Self-regulatory organizations in the customs area
Author: Konstantin L. Kurochkin,
The head of the Law Bar Customs & Corporate Lawyers (Moscow)
1. General Provisions. Legal regulation.
For the first time in the Russian legal field, the term "self-regulatory organization" (hereinafter - SRO) as an independent legal entity of the same name was introduced by the Federal Law of 01.12.2007 № 315 (hereinafter - the Law) and has now acquired the SRO fairly widespread.
Before you touch the issue of SRO in the field of customs, it is necessary initially to give a clear and comprehensive definition, as well as talk about the features and purpose of the CPO.
Since the scope of activities that are fundamental differences from each other, often impossible to regulate unified regulatory legal act, the Act provides that the characteristics of the legal status of SRO can be set by individual acts, and some areas where allowed SRO, in general, are not covered by the Act.
Regulatory subjected to at the moment more than 10 completely different spheres of public life (construction, architecture, development works, medicine, arbitration managers, auditors, appraisers, advertising, patent attorneys and others.). Currently, there are nearly 750 SRO, 420 of which are in the construction industry.
Therefore, as a positive (ie, structural) development of socio-economic, political and, therefore, the legislative sphere we can expect a significant expansion of the areas, some of which may be given to self-regulation.
The Law on SRO regulates relations that arise in connection with:
- The acquisition and termination of the status of SRO;
- The activities of the SRO, combining the subjects of business or professional activity:
- By reacting the SROs and their members, SRO and consumers of manufactured goods (works, services), the federal executive bodies, executive bodies of subjects of the Russian Federation, bodies of local self-government.
SRO - a membership-based non-profit organization established for the purpose, which are enshrined in the general law, and in other FZ (profile), combining of business entities based on the unity of industries producing goods (works, services) or market of manufactured goods (works services) or uniting subjects of professional activity of some kind.
Separation "or" may be waived if the union in a single SRO named persons required by applicable Law.
SRO status acquired by a non-profit organization with the date of entry of information about it in the State Register of SRO. The register is kept by the authorized federal executive body, which carries out control and supervision of SROs.
To exclude the SRO from the registry provided only 3 bases (voluntary; liquidation / reorganization or by court decision).
Self-regulation in its legal sense is an independent and certainly proactive activities that may be carried out by business entities or professional (individuals) activities by combining them into SRO.
Ie subject to regulation SRO - it's actually the whole entrepreneurial / professional activities of persons to be taken by developed and approved in the most SRO standards and regulations, as well as independent monitoring of compliance with standards and regulations and disciplinary sanctions in case of violations.
SROs are required to organize this activity in such a way as to ensure information transparency of its members, which affect the rights and legitimate interests of any individual SROs.
At the same standards and regulations may be more advanced in comparison with the federal legislation (other regulations), but should not contradict him.
The law imposes special requirements to the standards and rules of SRO - they should establish a ban on its members activity to the detriment of other subjects of business or professional activities, as well as the need to establish requirements that prevent unfair competition, the commission of acts that cause mental harm or harm to consumers of goods (works and services) and other persons, actions detrimental to the business reputation of a member of the SRO or business reputation of the SRO.
Of the requirements that apply to the peculiarities of the legal form of the SRO (other than those imposed by federal law to the SRO as a non-profit organization), can be identified:
* If the other in respect of the SRO Law does not specify otherwise, the CPO as its members should unite at least 25 business entities, or at least 100 subjects of professional activity of some kind;
* Each member of the SRO should be provided with an additional property liability to consumers of manufactured goods (works, services) and other persons.
For these purposes, the SRO established methods of providing property liability of its members - private and (or) collective insurance and compensation fund.
With regard to the compensation fund, the money from it may, subject to certain requirements placed and invest.
The above requirements are mandatory, unless otherwise or other requirements will not be installed in the appropriate Federal Law.
Control over the observance of all rules as a general rule must implement specialized body SRO. The system of disciplinary measures established by the internal documents.
What restrictions are imposed on the SRO Law:
* No right to engage in entrepreneurial activity (in the concept prescribed in Art. 2 of the Civil Code of the Russian Federation. See Appendix № 1), but may under certain conditions to participate in economic societies and partnerships, which are just commercial organizations.
* Does not have the right to establish / become a member of an economic partnership and society that would engage in entrepreneurial activity, which, in turn, is the subject of self-regulation for this SRO;
* Unless otherwise provided by the profile of the Federal Law (in this case the profile of the Federal Law may be imposed additional restrictions), may not:
- To provide its property as collateral to secure the obligations of other persons;
- Issue guarantees for other persons, except for their employees;
- Acquire shares, bonds and other securities issued by its members, except in cases where such securities are traded on stock exchanges and (or) other organizers of trading in the securities market;
- Enforce the obligations of its members pledge of property issued by them guarantees and warranties;
- Act as an intermediary (the commission, agent) for the implementation of works by members of the SRO of goods (works, services).
At the head of the SRO subject to certain significant restrictions, the objectives of which, basically, is to prevent the possibility of a conflict of interest.
A list of the sources of assets (income) is not closed, but the core of the Federal Law may be limited. SRO provides for statutory audit. The Act defines the following sources:
* Regular and one-off receipts from members of the SRO;
* Voluntary property contributions and donations;
* Proceeds from the provision of services to provide information, the disclosure of which may be carried out on a fee basis;
* Proceeds from the provision of educational services related to business activities, commercial or professional interests of members of the SRO;
* Proceeds from the sale of information materials related to business activities, commercial or professional interests of members of the SRO;
* Income received from the placement of funds in bank deposits.
How is the interaction between the SRO and authorized federal executive bodies:
* The authorized federal executive authority directs the SRO information on the results of inspections of business or professional activity of members of the SRO, except for information on the results of inspections, during which the act was not made.
* The authorized federal executive body attracts SRO to participate in the discussion of draft normative acts of the Russian Federation (at all levels, with the exception of local government), as well as government programs on issues that may be related to the subject of self-regulation.
* The authorized federal executive body shall not:
- Require the SRO and its members information, representation is provided by the Federal Law;
- To make decisions that require SRO to perform actions that violate the laws of the Russian Federation, or refrain from taking legal actions that are required in accordance with the standards and regulations of the SRO;
- To demand change or cancel decisions taken by the authorities or SROs require decision-making bodies of the SRO against the member (s) SRO or herself.
* The authorized federal executive authority may apply to the court to exclude information about non-profit organizations from the state register of SROs.
* SRO is required to be sent to the authorized federal executive body:
- Standards and rules SRO, the conditions of membership in it in accordance with the subject of self-regulation and changes made to them within 7 working days after you make them permanent collegial body control SROs;
- Information on planned and conducted inspections of SROs and its members on the results of these checks.
SRO has the right (not an exhaustive list):
* To form associations (unions) on a territorial, sectoral, cross-sectoral or other grounds and, accordingly, to participate in them;
* To be members of chambers of commerce, as well as members of other non-profit organizations in the prescribed manner;
* If the SRO considers that the actions / decisions of the authorities violate or threaten a violation of rights and legitimate interests of the SRO and / or its members, it is on their behalf may apply to the court;
* Participate in the discussion of draft regulations and government programs;
* Send to the authorities of the federal executive bodies, executive bodies of subjects of the Russian Federation, local government conclusions on the results of this independent examinations of draft regulations;
* Make proposals to the federal executive bodies, executive bodies of subjects of the Russian Federation, local authorities on the formulation and implementation of public policy and local authorities in respect of the subject of self-regulation;
* Request and receive from the federal executive bodies, executive bodies of subjects of the Russian Federation, local authorities the information necessary to carry out its mandated SRO FZ functions.
* Routine check SRO members may be carried out in respect of not more than 10% of the total number of members of the SRO and not less than 2 in accordance with the annual plan of scheduled inspections, unless otherwise provided by Law.
* Are the coordination of economic activity, which is prohibited by the antimonopoly legislation, the actions of the SRO to establish the conditions for its members access to the commodity market or exit from the commodity market.
Summary of findings:
SRO - a fairly new form of organization in the Russian Federation, therefore, based on the above norms of the law, we can say that in a perfect representation of the meaning of the creation of SROs is that the state creates favorable conditions, reduces the scope under its exclusive jurisdiction, SRO is taking on responsibility for each of his party, which, in turn, will have to work on common standards and rules.
In addition, these standards and regulations are transparent to the regulatory authorities that everything else will be able to see the results of the internal verification activities participants SRO.
Usually incentive to self-regulation are: excessive pressure on the industry by the government or consumers (external threat) and unfair, bad competition (internal threat).
The goal of a SRO can be very different. Conventionally, depending on subjects participating in creation of SRO can be divided into 3 groups.
1. Objectives Participants SRO. Participants SRO when it was created, as a rule, tend to create or improve standards of professional activities carried out;
* Access to sources of information and the latest activities of competitors, free legal services, including protection of their shared collective interests in relations with the authorities of the SRO.
* The ability to review periodically dispute between them and conflicts, which may be available to them in order to create at SRO arbitration court, and in particular the body authorized to conduct disciplinary proceedings.
* Getting rid of excessive administration by the regulatory bodies and others.
2. The public interest. When you create a SRO is always present state interest, the objectives pursued as the state as a whole, regulating the economy and executive authorities, directly regulates the activities of participants in future SRO:
* Ability to assign to the SRO of the daily routine, technical functions performed by a public authority at the expense of the state budget and the extreme overvoltage own, as a rule, limited human resources, for example, in the form of audits of the members of the organization, collection and verification of public accountability on the ongoing activities of the participants organization, handling of complaints against members of SRO entering the public authorities of their customers as part of the disciplinary proceedings and others.
3. Of course, along with the above objectives, targets may be present, bearing the more private nature (eg goals of persons chairing the governing bodies of SRO): As a rule, these goals are associated with intentions to achieve greater political weight in relations with public authorities: the construction of a career; uncontrolled access to the management of the funds that make up the budget of the SRO; the opportunity to carry out administrative functions in respect of members of SROs, including by way of decision-making, based on the results of inspections of their activities, approval or cancellation of decisions taken by the competent disciplinary bodies within the SRO disciplinary proceedings.
However, as the purpose of the reference (the report) was not intended to be subjected to 100% of critics Institute SRO. At the same time, of course, some downsides SRO related, including their legal status, covered in the help.
Through the activities of the SRO can be achieved real benefits for society and the state (in theory):
* Total liberalization of the economy;
* Reduced public spending on the regulation and control in their respective fields;
* Increasing the efficiency of public administration, as subjects of regulation are only a few (several SROs), and not a lot of business entities;
* De-bureaucratization (and as a consequence, reduce the situations that provoke bribery) by eliminating the need for direct interaction between businessmen and officials on daily activities;
* Legal rights enshrined SROs to participate fully in the legislative process;
* Provide information openness SRO for customers and consumers;
* Improving the quality of manufactured goods (services, works);
* The establishment and operational maintenance of order in the relevant field at the expense of disciplinary action by the SRO to its members - violators of rules and (or) the rights of consumers;
* Standards and Regulations SRO can play an active regulatory role in the sequencing of business relations: they do not just regulate the internal activities of the SRO, but also establish rules of conduct of business entities in the market, often even more stringent than those laid down in the law and at the same time, they are directly affect the interests of consumers, as subjects of business or professional activities must be guided by their content in the implementation of regulated activities;
* Complication access to the relevant market "one-day firms", in other words, the "natural selection" and others.
The disadvantages of the system of self-regulation include:
* An increase in financial, time and other costs of enterprises and individuals (in particular), which may in the negative developments lead to an increase in the cost of services / works / goods;
* The emergence of new legal risks (disputes with the CPO, the risk of losing the status of SROs, etc.) and financial risks (minimum of them, for example, contributions and other investments will not be returned when leaving the SROs)
* Significant complication of access to certain markets to small and medium-sized businesses for several reasons, one of which is the fact that small businesses do not have the required number of qualified staff, it is difficult to provide re-training of specialists and a decent wage.
* Increase the burden on the judicial system of the country by increasing the disputes relating to the activities of the SRO.
However, the negative aspects listed in the majority have a temporary effect (including the effect associated with adapting to the changing economic and political conditions), and given that in any case will take steps towards improving the situation, then, summing up, we can say that the "pros" SROs clearly outweigh the "cons", and in the foreseeable future self-regulatory institutions will only grow and develop.
It is clear that sooner or later Russia should come to the normal requirements of the free market.
2. SRO in customs law. Topical issues.
Indeed, the emergence of a separate draft law on SROs in the field of customs, may be indirect evidence that the desire for translation services in the field of customs to the path of self-regulation is a reflection of the general opinions and desires.
Perhaps one of the arguments of creating SROs in the customs sphere is the fact that the level of public-private partnership is currently very low; the participant FEA created a negative image (presumption of bad faith, guilt); administration of the business and the relationship of all processes are often unreasonable and rigid; no transparency traders and etc.
Overall this is a very progressive step, consistent with international practice (self-regulation is very developed in the USA and some countries of the European Union), in fact, US law is the "source" of the Russian law.
However, it should be understood that, firstly, self-regulation involves the transfer (cardinal or gradually, depending on the algorithm) SRO functions of state regulation, and secondly, self-regulation implies that the activities of legal entities and individuals, though governed by standards and regulations, but assumes free "creative" development and action in a particular area.
In the field of customs - the state regulation for the most part related to the fiscal function, the function of monitoring the movement of objects across the border and other functions and activities of the participants of customs legal relations connected with strict observance of peremptory norms of law.
In addition, customs regulation in the Russian Federation is now carried out on a different, cross-country level, ie it is impossible to significantly liberalize that adjusted simultaneously in the three countries, only in one country.
Therefore, at the moment of the customs legislation of the Russian Federation (CU), it seems premature to talk about the reality the need for the law, the effect of the application of which is quite uncertain.
In this case, the existing legislation already provides for various forms of participation of non-profit organizations (and not only profit) at the national level - Art. 53 of the Federal Law "On Customs Regulation in the Russian Federation" dated 27.11.2010 № 311-FZ (see. Annex number 1), and the supranational - through the Commission of the Customs Union by sending requests stakeholders in expert and working committees created for the development of a other document or direct participation in the public debate.
In order to talk about the reality of the implementation of the Institute of SRO in the field of customs regulation, it is necessary to begin to use existing legal resources from other forms of business combinations and thus to consider all possible scenarios, to establish the real aims of the public authority and the desire of participants customs relations, etc.