Amendments to the federal laws
Federal Law No. 89-FZ On Amendments to Article 26 of the Russian Federation Town-Planning Code of April 23, 2018
We remind readers that in accordance with the Russian Federation Town-Planning Code1, the general plan is implemented, inter alia, by taking the actions envisaged by approved integrated infrastructure development programs.
That Law establishes that if changes providing for the construction / reconstruction of local utility, transportation or social infrastructure facilities are made to the general plans and are not included in the integrated development programs for the relevant infrastructure, those programs should be brought into conformity with the general plans within three months of when the changes are made to the general plans.
If the programs approved earlier than the territorial planning documents provide for any infrastructure facilities that are not subsequently included in the approved territorial planning documents, such programs shall be brought into conformity with the territorial planning documents within two months of when the territorial planning documents are approved/amended.
Federal Law No. 122-FZ On Amendments to Certain Legislative Acts of the Russian Federation with respect to Clarifying the Term "Foreign Investor" of May 31, 2018
Amendments to the laws on investment activity in the Russian Federation became effective as of June 12, 2018.
The Law permits companies registered in offshore zones to privatize state property if they disclose information about their beneficial owners. We remind readers that such privatization used to be unconditionally banned.
The Law clarifies the term "foreign investor." Foreign legal entities or organizations that are not legal entities controlled by Russian Federation legal entities or citizens or foreign citizens also holding Russian citizenship are no longer classed as foreign investors.
The Law has also introduced the term "controlled person," which is a foreign legal entity or foreign organization that is not a legal entity controlled by a Russian Federation citizen and/or Russian legal entity controlling person, provided one of the criteria are met, including the right to dispose, directly or indirectly, of more than 50 percent of the total number of votes attaching to voting shares (interests) comprising the controlled person's share capital.
Decree of the Russian Federation President No. 204 On National Goals and Strategic Objectives of the Russian Federation for the Period to 2024 of May 7, 2018 (the "May Decrees")
Russia's President has approved the latest "May Decrees" outlining the country's strategic development until 2024.
It has been mentioned that there is a need to improve housing construction financing mechanisms, including by developing the mortgage securities market and to gradually transition from shared construction to other forms of financing housing construction.
Goals were also set of lightening the administrative burden on developers, applying new mechanisms for developing and operating roads using infrastructure mortgage, lifecycle contracts, best technologies and materials.
Russian Federation Government Resolution No. 601 On Amendments to Russian Federation Government Resolution No. 290 dated April 12, 2012, of May 26, 2018
Amendments to how state fire safety supervision is done entered into force on June 6, 2018.
Now the security agencies (the Ministry of the Interior of the Russian Federation, the Ministry of Defense of the Russian Federation, the Foreign Intelligence Service, the Russian National Guard, etc.) are included among fire supervision authorities. Authorities doing state fire supervision will be able to issue warnings that violation of fire safety requirements are not allowed, and also to conduct scheduled inspections and examinations of land plots to ensure fire safety.
It has also been established that one of three conditions must be met to raise an asset's fire risk category.2 Please note that previously all three conditions had to be met to raise the category.
The Resolution has set forth a new circumstance for lowering the fire risk category: registration of a fire safety declaration for an asset with a maximum of two stories whose total area is not more than 1,500 square meters (except buildings with functional fire hazard classes F1.1, F.1.3, F1.4, F4.1, F4.2.)
The authorities of officials of state agencies doing state fire inspection have also been clarified.
Russian Federation Government Resolution No. 478 On Repeal of Items 64-68 of the Exhaustive List of Housing Construction Procedures of April 21, 2018
A number of procedures related to shared construction have been removed from the exhaustive list of construction procedures.
The following procedures, in particular, have been removed:
- Submission of a project declaration to the regulator
- Verification of compliance by entities raising funds from individuals for construction with the mandatory requirements of law on participation in the shared construction of apartment houses and/or other immovable properties
- Conclusion of a suretyship agreement for the developer's obligations to hand over the housing under a shared construction agreement
- Conclusion of a developer's third-party liability insurance contract for nonperformance or improper performance of obligations to hand over the housing under a shared construction agreement
- State registration of the shared construction agreement
Ministry of Finance of Russia Decree No. 86n On Amendments to the Administrative Regulation for Provision by the Federal Tax Service of the Government Service for State Registration of Legal Entities and Individuals as Sole Proprietors and Farming Enterprises approved by Ministry of Finance of the Russian Federation Decree No. 169n dated September 30, 2016, of April 20, 2018
Amendments became effective on July 3, 2018 according to which documents confirming the entry of a record in the EGRUL and EGRIP will be issued by the Federal Tax Service of Russia electronically by default. If the tax inspectorate receives a request from an applicant, the inspectorate will issue a paper copy of the documents confirming the content of e-documents.
If a decision to deny registration has been taken because the applicant has failed to submit the required documents or has submitted documents not meeting the established requirements, once these reasons for denial have been remedied the applicant has three months from the date of the inspectorate's denial to submit the required documents once without having to pay the state duty again. The applicant does not need to resubmit documents already in the inspectorate's possession.
Ministry of Economic Development of Russia Decree No. 7 On Approval of Risk Indicators of Violation of Mandatory Requirements Used to Determine the Need to Conduct Unscheduled Inspections when Rosreestr and its Local Offices Perform State Land Supervision of January 9, 2018
Rosreestr has identified four risk indicators triggering unscheduled inspections as part of state land supervision, namely:
- The area of the land plot used does not match the area indicated in the EGRN
- The location of a representative point of the plot's boundary does not match the data in the EGRN
- The use of the plot differs from the designated purpose, considering that the plot has one or another land category and/or permitted use
- There are no permanent structures on a plot intended for construction and no work is being done to erect such structures (when land must be used within a certain period of time)
The Decree entered into force on April 24, 2018.
Changes in public-private partnership
Federal Law No. 63-FZ On Amendments to Articles 5 and 8 of the Federal Law On Concession Agreements of April 3, 2018
The Law provides that if a Concession Agreement is for healthcare facilities held by a federal state budgetary institution in operative management, then the institution may act as the public partner in the obligations under the Concession Agreement.
Institutions are also entitled to exercise certain powers of the public partner, other than the powers to execute, amend and terminate a Concession Agreement or monitor the private partner's performance of obligations under the Concession Agreement.
The public-partner powers exercised by the federal state budgetary institution are defined in the decision to enter into the Concession Agreement.
Federal Law No. 173-FZ On Amendments to Certain Legislative Acts of the Russian Federation of June 29, 2018
This law includes information technology items (computer programs; databases; information systems, including state ones, and Internet websites that include computer programs and databases) among the subjects of concession agreements and public-private (municipal-private) partnership agreements.
The law also sets forth the rights and obligations of the parties to such facilities in PPP projects, and the specifics of drafting, executing and performing the relevant agreements.3
Changes in public procurement laws
Russian Federation Government Order No. 824-r On the Creation of a Unified Trading Aggregator of April 28, 2018
An experimental procedure has been put in place for public procurement using the unified trading aggregator/information resource which the customer can use starting July 1, 2018. RT-Project Technologies JSC has been appointed the operator of this resource.
This procedure affects some procurement categories, e.g., up to RUB 100,000 or procurement of cultural institutions for up to RUB 400,000 and pharmaceuticals procurement.
Russian Federation Government Resolution No. 556 On Defining the Specifics of Planning and Procurement by Customers Operating in a Foreign State... of May 5, 2018
The specifics of how organizations plan and do procurement in a foreign state have been defined. In particular, customers may plan their procurement in US dollars by approving and maintaining a plan for the procurement of goods, work and services and a procurement schedule for the customer's needs according to the approved forms.
When cost limits are determined for customers the federal state authorities, Rosatom State Corporation and Roscosmos State Corporation do not have to apply the national standards, technical regulations and technical conditions, and also do not need to consider regulated prices (rates) in effect in the Russian Federation.
The Resolution entered into force on May 15, 2018.
Russian Federation Government Resolution No. 439 On Approval of the Starting (Maximum) Contract Price Beyond Which the Customer Shall Set a Requirement for Tender and Auction Bids of April 12, 2018
If the starting (maximum) contract price is more than RUB 1 million, the customer shall require that tender and auction bids are submitted.
This decision is intended to limit the participation in procurement of unscrupulous suppliers of goods, work and services and to protect customers' legitimate interests.
This Resolution entered into force on July 1, 2018 and applies to relations related to the procurement of goods, work and services for state and municipal needs, notices of which are published in the unified information system for the procurement of goods, work and services for state and municipal needs or invitations to participate in which have been sent after the act became effective.
Changes in escrow regulation
Federal Law No. 120-FZ On Amendments to Article 327 of Part One of the Russian Federation Civil Code and Articles 1 and 3 of the Federal Law On Amendments to Parts One, Two and Three of the Russian Federation Civil Code of May 23, 2018
Provisions of the RF Civil Code on notary escrow of movable assets, non-cash funds and uncertificated securities if an obligation is performed by depositing the debt with the notary were updated as of June 1, 2018.
It was established that if these items are delivered to a notary for escrow under a joint application of the creditor and debtor, the rules on the escrow agreement shall apply to such relations unless provided otherwise by the laws on notaries and notarial activities.
In addition, the RF Civil Code now no longer enables a creditor and debtor to conclude an agreement stipulating an obligation to perform a monetary obligation or obligation to transfer securities by depositing the debt with a notary.
Federal Law No. 119-FZ On Amendments to the Federal Law On Banks and Banking and the Fundamentals of Russian Federation Legislation on Notaries Public of May 23, 2018
The law distinguishes between the procedure for a notary accepting deposit of money and deposit of other items (movable things, non-cash funds, uncertificated securities).
Among other things, the law requires the notary to open a public deposit account to accept deposit of money. The money is disbursed from the account further to an order from the notary submitted to the bank.
Tariffs have been set for a notary to accept deposit of items.
It entered into force on June 1, 2018.
Clarifications of federal legislation
Ministry of Construction of Russia Letter No. 26459-KhM/08 On the Performance by Design Organizations of Work to Survey Building Structures of June 20, 2018
This act clarifies that work to survey structures of buildings and facilities are treated as architectural design work and must be done by design organizations that are members of a self-regulating organization in that field. This is due to the fact that the survey results contained in a report serve as input data for preparing the building design engineering statement and should be considered as part of the design documents submitted for expert review. Consequently, the process of structural survey of buildings and facilities is an integral part of the design process of facilities that are being reconstructed or newly erected. This means that work on structural survey of buildings and facilities should be and is currently done by design organizations that are members of self-regulating architectural design organizations.
Ministry of Finance of Russia Letter No. 23-01-06/34205 On the Legality of Budget Revenue Administrators Refunding Excess or Erroneously Paid Non-Tax Payments to Third-Party Payers of May 21, 2018
The Ministry of Finance has clarified that a revenue administrator cannot account for non-tax payments, e.g., rent and fines under the Russian Federation Administrative Offenses Code received from third parties.
Often a company may not be able to pay the fine itself, for example, because its accounts are frozen. However, if a payment is made by third parties, the money will be refunded as paid in excess (in error).
Amendments to the laws of St. Petersburg and Leningrad Region
St. Petersburg Law No. 277-54 On Amendments to the St. Petersburg Law on Town-Planning Activity in St. Petersburg of June 6, 2018
These amendments distinguish between the powers of the St. Petersburg government authorities in integrated territory development.
For example, the St. Petersburg Legislative Assembly has the following integrated territory development authority:
- To approve targeted programs providing for the demolition (reconstruction) of permanent structures (other than apartment houses)
- To adopt a St. Petersburg law approving the types of benefits provided for by the integrated territory development agreement and the procedure and terms for granting and terminating them
Other powers in this area of those within the competence of local government authorities (set forth in Articles 46.9 – 46.11 of the Russian Federation Town-Planning Code) will be exercised by the St. Petersburg Government.
St. Petersburg Law No. 249-50 On Amendments to the St. Petersburg Law on the Procedure for Preparing Territorial Planning Documentation in St. Petersburg and on Amendments to Certain St. Petersburg Laws of May 8, 2018
The amendments are intended to bring St. Petersburg laws into compliance with the provisions of the RF Town-Planning Code.
In particular, the procedure for conducting engineering surveys to prepare territorial planning documentation has been described, interested parties are now entitled to decide to prepare territorial planning documentation on their own and there is an obligation to notify the competent government authorities of this.
The amendments entered into force on May 19, 2018.
St. Petersburg Government Order No. 21-rp On Approval of the Regulation on the Procedure for the Interaction of Executive Government Authorities of St. Petersburg when Preparing a Decision to Exchange a State-Owned Land Plot of St. Petersburg or the State Ownership of Which Has Not Been Delineated for a Privately-Owned Land Plot of April 24, 2018
A procedure for how St. Petersburg government authorities interact to exchange private land plots intended in accordance with an approved territorial planning design and territorial site design for siting a social infrastructure facility (if the social infrastructure facility needs to be sited to comply with town-planning design regulations), utility and transportation infrastructure facilities or on which those facilities are located, for a publicly owned land plot was established on April 24, 2018.
The St. Petersburg Government decides on the exchange and the interested executive authorities of St. Petersburg initiate the exchange process itself.
The Order does not expressly provide for a private land owner to initiate an exchange. The land plot owner may only provide a description of the plot which it is prepared to exchange; however, it is KGA that chooses the plot.
St. Petersburg Investment Committee Order No. 179 On Approval of the Administrative Regulation of the St. Petersburg Investment Committee to Provide the Government Service to Conduct Expert Review of Materials Which Is Needed to Determine Whether there are Grounds for a Decision to Assign the Status of Strategic Investment Project of St. Petersburg, Strategic Investor of St. Petersburg or Strategic Partner of St. Petersburg of May 25, 2018
It was approved to replace a similar administrative regulation previously in effect.
St. Petersburg Government Resolution No. 417 On the Procedure for Determining the Savings of a Strategic Investor of St. Petersburg in Connection with the Implementation of a Strategic Investment Project of St. Petersburg if the St. Petersburg Government Decides to Revoke the Status of Strategic Investment Project of St. Petersburg or the Status of Strategic Investor of St. Petersburg and Terminate an Agreement on a Strategic Investment Project of St. Petersburg of May 22, 2018
A procedure has been established for calculating the amount of a strategic investor's savings if the St. Petersburg Government decides to revoke the status of strategic investment project or the status of strategic investor or to terminate an agreement for such a project.
The savings represents revenue (including lost profit) not received by the city budget while the project is being implemented and to be reimbursed by the investor. That said, revenue not received by the St. Petersburg budget includes:
- The difference between the rent actually paid by the strategic investor for a land plot granted under a lease agreement on investment terms to implement a strategic investment project, and the rent for the land plot that could have been received without a decrease as per St. Petersburg Law No. 282-43 On the Procedure for Granting Immovable Properties Owned by St. Petersburg for Construction, Reconstruction and Adaptation for Modern Use of May 26, 2004
- The difference between the price for the land plot paid by the strategic investor at the time of its sale determined using an adjusting factor in accordance with subclause 7.4 of Clause 7 of Article 1-2 of St. Petersburg Law No. 59-19 On Setting the Price for Land Plots in St. Petersburg of February 10, 2010 and the purchase price for the land plot determined without using that factor
The St. Petersburg Investment Committee is tasked with calculating the amounts within not more than two months after the decision has been made to revoke the status and terminate the agreement.
The savings is determined based on the documents a list of which will be approved by the St. Petersburg Investment Committee.
The Resolution entered into force on May 22, 2018.
St. Petersburg Government Resolution No. 526 On Amendments to St. Petersburg Government Resolution No. 524 On the Land Use and Development Rules dated June 21, 2016, of June 28, 2018
A new version of the St. Petersburg Land Use and Development Rules (PZZ) entered into force on June 29. However, it does not apply to the preparation and approval of territorial planning designs the assignments for which were signed before June 29, 2018. They will be developed and approved according to the "old" town-planning regulations (this provision is valid until July 1, 2019).
Design documentation that has already received a favorable expert review does not need to be updated until March 1, 2019.
Among other things, the section relating to building height was changed. Building height is calculated at the highest point of the building considering any dominant features or accents. The rules for calculating average height and the amount of greenery are also changing.
There are local changes related to road construction, green areas, etc., for all districts of St. Petersburg.
St. Petersburg Property Relations Committee Order No. 61-r of May 24, 2018 On Amendments to City Property Management Committee Orders No. 1503-r of September 30, 1999; No. 73-r of June 4, 2012 and No. 74-r of June 4, 2012
The Order shortens the period for the Property Relations Committee (KIO) to approve statements of transfer and acceptance for a facility when utility infrastructure facilities are transferred to specialized operating entities. Now that time is 30 calendar days as opposed to the previous 45 days from the relevant request.
It has been established that when facilities are donated it is not necessary to specify the specialized operating entity if utility infrastructure that was constructed/reconstructed in accordance with technical conditions issued by the utility grid owner is transferred to the state ownership of St. Petersburg, provided the owner of the utility infrastructure facility being transferred has a certificate of connection of the immovable property to the relevant owner's utility grid. In that case the owner of the utility infrastructure facility contacts the utility grid owner that issued the certificate of connection directly to obtain the statement of transfer and acceptance.
Then the Committee for Energy and Engineering Support (KEIO) reviews the documents and decides whether to approve transfer of the utility infrastructure facility to the city within seven (7) business days.
The Order also clarifies the procedure for transferring utility infrastructure facilities to city ownership.
St. Petersburg Property Relations Committee Order No. 58-r On Approval of the Administrative Regulation of the St. Petersburg Property Relations Committee on Providing the Government Service to Issue a Permit to Create an Artificial Land Plot if an Artificial Land Plot is Created on a Federally Owned Body of Water Located within the Constituent Entity of the Russian Federation Federal City of St. Petersburg, Other than the Cases Provided in Clauses 1 and 2 of Part 2 of Article 5 of the Federal Law On Artificial Land Plots of May 17, 2018
A procedure for providing the government service to issue a permit to create an artificial land plot on a federally owned body of water entered into force on May 17, 2018. There was previously no such procedure.
The service is provided by the Property of St. Petersburg State Public Institution.
Leningrad Region Government Resolution No. 145 On Approval of the Procedure for Granting Government Investment Incentives in Leningrad Region and Repealing All or Part of Certain Leningrad Region Government Resolutions of April 23, 2018
The procedure for concluding, amending and/or terminating agreements to provide government investment incentives has been regulated since April 28, 2018. Corporate property tax and corporate profit tax incentives are provided under such agreements, as well as information and advising support.
In order to conclude an agreement, one must submit an application to the Leningrad Region Economic Development and Investment Committee with attachments, including a business plan. The documents are reviewed within 35 business days and, based on the review, a decision is made to either draft an agreement or to refuse to enter into an agreement.
The Leningrad Region Governor signs the agreement.
Leningrad Region Government Resolution No. 158 On Amendments to Leningrad Region Government Resolution No. 211 dated June 13, 2017 On Specifying the Cases in Which Documents for Leningrad Region Executive Authorities and Local Government Authorities of Leningrad Region Municipalities to Issue Construction and Commissioning Permits are Submitted in Electronic Form Only of May 21, 2018
Now, as of May 28, 2018, Leningrad Region executive authorities will issue construction permits for facilities whose design documentation is subject to expert review in electronic form provided the design documentation of such facilities and/or the results of engineering surveys done to prepare it and other documents needed to conduct expert review were submitted electronically.
Ruling No. 27 of the Plenum of the Russian Federation Supreme Court On Challenging Major and Interested-Party Transactions of June 26, 2018
This ruling contains quite a few important clarifications on major and interested-party transactions.
Among other things, this judicial act contains an important clarification that says agreements stipulating an obligation to make periodic payments (e.g., rent, services, storage, agency, fiduciary management, insurance, commercial concession, licensing) for a person that is obligated to make payments thereunder are deemed as meeting the quantitative criterion for major transactions if the sum of payments for the effective term of the agreement (for an agreement concluded for an indefinite term, for one year; and if the payment amount varies under the agreement, the largest sum of payments for one year is counted) is more than 25 percent of the book value of the company's assets.
You will be able to learn more about the key corporate issues resolved in this ruling in other Dentons alerts.
Ruling of the RF Supreme Court in case No. 307-ES17-19861, А56-40013/2016, of April 17, 2018
In this case the client, general contractor and subcontractor made a tripartite agreement under which the client paid the subcontractor for work directly, bypassing the general contractor (the client was liable for a penalty for late payment for the completed work). However, the client did not pay for the work in full, so the subcontractor filed a claim with the court against the client and the general contractor, who were joint and several debtors and co-respondents in this dispute.
In the general contractor's opinion, this method of settlement without the general contractor being involved indicates that the client and subcontractor transferred debt from the general contractor to the client in paying for the work.
However, the RF Supreme Court found that absent an express reference to the general contractor being released from paying for the subcontractor's work, and the agreement having a provision that the client was liable for late payment for the subcontractor's work, the latter is entitled to recover the overdue amounts for work completed under the works contract jointly and severally from the client and the general contractor. The RF Supreme Court did, however, remand the case for rehearing to evaluate the evidence to determine the overdue amounts.
Appeal Ruling of the RF Supreme Court in case No. 78-APG18-11 of May 23, 2018
In this case the Supreme Court reversed a decision of St. Petersburg City Court and declared legal a territorial planning design and territorial site design (PPT/PMT) for a site located simultaneously within the protected park zone of Pulkovo Observatory and the combined cultural heritage protection zone within which part of a component of a UNESCO World Heritage Property is located. The RF Supreme Court also dismissed the claims to cancel the PPT/PMT.
A number of findings important for developers were made in the Appeal Ruling, in particular, it was stated that the provisions of the Convention Concerning the Protection of UNESCO World Cultural and Natural Heritage is not self-enforcing.
Dentons' lawyers who participated in the dispute will comment in more detail on this Supreme Court Ruling at an upcoming Dentons Real Estate practice event.
1. Article 26(5) of the RF Town-Planning Code.
- A fire audit of the protected asset resulting in a finding that the asset did not meet fire safety requirements
- Information about a fire having occurred at the protected asset within the past five years
- A court judgment imposing a penalty of administrative suspension of the legal entity or sole proprietor at the protected asset within the past three years
3. Our special Alert for June 2018 provides more detailed analysis of this federal law. We would be happy to send you the Alert at your request.
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