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Peculiarities Of Legal Status Of Companies With State Participation In The Energy Sector
 
PIIS231243500022179-4-1
DOI10.18572/2410-4390-2018-4-70-77
Publication type Article
Status Published
Authors
Nikolay A. Akimov 
Occupation: Postgraduate Student of the Department of Energy Law
Affiliation: Kutafin Moscow State Law University (MSAL)
Address: Russian Federation, Moscow
Journal nameEnergy law forum
EditionIssue 4
Pages70-77
Abstract

In the modern Russian system of energy entities, the companies with state participation prevail. These companies are characterized, primarily, by a special legal status, which reflects elements of private and public regulation. The specific nature of the legal status of the companies with state participation in the energy sector is directly related to the strategic importance of these companies for ensuring the energy law order of the country and the economy of the state as a whole. Therefore, the primary goal of the legal regulation of the activities of these companies is to serve the public interest and to implement the will of the state. However, private interests can also be pursued in the companies with state participation. In these cases, the law is designed to ensure a balance of interests of the parties and to delimit their spheres of influence through imperative regulation. Availability of a special mechanism to protect the rights of members in such companies containing a lot of administrative and legal elements is also an important feature of the legal status of the companies with state participation in the energy sector. This article discloses the peculiarities of the legal status of the companies with state participation in the energy sector using companies in the nuclear energy and gas sectors as an example, and provides their comparative legal analysis. The performed research contains an attempt to classify the companies with state participation in the energy sector on various grounds; various options are presented to improve the regulatory legal framework governing the legal status of the entities under study.

Keywordsenergy law, legal status of companies with state participation, energy legislation, legal regulation of private law relations, legal regulation of public law relations
Received03.11.2018
Publication date21.12.2018
Number of characters26727
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1 At the present stage of development of the energy law order in Russia, the companies with state participation become the main subjects of legal relations. At the same time, the internal structure of the company of this type is characterized by the direct participation of the state in corporate relations in the capacity of the shareholder (member) through the system of its management bodies.
2 Asrightlynotedby I.S. Shitkina,“participation of the state in corporate legal relations is a form of fulfillment of the economic and social functions of the state specified, inter alia, in the Constitution of the Russian Federation”. [1] It may be noted that the extent of direct participation of the state in the corporate relations of individual companies is directly linked to the goals of these companies, which, as a rule, are essential for the state and the society. It is no coincidence that, according to the Federal Property Management Agency, [2] the state acts as the shareholder (member) of the companies primarily in the military-industrial complex, the energy sector, in the transport sector, etc. — those industries that have priority and strategic importance for the development of the national economy, ensuring the safety of citizens, and ensuring the sustainable functioning of the most important social institutions.
3 Despite the fact that so far the legal doctrine has not developed a universal definition that discloses the essential features of the company (corporation) with state participation, individual declarations of the legislator’s will attempt to define the concept of these entities.
4 In particular, the Federal Law On Energy Saving and Enhancement of Energy Efficiency and On Amending Certain Legislative Acts of the Russian Federation contains a legal definition of an entity with participation of a state or a municipality, which are:
5 “legal entities a share in the authorized capital whereof is owned by the Russian Federation, a constituent entity of the Russian Federation, a municipality, and is more than fifty percent and (or) in respect of which specified entities have the right to directly or indirectly control more than fifty percent of the total voting stock (shares) constituting the authorized capital of these legal entities; state or municipal unitary enterprises; state or municipal institutions; state companies, state corporations; legal entities the property whereof or more than fifty percent of stocks or shares in the authorized capital of which are owned by state corporations”. [3]
6 A different definition of the company with state participation is given in the Management of Federal Property State Program of the Russian Federation approved by Resolution of the Government of the Russian Federation No. 327 dated April 15, 2014, which specifies that the companies with state participation mean business entities whose stocks (shares) in the authorized capital are in federal ownership (regardless of size).
7 The latter definition is more universal for commercial legal entities, participation of the state in which attracts scientific interest of researchers. Unlike the definition given in Federal Law 261-ФЗ, this definition does not make the key feature of the company with state participation dependent on the quantitative size of this participation. This approach seems reasonable since according to clause 1, Article 124 of the Civil Code of the Russian Federation, the constituent entities of the Russian Federation (republics, territories, regions, cities of federal significance, autonomous region, autonomous districts as well as urban and rural settlements, and other municipal formations) act on an equal basis with other parties to relations governed by the civil law, both individuals and legal entities. Clause 2 of the said article specifies that the rules governing participation of the legal entities in relations governed by the civil law shall apply to the subjects of civil law specified in clause 1 of the article unless otherwise implied by law or the peculiarities of these subjects. Therefore, as a general rule, the share of participation of public legal entities in legal entities is not limited to any minimum. On the contrary, there are examples when the state owns only a part of the authorized (share) capital remaining as a result of privatization. Herewith, the state acting as the member of the business entity owning even a small share in the authorized (share) capital of the company will have a special status and some individual (special) corporate rights, which will be analyzed below in this work.
8 A classification that allows distinguishing not only public and private entities, but also mixed legal entities [4], in which the private interests of individual members (shareholders) coexist with the public interest of the state on equal terms, among the legal entities was proposed in the works by M.I. Kulagin.
9 For the purpose of research on the legal status of the companies with state participation, it is advisable to distinguish the companies with full state participation, which will include unitary enterprises, state corporations, state companies, public companies, various types of state institutions (state, budget-funded, autonomous) as well as LLCs and JSCs with absolute (100%) participation of the state, and the entities with partial participation of the state, where private shareholders (members) act together with the state acting as the member.

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