The internal policy of the government is aimed, among other things, at improving the state of the country's economic sector. In this regard, special programs are being developed, within the framework of which measures are envisaged to increase the investment attractiveness of the economy. Their implementation is provided by legal norms. The Federal Law "On Concession Agreements" was adopted with the aim of attracting investment in the country's economy, ensuring efficient property, and improving the quality of products, works and services provided to consumers. The normative act regulates the relations that arise in connection with the preparation, execution, implementation of the conditions and termination of relevant transactions, as well as defines guarantees of interests and rights of their participants. Let us further consider the main provisions of 115- "On concession agreements".
General information
The concession agreement is a transaction in the framework of which one entity undertakes to create or reconstruct at its own expense real estate that is or will be owned by the other party. In this case, the first participant will conduct activities using the specified material assets in accordance with the accepted conditions. The second side, in turn, undertakes to provide him with the right to own and operate real estate for the necessary work. The terms of the concession agreement are established by the parties.
Features
The concession agreement agreement is characterized by elements of other transactions provided for in regulatory enactments. Accordingly, the general rules contained in the relevant parts of the Civil Code apply to them. At the same time, in the 115- “On concession agreements”, a reservation is made that, in the sense of regulatory acts or the essence of the transaction, a different procedure for regulating these elements may arise.
Reconstruction
The Law "On Concession Agreements" contains a list of activities that may be carried out as part of the transaction. Under reconstruction, in particular, it should be understood:
- Reconstruction based on the use of new technologies.
- Automation and mechanization of production.
- Modernization and replacement of physically and morally obsolete equipment.
- Change in the functional or technological purpose of the object as a whole or its specific components.
- Other measures aimed at improving the operational properties of the property.
The objects of the concession agreement, subject to reconstruction, at the time of the transaction must be owned by the entity that provides them, and be free from the rights of others.
Important points
The Law "On Concession Agreements" does not allow a change in the purpose of the reconstructed property. It is also prohibited to transfer it as a pledge or alienation. Revenues and products that will be obtained during the implementation of activities, act as the property of the user, unless otherwise provided by the terms of the transaction. The subject, reconstructing or operating the property, bears the risks of accidental damage or death, unless otherwise specified by the parties. The concession agreement may contain a condition on the compulsory insurance of material assets by their user at their own expense.
Design Nuances
The concession agreement may provide for the transfer of material assets belonging to the subject by ownership, forming a single whole with the main property provided under the terms of the transaction or intended for operation for the general purpose with it. In this case, their composition is established and a description is given, the period and purposes of use are determined, as well as the procedure in accordance with which they will be returned. A concession agreement in respect of such material assets may also provide for the obligation of the user to modernize them, replace physically and morally obsolete equipment with more productive ones, and otherwise improve their performance.
additional information
The property that was created or acquired by the user in the performance of the concession agreement and not acting as its object is the property of the indicated party to the transaction, unless otherwise specified by the parties. Exclusive rights to products of intellectual labor, which were obtained upon fulfillment of the conditions, belong to the owner of the transferred material assets.
Expenses
The user bears the costs of fulfilling the obligations assumed, unless otherwise specified by the parties. The owner can take part of the costs of reconstruction or creation of property, the use of material assets and provide the second participant with guarantees in the manner prescribed by applicable laws. The amount of expenses in this case should be indicated in the conditions of the tender for the possibility of concluding a concession agreement or in the decision to sign it without holding a tender, as well as directly in the contract itself.
Accounting and Registration
The Federal Law "On Concession Agreements" provides that the user puts into operation reconstructed or created property in the manner specified by regulatory enactments. The right of exploitation and ownership of material assets should be registered as an encumbrance of property. The concessionaire (legal owner) keeps track of the object of the agreement on a separate balance sheet and calculates depreciation.
Property Categories
Regulatory act No. 115 "On concession agreements" defines the types of material assets that may participate in the transaction. They are included in the following property:
- Roads, engineering networks of transport infrastructure. These include, but are not limited to, viaducts, tunnels, bridges, car parks, vehicle checkpoints, truck collection areas.
- Objects of the railway transport network.
- River, seaports, their hydraulic structures, engineering and production infrastructure.
- Airfields or structures / buildings intended for departures, landing, moving or parking of air liners.
- River, sea ships, mixed navigation vessels and carrying out research, geographical activities, icebreaking assistance, dry and floating docks, ferry crossings.
- Industrial and engineering infrastructure of airports.
- Objects related to a single system for organizing air movement.
- Separate hydraulic structures.
- Pipeline transport facilities.
- Installations intended for the production, transmission and distribution of heat and electric energy.
- Facilities and systems of public utilities, including those used for gas, water, energy and heat supply, sewage treatment, water disposal, lighting of rural and urban settlements, as well as for improvement.
- Metro and other public transport.
- Objects operated for medical and preventive, medical purposes, as well as for the organization of tourism and recreation.
- Facilities / buildings for cultural, sports, recreational events, social services.
Note
The normative act under consideration provides certain opportunities for entities signing a concession agreement. Municipal / state or other property may be intended for use in accordance with its general purpose, to ensure a single organized technological process and conduct activities provided for by the terms of the transaction. The user has the right to conclude a civil law act with a private owner, in which the rules for providing him with material values will be determined. Moreover, he is obliged to make his rights and obligations dependent on relations by agreement.
Transaction participants
The Federal Law "On Concession Agreements" as subjects calls:
- Russian Federation. She acts as a concession (owner). The Government or the executive (federal) body authorized by it acts on its behalf. The owner may also be a region or municipal entity. On behalf of the constituent entity of the Russian Federation, a state power body acts, and the representative of the municipality is the local government structure.
- An individual entrepreneur, a foreign or Russian legal entity, or two or more organizations operating in the framework of a simple partnership (without forming a legal entity). These entities act as concessionaires (users).
Limitations
The concession agreement may provide for the change of persons through the assignment of claims or transfer of debt. These procedures are allowed with the consent of the owner from the date of putting the property into operation. The transfer of duties and rights of a legal entity user during its reorganization to another company is subject to the requirements established by the concession agreement.
Validity
The term of the agreement is determined by the parties. This takes into account the period of reconstruction or the creation of property, the amount of investment required to carry out the relevant activities, and the payback time. In addition, other user obligations may be taken into account.
Payment
The concession agreement, a model of which is presented in the article, should contain conditions on payments made by the user to the owner during the operation of the property. Transfers can be provided both throughout the entire time of use, and during specific periods. The size, form, procedure and terms of payment are established by the parties. This takes into account the provisions of the decision to conclude an agreement.
Form of payment
A concession agreement may include contributions:
- In a solid amount. They can be introduced at one time or periodically into the budget (regional or state).
- In the form of a share of income or products that are received by the user in carrying out activities determined by the terms of the transaction.
- In the form of transfer to the concessor in legal possession of property that is owned by the concessionaire.
Parties may establish a combination of the above forms of payment.
User rights
The concessionaire in the performance of the agreement has the opportunity:
- Dispose of the transferred property in the manner prescribed by the terms of the transaction and the regulatory act under consideration.
- Fulfill obligations both on their own and with the involvement of other persons. In the second case, the user will be responsible for the actions of third parties as for their own.
- Use gratis exclusive rights to products of intellectual work obtained at their own expense in the implementation of established obligations. At the same time, the confidentiality rules defined in the agreement must be respected.
Responsibilities
In the process of executing the agreement, the concessionaire must:
- To carry out reconstruction or creation of property during the agreed period and begin its operation.
- Use the object in the manner and for the purposes established in the agreement.
- To conduct activities determined by the terms of the transaction and not to suspend / terminate it without the consent of the owner.
- Provide the opportunity to obtain appropriate services, products and work by consumers in the implementation of the agreed activities.
- Provide customers with benefits established in regulatory enactments of the Russian Federation, entities and municipalities, including the payment of goods received in the manner and in cases determined by the concession agreement.
- Maintain the good condition of the property, carry out routine and major repairs at its own expense, and also bear the costs of maintaining tangible assets, unless otherwise provided by the terms of the transaction.
Owner control
Supervision of the implementation of the terms of the concession agreement is carried out:
- The Government of the Russian Federation or the executive federal body authorized by him.
- The state structure of regional authority.
- The body of territorial self-government.
The implementation of control functions is carried out by official representatives of these institutions of power, having the right to unhindered access to the object of the agreement, documentation, which relates to the implementation of activities specified in the agreement. The owner controls:
- Fulfillment of the established period for the creation / reconstruction.
- Investing in activities specified by agreement. These include not only direct creation or reconstruction, but also ensuring compliance with technical and economic parameters.
- Doing business.
- Operation of the facility in accordance with the objectives established in the agreement.
Bans
Representatives of the owner do not have the right:
- Intervene in the activities that the user conducts.
- To disclose information that is recognized by the concession agreement as confidential or commercial secret.
The procedure for monitoring user compliance with obligations is established by the parties.
Key conditions
The concession agreement contains the following clauses:
- Obligations of the user for the reconstruction / creation of property, compliance with the established for this period.
- Duration of agreement.
- Obligations of the user to conduct specified activities.
- Description and composition of property. This item, among other things, includes technical and economic parameters.
- The procedure for providing the user with a land plot for the conduct of relevant activities, the term for signing the lease / sublease agreement for this allotment, if it is necessary for the conduct of the specified activities.
- Objectives and duration of the operation of the property.
- Other material conditions (for example, the rules by which the concession agreement is changed).
Additional items
In the concession agreement, in addition to the above conditions, other ones that do not contradict the laws of the Russian Federation and the rules of the competition may be established. Additional items may include:
- The procedure for adjusting and setting tariffs for manufactured products, work performed, services provided and allowances for them when conducting activities agreed upon by the parties.
- Volume of production.
- The period of commissioning of the reconstructed / created facility with the established technical and economic parameters.
- The amount of investment in the agreed activities.
- The user's obligations to sell products, work, services in the domestic market during the period determined by the terms of the transaction.
- Ways to ensure that the concessionaire fulfills the clauses of the agreement. Here, among other things, measures to insure the risk of death / loss or damage to property may be indicated.
- Obligations to sell products, provide services or perform work at regulated tariffs in accordance with established premiums to them.
- Terms of financing by the owner of a part of the costs of reconstruction / creation of the object of the agreement, the costs of its operation.
- The obligations of the user to provide consumers with the benefits provided for in regulatory enactments, including the payment of products, work or services.
Concessionaire Responsibility
The user is responsible to the owner for violations during the reconstruction / creation of property requirements established by the terms of the transaction, technical regulations or other mandatory regulatory acts. In the event of damage, the concessionaire may require the concessionaire to eliminate it free of charge within a reasonable time. In case of failure to comply with this condition or with a substantial amount of damage, it is subject to compensation. The user bears responsibility for the quality of the property to the owner during the period provided for by the agreement, or within 5 years from the date of its transfer (if the period is not set).
Signing, amending and terminating
The conclusion of the agreement is carried out by organizing and conducting a tender, except for cases established by Art. 37 of the considered normative act. Registration is carried out according to the standard form established by Part 4 of Article 10. Changes to the terms of the agreement determined on the basis of the tender offer are adjusted only in the cases provided for in parts 1 and 3 of Art. 20 commented normative act. . , , . :
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Competition
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