New law: organizations that have voluntarily withdrawn from the SRO cannot join any SRO of Russia for one year. The injustice of the law persists
As part of a detailed review of the innovations of the amendments to the Town Planning Code adopted in the second reading, Petr Kotenkov, an expert of the Public Council for the Development of Self-Regulation, studied one of the injustices of the new law - a ban on joining a new SRO after the organization voluntarily left the old one.
"Article 55.7 of the Town Planning Code of the Russian Federation in new edition in part 6 indicates that “in the event of a voluntary termination by an individual entrepreneur or legal entity of membership in self-regulatory organization such a person cannot be re-accepted as a member of a self-regulatory organization within one year.
As a matter of discussion, the professional community repeatedly drew the attention of the Ministry of Construction to the fact that there is obvious dampness in the documents, a misunderstanding. Organizations that voluntarily terminate their membership in SROs are effectively deprived of their business rights. But this is very important for many SRO members, because they depend on the availability of contracts. Most often this applies to organizations that carry out construction and repair.
Membership in a self-regulatory organization is not required for current repairs. However, if among the list of orders such organizations have at least one of the types associated with capital construction, overhaul, reconstruction, then membership is required here. So, for example, if it is made Maintenance in a building that does not affect load-bearing structures, then it is carried out without the need to join the SRO. However, if during the repair it is necessary to modify at least one main wall, then it is already required.
Obviously, based on annual orders, construction and repair organizations have a rough idea of whether they need membership in a self-regulatory organization or not. Of course, they could withdraw from the SRO, and, if necessary, rejoin it. However, now the law will deny them such a right.
It is nonsense and obvious injustice that if an organization was expelled from the SRO for one or another violation, then under the new law it is not deprived of the right to rejoin the same or another self-regulatory organization.
This creates a paradoxical situation: voluntarily withdrawn, but conscientious organizations are deprived of the right to conduct part of the business, and unscrupulous and excluded from the members of the SRO, for example, for damage or poor quality of work, can be members of the SRO an unlimited number of times without any time limits.
The Public Council is sure that such norms of the law are unlikely to contribute to the achievement of SROs of their main goal - improving the quality of work and safety, and preventing harm.
Expert of the Public Council Petr Kotenkov
When a participant, for certain reasons, is not satisfied with the conditions of membership in a self-regulatory organization, he can write an application for voluntary withdrawal from the SRO. Since membership in the association is not mandatory and is issued solely for the needs of the organization, there will be no obstacles to this.
Any company that is part of an SRO needs to weigh the implications of leaving. Only members of a self-regulatory organization may be allowed to perform certain work. Without this document, many activities and lucrative contracts will be unavailable.
Reasons for leaving
An application for voluntary withdrawal from the SRO can be submitted for a variety of reasons. Among the most common companies note:
- the amount of annual membership fees;
- change in the direction of the company;
- high requirements of a self-regulatory association;
- lack of information, legal and other support;
- unsatisfactory work of SRO.
For many organizations, membership in the SRO is only necessary to fulfill a one-time contract, when it is planned to implement a type of work that requires a permit, or become a tenderer. After the completion of the order, such companies do not need further cooperation. The reason for deleting an organization from the register of SROs may be its liquidation. In this case, the company automatically ceases to be a member of the partnership and loses all fees paid.
Order and rules
The legislation establishes a certain procedure for the withdrawal from the SRO of its members. Any organization must prepare a specific package of documents, which includes:
- withdrawal statement;
- official document on membership of the SRO;
- documents confirming the payment of mandatory contributions.
All prepared papers are transferred to the leaders of the self-regulatory organization, and the participant loses membership from the moment the application for withdrawal is submitted. From that time on, he bears property liability for the merger only with previously paid contributions to the KF BB and KF ODO.
In the absence of errors in registration, permission to exit is issued on the day of submission. After signing the application, the self-regulator is given three days to notify the supervisory authorities - Rostekhnadzor and Rosreestr, as well as NOSTROY or NOPRIZ, depending on the type of SRO, of the withdrawal of one of its members.
Exclusion from SRO
Organizations can not only leave the partnership on their own, but also have grounds for exclusion from the SRO. In such a situation, leaving the join is forced. The decision on it is made by the leadership of the partnership.
Grounds for exclusion
The grounds for exclusion from the SRO must be compelling. They are strictly stipulated within the framework of the legislation, Part 2, Art. 55.7 of the Civil Code of the Russian Federation and include:
- failure to comply two or more times during the year with the instructions of the state construction supervision bodies when performing construction and reconstruction work;
- reasons stipulated by the internal regulations of the SRO.
Illegal exclusion from SRO
There are cases when there are no reasons for exclusion from the SRO of a company, and it receives a message about the termination of its membership. Illegal exceptions do occur, but such situations can be dealt with. If the firm was excluded from the partnership in violation of the Civil Code, then it has the right to apply to court of Arbitration with a claim. On the basis of a court decision, her membership in a self-regulatory organization must be restored.
Exclusion order
Termination of membership and exclusion from the SRO must take place strictly within the framework of the regulations. It is spelled out in article 55.7 of the Civil Code of the Russian Federation and involves the following procedure:
- Holding a general meeting of partnership participants.
- Consideration of case documents.
- Adoption of a decision on exclusion by the collegiate governing body.
- Sending a notice to the firm to be excluded.
- Informing regulatory authorities.
It is very important to observe the order, because if it is violated, former member The SRO can go to court and demand its reinstatement.
Return of contributions
Companies that have been affected by exclusion from the SRO or that have voluntarily renounced membership should understand that it will be almost impossible to return the fees paid. This applies to both payments to the compensation fund and the payment of annual membership fees.
Contributions to the association's fund can be received only if the type of activity of the organization needs more approval from the SRO (regulated by Federal Law No. 240).
Until July 2017, it was possible for construction companies to return payments or transfer them to a new partnership fund.
Consequences of withdrawal or exclusion from the SRO
The withdrawal from the SRO, as well as the exclusion procedure, has its consequences for organizations. Part of the work, admissions for which are issued only by self-regulatory partnerships, will become inaccessible to them. Also, former members of associations will have to face certain problems:
- loss of invested funds (according to the law, contributions are returned in rare cases);
- inability to participate in tenders and competitions for large contracts;
- decrease in loyalty on the part of partners and customers;
- lack of legal and informational support;
- full and independent property responsibility.
Organizations left without partnership support are only responsible for themselves. This has its advantages, since the subsidiary liability of SRO members can negatively affect the budget of many companies. It is important to bear in mind that an organization that again wants to become a member of the SRO will be able to do this only a year after leaving. This imposes serious restrictions on its activities and obtaining new contracts.
Article 55.7. Termination of membership in a self-regulatory organization
1. Membership of an individual entrepreneur or legal entity in a self-regulatory organization shall be terminated on the grounds and in the cases specified in the Federal Law "On Self-Regulatory Organizations", including in the event that one self-regulatory organization joins another self-regulatory organization. The self-regulatory organization has the right to establish additional grounds for exclusion from the members of the self-regulatory organization by internal documents of the self-regulatory organization.
2. The self-regulatory organization has the right to decide on the exclusion from the members of the self-regulatory organization of an individual entrepreneur or legal entity also:
1) in case of failure to comply two or more times within one year with the instructions of state construction supervision bodies during construction, reconstruction of capital construction projects;
2) in other cases established by the internal documents of the self-regulatory organization.
3. Membership in a self-regulatory organization shall be considered terminated from the date of entry of the relevant information into the register of members of the self-regulatory organization.
4. Not later than three working days from the day following the day when the permanent collegial governing body of the self-regulatory organization makes a decision to expel an individual entrepreneur or legal entity from the members of the self-regulatory organization, the self-regulatory organization notifies the writing about it:
1) a person whose membership in a self-regulatory organization has been terminated;
2) National association of self-regulatory organizations, of which such a self-regulatory organization is a member.
5. A person who has terminated membership in a self-regulatory organization shall not be refunded the paid entrance fee, membership fees and contribution (contributions) to the compensation fund (compensation funds) of the self-regulatory organization, unless otherwise provided by the Federal Law on the Enactment of this Code.
6. In the event that an individual entrepreneur or legal entity terminates membership in a self-regulatory organization, such an individual entrepreneur or such legal entity cannot be re-accepted as members of a self-regulatory organization within one year.
7. The decision of a self-regulatory organization to expel members of a self-regulatory organization, the list of grounds for expulsion from members of a self-regulatory organization, established by the internal documents of a self-regulatory organization, may be appealed to an arbitration court, as well as to an arbitration court formed by the relevant National Association of Self-Regulatory Organizations.
Six years of running the institute of self-regulatory organizations as a new mechanism for managing the construction market have shown it weak sides and led to new changes to the Town Planning Code of the Russian Federation, which were regulated and put into effect federal laws No. 372-FZ and 191-FZ. SROs are formed today on the principles of voluntariness by combining into an organization on a professional basis legal entities and individual entrepreneurs registered in the same region as a non-profit partnership. Each business entity, which is a member of a professional association, must know what to do if it is expelled from the SRO.
EXCLUDED FROM SRO WITHOUT NOTICE
Today, the most painful issue that is on the agenda for construction companies and individual entrepreneurs those who did not have time to submit a notification to their organization before December 1, 2016, as required by the laws already mentioned - this is the threat of exclusion hanging over them. Such a measure is provided for such a violation. But a company that has been expelled from the SRO automatically loses the right to engage in professional activities under the threat of criminal prosecution.
If you do not plan to continue to carry out work that requires membership in a non-profit partnership (such an opportunity is provided for in the amended version of the Town Planning Code), then worry about this case about nothing. On the contrary, after July 1, 2021, it will be possible to apply for the return of the money you invested in the compensation fund. But those who plan to continue to conduct activities that require permits will have to look for an opportunity to recover in the organization.
Despite the fact that laws 372-FZ and 191-FZ provide for the exclusion of members from SROs without timely notification of their intentions to the organization, there is no such requirement in the amended version of the Town Planning Code. In Article 55.7, among the reasons for which an individual entrepreneur or company may be deprived of membership in a non-profit partnership, are:
- violations technical regulations allowed by a member of the organization and caused harm;
- repeated non-compliance by a member of the SRO throughout the year with the standards and rules of control of the organization, technical regulations and requirements necessary for issuing certificates;
- repeated admission of facts of non-payment or late payment of membership fees during the year;
- non-payment of the contribution to the compfund in due time;
- the absence of a member of the self-regulatory organization of access to at least one type of work performed by him, affecting safety;
- holding an individual entrepreneur or legal entity liable for violation of migration laws repeatedly during the year.
This list is exhaustive and the law does not provide for an exception for other reasons. At the same time, it is possible to exclude a business entity from the SRO only on general meeting organizations, and even more so without his notice. After all, exclusion implies the termination of the certificates that the excluded member of the community is obliged to return. And if this happened, the decision of the SRO can be challenged in the arbitration court.
RECOVERY IN SRO
If the exclusion from the SRO was carried out in violation of the requirements of the Civil Code and the company (IP) does not agree with the decision of its organization, it has the right to apply to the arbitration court with a claim to restore its membership.
Unfortunately, today, when the transition to new conditions for the functioning of non-profit partnerships is underway, the most unscrupulous of them are trying to find any reason to exclude those of their members who have notified of their desire to terminate their membership in the organization. Indeed, upon exclusion from the SRO, the contribution of companies to the compensation fund is not returned, and upon transfer to the regional community or termination of membership due to new requirements of the law, it must be transferred to the account of another SRO or returned within the prescribed time frame.
The company "SRO-Expertiza" offers its assistance to excluded members of the SRO, if they need:
- find a new non-profit partnership;
- recover in the SRO;
- transfer the contribution to the compfund to the account of the new organization;
- ensure the return of the contribution to the compfund if the company no longer needs membership in the SRO according to the new requirements of the Town Planning Code.
If you have been expelled from the SRO, please contact our company and we will advise you on how to proceed in your particular situation, or for an affordable fee we will take care of all issues related to the restoration to the SRO or joining a new organization.
How to act if your SRO is excluded from the state register of Rostekhnadzor
The town planning code says that if the SRO of builders is excluded for one reason or another from the register of Rostekhnadzor, all funds in the compensation fund of such SRO are transferred to the settlement account of NOSTROY (national association of builders). If we are talking about a self-regulatory organization of designers or surveyors, in this case the funds of the fund are transferred to a special account NOPRIZ.
After that, you, as a member of an SRO excluded from the register, have the right to apply to NOSTROY (NOPRIZ) for the return of these funds. In this case, you need to proceed as follows (step by step):
- join a new SRO present in the register;
- pay all contributions, including to the compensation fund;
- apply for a refund;
- after that, the relevant national association transfers funds to the account of the new SRO;
- the new SRO returns the funds to your account.
This sequence is important to avoid fraudulent compensation fund funds. The return procedure takes no more than two days from the date of application.
What happens as a result of deregistration
An SRO that has been expelled cannot continue its legal activities, accept members, issue permits, etc. Accordingly, the work of a member of such an SRO can be paralyzed.
The grounds for depriving a self-regulatory organization of the right to issue permits for activities in the construction sector are provided for in Article 55.2, part 5 of the Civil Code of the Russian Federation.
If the SRO is excluded from the register, all permits previously issued by the non-profit partnership become invalid.
In the case of continuing activities on the evidence of an excluded self-regulatory organization, companies must bear criminal liability in accordance with Art. 171 of the Criminal Code of the Russian Federation.
Reasons and procedure for exclusion
The exclusion of a self-regulatory organization from the register may occur for one of the following reasons:
From July 1, 2017, amendments are made to the Civil Code of the Russian Federation in accordance with Federal Law No. 372 of 07/03/2016. Clause 5, which provides for exclusion from the register for non-payment of contributions to the National Association of Self-Regulatory Organizations, is recognized as having lost its effect.
Consequences for companies
After violations are revealed, the decision to exclude a non-profit partnership is made out of court.
If the SRO is removed from the register, the consequences for the participating companies are the inability to continue professional activity and the loss of funds contributed to the compensation fund of a non-profit partnership.
Legal entities risk loss of contract, denial of VAT refunds and complete cessation of activities.
What should members of the excluded SRO do to avoid downtime and resume work within the law? Companies must choose a new non-profit partnership and enter into it within 30 days after the deletion of the old SRO from the register. Another option is to challenge the decision of Rostekhnadzor in the Arbitration Court.
The question of the return of funds to the CF remains controversial. According to the GRK of the Russian Federation, the funds of the affected companies must be preserved.
In accordance with the developed algorithm, money from the compensation fund of the excluded self-regulatory organization goes to NOSTROY, and then, upon application legal entities funds are transferred to the account of the new organization.
In the application for the transfer of the CF, a member of the SRO indicates the name of the SRO excluded from the state register, the name of the new association, its number in single register and bank details.
Copies of the decision of the Council of the new association on the acceptance of the company and the issuance of a permit to carry out activities in the field of construction, reconstruction and overhaul of buildings and structures must be attached to the completed application.
However, in practice, liquidated non-profit partnerships refuse to transfer money to voluntary. Funds are often collected only by court order, which delays the process. Therefore, within the prescribed month, the victim construction company cannot return the KF and is forced to re-pay the contribution to the SRO.
Choosing a New Organization
What to do if the SRO was excluded from the register, who will compensate for the loss of companies as a result of the liquidation of a non-profit partnership, and how to protect yourself in the future are the main questions that interest the participants of the association that fell under the sanctions.
SROs compensate only for the damage of the customer, which arose as a result of improper performance of contractual obligations by the member of the association. Payment of funds from the fund to ensure liability not provided.
Consequently, a self-regulatory organization will not be able to protect its members, so companies should be careful in choosing an SRO to join.
If a non-profit partnership is included in the risk group, the possibility of moving to another association should be foreseen in advance.
Construction companies should conduct a quality check of the self-regulatory organization before contributing funds to the compensation fund in order to exclude financial losses in the future.
What to do if your SRO was excluded from the state register?
Currently, in practice, cases have become more frequent when SROs are excluded from the state register. At the time of writing this article, NOSTROY (National Association of Builders) excluded more than 50 construction SROs from the state register, NOPRIZ (National Association of Designers) excluded 26 design and survey SROs from the state register.
What is the exclusion of an SRO from the state register? This is the deprivation of the SRO of a special status, the procedure is similar to the revocation of a license from a bank.
Entering information about a construction (design) organization into the register of SRO members is a legally significant action, and from the date of inclusion in the register of SROs, the organization has the right to carry out construction (design).
Upon deprivation of the SRO status, the rights issued to such SRO to carry out construction (design) also cease to be valid. That is, from the date of exclusion of the SRO from the state register (not to be confused with the liquidation of the organization and the exclusion of information from the Unified State Register of Legal Entities) the rights issued by such an SRO to carry out construction (design) are automatically cancelled.
When SROs are deprived of their status, a construction (design) organization is faced with the need solving two questions:
Answer the first question not difficult: you urgently need to join a new SRO (otherwise you risk breaking the contract). For information on how to choose an SRO, see here.
Answer to the second question found its way into the law. Part 14 of Article 55.16 of the Town Planning Code of the Russian Federation says that the SRO excluded from the state register is obliged within a week (from the date of exclusion of the SRO from the register) to transfer the funds of compensation funds to the respective special accounts NOSTROY or NOPRIZ.
In turn, part 16 of article 55.16 of the Town Planning Code of the Russian Federation provides for the right of organizations (former members of SROs), if they have joined new SROs, to apply to NOSTROY (construction) or NOPRIZ (design) to transfer funds from compensation funds to the accounts of new SROs into which they entered.
Funds of compensation funds of excluded SROs credited to the accounts of NOSTROY (NOPRIZ), transferred to new SROs in the amount previously paid on the basis of the relevant statements of SRO members in accordance with the Order of the Ministry of Construction of Russia dated September 8, 2015 No. 643 / pr “On approval of the procedure for interaction National Association self-regulatory organizations and a self-regulatory organization in the event that information about the self-regulatory organization is excluded from the state register of self-regulatory organizations”.
In practice, the situation is complicated by the fact that SROs are excluded from the state register precisely because lack (insufficiency) of compensation funds.
Statutory weekly term, SRO also do not comply. Compensation funds have to be taken through the courts.
As a result of all these procedures, compensation funds are transferred to the accounts of NOSTROY and NOPRIZ in separate parts and not in full.
The website NOSTROY (construction) has a special section dedicated to information about excluded SROs. This page contains comprehensive information on the compensation funds received by NOSTROY from excluded SROs. There is also a fund transfer application form. There is a similar section on the NOPRIZ website.
The only point that I would like to draw your attention to is the mechanism in accordance with which the compensation funds are distributed. The mechanism is very simple The first person to submit an application will receive their funds in the first place..
Suppose if the SRO in which you were a member transferred 10 million rubles to the NOSTROY account, and the total amount of claims on applications is 15 million rubles, then the claims will be satisfied only for the first applications for overall volume 10 million rubles, for other applications for the amount of 5 million rubles NOSTROY will write a refusal. However, if new funds arrive within a few days, the requirements will again be satisfied in the appropriate volumes.
We believe that before sending an application to NOSTROY (NOPRIZ), it will be most correct to start clarify the availability of transferred compensation funds.
If there are funds on NOSTROY (NOPRIZ) accounts an application for the transfer of funds must be immediately sent to their address.
If information about admission Money no, then sending an application does not make sense, it is better to continue monitoring the NOSTROY (NOPRIZ) website for the receipt of funds.
For information! Some organizations, in order not to miss the receipt of funds, daily send such applications to NOSTROY (NOPRIZ), thereby significantly increasing their chances of transferring funds from compensation funds.
For information! There is currently arbitrage practice, according to which former members excluded SROs collect funds from compensation funds from NOSTROY and NOPRIZ.
The courts motivate their decisions by the fact that the situation in which the SRO does not transfer funds from compensation funds is the problem of NOSTROY (NOPRIZ).
The organization cannot be guilty that the SRO does not transfer funds, and NOSTROY (NOPRIZ) did not claim them.
On the issue of drawing up an application for the transfer of compensation funds to NOSTROY (NOPRIZ), as well as on other issues related to the SRO, you can contact our lawyers.