УКАЗ ПРЕЗИДЕНТА РЕСПУБЛИКИ БЕЛАРУСЬ

(Unofficial translation)

 

Edict of the President of the Republic of Belarus

No 660 of December 28, 2009
[Amended as of November 30, 2017]

 On Some Issues of Creation and Activity of Holdings in the Republic of Belarus

 

With a view of determining the legal status of a holding, the procedure of its creation and the conditions of its functioning:

1. To establish that a holding is an amalgamation of legal persons (participants of the holding) in which:

1.1. one of the legal person – commercial organization is the managing company in virtue of a possibility to influence the decisions made by other legal persons – participants of the holding (affiliated companies of the holding) on the basis of:

possession of 25% and more of ordinary shares (stakes in statutory funds) of affiliated companies of the holding;

management of activities of affiliated companies of the holding – unitary enterprises, established by the managing company or in relation to which the managing company acquired the status of the founder on other grounds provided by the legislative acts, a also institutions created by the managing company of the holding;

a contract of trust management of 25 percent and more of ordinary (common) shares (stakes in statutory funds) of affiliated companies of the holding (hereinafter – contract of trust management);

another contract in accordance with which the managing company acquires rights to management of activities of affiliated companies of the holding (hereinafter – another contract);

1.2. a natural person – owner of the property of unitary enterprises, ordinary (common) shares (stakes in statutory funds) of commercial companies in amounts determined in indent 2 of sub-clause 1.1 of this clause (hereinafter - the owner) carries out the management (takes part in management) of those commercial organizations without creation of the managing company.  In this event all participants of the holding are deemed to be its affiliated companies.  Such holdings are regulated by provisions of this Edict, with the exception of provisions of clauses 11 and 13 of this Edict.

2. The holding is not a legal person.

Legal persons registered in the states that do not have international agreements with the Republic of Belarus, which stipulate the exchange of information regarding taxation matters, may not be participants of a holding.

3. A holding is created according to the decision of the managing company or the owner, and a holding the managing company of which is a state unitary enterprise – according to the decision of the republic body of state administration, other state organization subordinated to the President of the Republic of Belarus, of a local executive and administrative body (hereinafter – state bodies). Creation and activity of a holding the managing company of which is a state unitary enterprise or economic company with a stake of the state in the statutory fund of 50 and more percent (hereinafter – holding with participation of the state) are carried out with regard to specific features established by clause 41, indents three, five of part one, indent three of part eleven of clause 5 and clause 121 of this Edict. A holding is deemed to be created and acquires the status of a holding from the date of its registration carried out by the Ministry of Economy that maintains the State Registry of Holdings.

The creation and the activity in the territory of the Republic of Belarus of holdings which aim at or result in the monopolization of the production and/or realization of goods (works, services), prevention, restriction or elimination of competition, infringement on legal interests of customers are prohibited; and also if the creation and the activity of holdings contradict the acts of legislation, cause damage to the sovereignty, national security, territorial integrity, political and economic stability of the Republic of Belarus and violate the rights and freedoms of its citizens.

4. Prior to the submission of documents for registration of a holding by the managing company (by the owner or a representative authorized by the latter), approval of the anti-monopoly body on its creation in the instances provided by the Law of the Republic of Belarus of December 12, 2013 "On Counteraction to Monopolistic Activities and Promotion of Competition” must be obtained.

41. State bodies, managing companies of holdings with participation of the state shall ensure the development of the organization and feasibility study for the creation of the holding. Financing of the development of this organization and feasibility study may be performed at the expense of means of the mentioned state bodies or managing companies of such holdings and of other sources in accordance with the legislation of the Republic of Belarus.

The organization and feasibility study of the creation of a holding with participation of the state must include:

objectives and tasks of its creation;

data on its participants on the basis of an analysis of their organization and managerial, productive, financial, and human resources potential with substantiation of reasonability of inclusion of each of them into the number of participants of the holding with participation of the state;

project of organizational structure of management, including substantiation of the choice for the managing company;

prognosis of performance ratio of activity, including of investment potential for a possibility to take part in international integration.

The organization and feasibility study for the creation of the holding with participation of the state shall also include other data the availability of which is due to specific features of each holding with participation of the state being created.

The indicated organization and feasibility study is approved by state bodies to which (by which) managing companies of holdings with participation of the state are subordinated (supervised) (make part of which) or in the management of which are shares (stakes in the statutory fund) of the managing companies of such holdings – economic companies, with subsequent obtaining the assent of the Ministry of Economy prior to the beginning of preparation of the draft of normative legal act that establishes the bases for creation of the holding with participation of the state, and in the case when the preparation of such normative legal act is not needed – prior to submission to the Ministry of Economy of documents for obtainment, under the established procedure, of the consent of the antimonopoly body for creation of this holding.

5. For the registration of a holding the managing company (the owner or a representative authorized by the latter) shall submit to the Ministry of Economy the following documents:

application for registration of the holding;

decision about the creation of the holding taken by the managing company under the procedure established by its statute (constituent contract), the owner, the state body (for holdings with participation of the state);

copies of the documents confirming the state registration of legal persons – participants of the holding, certified by theirs heads, and for participants being non-residents of the Republic of Belarus, a legalized extract from the trade register of the establishment country, dated not later than one year before the submission of the application for registration of the holding or other equivalent evidence of the legal status of the foreign organization in accordance with the legislation of the establishment country with translation into Belarusian or Russian (the signature of the translator shall be certified by the notary), confirming the state registration of that foreign organization;

organization and feasibility study (for holdings with participation of the state);

The application for registration of the holding is to be drawn up according to the form established by the Ministry of Economy.  It shall contain the list of affiliated companies of the holding, grounds confirming the legality of inclusion of legal persons in the holding as its affiliated companies, and also other data stipulated by the form of such application established by the Ministry of Economy.

When submitting such an application, the citizens shall present identity documents and also documents confirming their powers if they represent the interests of a legal or natural person.

The application is to be signed by the head of the managing company (by the owner or a representative authorized by the latter) or by another person authorized in accordance with the statute of the managing company of the holder or by a power of attorney to act on behalf of the company.

When accepting the documents submitted for registration of a holding, their completeness and the content of the application for registration of the holding are considered; if required, the persons who submit the documents shall be given explanation of the rules of their submitting and drawing up, provided by the legislation.

The registration of the holding is carried out by the Ministry of Economy on the day of submission of the documents via putting a stamp on the application for registration of the holding and entering the data about the holding into the State Registry of Holdings.

Not later than within two working days following the day of registration of the holding, the Ministry of Economy issues the holding registration certificate with indication of the list of participants of the holding according to the form established by the Ministry.

The holding registration certificate with the list of participants of the holding is issued for an indefinite period, unless the application for registration of the holding indicates another period as provided by the decision about its creation.

The holding is deemed to be registered from the day of putting the stamp on the application for registration of the holding and entering the data about the holding into the State Registry of Holdings.

The state duty for registration of the holding is not collected.

A holding is deemed to have ceased its activity in the events of:

expiry of the period for which the holding has been created, stipulated by the decision about the creation of the holding and indicated in the application for its registration;

adoption of a decision by the managing company (owner, state body (for holdings with participation of the state)) about the cessation of activity of the holding;

termination (loss) of grounds for the creation of the holding, specified in clause 1 of this Edict;

detection of circumstances mentioned in part 2 of clause 3 of this Edict.

In the events defined in indents 3 and 4 of part 11 of this clause, the holding company (the owner or a representative authorized by the latter) is obliged, not later than within three working days from the day of adoption of the decision about the cessation of activity of the holding or termination (loss) of grounds for the creation of the holding to notify the Ministry of Economy about that and hand in the holding registration certificate.

The Ministry of Economy shall exclude the holding from the State Registry of Holdings from the day of arising of circumstances indicated in indents 2 –4 of part 11 of this clause, and also of detection of circumstances mentioned in part 2 of clause 3 of this Edict.

  6. In the instance if after the registration of a holding, its managing company takes the decision on changing its name with inclusion therein of the words "managing company of the holding", the managing company of the holding is obliged, within a one-month period from the day of state registration or respective changes and/or additions into the statute (constituent document), to apply to the Ministry of Economy with the application about introduction of changes and additions in the list of participants of the holding in connection with the changing of the name of the managing company of the holding. The application must be accompanies by a copy of the document confirming the changing of the name of the managing company, certified by the head (a person authorized by the statute (constituent contract) of the managing company of the holding.

It is not allowed to use:

words “managing company of the holding” in the name of a legal person not being the managing company of a holding;

word “holding”, derivative words from the word “holding”, likewise as expressions on the basis of this word, in the names of other legal persons.

61. The name of the holding after its registration may be changed according a decision of the managing company of this holding In the event of adoption of such a decision, the managing company of the holding shall apply to the Ministry of Economy with a respective application enclosing thereto the decision of an authorized governing body of the managing company of the holding about changing its name and the original of the holding registration certificate.  The Ministry of Economy shall, not later than within two working days following the day of submission of the application for changing the name of the holding, issue a new holding registration certificate along with annulment of the one issued earlier and introduction of respective changes in the State Registry of Holdings.

7. Inclusion of a legal person into participants of a holding as its affiliated company (exclusion of an affiliated company of the holding from its participants) is carried out on the basis of the decision taken by the managing company of the holding, taken under the procedure determined by its statute (constituent contract), or by the owner, with the exception of cases specified in part 5 of this clause. The approval of the anti-monopoly body must be obtained for inclusion of a legal person into participants of the holding.

In the event of taking the decision to include a legal person into participants of the holding as its affiliated company and obtaining the approval of anti-monopoly body (taking the decision to exclude an affiliated company of the holding from the participants), the managing company (the owner or a representative authorized by the latter) is obliged to apply to the Ministry of Economy with the application for introducing changes into the list of participants of the holding.  The application must be accompanied by:

the decision to include a legal person into participants of the holding as its affiliated company (to exclude the affiliated company of the holding from the participants);

the list of participants of the holding.

The copies of the document confirming the state registration of the legal person to be included into participants of the holding, certified by its head, and for non-residents of the Republic of Belarus, a legalized extract from the trade registry of the establishment country dated within not later than one year from the day of submission of the application for the registration of the holding or another equivalent evidence of the legal status of the foreign organization in accordance with the legislation of the establishment country with translation into Belarusian or Russian (the signature of the translator is to certified by a notary), confirming the state registration of the foreign organization, shall be additionally attached to the application for inclusion of the legal person into participants of the holding as its affiliated company.

The application for inclusion of a legal person into participants of the holding as its affiliated company shall indicate the ground for legitimacy of such inclusion.

When the number (amount) of shares (stake in the statutory fund) of an affiliated company of the holding, being an economic company, which belong to the managing company (the owner) has been decreased, as a result of which the company no longer meets the requirements determined in indents 2 and 4 of sub-clause 1.1 and sub-clause 1.2 of clause 1 of this Edict, and/or loss of the status of the founder (ownership to the property) of an affiliated company of the holding being a unitary enterprise, and/or when the contract of trust management has been terminated, the managing company of the holding (the owner or a representative authorized by the latter) is obliged to apply to the Ministry of Economy, not later than within 3 working days from the day of arising of the mentioned circumstances, with the application for exclusion of that affiliated company from participants of the holding and changing the list of participants of the holding. The adoption of the decision by the managing company of the holding or the owner to exclude the affiliated company of the holding from its participants on the ground given in this part is not required. In the event of detection of the fact of failure of the managing company of the holding (the owner or a representative authorized by the latter) to apply (untimely applying) to the Ministry of Economy, the managing company, and also affiliated companies of the holding in relation to which the circumstances indicated in this part have arisen, lose the right to benefits (privileges) granted in relation to creation and/or activity of the holding from the date of arising of the said circumstances.

The Ministry of Economy shall, not later than within 2 working days following the day of submission of the documents listed in part one of clause 6 of this Edict and in parts 2, 3 and 5 of this clause, introduce changes into the list of participants of the holding via drawing up a new list and issue that list to the managing company of the holding (the owner or a person authorized by the latter).

A legal person is deemed to be included into participants of the created holding as its affiliated company (an affiliated company of the holding is deemed to be excluded from the participants) from the date of drawing up of the new list of participants of the holding by the Ministry of Economy, as stated in the list.

71. The Ministry of Economy shall refuse the registration of the holding (introduction of changes into the list of participants of the holding) in the events of:

failure to submit documents necessary for the registration of the holding (introduction of changes into the list of participants of the holding), defined in part one of clause 5 and part one of clause 6 and parts 2, 3 and 5 of clause 7 of this Edict;

drawing up of the application for the registration of the holding (introduction of changes into the list of participants of the holding) with violation of requirements of the legislation.

Refusal, in whatever form, of the registration of the holding (introduction of changes into the list of participants of the holding) on grounds not provided in part one of this clause is not allowed.

Registration (introduction of changes into the list of participants of the holding), refusal of the registration (introduction of changes into the list of participants of the holding) may be appealed in the court.

8. The managing company (the owner or a representative authorized by the latter) bears responsibility for authenticity of the data stated in the documents submitted for the registration of the holding (introduction of changes into the list of participants of the holding, change of the name of the holding).

When knowingly false data* presented to the Ministry of Economy for registration of the holding (introduction of changes into the list of participants of the holding) has been discovered, the registration of the holding (introduction of changes into the list of participants of the holding) shall be recognized invalid by the court upon an action brought by bodies of internal affairs, state security, Ministry on Taxes and Dues, Ministry of Economy and other authorized bodies.

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* For the purposes of this Edict, knowingly false data mean data (information) that do not correspond to the reality, forged documents about facts having a significant importance for the registration of the holding (introduction of changes into the list of participants of the holding).  Knowingly false data do not include slips of pen in words, omission of words, letters, digits, and other similar mistakes.

In the instance when the participants of a holding the registration of which has been recognized invalid were granted benefits (preferences) in relation with the creation and/or activity of the holding, such participants, including the managing company of the holding, lose the right to the mentioned benefits (preferences) from the date of registration of the holding. In the instance when introduction of changes into the list of participants of the holding in relation to the inclusion therein of legal persons has been recognized invalid and the newly included participants of the holding were granted benefits (preferences) in relation to their inclusion into participants of the holding and/or activity of the holding, the managing company of the holding and such participants of the holding lose the right to the mentioned benefits (preferences) from the date of introduction of changes into the list of participants of the holding.

9. An affiliated company of a holding may not hold shares (stakes in the statutory fund) of the managing company of the holding, be a pledgeholder of its shares and to carry out trust management of the shares (stakes).

10. Participants of a holding have the right to inform of their participation in the holding in any way which is not contrary to the legislation, including via using common graphical and textual symbols and collective trademark in the requisites of documents and promotional materials.

11. Activity of the managing company of a holding concerning the management of its affiliated companies is deemed to be entrepreneurial activity.

12. The managing company of a holding:

acts on behalf of the holding participants in relations connected with the creation and activity of the holding;

carries out coordinated financial, investment and production policy of the holding, including in the part of determining the procedure of holding centralized procurement, distribution of raw materials, materials and components, sale of finished products, organization of marketing, logistic, and other activity;

develops strategies and/or plans of perspective development of the holding.

The owner bears the duties provided in indents 3 and 4 of part one of this clause.

Other powers of the managing company of a holding (the owner) are determined by this Edict, other acts of legislation, the statute (constituent contract) of the managing company and statutes (constituent contracts) of affiliated companies of the holding, contracts of trust management or other contracts.

The managing company of a holding is entitled, on the conditions and under the procedure determined by the statute (constituent contract) of the managing company and statutes (constituent contracts) of affiliated companies of the holding, contracts of trust management or other contracts, and also by decisions of authorized governing bodies of participants of the holding, to form a centralized fund at the expense of deductions from the profit of participants of the holding that remains at their disposal after payment of taxes, duties (dues), other obligatory payments to the republic and local budgets, special-purpose state budget funds and non-budgetary funds

The means of the centralized fund are directed to the managing company of the holding by its participants on the conditions determined by the decisions of the authorized body of management of the managing company of the holding in accordance with the legislation for:

financing capital investments for production purposes*, carrying out by participants of the holding centralized purchases of machine and equipment, referred as such by the legislation regulating normative time limits for service of fixed assets (hereinafter – machines and equipment) with subsequent gratuitous transfer thereof to other participants of the holding and acceptance by the latter of received machines and equipment for accounting as fixed assets objects with the use thereof in production of products, performance of works, rendering of services in the course of not less than 36 months from the date of putting into operation;

  financing science and research, design and experimental, and experimental and technological works;

financing programs on energy efficiency and arrangements on introducing new energy efficient technologies and equipment;

repayment of bank credits, and also budgetary credits, budgetary loans granted at the expense of means of the republican and local budgets, received and used by participants of the holding for the purposes provided in indents two to four of this part;

granting of loans.

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*For the purposes of this Edict, capital investments for production purposes mean:

acquiring objects of fixed assets and objects of unfinished capital construction, intended for the use in entrepreneurial activity;

construction in the form of erection and/or creation of objects of fixed assets intended for the use in entrepreneurial activity;

reconstruction, modernization of objects of fixed assets intended for the use in entrepreneurial activity and/or finishing of construction of objects of unfinished construction intended for the use in entrepreneurial activity.

The monetary means received by the managing company of the holding – resident of the Republic of Belarus (with the exception of banks, non-bank credit-and-finance organizations, insurance organizations) for forming the centralized fund in accordance with part four of this clause from affiliated companies of the holding for forming in accordance with part 4 of this clause of the centralized fund, and also received by participants of the holding – residents of the Republic of Belarus (with the exception of banks, non-bank credit-and-finance organizations, insurance organizations) in accordance with part five of this clause from the centralized fund are not included, when calculating the tax on profit and the single tax for producers of agricultural produce, into non-realization incomes that are taken into account for taxation.

The monetary means received by the managing company of the holding from an affiliated company for repayment of the loan sum granted to the company from the means of the centralized fund in accordance with part five of this clause are subject to be credited to the centralized fund by the managing company of the  holding. If the loan from the centralized fund has been granted against payment of the interest, incomes received by the managing company of the holding as interest from its affiliated company on the mentioned loan are subject to be credited to the centralized fund and are not included, when calculating the tax on profit and the single tax for producers of agricultural produce, into non-realization incomes that are taken into account for taxation.

In the event of use by participants of the holding of monetary means specified in part 6 of this clause for the purposes not provided in part 5 of this clause, these means are subject to inclusion in non-realization incomes within the tax period in which the tax benefit has been used with applying of measure of liability established for non-payment or incomplete payment of sums of taxes, dues (duties), and charging penalty interest in accordance with the tax legislation for the period from the day of using tax benefits till the day of payment of taxes inclusively.

In the event when participants of the holding did not use the means received in accordance with part six of this clause within 24 months from the date of their receipt, the exemption from the taxation with the tax on profit and/or and the single tax for producers of agricultural produce, provided in part six of this clause, is terminated, and the respective tax not paid in connection with the exemption is to be paid to the budget with payment of the penalty interest in accordance with the tax legislation for the period from the day of use of the exemption till the day of payment of the tax inclusively.

When the activity of the holding has been terminated (an affiliated company has been excluded from its participants), the sums of the means of the centralized fund, not used for the purposes provided in part 5 of this clause, shall be included in non-realization incomes for the purposes of taxation. Such incomes are reflected in the tax period in which the decision about termination of activity of the holding (about exclusion of the affiliated company of the holding from its participants) was taken and are accounted in the taxation base of the participant of the holding (affiliated company of the holding being excluded from its participants) at the disposal of which they are at the moment of taking the decision about termination of activity of the holding (about exclusion of the affiliated company of the holding from its participants).

In the event of failure to meet the conditions of gratuitous receipt of machines and equipment in accordance with indent two of part five of this clause, the participant of the holding that received them is obliged to reimburse the expenses on acquisition and delivery of the said machines and equipment to the centralized fund.

In the order determined by the statute (constituent contract) of the managing company and statutes (constituent contracts) of affiliated companies of the holding, contracts of trust management or other contracts, the managing company of the holding, and also the affiliated companies of the holding upon the consent of the managing company of the holding (the owner), are entitled to carry out gratuitous transfer of property (goods), including machines and equipment specified in indent two of part five of this clause, monetary means, property rights, including exclusive rights to intellectual property objects, works, services (hereinafter – property) to other affiliated companies and the managing company, being residents of the Republic of Belarus, unless otherwise provided in indent two of part five of this clause in relation to the gratuitous transfer to the participants of the holding of machines and equipment acquired by another participant of the holding through centralized purchases at the expense of means of the centralized fund.

Property, except for securities and property rights to intellectual property objects, received gratuitously in accordance with part twelve of this clause by the managing company of the holding – resident of the Republic of  Belarus from affiliated companies of the holding, by affiliated companies of the holding, residents of the Republic of Belarus, from the managing company of the holding and other affiliated companies of the holding is not included, when calculating the tax on profit and the single tax for producers of agricultural produce, into non-realization incomes to be accounted for taxation, when the following conditions are observed simultaneously:

participants of the holding which transfer and receive property specified in indent one of this part:

do not make part of participants of other holding registered in the established order in the territory of the Republic of Belarus;

are not registered as residents of free economic zones, the Special Tourist and Recreational Park “Avgustovski Canal”, Park of High Technologies, China-Belarusian Industrial Park “Great Stone”;

are not professional participants of securities market, producers of alcohol and tobacco products, banks and non-bank credit and finance organizations, insurance organizations;

do not carry out realtor activity, lottery activity, activity on organizing and conducting electronic interactive games, activity in the sphere of gambling business;

received property specified in indent one of this part is used for production of products, performance of works, rendering of services. In this instance property accepted by the receiving party for accounting as fixed assets objects must be used in the production of products, performance of works, rendering of services in the course of not less than 36 months (machines and equipment specified in indent two of pat five of this clause –  from the date of putting into operation, other property – from the date of its receipt).

The property mentioned in part thirteen of this  clause is to be included in non-realization profits in the tax period in which earlier a tax benefit was used, with applying of measures of liability established for non-payment or incomplete payment of sums of taxes, dues (duties), and charging penalty interest in accordance with the tax legislation for the period from the day of using tax benefits till the day of payment of taxes inclusively in the event of non-observance of the conditions specified in part thirteen of this clause by the participants of the holding, residents of the Republic of Belarus.

Turnovers on gratuitous transfer in the territory of the Republic of Belarus to a participant of the holding of property in accordance with part twelve of this clause are not recognized as taxation objects for the value added tax, provided that is has been accepted for accounting as fixed assets objects and used in the production of products, performance of works, rendering of services.

In case of gratuitous transfer of machines and equipment turnovers on gratuitous transfer of which are not recognized as taxation object for the value added tax in accordance with part fifteen of this clause, actual sums of the value added tax (with the exception of sums of the value added tax not subject to deduction in accordance with the legislation) presented upon acquisition of such machines and equipment in the territory of the Republic of Belarus or paid upon the importation thereof to the territory of the Republic of Belarus are to be transferred to the participant of the holding which receives them. A record "Transfer of sums of the value added tax according to clause 12 of Edict of the President of the Republic of Belarus of December 28, 2009 No 660" shall be made in primary accounting documents upon shipment of such machines and equipment.

In case of gratuitous receipt of machines and equipment turnovers on gratuitous transfer of which are not recognized as taxation object for the value added tax in accordance with part fifteen of this clause, the participant of the holding which receives them shall accept sums of the value added tax presented in accordance with part sixteen of this clause in the reporting period in which such machines and equipment are accepted for accounting as fixed assets objects.

Provisions of clause 15 of Article 107 of the Tax Code of the Republic of Belarus are not applied in relation to sum of the value added tax presented upon acquisition in the territory of the Republic of Belarus or paid upon importation in the territory of the Republic of Belarus of machines and equipment the turnovers on gratuitous transfer of which are not recognized as taxation object for the value added tax in accordance with part fifteen of this clause.

121. To establish that:

121.1. the managing company of a holding with participation of the state ensures, not later than six months from the date of its registration, the development and approval of the strategy of development of the holding with participation of the state having regard to strategies and prognoses of development of its affiliated companies for the period of five years.

The strategy of development of a holding with participation of the state the managing company of which is an economic company is approved by the board of directors (supervisory board) of this company, and the managing company of which is a state unitary enterprise – by the state body.

The achievement of index number of activity of a holding with participation of the state and its participants, determined in the strategy of development of this holding must be stipulated in contracts with heads of participants of the holding as a one of conditions for determining the amount of stimulating emoluments.

State bodies to which (by which) managing companies, being state unitary enterprises, of holdings with participation of the state are subordinated (supervised) (make part of which) or in the management of which are shares (stakes in the statutory fund) of the managing companies of such holdings – economic companies carry out monitoring, under the procedure established by these state bodies, of implementation of development strategies of holdings with participation of the state. Upon results of the monitoring, yearly till the 1st May, state bodies (in the case if shares (stakes in the statutory fund) of the managing company of a holding with participation of the state are in the management of several state bodies – the state body that manages the biggest number of shares (stakes in the statutory fund) of such company) informs the Ministry of Economy about the course of implementation of strategies with indication of measure taken for increasing the efficiency of management of a holding with participation of the state. Managing companies of holdings with participation of the state shall, annually till May 1, present to the Ministry of Economy information characterizing the organization of management in such managing companies (except for managing companies – unitary enterprises) and holdings in whole, according to the form established by the Ministry of Economy.  The Ministry of Economy performs an analysis efficiency of activity of such holdings and submits, yearly till the 1st of June, to the Council of Ministers of the Republic of Belarus respective analytical information containing proposal on eliminating detected deficiencies and increasing efficiency of their activity;

121.2. all shares (stakes in statutory funds) being in the ownership of the Republic of Belarus of affiliated companies of holdings with participation of the state, being economic companies, and also those received in the ownership of the Republic of Belarus as a result of granting state support to affiliated companies of holdings with participation of the state in the established order after distribution of profit and payment of dividends by these affiliated companies, and also in other instances provided by the legislation, shall be introduced, in the established order, as a non-monetary contribution to statutory funds of managing companies of holdings with participation of the state, being economic companies, with creation (increasing) the share of the Republic of Belarus or assigned on the right of economic management to the managing companies of holdings with participation of the state, being unitary enterprises, or transferred into trust management of managing companies of holdings with participation of the state.

In the event of transfer of shares (stakes in statutory funds), being in the ownership of the Republic of Belarus and/or its administrative and territorial units, of affiliated companies of holdings with participation of the state, being economic companies, as a non-monetary contribution to statutory funds of managing companies of such holdings, being economic companies, the expert examination of the soundness of the assessment of the non-monetary contribution is not made

In the event of transfer of shares, being in the ownership of the Republic of Belarus and/or its administrative and territorial units, of affiliated companies of holdings with participation of the state, being joint-stock companies, into trust management of managing companies of such holdings, legal and actual actions on trust management of these shares, stipulated by the contract, are carried out by such managing companies without obtainment of a special permit (license) to carry out professional and exchange activity on securities.  In this case the contract on trust management must contain the prohibition for the managing companies of holdings with participation of the state to carry out actions on alienation and pledge of the mentioned shares;

121.3. the position of the representative of the state in management bodies of the managing company of a holding with participation of the state – economic company concerning the issue of alienation of shares (stakes in the statutory funds) of affiliated companies of this holding, contributed to its statutory fund, which earlier belonged to the Republic of Belarus or administrative and territorial units, is determined accordingly by the Council of Ministers upon consent of the President of the Republic of Belarus or by local administrative and executive bodies, unless otherwise established by the President of the Republic of Belarus;

121.4. members of boards of directors (supervisory boards) of managing companies of holdings with participation of the state – economic companies may not be persons:

having work experience on executive positions of less than 3 years;

having non-cleared or non-expunged record of conviction for crimes against property and the order of carrying out economic activity.

Not less than one third of members of the board of directors (supervisory board) of the managing company of a holding with participation of the state – economic company must be independent directors*. An independent director may not be connected by legal relationships, including those base on contracts, with affiliated persons of the company.

All shares (stakes in statutory funds) being in the ownership of the Republic of Belarus of the managing company of a holding with participation of the state, being economic company, shall be transferred in the established order to one republican body of state administration, other state organization subordinated to the President of the Republic of Belarus or the Government of the Republic of Belarus.

Not more than two representatives of the state may be appointed to governing bodies of the managing company of a holding with participation of the state, being economic company, unless otherwise established in part five of this sub-clause.

In case if shares (stakes in statutory funds) of the managing company of a holding with participation of the state, being economic company, are in the ownership of the Republic of Belarus and its administrative and territorial units, representatives of the state shall be appointed in the established order as one from the Republic of Belarus and one for each administrative and territorial unit;

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*For the purposes of this Edict the term “independent director” is used in the meaning determined in part three of Article 57 of the Law of the Republic of Belarus of December 9, 1992 “On Economic Companies”.

121.5. economic stimulation measures determined by the legislation shall remain effective in relation to joint-stock companies created in the process of privatization and transformation of state unitary enterprises in the event of transfer of shares these companies, being in the ownership of the Republic of Belarus and/or its administrative and territorial units, as a non-monetary contribution to statutory funds of managing companies of holdings with participation of the state (assigned on the right of economic management to managing companies of these holdings, being unitary enterprises, transfer into trust management of managing companies of holdings with participation of the state);

121.6. rendering of state support in the established order to affiliated companies of holdings with participation of the state, being unitary enterprises, the founder of which is the managing company of this holding, being economic company, and also to institutions created by such managing company, from the republican and/or local budgets is performed along with increase (creation) in the established order, by the sum of state support, of the stake of the Republic of Belarus and/or its administrative and territorial units in the statutory fund of the managing company of the holding with participation of the state;

121.7. a body authorize to conclude contracts with heads of managing companies of holdings with participation of the state is entitled to establish, by itself, a quotient ratio of the mean salary of heads of these managing companies and the mean salary for managing companies of holding in whole in the amount of up to 8 inclusively.

An annual one-time remuneration may be paid to the head of the managing company of a holding with participation of the state in the amount of up to 2 percent of combined increment of the profit remaining after payment of taxes, dues (duties), other obligatory payments to the republican and local budgets, including special-purpose state budgetary funds and non-budgetary funds, for the reporting year for the holding in whole, but not more than 15 fixed salaries inclusively.  Such a remuneration is paid after the summarizing the results of work for the reporting year subject to fulfilment of indexes of the socio-economic development for the holding in whole for the reporting year, determined for the managing company in the established order, unless otherwise established by the legislative acts.

The head of the managing company of a holding with participation of the state determines the amount and the procedure of payment of annual one-time remuneration to deputies head and chief specialists of the managing company of this holding, which may be paid out subject to fulfilment of indexes of the socio-economic development for the holding in whole for the reporting year, determined for the managing company in the established order.

Annual one-time remuneration specified in parts two and three of this sub-clause is not taken into account when calculating the quotient ratio of the mean salary of heads, deputies head, chief specialists of the managing company and the mean salary for the managing company of the holding in whole.

The source of payment of the remuneration specified in parts two and three of this sub-clause shall be the profit of the managing company of a holding with participation of the state, remaining after payment of taxes, dues (duties), other obligatory payments to the republican and local budgets, including special-purpose state budgetary funds and non-budgetary funds.

13. The managing company of a holding in entitled not to draw up annual consolidated accounting (financial) statements, unless otherwise provided by the legislation. When the managing company of a holding draws up annual consolidated accounting (financial) statements, affiliated companies are obliged to submit annual individual accounting (financial) statements, and also other information in the instances stipulated by the statutes (constituent contracts) of the affiliated companies.

The managing company is obliged to maintain confidentiality of the information received from affiliated companies of the holding. The duty of the managing company to maintain the confidentiality remains in effect even after the exclusion of the affiliated company of the holding from participants of the holding. Respective provisions must be set forth in the statute (constituent contract) of the managing company of the holding.

14. The head of a non-state legal person, participant of the holding, may, with consent of the owner of the property of this legal person (general meeting of the participants or if it is provided by the statute (constituent contract), board of directors (supervisory board), carry out work on the basis of a labour agreement (contract) in other non-state legal persons being participants of the holding, .

15. The economic company, participant of the holding, is entitled, according to the decision of the general meeting of its participants, to delegate powers to take decisions about performance of large-scale transactions* among participants of the holding and about approval of the value of the property being the subject of such transaction, to the executive body of the economic company, unless another procedure for performance of such transactions established by the President of the Republic of Belarus.

The mentioned decision is to be taken by the general meeting of the economic company participants by a majority of not less than three quarters of all votes of the economic company participants that took part in the voting.

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*For the purposes of this Edict a large-scale transaction means transactions determined in part one of Article 58 of Law of the Republic of Belarus “On Economic Companies” of December 9, 1992 as edited by Law of the Republic of Belarus of January 10, 2006.

16. Creation of holdings with participation of banks and non-bank credit and finance organizations, insurance companies is carried out having regard to specific features determined by the legislative acts.

161. The President of the Republic of Belarus may establish specific feature of creating and activity of holdings in the territory of the Republic of Belarus.

17. [Ineffective]

18. Legal persons created prior to the entry into force of this Edict, which contain in their names the words “holding” or “holding company” and meet the requirements set forth in this Edict, may apply for the registration of the holding to the Ministry of Economy not later than one month from the day of its entry into force.  If they do not apply for such registration, they are obliged to take measures for changing their name within the period established in this part.

Legal persons which contain the words “holding” or “holding company” in their names and do not meet the requirements set forth in this Edict are obliged to take measures on changing their names not later than one month from the day of its entry into force.

19. The Council of Ministers of the Republic of Belarus shall, till December 31, 2009, take measures for implementation of this Edict.

20. This Edict enters into force in three months after its official publication, with the exception of clause 19 and this clause, which enter into force from the day of official publication of this Edict.

 

 

President of the Republic of Belarus

A. Lukashenko

 

* unofficial translation *