member of its collegial executive body, as well as a person exercising the powers of its sole executive body;
2) persons belonging to the group of persons to which the given legal entity belongs;
3) persons who have the right to dispose of more than 20 percent of the total number of votes attributable to voting shares or constituting the statutory or share capital deposits, shares of this legal entity;
4) a legal entity in which this legal entity has the right to dispose of more than 20 percent of the total number of votes attributable to voting shares or contributions, shares of this legal entity constituting the authorized or share capital;
5) if a legal entity is a member of a financial and industrial group, its affiliates also include members of the Boards of Directors (supervisory boards) or other collegial management bodies, collegial executive bodies of participants in the financial and industrial group, as well as persons exercising the powers of the sole executive bodies of the participants financial and industrial group.
The concept of the mentioned group of persons is already given in another legislative act - the Federal Law of July 26, 2006 N 135-FZ "On Protection of Competition".
Open joint stock companies, as well as closed joint stock companies that have carried out (carry out) public placement of bonds or other securities, are required to disclose information about affiliated persons in the form of a list of affiliated persons.
The form of the list of affiliates is established by the Federal Financial Markets Service in the appendix to the Regulation on the disclosure of information by issuers of issuance securities, approved by Order of the Federal Financial Markets Service of Russia dated 04.10.2011 N 11-46/pz-n. It reflects information that is known or should be known to the joint-stock company. The Federal Law “On Joint Stock Companies” obliges the affiliated persons of the company to notify the company in writing of the shares of the company they own, indicating their number and categories (types) no later than 10 days from the date of acquisition of the shares. In the event that as a result of failure to provide the specified information through the fault of an affiliate or its untimely submission, property damage is caused to the joint-stock company, the affiliate shall be liable to the company in the amount of the damage caused
The list is disclosed to affiliates by its quarterly publication on the Internet page provided to the public by one of the information agencies accredited by the FFMS of Russia. The disclosed list is compiled by the company as of the end date of the reporting quarter and is published no earlier than the end date of the reporting quarter and no later than 2 business days from the end date of the reporting quarter. The published text of the list of affiliated persons of the joint-stock company must be available on the Internet page for at least 3 years from the date of its publication.
If during the reporting quarter there are any changes in the composition of the company's affiliates or the data disclosed in the list form on existing affiliates changes (for example, the basis of affiliation is added, the number of ordinary shares owned by an affiliate changes), it is necessary to make changes to the list of affiliates, and the text of the changes is also published on the page on the Internet. Texts of changes that have occurred in the list of affiliates are published no later than 2 business days from the date of making the relevant changes to this list, and must be available on the Internet for at least 3 months from the date of publication.
This does not end the disclosure of information about the affiliated persons of the joint-stock company.
Open joint-stock companies, as well as closed joint-stock companies that have carried out (carry out) a public placement of bonds or other securities, are additionally required to post in the news feed of an accredited news agency and on the Internet page the message “On the disclosure by the joint-stock company on the Internet page of the list of affiliated persons". The message contains an indication of the type of document, the text of which is published (the list of affiliates), the reporting period (reporting date) for which (for which) it was drawn up, and the date of publication by the joint-stock company of the text of the document on the Internet page.
Disclosure of this message is carried out within the following terms from the moment of occurrence of the corresponding event:
in the news feed - no later than 1 day;
on the page on the Internet - no later than 2 days.
The moment of occurrence of the specified event is the date of publication by the joint-stock company on the Internet page of the text of the list of affiliates.
The text of the message must be available on the page on the Internet for at least 12 months from the date of its publication.
Compliance with these legal requirements requires not only knowledge of the subject, but also simple care and accuracy. Violation of the terms or procedure for disclosing information can cost a joint-stock company very dearly, since in accordance with the Code on administrative offenses established the responsibility of organizations and their officials for such violations. The amount of administrative fines on this basis reaches several hundred thousand rubles.
Our company offers the conclusion of subscription service agreements for the disclosure of mandatory information on the securities market. As part of the contracts, our specialists provide project preparation services required documents, posting them on a page on the Internet, in the news feed, in printed publications. We monitor all changes in corporate legislation and bring them to the attention of our clients in a timely manner in order to carry out the necessary corporate events. The cost of services under a subscription service agreement depends on the list of services provided.
The term “affiliated persons” is often used in legislation. Let's try to figure out what it means and in connection with what it is used.Affiliates are defined by law as organizations and individuals with the ability to exercise significant influence over the operations of a company or individual entrepreneur.
Affiliates can be not only individuals, but also companies. IN Russian law the terminology is less strict than abroad, and such persons are recognized not only as subsidiaries, but also those that themselves can manage the activities of other firms.
There is a similar concept in the Tax Code of the Russian Federation (Articles 20, 105.1, 105.2), but in it such persons are called not affiliated, but interdependent.
For a legal entity, affiliates are:
Members of the governing bodies (board of directors, supervisory board), as well as sole directors;
persons belonging to the same group as the firm itself;
persons owning or otherwise managing 20% or more of the shares or authorized (share) capital of this legal entity;
a company in which this legal entity controls 20% or more of shares or capital (affiliation is valid in both directions);
for companies belonging to financial and industrial groups - the management of the group itself.
For individual entrepreneurs, affiliates are:
Persons belonging to the same group of persons as individual entrepreneurs;
firms in which the entrepreneur owns the share in shares or capital that was indicated above in relation to legal entities.
With regard to affiliated persons, this term was clearly disclosed in the Federal Law “On Protection of Competition”. So, for an entrepreneur, his group includes a spouse, parents, brothers and sisters, children.
For legal entities, the following signs have been established that someone (or something) is in the same group with them:
Controlling more than half of the votes assigned to shares or shares in capital;
sole control of this legal entity;
the right to give this company instructions that it is obliged to fulfill;
in the supervisory (board of directors, fund council, etc.) and executive (board, directorate) body of the company, more than half of the members are the same people;
at the suggestion of this person, the head of the organization was appointed or elected;
at the suggestion of this person, more than half of the composition of the supervisory or executive body was elected.
Finally, both feature intersections and group unions are possible. In particular, if there are 2 different groups persons, and 2 representatives of these groups together have more than half of the votes in the third organization, then both of these groups, from the point of view of the law, are already considered as 1 group.
The legislation relating to monopolies provides that the list of affiliated persons must be submitted by joint-stock companies. They report to both the regulatory authorities and their shareholders, and maintain lists of such persons in their accounting records.
This information is necessary because the mutual influence of entrepreneurs and companies easily makes it possible to arrange various collusions about prices, squeeze out competitors by non-market methods and form monopolies. Previously, such collusions sometimes paralyzed even the markets of some countries. In order to prevent this from happening again, the Federal Antimonopoly Service (FAS RF) is now monitoring the lists of affiliated persons in Russia.
List of affiliates
According to paragraphs. 6.1. Art. 45 of Law "14-FZ "On LLC" a person is recognized as affiliated in accordance with the requirements of the legislation of the Russian Federation.The concept of an affiliate is defined in accordance with the Law of the RSFSR No. 948-1 "On Competition and Restriction of Monopoly Activities".
Affiliates are individuals and legal entities capable of influencing the activities of legal entities and (or) individuals engaged in entrepreneurial activities.
A member of its board of directors (supervisory board) or other collegial management body, a member of its collegial executive body, as well as a person exercising the powers of its sole executive body;
persons belonging to the group of persons to which the given legal entity belongs;
persons who have the right to dispose of more than 20 percent of the total number of votes constituting the authorized capital;
a legal entity in which this legal entity has the right to dispose of more than 20 percent of the total number of votes constituting the authorized capital of the company;
if a legal entity is a member of a financial and industrial group, its affiliates also include members of the boards of directors (supervisory boards) or other collegial management bodies, collegial executive bodies of participants in the financial and industrial group, as well as persons exercising the powers of the sole executive bodies of participants in the financial and industrial group. industrial group.
Affiliated persons of an individual engaged in entrepreneurial activity are:
Persons belonging to the group of persons to which the individual belongs;
a legal entity in which this individual has the right to dispose of more than 20 percent of the total number of votes attributable to voting shares or contributions, shares of this legal entity constituting the authorized or share capital.
Affiliated persons of the company are obliged to notify the company in writing of their shares or parts of shares not later than within ten days from the date of acquisition of the share or part of the share, which, taking into account the shares in the authorized capital of the company owned by the specified persons, provide the right to dispose of more than twenty percent of the votes from the total number of votes of the participants in this society.
If, as a result of failure to provide the specified information due to the fault of the affiliated person or untimely provision of it, property damage is caused to the company, the affiliated person shall be liable to the company in the amount of the damage caused.
According to Art. 50 of the Law on LLC, the company is obliged to keep lists of affiliated persons of the company.
Maintaining a list of LLC members
In the legislation on companies with limited liability changes have been made, affecting, among other things, the procedure for fixing the rights of participants to their shares in the authorized capital of the company. The charter of the LLC will not have to contain information about the size and nominal value of the share of each participant. A new obligation has also been introduced, to keep a list of the company's members.
Special rules have been established on maintaining a list of LLC participants. The Company maintains a list containing the following information:
About each of the participants, the amount of his share in the authorized capital of the company and its payment;
on the amount of shares owned by the company, the dates of their transfer to the company or acquisition by the company.
The company is obliged to ensure the maintenance and storage of the list of participants in the company in accordance with the requirements of the law from the moment state registration society.
Thus, the list of participants in the company (hereinafter referred to as the list) is a document containing “information about each member of the company, the amount of its share in the authorized capital of the company and its payment, as well as the amount of shares owned by the company, the dates of their transfer to the company or acquisition by the company "(Clause 1, Article 31.1 of the Federal Law "On Limited Liability Companies").
Based on the data of the list, the participants will be notified of the holding of the general meeting and the distribution of the company's net profit among its participants.
The list is also one of the documents confirming the rights of a company member to his share or part of a share in the authorized capital.
Based on a number of norms of the Federal Law "On LLC", the list is a secondary document confirming the right to a share in the authorized capital of the company in comparison with the Unified State Register of Legal Entities (hereinafter - the Unified State Register of Legal Entities). So, in accordance with paragraph 5 of Art. 31.1 of the Federal Law “On LLC” “in the event of a dispute over the discrepancy between the information specified in the list of company participants and the information contained in the Unified State Register of Legal Entities, the right to a share or part of a share in the authorized capital of the company is established on the basis of the information contained in the Unified state register of legal entities".
The Federal Law "On LLC" refers to the maintenance of the list as the responsibility of the company. By general rule on his behalf, the sole executive body acts, which is obliged to maintain the list. However, the Law does not prohibit the provision in the charter of a special body that performs this function (for example, the registrar, corporate secretary of the company, chairman of the board of directors). In practice, business leaders do not maintain lists, since there is always an employee on the staff whose duties this includes.
The person responsible for maintaining the list of participants ensures that the information about the participants in the company and about their shares or parts of shares in the authorized capital of the company, about the shares or parts of shares owned by the company, with the information contained in the Unified State Register of Legal Entities and transactions for the transfer of shares in the authorized capital of the company, which became known to the public.
Each member of the company is obliged to inform the company in a timely manner about changes in information about his name or designation, place of residence or location, as well as information about his shares in the authorized capital of the company. If the company's participant fails to provide information about the change in information about himself, the company shall not be liable for the losses caused in connection with this.
The activities of the authorized person to maintain the list include:
Inclusion in the list of information to be reflected in it;
- storage and accounting of documents that are the basis for making entries in the list;
- taking into account requests received from interested parties and responses to them, including refusals to make entries in the list;
- provision of information (extracts) from the list of participants; implementation of other actions stipulated by the legislation of the company's charter.
The composition of the information included in the list of members of the company:
Information about each member of the company (it is desirable to determine the composition of information provided by each member of the company in the participant's profile and internal documents of the company);
information on the size of the share of each participant in the authorized capital of the company and its payment;
information on the amount of shares owned by the company, the dates of their transfer to the company or acquisition by the company;
information on the pledge of a share or part of a share in the authorized capital owned by a member of the company. The composition of information about the pledge includes the name (name), place of residence (location) of the pledgor; name (title), place of residence (location) of the pledgee, type of pledge, term of the pledge agreement or the procedure for its establishment, the person who owns the right to vote at the general meeting of participants and the right to receive dividends on the pledged share or part of the share - to the pledgor or pledgee ;
other information.
Changes to the list are carried out upon the occurrence of the following legal facts:
Receipt by the company of documents with which the Law connects the moment of transfer of the share from its previous owner (notary's message, message of the participants in the transaction, extract from the Unified State Register of Legal Entities, statement of the participant on withdrawal from the company, requirement of the participant presented to the company to acquire his share in the authorized capital and etc.).
Expiration of certain periods (the period for paying a share, provided for in paragraph 3 of article 16 of the Federal Law "On LLC").
Making decisions general meeting participants (for example, a decision on the distribution of a share (part of a share) in the authorized capital owned by the company).
Inconsistency of information about the participants and about their shares (parts of shares) in the authorized capital, as well as about the shares (parts of shares) owned by the company, the information contained in the Unified State Register of Legal Entities and notarized transactions for the transfer of shares, which became known to the company.
Other legal facts provided for by the Federal Law "On LLC".
Information on the nominal value of the shares of the company's participants during its establishment is determined based on the provisions of the agreement on the establishment of the company or decision sole founder companies, including if these shares are not paid in full.
The list of participants can be kept in a simple and more complete version at the discretion of the society.
The following structure of the full (expanded) list of LLC participants is proposed:
Title page of the list of participants with general information on the company, authorized capital and shares in the authorized capital of the company
Section 1. List of participants in the company, formed as of the reporting date
Subsection 1.1. - list of participants
Subsection 1.2. - Information on shares in the authorized capital owned by the company
Section 2. Registration journal of the list of participants in the company
Section 3. Register of incoming documents
Section 4. Register of pledge (encumbrances) of a share (part of a share)
Section 5. Journal of registration of payment for a share (part of a share) in the authorized capital
Section 6 Registered Persons
Subsection 6.1. participants individuals
Subsection 6.2. participants are legal entities
Subsection 6.2. - member representatives
Subsection 6.2. – pledge holders
Personal accounts of company members
Traffic log for personal account member of the society
Personal accounts of pledgees
Journal of movement on the personal account of the pledgee
Questionnaires of registered persons
Extract from the list of participants
In addition, the list of participants (in the case) must include:
Title documents (contracts for the assignment (transfer) of a share (part of a share), pledge agreements, statements of withdrawal from the company, judgments, extracts from the Unified State Register of Legal Entities, etc.);
Other documents forming the list of participants (applications, questionnaires, powers of attorney, requests, extracts, certificates, copies of supporting documents of participants and other persons (copies of passports, registration certificates, copies of statutory documents), etc.).
Affiliates LLC
One day, each employee of the sales department has a need to declare affiliates of the company. When conducting non-competitive and competitive purchases commercial organizations has the right to request information about the counterparty, including a list of beneficiaries and affiliates (legal entities, individuals). The latter can affect the activities of the enterprise, so it is advisable to get a list before the deal is concluded.For example, organization "A" has 2 participants (individuals), each with a 50% share. One of them sold his share. And the new participant does not agree with some of the provisions and begins to consider the option of replacing the director.
When creating a new legal entity, not all business owners want to show their connection to the new company. But in accordance with the law on LLC, each enterprise maintains and stores this list from the moment of formation.
List of affiliates - a list of companies and individuals that can influence the commercial activities of the organization. Representatives of the oil and gas and nuclear industries regularly publish these documents on their websites. Of course, the list of a joint-stock company is longer and more interesting than that of a limited liability company. And the changes taking place in large enterprises affect thousands of people. Decisions on reorganization, sale, liquidation of FIG members always attract attention and are discussed in the media.
But the majority of registered legal entities are representatives of SMEs (small businesses) that are not associated with representatives big business. Therefore, the owners of small firms are wondering about the appropriateness of maintaining such a list.
A list from LLC is necessarily maintained and provided to the Central Bank of the Russian Federation:
Participating in the circulation of securities;
being active participants in exchange trading, occupying a dominant position.
All other firms maintain and store the document without mandatory publication of information in open sources. When changes occur, affiliates send written notice. New information is added to the list.
Some organizations do not maintain lists. Accordingly, they violate the article providing for their storage. The company may be held liable (a fine of up to 300 thousand rubles per legal entity).
According to the law, affiliates include individuals and legal entities connected by legal and property relations and capable of influencing the activities of the organization.
These include:
Members of the Board of Directors;
members of the executive body;
persons who belong to the same group of persons;
owners of more than 20% of votes (shares);
management of the FIG (if the organization is part of the FIG).
If we talk about individuals, then affiliated can be called:
Persons belonging to the same company;
companies in which the person owns at least 20% of the shares (shares, share capital).
Joint-stock companies publish the list on the Internet quarterly, within 2 days after the end of the quarter. The Regulation also provides for the availability of information in open sources for 3 years.
Mandatory publication allows monitoring compliance with competition law. For example, the Russian Railways company with a large number of related persons. Based on 223-FZ, purchases from SMPs must be at least 18% of the total volume. If Russian Railways gives the majority of purchases to affiliated companies, then this can be seen as a restriction of competition.
Limited liability companies are not required to disclose information. It is enough to maintain a list within the company.
The exception is the aforementioned organizations engaged in the issuance of securities and participating in exchange trading. These companies submit data to the Central Bank of the Russian Federation, as well as to the stock exchange.
Why do organizations ask for a list from an LLC?
Increasingly, SMEs are faced with the need to provide this list when concluding contracts.
Checking can show:
Conducted bankruptcy procedures, reorganization of related parties;
existence of lawsuits against managers;
availability of enforcement orders;
presence in RNP, RDL;
other situations that may seriously affect the performance of obligations under the contract.
Since the list lists all associated organizations and individuals, this greatly simplifies the work of the security service.
Filling out a document
Inside the organization, the list is filled in according to the form approved by the FAS.
Upon request from other commercial structures, the company has the right to provide it in free form, keeping the main points:
Name, full name;
location;
basis of affiliation.
One document may differ from another if changes occur in the Company (participants, legal address, owner). When declaring an LLC, you must list the founders, indicate who the director is, and also list related legal entities and individual entrepreneurs.
Filling example for LLC
VECTOR LLC, TIN 1223343456, OGRN 1234567890
The form provided is the simplest and most common. Unlike the list provided by the JSC, there is no data on the share of participation in the authorized capital and the number of shares held.
Non-Profit Organizations
Non-profit companies do not pursue the goal of making a profit from their activities. Such enterprises are professional associations and unions, SROs, NPs, charitable foundations, HOAs, housing cooperatives, religious communities, animal welfare societies, etc. The listed entities live off contributions, donations and receipts from participants. large structures often create non-profit firms to implement public and corporate programs.
For example, Gazprom Stimulus is an NGO whose goal is to conduct incentive programs for Gazprom personnel. When submitting a list of affiliated persons, the JSC must indicate such organizations.
JSC affiliates
An exhaustive list of affiliates for any legal entity, including a joint-stock company, is set out in Art. 4 of the Law of the RSFSR On Competition and Restriction of Monopolistic Activities in Commodity Markets (hereinafter referred to as the Law of the RSFSR On Competition).So, these include:
A member of the board of directors (supervisory board) or another collegial management body of such a legal entity, a member of its collegial executive body, as well as a person exercising the powers of its sole executive body (director, general director).
- Persons belonging to the group of persons to which the given legal entity belongs (in accordance with the same article, a group of persons is a person or several persons who jointly, as a result of an agreement (concerted actions), have the right to directly or indirectly dispose of (including on the basis of contracts of sale, trust management, about joint activities, instructions or other transactions) more than 50% of the total number of votes attributable to shares (deposits, shares) that make up the authorized (share) capital of a legal entity, as well as a number of other persons, which will be described below. Under the indirect disposal of the votes of a legal entity is understood the possibility of their actual disposal through third parties, in relation to which the first person has the above right or authority).
- Persons who have the right to dispose of more than 20% of the total number of votes attributable to shares (deposits, shares) that make up the authorized (share) capital of this legal entity.
- Legal entities in which such legal entity has the right to dispose of more than 20% of the total number of votes attributable to shares (deposits, shares) that make up the authorized (share) capital of this legal entity.
- If such a legal entity is a member of a financial and industrial group, its affiliates also include members of the boards of directors (supervisory boards) or other collegial management bodies, collegial executive bodies of participants in the financial and industrial group (management board), as well as persons exercising the powers of sole proprietors executive bodies of participants in the financial and industrial group (director, general director).
Peculiarities of referring to affiliated persons
When determining the group of persons indicated in paragraph 2 of the list, it is necessary to pay attention first of all to the fact that this group of persons, according to the law of the RSFSR On Competition, must necessarily have only the right to dispose of more than 50% of the total number of votes attributable to shares ( contributions, shares) that make up the authorized (share) capital of a legal entity, while the possession of the right to use and the right to own is not mandatory.
In this case, professional participants in the securities market (brokers, trustees) can also act as third parties.
The basis on which a group of persons is formed with more than 50% of the total number of votes attributable to shares (deposits, shares) that make up the authorized (share) capital of a legal entity (as a result of an agreement (concerted actions)), expands the list of persons that fall under this definition, as well as options for actions that can be recognized as agreed, which may complicate the activities of the issuer or a professional participant in the securities market due to the need to periodically submit reports on affiliates to the FCSM of Russia.
Cases of affiliation of a group of persons
Persons belonging to the group of persons to which the legal entity belongs and in relation to which they are affiliated (Article 4 of the Law of the RSFSR On Competition) are:
A person or several persons who have received the opportunity, on the basis of an agreement or otherwise, to determine the decisions made by another person or persons, including determining the conditions for the conduct of entrepreneurial activities by other person or persons, or to exercise the powers of the executive body of another person or persons on the basis of an agreement.
This kind of definition makes the category of a group of persons very extensive, since the legislator has not established an exhaustive list of grounds for obtaining the opportunity to determine decisions made by other persons or a person.
IN similar situation To clarify such terminological uncertainty, a person belonging to the same group of persons to which a given legal entity belongs should be understood as a person who is one of the persons who have been given the opportunity, by contract or otherwise, to determine the decisions made by another person or persons.
This does not mean that a person affiliated to another person (other persons) on the basis of the criterion under consideration will automatically be affiliated with a legal entity in which it, as a member of a group of persons, has the right, on the basis of an agreement or otherwise, to determine jointly with other members of a group of persons decisions, accepted by this legal entity.
Such a person (a member of a group of persons) will be affiliated with a legal entity in which it has the right, on the basis of an agreement or otherwise, to determine jointly with other members of a group of persons the decisions taken by this legal entity, only if there is at least one of the signs of an affiliated person given above, in the list of persons recognized as affiliated in accordance with the Law of the RSFSR On Competition. If at least one of these signs of an affiliated person is not met, then this member of the group of persons will not be affiliated to this legal entity.
A person having the right to appoint the sole executive body and (or) more than 50% of the composition of the collegial executive body of the legal entity and (or) at the suggestion of which more than 50% of the members of the board of directors (supervisory board) or other collegial management body of the legal entity were elected.
To establish the affiliation of a person with the rights indicated above to a legal entity, it is also necessary to be based on the signs of an affiliated person indicated above.
An individual exercising the powers of the sole executive body of a legal entity.
To establish affiliation, the same principle applies as in the previous paragraph.
The same individuals, their spouses, parents, children, brothers, sisters and (or) persons proposed by the same legal entity, constituting more than 50% of the composition of the collegial executive body and (or) the board of directors (supervisory board) or more than 50% of the members of the board of directors (supervisory board) or other collegiate management body of two or more legal entities were elected by another collegial management body of two or more legal entities or at the suggestion of the same legal entities.
A person who is a member of a group of persons proposed by the same legal entity, which together constitute more than 50% of the composition of the collegial executive body and (or) the board of directors (supervisory board) or other collegial management body of two or more legal entities;
- a person who is a member of a group of legal entities, at the suggestion of which more than 50% of the composition of the board of directors (supervisory board) or other collegiate management body of two or more legal entities was elected;
- a person who is a member of a group of persons consisting of individuals, their spouses, parents, children, brothers, sisters and persons proposed by the same legal entity, which is more than 50% of the composition of the collegial executive body and (or) the board of directors ( supervisory board) or other collegiate management body of two or more legal entities;
- The same individuals, their spouses, parents, children, brothers, sisters and (or) legal entities entitled to independently or through representatives (attorneys) dispose of more than 50% of the votes attributable to shares (deposits, shares ) that make up the authorized (share) capital of each of two or more legal entities.
Here, a person belonging to the group of persons to which this legal entity belongs should be understood as:
A person who is a member of a group of persons consisting of legal entities, having the right, independently or through representatives (attorneys), to dispose of more than 50% of the votes attributable to shares (deposits, shares) that make up the authorized (reserve) capital of each of two or more legal entities;
- a person who is a member of a group of persons consisting of individuals, their spouses, parents, children, brothers, sisters and legal entities, having the right to independently or through representatives (attorneys) dispose of more than 50% of the votes attributable to shares (deposits , shares) constituting the authorized (share) capital of each of two or more legal entities;
- Individuals and (or) legal entities having the right, independently or through representatives (attorneys), to dispose of more than 50% of the votes attributable to shares (deposits, shares) that make up the authorized (share) capital of one legal entity, and at the same time these individuals persons, their spouses, parents, children, brothers, sisters and (or) persons proposed by the same legal entity, constituting more than 50% of the composition of the collegial executive body and (or) the board of directors (supervisory board) or other collegial management body of another legal entity.
Here, a person belonging to the group of persons to which this legal entity belongs will be:
A person who is one of the participants in a group of persons consisting of individuals and legal entities, which has the right, independently or through representatives (attorneys), to dispose of more than 50% of the votes attributable to shares (deposits, shares) constituting the authorized (share) capital one legal entity;
- at the same time these individuals, their spouses, parents, children, brothers, sisters and persons proposed by the same legal entity, constituting more than 50% of the composition of the collegial executive body and (or) the board of directors (supervisory board) or other collegial management body another legal entity;
- a person who is one of the participants in a group of persons consisting of legal entities, which has the right, independently or through representatives (attorneys), to dispose of more than 50% of the votes attributable to shares (deposits, shares) that make up the authorized (reserve) capital of one legal entity;
- at the same time, persons proposed by the same legal entity that make up more than 50% of the composition of the collegial executive body and (or) the board of directors (supervisory board) or another collegial management body of another legal entity;
- Legal entities that are members of the same financial and industrial group.
The specified condition allows you to set only affiliates of a legal entity. Persons who are members of the same financial and industrial group are affiliated to each other.
Individuals who are spouses, parents and children, brothers and (or) sisters. This condition allows you to establish affiliates of both a legal entity and an individual. Persons who are in such family relationships are affiliated to each other. Spouses, parents and children, brothers and (or) sisters may also be affiliated persons of a legal entity, provided that at least one of the signs of an affiliated person specified above is observed.
Accounting and disclosure of information about affiliates
Providing information about affiliates to regulatory authorities.
In addition, the Law of the RSFSR On Competition establishes that joint-stock companies must keep records of their affiliates and provide reports on affiliates in the manner determined by the Federal Commission for the Securities Market of Russia (Article 21). The procedure for accounting for affiliates is established by Decree of the Federal Commission for the Securities Market No. 7 On the procedure for keeping records of affiliates and providing information on affiliates of joint-stock companies.
In accordance with this resolution, the list of affiliated persons of a joint-stock company must contain the following information:
Full company name, location and postal address of a legal entity or name (last name, first name, patronymic) and place of residence of an individual who is an affiliate of a joint-stock company;
- the date of occurrence of the grounds, by virtue of which the person is an affiliated person of the joint-stock company in accordance with the legislation of the Russian Federation;
- grounds by virtue of which a person is an affiliate of a joint-stock company in accordance with the legislation of the Russian Federation (if there are two or more grounds for affiliation, the list must contain all grounds by virtue of which a person is an affiliate of a joint-stock company in accordance with the legislation of the Russian Federation).
When a joint stock company has a new affiliated person, the person is excluded from the list of affiliated persons of the joint stock company, as well as changes (additions) of information about the affiliated person of the joint stock company, the latter must, no later than 3 days from the moment it became aware of the fact that requires making changes (additions) to the list of its affiliates, make appropriate changes to the list. In addition, the joint-stock company is obliged, at the request of the registering authority, to provide a list of its affiliates compiled as of the date specified in the request, no later than 10 days from the receipt of such a written request.
Joint-stock companies are obliged to submit lists of their affiliates to the registering body, whose powers include the state registration of securities issues of this joint-stock company (regional branches of the Federal Securities Commission of Russia or the Department for Licensing the Activities of Credit Institutions and Audit Firms of the Bank of Russia, territorial offices of the Bank of Russia for credit institutions) in the following deadlines:
Quarterly, no later than 30 days after the end of the reporting quarter (the list of affiliates in this case is compiled as of the date of the end of the reporting quarter). Lists of affiliated persons within the specified time limits are provided by joint-stock companies that have placed equity securities by open subscription, as well as joint-stock companies whose state registration of securities issues is within the competence of the Federal Securities Commission of Russia;
- other joint-stock companies annually no later than 30 days after the end of the reporting year. The list of affiliated persons in this case is compiled as of the end date of the reporting year.
In addition, the joint-stock company is obliged to notify the above registration authorities of any changes that have occurred in the list of its affiliates, at the request of this registration authority, no later than 10 days from the date of receipt of such a written request.
Providing information about affiliates to shareholders
Another form of accounting for affiliates of joint-stock companies is the annual publication by open joint-stock companies in the media accessible to all shareholders of lists of affiliates of these companies (clause 1, article 92 of the federal law of the Russian Federation No. 209-FZ On joint-stock companies (as amended).
Moreover, Art. 93 of this law establishes that affiliated persons are obliged to notify the company about the shares of the company they own, indicating their number and categories (types) no later than 10 days from the date of acquisition of the shares. If, due to the fault of the affiliated person, the specified information is not provided or it is not provided in time, if as a result of this the company has suffered property damage, the affiliated person shall be liable to the company in the amount of the damage caused.
An open joint stock company is obliged annually, no later than 30 days after the end of the reporting year, to publish in the mass media accessible to all shareholders of this joint stock company, a list of its affiliates indicating the number and categories (types) of shares they own, compiled as of the date the end of the reporting year (clause 1, article 92 of the federal law of the Russian Federation No. 209-FZ On joint-stock companies).
In addition, a joint-stock company is obliged to provide its shareholders with the opportunity to familiarize themselves with the list of affiliated persons of this joint-stock company. A copy of the list of affiliated persons of a joint-stock company must be provided at the written request of its shareholder for a fee within 10 days from the date of such request. Moreover, the amount of the fee for providing the list of affiliated persons, established by the joint-stock company, cannot exceed the cost of making a copy of the list and paying the costs associated with sending it to the shareholder by mail.
All these norms are extremely fragmented and not systematized. A clear and precise mechanism for collecting and providing information about affiliated persons of joint-stock companies has not been developed.
Such information is necessary, first of all, to streamline and improve the procedure for making transactions with large blocks of shares in joint-stock companies, as well as to provide investors with the information necessary for them to make decisions on making such transactions in the securities market.
Reflection of information about affiliates in financial statements
The third form of disclosure of information about affiliated persons of a legal entity, including a joint-stock company, is financial statements. Regulation on accounting Information on affiliates PBU 11/2000 (approved by Order of the Ministry of Finance of Russia No. 5n) establishes the procedure for disclosing information on affiliates in financial statements. Information about affiliates in the financial statements includes data on transactions between the organization preparing the financial statements and the affiliated person.
In the financial statements of such an organization, information about affiliated persons is disclosed in cases where:
Is controlled by or has significant influence over that entity by another entity or individual (i.e. has the ability to participate in, but does not control, the other entity's decision-making).
- This organization controls or has significant influence over another entity.
- An entity or individual controls another entity when that entity or individual has the right to:
- manage (directly or through its subsidiaries) more than 50% of the voting shares of a joint-stock company or more than 50% of the authorized (share) capital of a limited liability company;
- manage (directly or through its subsidiaries) more than 20% of the voting shares of a joint-stock company or more than 20% of the authorized (share) capital of a limited liability company and has the ability to determine decisions made in these companies.
If in the reporting period such an organization conducted transactions with affiliated persons, then at least the following information is disclosed in the financial statements for each affiliated person:
The nature of the relationship with him (control or exert significant influence);
- types of operations with it;
- the volume of transactions of each type (in absolute or relative terms);
- cost indicators for operations not completed at the end of the reporting period;
- used methods for determining prices for each type of transactions with it.
Information about affiliates, provided for by this provision, is included in the explanatory note, which is part of the financial statements, in the form of a separate section.
Thus, for any joint-stock company that owns a large block of voting shares in other joint-stock companies (subsidiaries, affiliates), this issue becomes very relevant. There is no need to explain the fact that at the moment, for almost any violation by a person acting in one form or another on this market, the FCSM of Russia applies fairly serious financial sanctions, guided mainly by federal law No. 46-FZ On the protection of rights and legitimate interests of investors in the securities market.
Responsibility for violation of the procedure for reporting on affiliates established by the Federal Securities Commission of Russia is provided for by two regulations. The first of them is the already mentioned Law of the RSFSR On Competition. This law in Art. 23 (para. 7) establishes liability in the form of a fine of up to 5 thousand rubles. minimum dimensions remuneration for violation of the established procedure for providing information about their affiliates. At the same time, this norm limits the circle of subjects subject to punishment as a result of its violation.
The specified provision is applied by the antimonopoly authorities only if this violation occurred when providing information on the basis of petitions and notifications drawn up on the basis of the RSFSR Law on Competition (petition for consent to the creation, reorganization, liquidation of commercial and non-profit organizations; an application for consent to the acquisition by a person (group of persons) of shares (stakes) with the right to vote in the authorized capital of a business company, in which such a person (group of persons) acquires the right to dispose of more than 20% of the specified shares (stakes), etc.) . Thus, if a person carries out, for example, the acquisition of 20 or more percent of the voting shares of a third joint-stock company, the specified provision naturally concerns him in the first place.
Professional participants in the securities market located in Moscow are subject to Moscow Law No. 17 On Administrative Liability for Offenses in the Sphere of the Securities Market, which indicates that evasion or late submission by a participant in the securities market to the FCSM of Russia and MRO of the FCSM of Russia ... reporting documents ... and other information, the provision of which to the FCSM of Russia is provided for by the legislation of the Russian Federation and the regulations of the FCSM of Russia (as in our case - K.P.), entails the imposition of a fine on the organization in the amount of up to 200 established federal law of the minimum wage for each day of delay.
Problems of obtaining information about affiliation
The list of persons classified as affiliated in accordance with the Law of the RSFSR On Competition is quite impressive. In addition, the grounds on which a person is recognized as affiliated with a joint-stock company require the possession of information that is not publicly available (family relations, the existence of agreements (concerted actions), etc.). This information is not static and not constant, which also requires some effort on the part of society to track changes.
When we are talking about affiliates that are such in accordance with the characteristics of an affiliate set out above (a member of the board of directors, a member of the collegial executive body, a person exercising the powers of the sole executive body, etc.), then there are no difficulties with compiling and maintaining a list of affiliates .
Otherwise, it is not at all clear how a joint-stock company should identify its affiliates, since the obligation of persons to notify the joint-stock company of their affiliation is not provided for by the current legislation of the Russian Federation.
In addition, the company does not even have the right to require the investor to provide mandatory information that is not provided for by applicable law. An exception in this case is the above-mentioned obligation of affiliated persons to notify the company in writing of the shares of the company they own, indicating their number and categories (types) no later than 10 days from the date of acquisition of shares (clause 2, article 93 of the federal law of the Russian Federation on joint-stock societies).
Consequently, establishing the affiliation of persons to the company, based on their belonging to the same group of persons, is currently possible only if the person independently provides information about his affiliation. The current legislation does not define the procedure for monitoring the completeness and correctness of compiling the disclosed list. Moreover, the establishment of facts of violation by the authorities of the requirements for keeping records of affiliated persons and providing information about affiliated persons of joint-stock companies can, in most cases, be carried out on the basis of formal correspondence to the characteristics of an affiliated person.
Draft federal law on affiliates
A draft federal law on affiliates is currently being developed.
Unlike the Law of the RSFSR On Competition, which contains a definition of the concept of affiliated persons, this draft law:
Defines the concept of affiliates for legal entities of all organizational and legal forms, thus covering not only commodity markets, but also financial markets (currently Federal Law of the Russian Federation No. 117-FZ On the Protection of Competition in the Financial Services Market when defining the concept of an affiliate makes a reference to the law of the RSFSR On competition);
- removes the existing discrepancy between the concept of a group of persons, which is used in the antimonopoly legislation, and the concept of affiliated persons, used mainly in corporate relations.
According to the draft law, affiliates are legal entities and (or) individuals who are in certain relationships, capable of influencing the receipt of mutual benefits as a result of entrepreneurial and (or) other activities and corresponding to at least one of the following signs:
Having the ability, by virtue of a majority equity interest or otherwise, to determine the decisions made by the legal entity;
- exercising the powers of the sole executive body of a legal entity;
- exercise by a person of the powers of a member of the board of directors (supervisory board), collegial executive body, control or supervisory body of a legal entity, if at the same time the said person is able to influence the decision-making of the said legal entity.
Regardless of these conditions, affiliates are the main and subsidiary companies, legal entities in which more than 20% of voting shares, authorized capital or votes in supreme body management is owned by the same legal or natural person and (or) his close relatives. Affiliated persons are also an association of legal entities and legal entities - members of this association.
In addition, the draft Law on Affiliates establishes for all legal entities the requirements for keeping records of affiliates, disclosure of information about affiliates, as well as requirements for transactions with affiliates or with their participation.
Thus, the draft law stipulates that the terms of transactions with affiliated persons or with their participation should not be more favorable for affiliated persons than those offered to other persons. At the same time, the responsibility of the heads of a legal entity to the legal entity itself and to its participants (founders) for losses caused by the decision to conclude transactions with affiliated persons is established.
Affiliated legal entities
In the regulations of the Russian Federation there is both the concept of "related parties" and the concept of "affiliated persons". And the question arises - are these concepts identical or are there any differences.According to paragraph 4 of PBU 11/2008 "Information on Related Parties", PBU 11/2008 (approved by Order of the Ministry of Finance of the Russian Federation No. N 48n), legal entities and (or) individuals capable of influencing the activities of an organization compiling financial statements, or over whose activities the reporting entity is able to influence (related parties) may be:
A) a legal and (or) individual and an organization that prepares financial statements that are affiliated persons in accordance with the legislation of the Russian Federation;
b) a legal entity and (or) an individual registered as an individual entrepreneur, and an organization that prepares financial statements that participate in joint activities;
c) an organization that prepares financial statements and a non-state pension fund that acts in the interests of employees of such an organization or another organization that is a related party of an organization that prepares financial statements.
The concept of affiliated persons in the legislation of the Russian Federation is disclosed in Art. 4 of the Law of the RSFSR "On Competition and Restriction of Monopolistic Activities in Commodity Markets" No. 948-1: affiliates are individuals and legal entities capable of influencing the activities of legal entities and (or) individuals engaged in entrepreneurial activities.
Affiliates of a legal entity are:
Member of its Board of Directors (Supervisory Board) or other collegial management body, member of its collegial executive body, as well as a person exercising the powers of its sole executive body;
- persons belonging to the group of persons to which the given legal entity belongs;
- persons who have the right to dispose of more than 20% of the total number of votes attributable to voting shares or contributions to the authorized or share capital, shares of this legal entity;
- a legal entity in which this legal entity has the right to dispose of more than 20% of the total number of votes attributable to voting shares or contributions constituting the authorized or share capital, shares of this legal entity; - if the legal entity is a member of a financial and industrial group, to its affiliated persons also include members of the Boards of Directors (supervisory boards) or other collegiate management bodies, collegiate executive bodies of the financial and industrial group participants, as well as persons exercising the powers of the sole executive bodies of the financial and industrial group participants.
The concept of "related parties" is defined by accounting regulations (PBU 11/2008) and is broader than the concept of "affiliates" (civil law).
Participants in joint activities
- non-state pension fund.
Accordingly, if the company is not a party to an agreement on joint activities and does not have an agreement with a non-state pension fund(and such companies are the majority), then its list of related parties is identical to the list of affiliates.
Liability of affiliates
In the mechanism of legal regulation, an essential link is legal responsibility. Within the framework of the theory of state and law, there is an opinion about the creation general theory responsibility, the essence of which is to introduce legal responsibility, along with negative - positive responsibility. The result of which would be citizens fulfilling their duties through a voluntary attitude to duties, and not under fear negative consequences. The circle of subjects on which legal liability is imposed is quite diverse. It may also include affiliates.The liability of affiliates can also be positive and negative. The positive liability of affiliates is based on the principles of reasonableness and fairness, enshrined both in the Civil Code of the Russian Federation and in the federal laws “On Joint Stock Companies”, “On Limited Liability Companies”, as well as in the Code of Corporate Conduct. With the proper performance of positive responsibility, such illegal actions of subjects of legal relations with the participation of affiliated persons as ignoring the interests of other participants in legal relations, false reporting, overstating profits, demonstrating fictitious income, failure by management to perform their functions, deceiving shareholders, investors, etc. are excluded. Along with the positive responsibility of any subjects of legal relations, it is also important to talk about the bilateral responsibility of the state and the individual, because the rights and freedoms of citizens cannot be effectively implemented if the state, in turn, is not responsible for its actions.
So D.I. Dedov believes that it is necessary to enable shareholders to file indirect claims in defense of the interests of the company as a whole without the need to prove real damage; as well as decision-making by a majority of votes should not violate the interests of society as a whole. The implementation of positive responsibility will contribute to the minimization and elimination of corporate conflicts, since ethical standards the general interest of the corporation will take precedence over other interests. Thus, the positive responsibility of an affiliate will be manifested in compliance with the procedure provided for by law for making transactions, in observing the rules of “healthy” competition, without resorting to those tricks and illegal actions that can be performed, given the status of an affiliate, in the absence of illegal influence, pressure on another person when he makes a decision, in timely informing about his affiliation, in observing both corporate and state interests.
The state, in turn, fulfills its most difficult duty to regulate relations, in connection with which it introduces restrictions on the rights of affiliated persons into the legislation in order to fulfill and protect the interests of all other subjects of law. Since Article 2 of the Constitution of the Russian Federation states: “A person, his rights and freedoms are the highest value. Recognition, observance and protection of the rights and freedoms of man and citizen is the duty of the state”, the state is obliged to comply with this norm, and not just declare it. It is noteworthy that the institution of affiliation is known to Russian antimonopoly legislation when the Law of the RSFSR N 948-1 "On Competition and Restriction of Monopoly Activities in Commodity Markets" was adopted, the only norm of which, currently in force, is Article 4, containing the concept of "affiliated persons" . According to this rule, affiliated persons are individuals and legal entities capable of influencing the activities of legal entities and (or) individuals engaged in entrepreneurial activities.
Modern social relations are also reflected in the new provisions on legal liability in the legislation with the gradual addition of subjects. The affiliation relations enshrined in Russian legislation are also supported by provisions on legal liability, which, in turn, depending on industry specifics, should differ in the grounds for the offensive, the features of sanctions, the procedure for implementation, etc. In this case, liability is a kind of those restrictions that an affiliate is obliged to undergo by virtue of its legal status. One of the reasons for the imperfection of legislation in this area is the undeveloped category of "affiliation", the lack of a clear definition, the deformalization of the definition of this subject hinder the development of relations associated with this legal category.
In this regard, it is extremely important to analyze the complex of theoretical issues and problems that affect the liability of affiliates in the current Russian legislation. An example is part 2 of Art. 93 of the Federal Law "On Joint Stock Companies": affiliated persons of the company are obliged to notify the company in writing about the shares of the company they own, indicating their number and categories (types) no later than 10 days from the date of acquisition of the shares. Thus, if a person does not declare his affiliation, then he is forced to bear responsibility. Thus, part 3 of the same Article 93 of the Law “On Joint Stock Companies” provides for the liability of an affiliated person as a result of failure to provide information on affiliation through his fault or untimely submission of information to the company if the latter suffered property damage. In addition, there is the problem of corporate interest of affiliates in the possibility of influencing an economic entity, which is contrary to the interests of a legal entity.
It is the responsibility of affiliates to provide information about affiliation to the attention of all interested parties, who, based on the information received, will make an informed decision on cooperation and participation in the transaction. However, there are “gaps” in the provision on the liability of affiliates, such as in the Federal Law “On Joint Stock Companies”, where the norm of Article 93 provides for the possibility that in practice, in most cases, affiliates and the issuer can avoid liability for failure to fulfill their obligations to provide and disclose information about affiliates. These provisions also cause problems in practice.
Failure to submit or late submission of the necessary information about itself, the affiliate is responsible for:
Only in case of property damage;
only directly to society.
Thus, to third parties, whose interests are often infringed and remain unprotected, the affiliated person, in accordance with the law, does not bear responsibility, which contradicts the principle of fairness of legal liability. In addition to this problem, officials of joint-stock companies often do not go into conflict with shareholders who own 20% or more of voting shares, which makes it possible for affiliates not to answer even to the company. To solve this problem, conclusions follow about the need to strengthen the responsibility of affiliates both for the correctness of the information provided, and for its completeness and timeliness of provision. It is necessary to work out in Russian legislation responsibility not only to society, but also to third parties, to strengthen measures of property and administrative liability by introducing penalties. And only in this way, the legitimate behavior of affiliated persons and the voluntary implementation of their obligation to inform about affiliation is possible.
In turn, the obligation of the company to disclose information about its affiliates is enshrined in:
Part 4 of Article 93 of the Law No. 208-FZ "On Joint Stock Companies";
Federal Law No. 39-F3 "On the Securities Market";
clause 8.5.1. Regulations on the disclosure of information by issuers of emissive securities approved by order Federal Service on financial markets.
Thus, according to the article of the Code of Administrative Offenses of the Russian Federation (CAO), the subjects liable are the issuer, a professional participant in the securities market or a person providing services for the public presentation of disclosed information, the procedure for disclosing information on the securities market, the obligation to disclose which is provided for by law . In this connection, it can be concluded that affiliates who are not assigned the obligation to disclose information to the investor and the obligation to publicly provide disclosed information cannot be brought to administrative responsibility under this article of the Code of Administrative Offenses of the Russian Federation.
Article 185.1 of the Criminal Code of the Russian Federation provides for penalties for evading the provision of information containing data on the issuer, on its financial and economic activities and securities, transactions and other operations with securities, a person obliged to provide this information to an investor or a controlled body is involved to criminal liability, which an affiliated person who has not provided information about his affiliation is not, because, for example, according to the Law "On Joint-Stock Companies", he has an obligation to inform only the company and there is no statutory obligation to provide this information to the investor or the regulatory body. After analyzing these provisions, it should be concluded that it is necessary to introduce administrative and (or) criminal liability for the affiliates themselves in order to avoid their abuse of their rights. In addition, the conclusion made about the inefficiency and insecurity of many legal norms regulating the rights and obligations of affiliated persons once again indicates the need to adopt a special law "On affiliated persons".
Completing the list of affiliates
The Bank of Russia clarified the procedure for completing the list of affiliates.When affiliates of a credit institution acquire shares of the credit institution at the stage of their placement, the information about the affiliate required for inclusion in the list of affiliates of the credit institution may change daily throughout the entire period of placement. In this regard, it is advisable to make changes to the list of affiliates (forms 0409051, 0409052) after the credit institution receives a letter confirming the state registration act of the report on the results of the issue of securities and sent by the registering authority to the credit institution.
Changes to the list of affiliated persons of a credit institution related to the acquisition of shares of a credit institution in the process of placing an additional issue shall be made:
After registration of the report on the results of the issue (or, if registration of the report on the results of the issue is not required, after sending the notice of the results of the issue to the Bank of Russia) no later than 3 working days after the registration of the report (sending the notification to the Bank of Russia) on the results of the issue - within if the issue of securities is completed within one calendar year from the date of state registration of the additional issue;
after the expiration of a year from the date of issue in the event of compiling a list of persons entitled to participate in the general meeting of shareholders - if the placement of an additional issue of shares lasts more than one year from the date of state registration of the additional issue (hereinafter referred to as the date of issue).
From the text of Art. 50 of the Law "On Limited Liability Companies" No. 14-FZ (hereinafter - Law No. 14-FZ) it follows that each limited liability company (hereinafter - LLC, company, organization) is obliged:
1. Maintain lists of affiliates. The form of the list is not set, it can be arbitrary. However, you can use Appendix 4 to the Regulation of the Central Bank of the Russian Federation “On Disclosure of Information by Issuers of Equity Securities” No. 454-P as a guide, or the sample given in our article.
2. Store lists. At the same time, the legislation establishes:
Place of storage - at the location of the sole executive body or in another place about which the participants are informed and to which they have access.
Shelf life. According to the order of the Ministry of Culture of the Russian Federation "On approval of the list of standard managerial archival documents ..." No. 558, they must be stored permanently (paragraph 150 of the list), that is, throughout the entire period of the organization's existence, and then accepted for permanent storage by archival organizations on a sampling basis.
3. Provide participants with the opportunity to familiarize themselves with:
with the original - in the premises of the executive body of the company within 3 days after the participant's statement of the relevant requirement;
with a copy - with the possibility to demand from the participant a fee for making copies (in an amount not exceeding the expenses of the company).
In addition to these lists, any legal entity is required to maintain lists of beneficial owners (Article 6.1 of the Federal Law No. 115-FZ “On counteracting legalization ...”).
If the law binds certain responsibilities with the presence of affiliation, then it is determined in accordance with the law (Article 53.2 of the Civil Code of the Russian Federation).
For an LLC, the establishment of affiliates is relevant in situations:
Definitions of interest in the transaction (Clause 1, Article 45 of Law No. 14-FZ uses the term "controlled persons").
Applications of antitrust regulation.
Application of the norms on interdependence (according to Article 20 of the Tax Code of the Russian Federation). The obligation to disclose information on transactions with related parties (including affiliates) has been established in explanatory note to the financial statements submitted to the tax authorities (Article 23 of the Tax Code of the Russian Federation, PBU 11/2008 “Information on Related Parties”, Order of the Ministry of Finance of Russia No. 48n).
Regarding the formation of the list, Law No. 14-FZ contains only a provision (clause 2, article 45) that obliges affiliates to report on controlled persons, legal entities in which they hold positions, and on organizations controlled by their close relative.
Having received this information, the organization is obliged to update its list of affiliates in accordance with the information received (for example, this is indicated in the resolution of the 5th AAC No. 05AP-6046/13).
At the same time, the law does not authorize the company to check the information received - to request confirmation from third parties or to demand copies of documents.
It is advisable to include the obligation to maintain a list in job description one of the employees.
There is no general concept of such a person in the law, it is described by enumeration in the only currently valid art. 4 of the Law of the RSFSR "On Competition and Restriction of Monopolistic Activities in Commodity Markets" No. 948-I.
For an LLC, this is:
Member of the collegial management body, sole executive body;
a member of the group of persons to which the organization is included;
persons owning more than 20% of the authorized capital;
a legal entity in which the LLC has the right to dispose of more than 20% of voting shares or authorized capital (subsidiaries or affiliates, Article 6 of Law No. 14-FZ);
members of the management bodies of participants in the financial and industrial group to which the organization belongs.
Let us consider in more detail some of the formulations that require a detailed explanation.
In accordance with Art. 9 of the Law "On Protection of Competition" No. 135-FZ, taking into account the clarifications of the Federal Antimonopoly Service of the Russian Federation, given in letters No. АЦ / 5969, No. АЦ / 6366, the group of persons of the company includes a person who:
Participates more than 50% in the authorized capital or management body (including under a management agreement or on any other basis);
performs the functions of the sole executive body or has nominated a candidate elected in this capacity;
is the manager of the company under a management agreement;
is included in the group of a person who is in a group with this company;
jointly with this company manages another person belonging to the group, having more than 50% of the shares or authorized capital.
The antimonopoly authority draws up a list of persons belonging to one group in the form established by Order No. 293 of the Federal Antimonopoly Service of the Russian Federation.
The legislation does not currently contain a normative definition of a financial and industrial group, since the relevant law No. 115-FZ has been abolished due to the redundancy of the regulation contained in it. This concept currently remains only in some classifiers. It appears that holding structures are sufficiently described in Law No. 135.
Main details of the list:
Date of preparation;
columns: name (full name) of the affiliate, contact details and location, grounds for recognizing affiliation, date of occurrence of the ground, share of participation in the authorized capital;
signature of the head of the organization.
In addition, it will not be superfluous to indicate the source of information (date and number of the incoming document).
When completing the list, keep in mind that Additional Information about an individual, with the exception of the last name, first name and patronymic, can be included in the list only with his consent, since it refers to personal data.
Note that there is no direct liability in case of evading the maintenance of the list, however, there is liability for interrelated violations in accordance with the norms of the above special regulations (TC RF, Law No. 135-FZ, etc.). A different situation may arise in the absence of a list of beneficial owners - according to Article 14.25.1 of the Code of Administrative Offenses, the fine reaches up to 500 thousand rubles. Thus, the LLC is obliged by law to maintain a list of affiliates and apply it in order to correctly reflect information in the financial statements. Affiliates are required to independently provide information to the company, however, in some cases (when occupying the position of a head, owning shares), they are already known to the company and must be included in the list in a timely manner.
Transactions with affiliates
What responsibility is provided for the CEO for entering into transactions with affiliates and interested parties without carrying out appropriate procedures for their approval?Question nuances. The General Director of the JSC and two of his deputies are the shareholders of the JSC. Each of the listed persons owns more than 20% of the voting shares of the CJSC. Transactions are often concluded between OJSC and CJSC. The general director wants to transfer all the shares of the CJSC to his son and son-in-law, after which the general director will have no shares left. One of the deputies transfers part of the shares to his brother's wife; after the transfer of shares, the deputy will have less than 20% of the shares of the CJSC.
I. Immediately, we note that the term "conflict of interest" is legally defined and is used primarily in the regulation of relations with the participation of state and municipal employees. A conflict of interest is understood as a situation in which the personal interest (direct or indirect) of a state or municipal employee affects or may affect the objective performance by him official duties and in which a conflict arises or may arise between the personal interest of an employee and the legitimate interests of citizens, organizations, society, the Russian Federation, a constituent entity of the Russian Federation, which can lead to harm to these interests (Article 19 of Federal Law No. 79-FZ “On the State Civil Service of the Russian Federation ”, Part 1, Article 14.1 of Federal Law No. 25-FZ “On Municipal Service in the Russian Federation”, Article 10, Article 11 of Federal Law No. 273-FZ “On Combating Corruption”). The legal definition of a conflict of interest is also contained in Art. 38 of the Federal Law No. 193-FZ "On Agricultural Cooperation". There is no concept of “conflict of interest” in the laws regulating the activities of joint-stock companies. In a similar situation, when the personal interests of a person performing managerial functions in a joint-stock company or controlling a large block of shares may affect its activities, Federal Law No. 208-FZ “On Joint-Stock Companies” uses the concept of an “interested party transaction”.
According to paragraph 1 of Art. 81, paragraph 1 of Art. 83 of the JSC Law, approval by the board of directors (supervisory board) of the company or the general meeting of shareholders requires transactions in which there is an interest of a member of the board of directors (supervisory board) of the company, a person exercising the functions of the sole executive body of the company, or a shareholder of the company who, together with his affiliated persons 20% or more of the voting shares of the company, as well as a person entitled to give the company mandatory instructions. Thus, deputies of the general director of an open joint-stock company cannot be recognized as persons interested in the transaction made by this company. A person is recognized as interested in the transaction by the company in cases where he, his spouse, parents, children, full and half brothers and sisters, adoptive parents and adopted and (or) their affiliates:
- own (each individually or in aggregate) 20% or more of the shares (shares, shares) of a legal entity that is a party, beneficiary, intermediary or representative in the transaction;
- in other cases determined by the charter of the company (paragraph two of paragraph 1 of article 81 of the JSC Law).
II. In accordance with paragraph 1 of Art. 93 of the JSC Law, a person is recognized as affiliated in accordance with the requirements of the legislation of the Russian Federation. In practice, the composition of persons recognized as affiliated in relation to those named in paragraph 1 of Art. 81 of the JSC Law, is determined according to the rules provided for in Art. 4 of the Law of the RSFSR No. 948-I “On Competition and Restriction of Monopolistic Activities in Commodity Markets” (Resolution of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 14613/11). According to this rule, affiliated persons are individuals and legal entities capable of influencing the activities of legal entities and (or) individuals engaged in entrepreneurial activities. In particular, affiliated persons of a natural person include persons belonging to the same group of persons to which this natural person belongs.
To qualify as a group of persons, the totality of individuals must have one or more of the characteristics listed in Art. 9 of Federal Law No. 135-FZ "On Protection of Competition".
From the given legislative definition of affiliation, it follows that the list of persons who may be recognized as interested in the transaction is not exhaustive. This is reflected in judicial practice: when considering claims for the invalidation of transactions on the basis of interest, courts in similar circumstances take various solutions on the basis of the specifics of the particular case under consideration.
In a number of cases, the courts recognize interest in transactions involving the father-in-law of the director of the joint-stock company, the cousin of the director of the organization, the mother of the wife of the director of the organization (see, for example, the decisions of the Federal Antimonopoly Service of the North Caucasus District No. F08-5514 / 07, and No. F08-5740 / 06 , Resolution of the Federal Antimonopoly Service of the Central District No. A64-2055 / 07-20).
In view of the fact that the question of the possibility of recognizing transactions made by others, not directly named in paragraph 1 of Art. 81 of the Law on JSCs by persons, transactions with an interest at the legislative level is not fully regulated, this gives rise to legal uncertainty, which is confirmed by the lack of uniformity in law enforcement practice.
In relation to the situation under consideration, this means that interested party transactions, within the meaning of paragraph 1 of Art. 81 of the JSC Law, transactions concluded between OJSC and CJSC will be considered if the general director of the OJSC and / or his son owns (each individually or in aggregate) more than 20% of the shares of the CJSC. In addition, the fact that the son-in-law of the general director of the OJSC owns more than 20% of the shares of a CJSC can also be recognized as a qualifying sign of an interested party transaction.
III. A transaction in which there is an interest and which was made by the company in violation of the requirements for it, provided for by the JSC Law, may be declared invalid at the claim of the company or its shareholder (clause 1, article 84 of the JSC Law). General provisions on the consequences of the invalidity of the transaction are given in Art. 167 of the Civil Code of the Russian Federation. If the transaction is invalid, each of the parties is obliged to return to the other everything received under the transaction, and if it is impossible to return what was received in kind (including when the received is expressed in the use of property, work performed or service provided), to reimburse its cost, if other consequences of the invalidity of the transaction not provided for by law.
The General Director must act in the interests of the legal entity he represents in good faith and reasonably (Clause 3, Article 53 of the Civil Code of the Russian Federation).
In accordance with paragraph 1 of Art. 53.1 of the Civil Code of the Russian Federation, a person acting as the sole executive body of a company is obliged to compensate, at the request of a legal entity, its founders acting in the interests of a legal entity, for losses caused through his fault to a legal entity.
The grounds for the responsibility of the sole executive body of the joint-stock company are also established in paragraph 2, paragraph 3 of Art. 71 of the JSC Law.
In cases of compensation for losses by the general director, the plaintiff is obliged to prove that the legal entity has these losses. Losses are understood as expenses that a person whose right has been violated has made or will have to make to restore the violated right, loss or damage to his property (real damage), as well as lost income that this person would have received under normal conditions of civil circulation, if his right was not violated (lost profit) (clause 2, article 15 of the Civil Code of the Russian Federation, resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 62, determination of the Supreme Arbitration Court of the Russian Federation No. VAS-14769).
The General Director of a joint-stock company is liable if it is proved that in the exercise of his rights and the performance of his duties he acted in bad faith or unreasonably, including if his actions (inaction) did not correspond to the usual conditions of civil turnover or ordinary business risk (clause 1 of Art. 53.1 of the Civil Code of the Russian Federation). A prerequisite for satisfying a claim for damages is the bad faith and unreasonable behavior of the general director (Decree of the Federal Antimonopoly Service of the North-Western District No. F07-9233 in case No. A05-15514).
The bad faith of the actions (inaction) of the director is considered proven, in particular, when the director acted in the presence of a conflict between his personal interests (the interests of the director's affiliates) and the interests of the legal entity, including if the director is actually interested in the transaction by the legal entity, except for cases when information about a conflict of interest was disclosed in advance and the director's actions were approved in accordance with the procedure established by law (Resolution of the Plenum of the Supreme Arbitration Court of the Russian Federation No. 62).
In addition, the person claiming damages must prove the unlawful nature of the defendant's actions, his guilt, the existence and amount of losses, the causal relationship between the unlawful actions and the losses incurred (decisions of the Presidium of the Supreme Arbitration Court of the Russian Federation No. 3290, FAS of the West Siberian District No. F04-7818 on case No. A46-2921 / 201, FAS of the West Siberian District No. F04-4046 / 12 in case No. A70-11863).
Director's affiliates
In times of turbulent economic conditions, companies use any applicable cost minimization tools, so procedures for invalidating transactions become even more common. The object of this article will be the criteria for determining the affiliation of persons when invalidating transactions in which there is an interest in the sense of Chapter XI of the Federal Law "On Joint Stock Companies".IN Lately news feeds often report that shareholders of corporate borrowers are suing credit institutions on the grounds that the borrower did not follow the necessary corporate procedures for approving an interested-party transaction before entering into a loan agreement. Thus, they demand that the concluded agreements be declared invalid, which may lead to bilateral restitution. In the last ten days of February, the Moscow Arbitration Court registered four similar claims against large banks. We can expect an increase in the number of such claims in the near future.
It should be noted that earlier such cases were isolated. Before the Presidium of the Supreme Arbitration Court (SAC) came the case of a mortgage loan issued by a branch of Alfa-Bank in Rostov. The loan was secured by real estate owned not by the borrower, but by another company. Its minority shareholder demanded that the mortgage agreement concluded between the company and the bank be declared invalid. The shareholder stated that since the directors of the pledger are affiliated with the borrower, there is interest in the transaction, but it was not approved, as required by the Federal Law "On Joint Stock Companies". The Court of Cassation of the North Caucasus District declared the mortgage agreement invalid, depriving the loan of collateral. The Presidium of the Supreme Arbitration Court canceled this decision and decided the case in favor of Alfa-Bank, but only because the plaintiff missed the deadline for challenging the transaction.
In the light of the foregoing, the issue of qualifying interested-party transactions is essential for each of the counterparties of the transaction being concluded. Correct application and understanding of the Federal Law "On Joint Stock Companies" (hereinafter the Federal Law "On JSC") and the Federal Law "On Protection of Competition" (hereinafter the Federal Law "On Protection of Competition") in terms of affiliation can eliminate the risk of undesirable legal consequences. Within the framework of this article, we have tried to highlight the signs of transactions in which there is an interest, and back them up with relevant judicial practice. The Federal Law "On JSC" establishes that related party transactions are subject to mandatory approval in the manner prescribed by law.
Art. 81 of the Federal Law "On JSC" establishes a closed list of entities in respect of which there may be an interest in transactions. Among others, these entities include the company's shareholders who, together with its affiliates, have 20 or more percent of the company's voting shares, as well as persons entitled to give the company binding instructions.
These persons are recognized as interested in the transaction, incl. if their affiliates:
Are a party, beneficiary, intermediary or representative in a transaction;
- own (each individually or in aggregate) 20 or more percent of shares (interests, shares) of a legal entity that is a party, beneficiary, intermediary or representative in the transaction;
- hold positions in the management bodies of a legal entity that is a party, beneficiary, intermediary or representative in the transaction, as well as positions in the management bodies of the managing organization of such a legal entity;
- as well as in other cases established by the charter.
Until recently, there was no consensus on the issue of qualifying the subject of the transaction as a beneficiary.
It is possible to single out the Decree of the FAS of the North-Western District No. A26-4088. In this case, the shareholder of the mortgagor demanded to invalidate the mortgage agreement concluded between the mortgagor and the bank. The pledge ensured the fulfillment by the JSC (borrower) of the terms of the loan agreement. The claims are motivated by the fact that some of the members of the management bodies of the pledger and the borrower are affiliated (the fact of affiliation was not disputed by the parties).
The court refused to recognize the borrower company as the beneficiary and refused to recognize the mortgage agreement as invalid. The decision is motivated by the following: a pledge agreement, when the pledgor is not the debtor himself, but a third party, is not an agreement in favor of a third party. In the event of non-repayment of a loan secured by a pledge, the creditor-mortgagee acquires the right to receive satisfaction at the expense of the pledged property preferentially over other creditors. Since the purpose of the concluded collateral (mortgage) agreement is to secure the borrower's obligations to repay the funds, the presence of collateral is necessary and beneficial, first of all, for the Bank, as a creditor and lender, and not for the borrower.
According to the Court, in view of the foregoing, it is unlawful to consider the debtor under the loan agreement as the beneficiary under the pledge (mortgage) agreement. Therefore, in this case, there are no grounds for applying the rules established by Articles 81, 83, 84 of the JSC Law to the mortgage agreement.
And in connection with the presence of controversial judicial practice, the Plenum of the Supreme Arbitration Court (Resolution N 40) established that the beneficiary may be:
A person who is not a party to the transaction, which, as a result of its completion, may be released from obligations to the joint-stock company (in particular, due to the consent of the debtor to transfer his debt to the company to another person).
a person directly receiving rights under this transaction (in particular, a beneficiary under an insurance contract, a beneficiary under a trust management agreement, a beneficiary under a bank guarantee, a third party in whose favor an agreement is concluded in accordance with Article 430 Civil Code Russian Federation).
a debtor under an obligation, in order to secure the fulfillment of which the joint-stock company provides a surety or property as a pledge, except in cases where it is established that the surety agreement or pledge agreement was made by the joint-stock company not in the interests of the debtor or without his consent. Thus, the conclusion by a joint-stock company of an agreement with a debtor on the conditions for providing a surety or pledge to a creditor to secure the fulfillment of the obligations of the debtor indicates that the debtor is a beneficiary in the relevant surety agreement or pledge agreement.
After receiving the relevant clarifications from the Supreme Arbitration Court, the judicial practice on similar legal relations changes. For example, Decree of the FAS MO N KG-A40 / 3188-08. The court recognized the legitimacy of concluding a suretyship agreement without observing the procedure for approving an interested party transaction, t.to. all shareholders of the guarantor were interested in the transaction. During the court session, it was established that the Moscow Property Department was simultaneously the sole shareholder of the surety company under the surety agreement and the borrower company under the loan agreement (owned 25% + 1 of the borrower's shares). The resolution establishes that the suretyship agreement was concluded by the surety and the Bank in the interests of the Borrower, i.e. the borrower is the beneficiary.
And the fact that an affiliate is a beneficiary indicates that there is an interest in the transaction. Which in some cases requires certain corporate events for its approval.
Undoubtedly, the available clarifications by the Supreme Arbitration Court on the qualification of entities as beneficiaries are a positive moment for determining the interest in the implementation of the transaction and contribute to the uniformity of judicial practice in challenging the relevant transactions.
Concept of affiliation
According to the current legislation, a transaction concluded by affiliates has the features of a transaction in which there is an interest. Art. 93 of the Federal Law "On JSC" establishes that a person is recognized as affiliated in accordance with the requirements of the legislation of the Russian Federation. The concept of an affiliate is contained in the Law “On Competition and Restriction of Monopolistic Activities in Commodity Markets” (hereinafter referred to as the Law “On Competition”). Yes, Art. 4 of the Law "On Competition" establishes that affiliates are individuals and legal entities capable of influencing the activities of legal entities and (or) individuals engaged in entrepreneurial activities.
The Competition Law defines affiliation only in relation to:
1) individuals engaged in entrepreneurial activities;
2) legal entities.
In accordance with Art. 4 of the Law "On Competition" affiliated persons of a legal entity and an individual engaged in entrepreneurial activities are, among other things: persons belonging to the group of persons to which this individual belongs.
At the same time, in the Law “On Competition”, in terms of individuals, affiliation is established only in relation to individual entrepreneurs. Thus, the existing definition of the concept of "affiliates" does not allow for the transparency of the ownership structure and the transparency of related party transactions.
Accordingly, the subject composition of affiliated individuals is limited, and only individuals directly specified in paragraph 1 of Art. 81 FZ "On JSC".
This conclusion also confirmed by arbitration practice. So, in the Decree of the Federal Antimonopoly Service of the Central District N A23-906 / 04G-17-29, the court rejected the argument about the possibility of applying the norm of Art. 4 of the Law "On Competition" by analogy by extending the requirements established in it to affiliated persons of an individual who does not carry out entrepreneurial activities. By virtue of Art. 93 "On JSC" requirements for affiliates can only be established by law; This provision excludes the possibility of applying the norms of the law by analogy.
Based on the foregoing, it can be concluded that if an individual is an affiliate of a legal entity and at the same time is an individual entrepreneur, then the affiliated persons of the JSC will also be persons included in the same group of persons with the individual entrepreneur. At the same time, the fact that this individual is affiliated with the company on grounds not related to the implementation of entrepreneurial activities by the individual (for example, an individual entrepreneur is also an individual shareholder of the company) does not have legal significance. Those. if an individual has the status of an individual entrepreneur, then the composition of his affiliates will certainly be higher.
group of people
Within the meaning of Art. 9 of the Law on Protection of Competition, from the standpoint of antimonopoly legislation, a group of persons is considered as one economic entity acting in a single economic interest. For a group of persons, the legal regime of a single economic entity is established, the activity of which is not prohibited as a monopoly agreement. At the same time, the members of the group do not compete with each other.
P.p. 1-14 of the Federal Law "On Protection of Competition" contains an exhaustive list of cases in which certain persons form a Group with each other.
All of them can be conditionally divided into the following categories:
1. Recognized as members of the same Group are such persons who are connected with each other by certain vertical relationships (vote advantage, holding the position of the sole executive body, etc.);
2. Recognized as members of the same Group are such business entities that are connected with each other not directly, but through a common ascending (vertical) link;
3. Members of the Group are all members of one financial and industrial group, as well as a person with a list of relatives close to him;
4. Members of the Group are recognized as “other persons included with each of such persons (i.e., those indicated above) in the same group according to any specified in paragraphs. 1 - 13 ... base.
In law enforcement practice, questions arise regarding the inclusion of subjects in one group of persons for various reasons, Art. 9 of the Federal Law "On Protection of Competition" incl. in terms of determining the interest of persons in the transaction. Some difficulty lies in the lack of up-to-date clarifications from government regulators, and we can rely on available information in some cases to support our conclusions. judicial practice.
Lack of relationship
In particular, in the fourth conditional category of referring subjects to one group of persons, the FAS sometimes holds the opinion that if there is a relationship with only one person included in certain group, then this person is also included in the general group of persons.
Thus, the Federal Antimonopoly Service of the North-Western District (No. A66-1947) found that the Courts correctly interpreted the above provisions of Article 9 of the Law (in their systemic unity with other provisions of the Law, its subject and goals), indicating that a person’s belonging to a particular group persons is determined through the relationship of each of the persons of this group with the same person or with each of the persons included in the group with the same person. At the same time, the presence of this relationship is determined based on the criteria established by clauses 1 - 13 of part 1 of Article 9 of the Federal Law "On Protection of Competition".
The court found that the group of entities of OJSC TeleNET includes OJSC CTK and CJSC ATS, and the subsidiaries of OJSC CTK (CJSC Teleport Ivanovo and LLC Mobilkom) are not included in the same group of entities with OJSC TeleNET". Because these subsidiaries have no relationship with either ATS CJSC or TeleNET OJSC, and have such a relationship with only one entity that is part of the TeleNET OJSC group - CTK OJSC. The absence of a relationship between these legal entities and each of the entities included in the group of companies excludes the possibility of their assignment to this (one) group of entities.
The court also found that a different casual interpretation of the norms of Article 9 of the Law would lead to an unjustified expansion of the circle of persons whose significance for antimonopoly purposes is due to the requirements of the antimonopoly legislation, and unreasonable burdening of economic turnover participants with obligations in relations with the authorized state body.
Accordingly, the Court confirmed the statutory possibility of avoiding the approval of an interested party transaction, for example, when concluding agreements between a company and its granddaughter company, if other persons of the group in question are not affiliated with the same company under the established Art. 9 grounds.
Combination of leadership positions
For example, if companies are related to each other by an individual who in one company holds the position of Deputy General Director for Commercial Affairs, and in another position of General Director, then affiliation does not arise. Also, there is no affiliation, in some cases, if persons hold different positions in one organization (for example, if a transaction is concluded between the Company and the Deputy Director for financial matters).
Affiliation may arise if the sole executive body, members of the Board of Directors or the Management Board occupy similar leadership positions in the management bodies of the counterparty company.
An example is the Decree of the Federal Antimonopoly Service of the Urals District (N Ф09-6392 / 08-С4). The plaintiff demanded that three individuals be recognized as belonging to the same group of persons. these persons worked in the same organization (head, Chief Accountant, President's advisor). The court found that the above individuals are not included in one group of persons on the grounds established by law. The courts reasonably pointed out that the mere fact of joint work in one organization is not evidence of an agreement between employees. Thus, the Determination of the Supreme Arbitration Court of the Russian Federation N 14432/08 in the case N A48-1073/07-5 found that at the time of the transaction Kameneva S.N. simultaneously held positions in the management bodies of legal entities that are parties to the transaction, since she was the general director of an LLC and the chairman of the board of directors of an OJSC, in connection with which the Court came to a reasonable conclusion that this transaction should have been concluded in compliance with the procedure for approving transactions in which there is interest. The court upheld the legitimacy of declaring the disputed transaction invalid.
You can also consider the Decree of the Federal Antimonopoly Service of the Volga-Vyatka District in case N A11-2686 (3283) / 2007-K1-10 / 130. The court found that: the employment contract was supplemented by an agreement that included paragraph 11.1 of the contract as follows: “in the event of termination of the employment contract, including for reasons beyond the control of the employee, as well as at the initiative of the employer, the employee is paid compensation in the amount of 250 official salaries at the time of termination employment contract". The supplementary agreement was signed by V.V. Kolokolchikov. and Bychkov M.V.
From the case file it is seen that at the time of signing the controversial supplementary agreement Bychkov M.The. was the chairman of the supervisory board and at the same time an employee with whom the said agreement was concluded, therefore the court made a reasonable conclusion that he is an interested person.
kinship relationship
In accordance with the requirements of Art. 9 of the Federal Law “On Protection of Competition”, the group of persons also includes an individual, his spouse, parents (including adoptive parents), children (including adopted children), full and half brothers and sisters.
The Federal Antimonopoly Service of the Far Eastern District (Resolution N Ф03-А51 / 06-1 / 5003 in case N А51-4635 / 06-32-86) recognized the contract for the sale of real estate as an invalid transaction. The court's argument is that the parties to the transaction were OJSC (represented by Director General) and Rekova N.V. (full sister of the CEO). The transaction, in which there is an interest, was not approved in accordance with the established procedure. And, accordingly, it was declared invalid.
And the Federal Antimonopoly Service of the Urals District (Resolution N Ф09-8330 / 08-С1) confirmed that the mother of the wife of the General Director of the Company, by virtue of clause 14 of Art. 9 of Law N 135-FZ is not included in the group of persons on the grounds provided for in paragraphs 1 - 13 of Art. 9 of this Law, in connection with which, having correctly applied the rules of law, the Court of Appeal came to a reasonable conclusion that it is not an affiliate of the company.
Also important is the conclusion of the Court of Appeal that the basis for characterizing the relationship between affiliated persons is the ability to influence entrepreneurial activity. Evidence of the implementation of the influence of this individual on the economic activity of the company by the administrative body in the case file is not presented.
In other words, interest in such cases may arise as if any transaction is concluded with relatives of a shareholder of an individual or with relatives of the General Director, members of the Board of Directors or the Management Board. Thus, it should be recognized that a correct understanding and positioning of the picture of affiliates can allow a joint-stock company to correctly manage risks in relation to transactions being concluded even if it is not possible to approve an interested-party transaction.
Affiliates Founders
The institute of affiliated persons is a fairly new phenomenon both in theoretical and practical terms. The article reveals the very definition and scope of its application.Attention will also be paid to the accounting rules for this category, responsibility for their failure to comply, as well as the relationship between the main and subsidiaries.
For the first time, the concept of an affiliated person was mentioned in the appendix to the Decree of the President of the Russian Federation. It was about investment funds. In a broad sense, affiliation implies proximity to something, since the English verb to affiliate, from which the word comes, is used in the sense of "join, connect."
Also, this term can be interpreted as joining a membership. Affiliated persons influence each other to some extent, whether it is economic or economic activity. In general, they represent a certain group.
Affiliates are individuals or businesses that can influence the business activities of other people or companies. There are some aspects in accordance with which the entity is considered to be controlling in relation to the organization.
Affiliated persons of OJSC are citizens or entrepreneurs:
Owning more than 20% of voting shares. At the same time, affiliated persons of the Joint Stock Company have the opportunity to influence the decision-making process in this organization.
Owning more than 50% of voting shares.
It is believed that an individual is able to have a significant impact on the organization, having the ability to participate in decision-making, even without controlling its activities.
Article 4 of the Federal Law, as mentioned above, defines what affiliates are. Besides, normative act deciphers the possible composition of this category. The list of affiliates primarily includes entities closely associated with the control mechanism.
These may include holders of a large block of voting shares, direct participants in the enterprise management process. Affiliation implies, as a rule, the possibility of unilateral influence of one side of the economic economic activity to another.
It should be emphasized that we mean relations that are not of a property, but of a managerial nature. Property dependence can rather be defined as a consequence, and not at all a condition for the emergence of dependence on control. Not the last role in this matter is played by relationships of a kindred nature.
According to the Competition Law, affiliates may have:
1. Enterprises:
- one of the owners of this legal entity;
- a member of any governing body (for example, a board of directors);
- persons having at their disposal at least 20% of the total number of decisive shares;
- an organization in which the subject under consideration acquires the right to dispose of the number of votes in excess of 20% of the total;
- the party exercising the powers of the sole body.
2. Individual conducting business activities:
- citizens who belong to the same group as the subject;
- an organization in which the entrepreneur in question has the right to dispose of 20% or more of the total number of votes expressed by decisive shares, contributions, shares in the authorized capital.
3. Entrepreneurs participating in financial and industrial groups:
- members of supervisory bodies or boards of directors;
- collegial management structures;
- entities that exercise the powers of the sole subdivisions of the group.
Scope of this category
The category of affiliated persons can often be found not only in the theoretical, but also in the practical part of the activities of entrepreneurs. Meanwhile, as practice shows, many do not have a clear idea about this category. This, in turn, often causes quite serious errors in the process of economic activity of the subject. The term "affiliates" is predominantly associated with corporate law.
Most often it is used for:
The process of identifying persons who obviously have an interest in the actions of the company, which presumably will lead to the conclusion of the transaction;
identification of directors having the right of a decisive vote in relation to a transaction of interest to them, which an open joint-stock company with more than a thousand participants intends to make;
determining the list of entities about which information must be provided to the business entity;
the process of identifying persons, the provision of information about which the joint-stock company is obliged to provide;
determination of the list of participants who overcame the 30% milestone in the course of the acquisition of shares in OJSC; in this case, certain procedures must be observed, the course of which is regulated by law.
How do affiliates interact? An example of such a relationship can be considered by taking the predominant (main) company and the subsidiary (dependent on the main). While creating latest company gets ample opportunities to increase the volume of its activities. The main difference between the main company and branches is legal independence.
Responsibilities
Affiliates have not only rights and opportunities. By virtue of their status, they have a number of responsibilities. First of all, they are charged with informing the public about their shares. This must be done in writing and with specified details (exact number, types of papers, etc.).
The information must go to certain period from the date of acquisition of the shares. Despite the fact that there is no provision for the liability of such persons before the law in connection with the failure to provide within the allotted time necessary information, certain sanctions against them still exist.
If, through the fault of affiliated persons, the joint-stock company has suffered losses of any nature (for example, property damage), then compensation for the entire amount of damage caused (in accordance with Article 15 of the Civil Code of the Russian Federation) will act as a punishment.
Accounting responsibilities of businesses
The company is required to maintain a list of affiliates. The list is mandatory submitted to the relevant authorities responsible for regulation this market. Antimonopoly legislation provides for the imposition of a fine for violation of existing rules for providing the necessary information. The same rules apply to the list of affiliated persons of the LLC. Lists should be publicly posted on a web page.
Such requirements are quite understandable. Such information is in great demand within a certain procedure for concluding transactions in which affiliates participate. These include, in particular, agreements with interest. A logical question arises: "Is a closed joint-stock company obliged to submit information about affiliated persons?"
After all, it, as a rule, does not engage in public offering of securities. Accordingly, the rule relating to an open joint-stock company does not fully apply to a CJSC. Nevertheless, his duties include keeping records of the subjects in question, albeit in an arbitrary form. If a CJSC carries out a public placement of bonds, then it is also obliged to publish the register of affiliated persons on the website on the Internet.
If we take any example of a list of affiliates, then the list will contain the following information:
1. Company name (short and full), postal address;
2. Surname and initials of the subject, address of residence (for individuals);
3. Grounds for being an influential party, the date of occurrence of these grounds.
There are different types of punishment for violating the prescribed order:
1. Administrative responsibility. It occurs if the information is provided incompletely or in violation of the deadlines specified in the legislation.
2. Tax liability. It occurs in relation to related parties and concerns unreasonable price adjustments that run counter to the real situation on the market. If, according to the results of the audit, it turns out that the value of the completed transaction deviates from the existing one on trading platform by more than 20%, this fact entitles the supervisory authority to charge additional tax and penalties. In this case, the collection is made in a non-acceptance manner.
3. Civil liability may also be imposed for violation of the procedure for the implementation of transactions, the participants of which are affiliated persons.
Good afternoon!!
According to paragraph 2 of Art. 93 of the JSC Law, a company is obliged to keep records of its affiliates and submit reports on them in accordance with the requirements of the legislation of the Russian Federation.
Affiliated persons, not later than 10 days from the date of acquisition of shares by them, are obliged to notify the company in writing about the shares they own, indicating their number and categories (types).
If the company receives such notification, and also if the company becomes aware from other sources of changes in the composition of affiliates, it is obliged to make changes to the list of affiliates and publish them on its website within the time period established by the Regulations.
Changes are made, as a rule, in the same form as the list of affiliates itself. At the same time, for each change, the date of introduction is indicated, the content is described, and information about the affiliate is given before and after the adjustments are made. If the grounds for affiliation cease, an explanation is given that the person has ceased to be affiliated with the company.
The term for disclosure (publication) of changes to the list of affiliated persons of a joint-stock company is two business days from the date of making changes. The text of the amendments must be available on the Internet page for at least three months from the date of expiration of the period set for its publication on the web, and if it is posted there after the expiration of this period, from the date of publication on the Internet.
Recall that changes to the list of affiliates, as well as the lists themselves, in accordance with clause 8.1.1 of the Regulations, are required to disclose all open joint-stock companies, as well as those closed joint-stock companies that have carried out a public offering of bonds or other securities.
Responsibility for non-provision (non-disclosure) of information
Article 15.19 of the Code of Administrative Offenses of the Russian Federation (hereinafter referred to as the Code of Administrative Offenses of the Russian Federation) establishes administrative liability for violation of the requirements of the law regarding the presentation and disclosure of information on the securities market by both holders of securities and issuers, as well as other market participants.
So, according to part 3 of Art. 15.19 of the Code of Administrative Offenses of the Russian Federation, non-submission (non-disclosure) or violation by the owners of securities, as well as affiliated persons of joint-stock companies and persons who, in accordance with federal law, are recognized as interested in the transaction by the company, of the procedure and deadlines for the submission (disclosure) of information provided for federal laws and adopted in accordance with them other regulatory legal acts entails an administrative fine in the following amounts:
- for citizens - from 1000 to 2000 rubles;
- for officials - from 10,000 to 20,000 rubles;
- for legal entities - from 300,000 to 500,000 rubles.
Even more severe liability is envisaged for issuers who have violated the procedure and terms for disclosing information.
According to part 2 of Art. 15.19 of the Code of Administrative Offenses of the Russian Federation, failure to disclose or violation by issuers of the procedure and terms for disclosing information provided for by federal laws and other regulatory legal acts adopted in accordance with them, as well as disclosure of incomplete, unreliable, and misleading information, entails an administrative fine:
- for officials - from 30,000 to 50,000 rubles. (or disqualification for a period of one to two years);
- for legal entities - from 700,000 to 1,000,000 rubles.
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