New law: organizations that have voluntarily withdrawn from the SRO cannot join any SRO of Russia for one year.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 the 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.

In the course of discussion by the professional community, the Ministry of Construction has repeatedly drawn 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 current repairs are carried out in a building that do not affect the supporting 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 released, 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 the SROs of their main goal - improving the quality of work and safety, and preventing harm.

Expert of the Public Council Petr Kotenkov

GRK RF Article 55.7. Termination of membership in a self-regulatory organization

(see text in previous edition)

1. Membership of an individual entrepreneur or legal entity in a self-regulatory organization is 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 the state authorities building supervision during construction, reconstruction of facilities capital construction;

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 collective 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 in writing about this:

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 a member of a self-regulatory organization, the list of grounds for exclusion from a member 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.

EDITORIAL

Volunteers who leave the SRO face a one-year ban. But if you were “kicked out” by the decision of the SRO, you can join your competitors even tomorrow!

Last Friday, October 26, within the framework of the Rostechnadzor Program for the Prevention of Risks of Harm to Legally Protected Values ​​for 2018-2020, a seminar-meeting of the supervisory authority with self-regulatory organizations in the construction industry was held. During the event, which was held by the Department of State Construction Supervision RTN, last changes legislation Russian Federation on urban planning activities, issues of reorganization of members of self-regulatory organizations and the results of SRO inspections.

On the eve of the seminar, NOSTROY prepared a list of the most pressing issues on the specifics of the application of the provisions of the Urban Planning Code of the Russian Federation in the activities of self-regulatory organizations. Of course, we will tell you more about what RTN representatives told the self-regulators, but I would like to highlight one point that worried a lot of people, and which one of our volunteer experts from Moscow helped us answer.

Actually, the question is by no means idle, but directly affecting the activities of construction companies. Rather, the very possibility of such activity. The problem is as follows. Does the one-year ban on joining SROs apply to organizations that have changed their place of registration (without submitting an application for voluntary withdrawal) and in respect of which the SRO has decided to expel due to violation of the “regional membership” requirement on the basis of part 3 of article 55.6 of the Town Planning Code RF (legal entity registered in another subject of the Russian Federation)?

Part 6 of Article 55.7 of the Town Planning Code of the Russian Federation states that in the event that a legal entity or an individual entrepreneur terminates its membership in a self-regulatory organization, such a person cannot be accepted again as a member of the SRO within one year. It should be noted that this provision of the law applies only to persons who have voluntarily terminated their membership in a self-regulatory organization, if membership is terminated by a decision of a self-regulatory organization, then such a legal entity or individual entrepreneur has the right to join another SRO.
In this regard, it would be interesting to clarify whether Part 6 of Article 55.7 of the Town Planning Code of the Russian Federation applies from July 1, 2017 to construction organizations in case of exclusion of information about SROs from the State Register of Self-Regulatory Organizations?

In this situation, the members of such an SRO continue to be members non-profit organization, but, given the lack of the status of a self-regulatory organization, NPO members will not be able to conclude new contracts for engineering surveys, preparation project documentation, building contracts .

To obtain the right to carry out engineering surveys, prepare project documentation, build, reconstruct, overhaul capital construction facilities under a contract for engineering surveys, prepare project documentation, under a construction contract concluded with a developer, technical customer, person responsible for operation buildings, structures, or by a regional operator, a legal entity or an individual entrepreneur must join another self-regulatory organization, information about which is included in State Register SRO.

Thus, based on the indicated position of Rostechnadzor, termination of membership in a self-regulatory organization by its decision is not an obstacle for a legal entity or individual entrepreneur to join another SRO immediately after the date of such exclusion from the members of the former self-regulatory organization.

EDITORIAL. It is interesting to know your opinion, dear readers and professionals of the SRO community. Therefore, we, as always, look forward to your comments on our forum!

Your ZanoStroy.RF

After the entry into force of Federal Law No. 372 of 07/03/2016, many construction companies are faced with a situation in which their organization is among those excluded from the SRO or even disappears from the register of members posted on the website of the self-regulatory organization. Often, such companies face the threat of losing the contract, refusing to refund VAT and ending construction activities. Let's figure out how to get out of this situation.

3 cards 09/08/2016 17:44:36

My company was in the construction SRO. Received an exception notice.

The list of grounds for exclusion of an organization from SRO members is specified in the current legislation, as well as in normative documents self-regulating organizations. Unfortunately, some unscrupulous participants in self-regulation, on the eve of 11/01/2016 (the date by which it will be necessary to place the funds of the compensation fund in accounts with banks authorized by the Government) are trying to "save", i.e. reduce the standard size of the CF in order to comply with the requirements of the law.

As a result, not only SRO members, whose exclusion is justified and legal, but also respectable companies that comply with all legal requirements, may suffer.

Performance construction works, access to which is required by law, without membership in the SRO is prohibited. As well as for participation in competitive procedures, the customer always requires a valid certificate of admission.

To resume construction work, you need to join another self-regulatory organization as soon as possible. Only this time, the choice of partner should be approached more carefully. It is also necessary to remember that the legislation now obliges construction organizations to join the SRO at the place of their registration. For example,

By virtue of the same law, the minimum contribution to the compensation fund for damages is now 100,000 rubles (and gives the right to conclude contracts up to 60,000,000), so the costs of resuming construction activities, in comparison with the costs due to its suspension, will be very insignificant .

And what about the paid compensation fund in the previous SRO? Can it be returned?

An unequivocal answer to this question cannot be given without a proper study of the entire situation. If the exclusion occurred in violation of the law, then it is necessary to go to court and defend your right to return the previously paid compensation fund.

Members and candidates for membership in the Association are entitled to take advantage of free additional opportunities, one of which is legal advice to SRO members.

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 before 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 was excluded from the SRO automatically loses the right to engage in professional activity under 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 Urban Planning Code), then there is nothing to worry about in this case. 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 of technical regulations committed by a member of the organization and resulting in 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 (IE) 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 on time.

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 SRO builders are 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 NOPRIZ account.

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.