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Employment and commercial agency in
Russia
May 2015
2
Table of content
Secondment
Employment contract under the Russian law
Commercial agency
Common terms of Distributorship agreement
Antitrust regulation of distributorship in Russia
Customs Requirements. Quality Compliance
Secondment arrangements will be allowed as of 1 January 2016 if the personnel will be seconded by:
•Private recruitment agencies subject to the following requirements:
They are Russian companies duly accredited in Russia
They do not apply special tax regimes
Their charter capital is at least 1 million RUR
Their CEOs conform to certain special requirements, etc.
•Legal entities other than private recruitment agencies in the following cases:
A legal entity is affiliate of the seconding party
A legal entity that is a joint stock company if the seconding party is party to shareholders’ agreement on the exercise of rights certified by the shares of such a joint stock company
A legal entity that is party to a shareholders’ agreement with the seconding party
SECONDMENT IN RUSSIA: RECOGNIZED BUT SUBSTANTIALLY RESTRICTED
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SECONDMENT IN RUSSIA: RECOGNIZED BUT SUBSTANTIALLY RESTRICTED
Secondment arrangements will be prohibited in the following cases:
For replacement of the employees on strike
Insolvency of the host party
Replacement of employees who stopped working in cases provided by law (e.g. non-payment of salary for a period exceeding 15 days)
Performance of job duties in the period of work stoppage
Part time working regime is established in the host company in order to avoid massive dismissals
Liability of the host party
Organize investigation of incidents occurred with seconded employees
Bear subsidiary liability for all employment – related obligations of seconding party to seconded employees, in particular all payments due to seconded employees (salary, leave payments, etc.)
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EMPLOYMENT CONTRACT
RequirementsRequirements Written form Should be signed within 3 business days upon
hiring Governed by Russian law
Term of Employment ContractTerm of Employment Contract Fixed term (max for 5 years and only in certain
cases) Indefinite term (most common)
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WHAT TO INCLUDE IN THE EMPLOYMENT CONTRACT?
Mandatory provisions Mandatory provisions names and details of the
parties place and date of signature place of work the employee’s job description
(labour function) start date term (if fixed) salary social security work conditions
Optional provisionsOptional provisions probation period training confidentiality additional benefits etc
Changing the employment contract requires the employee’s written consent
HIRING A HIGHLY-QUALIFIED SPECIALIST?
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Work Permit
Work Visa
Registrationwith Tax Inspectorate
Notification ofFMS on taxregistration Notification of
Tax Inspectorate on hiring
Invitation letterissued by FMS
Arrival in Russia,registration at an address
WANT TO WORK IN RUSSIA? TAKE AN EXAM, PLEASE
As of 1 January 2015 when applying to work permit foreign nationals will be obliged to confirm their knowledge of Russian language, history and key laws in the following forms: Document confirming graduation from educational organization in Russia (or USSR prior to 1991) Certificate issued after sitting for an special exam
The exceptions from this obligation are made for: Highly – qualified specialists Individuals aged under 18 y.o. Male and female foreign nationals aged 65 y.o. and 60 y.o. respectively Foreign nationals studying at educational organizations in Russia, etc.
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COMMERCIAL AGENCY IN RUSSIA
Available options:
Sale and purchase agreement;
Agency agreement;
Service agreement
Distribution agreement.
Even if agreement is governed by Italian law, provisions of the Russian law shall be kept in mind in part of:
-Imperative norms of the Russian law-Law On state regulation of trade -IP provisions-Taxes-Antitrust-Currency control rules
Often parties conclude distributorship or agency agreement as framework agreement and supply goods under separate contracts of sale or orders
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TERMS OF AGENCY AGREEMENT
If Agent undertakes to act on its own behalf or on behalf of Seller and at the
expense of Seller, we should apply Agency agreement concept regarding such
relations.
Agency provisions:
Remuneration for the agency acts is the must;
Unilateral termination at any time;
Limitation of territory for agency activity;
Obligation of Agent not to act in interest of Seller’s competitors.
IMPORTANT: The restriction of competition may apply only to respective agency rights
and obligations (See slide “Antitrust regulations”).
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COMMON TERMS OF COMMERCIAL AGENCY AGREEMENTS
Agreement customarily contains the following material provisions
Goods to be supplied and sold
Specification of goods; agreed minimum sales
Method of price calculation and payment terms
The final price shall be prescribed in the contract of sale; discounts; advance payment or grace period
Remuneration of agent Fixed amount, percentage of purchase price for final customer, target bonuses
Entrusted territory exclusive / non-exclusive distributorship
Specific conditions Limitation of territory; list of customers; resale price fixing; non-compete obligations
Advertising and marketing
Advertising activities including budgets; participation in exhibitions; promotion
Supply conditions Ordering process; delivery basis; transfer of title and risk of loss
IP issues Right to use logos; know-how; commercial names
Technical support and repair
Allocation of costs for maintenance and repair; warranty period; replacement of defective goods
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ANTITRUST REGULATION IN RUSSIA
• Russian effective antitrust legislation prohibits the following restriction of competition:
Market-sharing regarding: Territory; Volume of sales or purchases; List of sellers or purchasers.
Not economic based refusal from entering into the agreements with other sellers or purchasers.
Prevention to entering the market; Resale price fixing.
Vertical agreements (where Seller and Distributor do not compete with each other on one market) may fix resale prices or impose obligation not to sale competitors’ goods if the market share of each party in any market does not exceed 20 %.
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TAX ISSUES
Sale of goods is subject to:Profit tax (Tax base - amount of received income decreased by amount of expenses; Tax rate - 20%)VAT (Tax base - amount of sold goods; Tax rate - 18%)
Fees for the rendered by Agent services are subject to:Profit tax (Tax base - total amount of fee; Tax rate – 20%)VAT (Tax base - amount of fee for rendered services (e.g. merchandising, product promotion, marketing, advertizing, etc.); Tax rate - 18%)
Bonus for proper fulfillment of agreement is subject to:Profit tax (Tax base - total amount of bonus; Tax rate – 20%)no VAT since bonus is not connected with rendered services (e.g. supporting of distribution area, growth and volume of turnover, timely payments, etc.)
License of IP rights:If agency agreement provides license of IP rights the remuneration should be stipulated. Use of IP rights without its compensation (gratuitous use) entails taxable income of the AgentLicense of trade marks and right of its use is subject to VAT (18%). License of exclusive rights to know-how, inventions, useful model, industrial sample, computer program, database and rights of its use are non-VATable operations
CUSTOMS CLEARANCE AND QUALITY CONFORMITY
If commercial agent is responsible for customs clearance, then
• Agent shall act as an importer in the customs. Only Russian entities might
import goods into the territory of the Russian Federation.
• He shall assure availability of duly executed shipping documents including
the contract of sale and purchase, as well as the documents confirming
products’ conformity documents
Quality Conformity
• The products to be sold in Russia shall pass quality conformity procedures
(certification or declaration of conformity) otherwise they will not be
released by the customs service.
• Declaration of conformity might be issued in favor of Russian entity only,
therefore producer of goods shall nominate a Russian entity (distributor or
other entity) as its representative for compliance needs
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THANK YOU FOR YOUR ATTENTION!
My contact details: Maria Ostashenko [email protected] Tel.: +7 495 234 96 92