What is a concession? What is a concession agreement? Concession agreements - legal basis.

Concession is a form of public-private partnership

The concept of a commercial concession and its types, the form and content of a commercial concession agreement, the transfer of state facilities to concession

Concession is the definition

Concession is

So, concession agreements belong to the category of government contracts, that is, agreements in which the state is one of the parties. Such contracts are attractive to him because they do not lead to a reduction in state property.

Development of concession activities

The history of concessions dates back centuries. The legal and economic practice of concession forms of partnership between the state and the private sector developed back in the Middle Ages.

In England concession legislation appeared in the 17th century.

On the North American continent, the first concessions were issued back in 1691.

Concession is

In France, the first concession facility was the Canal du Sud, built in the 17th century. and connecting the Atlantic coast with Mediterranean Sea. on concessions in the field of public services has existed since the time of Napoleon.

IN Russian Federation tens of thousands of kilometers railways in the second half of the 19th - early 20th centuries, including the CER, were built on a concession basis.

IN period NEP concessions played a positive role as an instrument for stabilizing the economy in a recovery period, they provided a substantial treasury in the form of shared contributions from the turnover of concession enterprises, payment of concession fees, taxes, rents, duties, fees, etc. Concessions contributed to the modernization of enterprise equipment, an increase in qualified labor, and, in social terms, a reduction in unemployment. By number of concessions and investment capital the first place was occupied by manufacturing (24 concessions), agriculture (7 concessions), (7 concessions).

Concessions during this period also developed in the sphere of urban services. Russian Federation. In certain industries, concession production provided a very significant share of production.

Thus, by the end of 1927, concession enterprises produced 40% manganese, 35% gold, 12% cuprum, and 22% ready-made clothing.

By source of origin capital 40 concessions were German, 20 British, 15 American (USA), 6 Norwegian, 5 Polish, 5 Japanese, 4 Austrian, 4 Swedish, 4 Italian, 3 French, 3 Finnish, 3 Danish, 2 - Dutch, 17 were invested from other countries.

The effectiveness of the concession policy turned out to be so great that a special plan was developed to achieve, with their help, the balanced development of various sectors of the economy based on advanced technologies.

Over the past 10-15 years, thousands of large and small, successful and unsuccessful concession projects have been implemented around the world. Concession legislation exists now in more than 120 countries world with different social and government systems. For example: - developed countries ( USA, Great Britain, France, other EU states, Canada, );

Forms and types of franchising

Franchising has its own types and forms. Traditionally, franchising is divided into the following types: sales, commodity, industrial, business. According to the forms, regional franchising and subfranchising can be distinguished. Let's look at each type in more detail.

Sales franchising - used by a manufacturer of goods to build a single branched sales network, the functioning of which is under its control;

Product franchising. "The first to use product franchising were the Singer Sewing Machine Company (a company that produced sewing machines) and General Motors Corp." This type of franchising is the transfer of exclusive rights to sell products manufactured by the franchisor and under its trademark (trademark) in a certain territory. The franchisee becomes the only seller given product in the assigned territory and the exclusive representative of the franchisor’s trademark. The main condition of this transaction is that the franchisee undertakes to purchase products only from his franchisor and completely refuses to sell similar products from other companies, which may amount to competition. Thus, product franchising is characterized by a narrow specialization of franchisees in selling one type of goods and services and receiving a fixed share of total sales. There is also a relatively low degree of regulation of responsibilities due to the homogeneity of activities. Using product franchising, the franchisor not only increases sales of its products, but also regulates, assigning to franchisees certain territories, distribution of sales volume between different regions, expanding the geography of the sales market. The main differences between product franchising and dealership are: greater attachment to the product (trade) brand of the franchisor, a greater volume of provision of various services by the franchisor to franchisees and exclusive sales of products;

Industrial franchising is the transfer of rights to manufacture and sell products under the franchisor's trademark using patented production technology, materials, raw materials or the original component of the product. This type of franchising is most widely represented in the production of soft drinks (Coca Cola, Pepsi). “The first commercial concession agreement containing objects of industrial property and registered with the Patent Office of the Russian Federation (Rospatent) in June 1996 was an agreement between the Colgate-Palmoliv company of the USA (copyright holder) and JSC Colgate-Palmoliv of the Russian Federation (user), under which, along with the right to use a company name, 35 inventions, 7 industrial designs in the field of production of hygiene items and products, about 60 trademarks, technical, technological, commercial " know-how""1;

Business franchising. This type involves the transfer of not only a trademark, but also a business technology developed and tested by the franchisor. The use of business franchising (“business format”) is typical for catering, rental and consumer services, business and professional services to business and the public. In this case, the franchisee undertakes to act in accordance with the franchisor’s market strategy, with its rules of planning and management organization, comply with technical requirements, standards and quality assurance conditions, participate in training and production development programs, and be fully responsible for the economic results of their work . This type of franchising provides for unconditionally close contact between the franchisor and the franchisee, constant exchange of information, detailed regulation of activities and a high degree of responsibility of the franchisee company. It should be noted that in some franchising systems the difference between product and business franchising is sometimes not so obvious (for example, Baskin-Robbins ice cream stores);

Regional franchising is a form of organizing a franchise business in which the franchisee receives the right to develop a certain area (creation of a franchise system) and control above it in accordance with the agreed number of enterprises and their opening schedule. The opened enterprises do not have an independent legal status and are branches or branches of the franchisee;

Subfranchising is a form of organization of a franchise business in which the franchisor transfers to another party - the main franchisee - rights (sometimes exclusive) within a strictly established territory to sell franchises to third parties - subfranchises. The agreement may provide that certain subfranchisees have the right to operate more than one retail unit. In this case, the subfranchise agreement is called a “multi-element franchise.”

Legal basis for concession activities

On post-Soviet space and in former socialist countries, concession schemes have to be built on practically zero institutional foundation. The basis of such activity, as a rule, became law on concessions - in the 90s, similar laws were adopted in many countries around the world.

In the Russian Federation, with the adoption of Part 1 of the Civil Code, it became possible to organize economic activities on the basis of civil law principles. This makes it possible to solve the problem of attracting investments, including foreign ones, on the basis of the development of civil law relations between the state as the owner of property and the private investor.

Thus, the interests of the state are that:

First, it shifts the costs of investing and maintaining its assets to the private sector, in theory to improve its efficiency;

Secondly, the state replenishes the budget through the receipt of concession payments and removes financing government facilities;

Thirdly, it solves socio-economic problems.

The interests of private business in concession projects are that:

The concessionaire receives for long-term management state assets that do not belong to it, for preferential terms concession fee, which is in a sense analogous to rent;

By investing, the concessionaire has sufficient guarantees return of funds, since the state, as a partner of the concessionaire, bears a certain responsibility for ensuring a minimum level of profitability;

In some cases (projects in the field of water, gas, heat supply), the state agrees to pay extra from the budget to the concessionaire, provided that he improves the quality of service;

The concessionaire, having economic freedom, can, by increasing labor efficiency, innovation increase the profitability of the business during the validity of the concession period, and at the same time the concession period is not reduced.

So, as the experience of many countries shows, one of the effective ways for the successful functioning of the public sector of the economy is to attract private capital to the financing and management of state-owned objects, not only through privatization, but also on a concession basis.

In the Russian Federation, a country with high level nationalization of the economy, in conditions of an acute lack of investment resources, the use of another form quite attractive for investors investments of its funds could provide significant benefits to the economy. The use of such agreements is also dictated by the state's lack of resources, primarily financial and technological, for the effective functioning of the public sector of the economy.

Form and registration of a commercial concession agreement

The agreement must be concluded in writing. In addition, registration of a commercial concession agreement is required. The place and procedure for registration depend on several conditions.

"Registration of a concession agreement is included in general rule the responsibility of the copyright holder, unless, however, otherwise provided by agreement of the parties."

If the objects of exclusive rights that are the subject of the agreement are protected in accordance with patent law (for example,), then in this case the agreement is subject to sequential registration:

In the body that registered the legal entity. person or individual businessman and determined in accordance with paragraph 2 of Article 1028 of the Civil Code of the Russian Federation (registration authorities operating in accordance with Article 51 of the Civil Code of the Russian Federation and Decree of the President of the Russian Federation dated 07/08/94 No. 1482 “On streamlining the state registration of enterprises and businessmen on the territory of Russia”);

In the federal executive body in the field of patents and trademarks ( legal status Rospatent is established in the regulations approved by the Decree of the Government of the Russian Federation dated September 19, 1997 No. 1203 "0 Russian Agency for patents and product (trade) marks and organizations subordinate to it").

Failure to carry out this registration entails the nullity of the agreement. In all other cases, the agreement is registered only with the body that registered the legal entity or individual businessman. Article 1028 of the Civil Code of the Russian Federation formulates the rules by which one can determine which body should be contacted for registration. The choice of authority depends on the place of registration of the copyright holder. There are two options:

The copyright holder is registered as a legal entity. persons or individual businessmen in Russia;

The copyright holder is registered in a foreign country.

In the first case, the agreement is registered with the body that registered the copyright holder. In the second - in the authority that registered the user.

“Despite the indication of paragraph 1 of Article 165 of the Civil Code of the Russian Federation, the law does not establish that a commercial concession agreement not registered in this way is considered void.”

Extension and re-conclusion of a commercial concession agreement

Article 1035 provides for the right of the user under a fixed-term commercial concession agreement to conclude an agreement for a new term. This provision protects the interests of the user as much as possible weak side agreements. Being dependent on the copyright holder, the user, upon expiration of the agreement, risks finding himself in a difficult position: he will practically have to start his business from scratch, since he will no longer be able to use the means of individualization and commercial experience of the copyright holder. This would be unfair, because the user invested his own funds in the development of the entrepreneurial activity of the copyright holder (in promoting his goods, works or services to the market, increasing his production volumes). Thus, the user has provided a service not only to the copyright holder, but also to the person who, at the end of the agreement, can take his place in the commercial system of the copyright holder. If in the relationship between the user and the copyright holder the benefit was at least mutual, then the user, of course, will not receive anything for the service provided to another person.

Thus, granting the user a preferential right to conclude a new agreement follows from the economic content of franchising and the requirements of fairness. However, such a user advantage should not be unconditional. Otherwise, the interests of the copyright holder may suffer. After all, the reluctance of the copyright holder to enter into a new agreement with the user can be explained by fairly compelling reasons: for example, the copyright holder may have claims against the user regarding the fulfillment of a terminated agreement. The copyright holder may also lose interest in the market in which the user worked, which is not so rare in the modern economy. Obviously, in such situations, the copyright holder should not be forced to renew relations with the user after the expiration of the agreement.

According to Article 1035, the copyright holder may refuse to enter into a new agreement with the user in two cases:

If he proves that the user improperly fulfilled his obligations under the terminated contract;

If he undertakes for three years not to provide other users with similar sets of exclusive rights (including on the terms of a subconcession) for their implementation in the territory to which the terminated agreement applied.

The condition for the proper execution of the agreement by the user (clause 1 of Article 1035) is of the nature general requirement. Individual minor omissions and violations that may have occurred during the execution of the agreement should not be taken into account if they did not cause any serious damage to the copyright holder and there is reason to believe that they will not be repeated in the future (after the conclusion of a new agreement).

In accordance with paragraph 2 of Article 1035, the copyright holder may refuse the user to enter into a new agreement without giving reasons, but he must not, for three years after this, enter into similar agreements in relation to the same territory with other persons. If the copyright holder violates this prohibition, the user receives the right to demand compensation for damages, including lost profits. This right arises for the user in all cases when the territory of execution of a new agreement concluded by the copyright holder with another person at least partially coincides with the territory covered by the terminated agreement.

The situation is more complicated if the terminated contract did not define the territory of its execution. In this case, it must be set based on general meaning agreements and actual circumstances related to the user’s business activities. Mediating primarily activities in the field retail and service, “franchising most often has a territorial nature, regardless of whether the agreement contains a special condition on the territory of use of a set of exclusive rights”

It should also be noted that the user’s pre-emptive right to conclude a new agreement applies exclusively to the commercial concession agreement. If the copyright holder, who has not concluded a new agreement with him, organizes within a three-year period the sale of his products in the same territory on the basis of commission or agency agreements with other persons, the user will not have the right to demand compensation for losses.

Termination of a commercial concession agreement

The commercial concession agreement is terminated both on the general grounds for termination of obligations and on the special grounds specified in Chapter 54. One of these special grounds is the insolvency (bankruptcy) of any of the parties to the agreement (clause 4 of Article 1037). Since a commercial concession agreement is a purely entrepreneurial agreement, it cannot continue if one of the parties loses the status of a businessman.

The commercial concession agreement is also terminated due to the disappearance of essential elements of the set of exclusive rights granted under the agreement. Essential elements of the complex include rights to a company name and commercial designation. These rights are considered to have lapsed if the copyright holder has lost them without acquiring other similar rights. The right to a company name is terminated upon liquidation of a legal entity (which, according to Article 419, is a general basis for termination of obligations) or its reorganization (except for cases of reorganization that do not entail the termination of the legal entity that owns the company name). The right to a commercial designation is lost if it is not used for a long period of time.

A change by the copyright holder of its company name or commercial designation does not in itself entail termination of the agreement. “However, given that if an essential element of the complex of exclusive rights is changed, the contract largely loses its value for the user, he has the right to demand a reduction in the remuneration due to the copyright holder or termination of the agreement and compensation for losses (Article 1039).”

As grounds for termination of a concession agreement, its early termination is permitted provided that the other party is notified at least six months in advance. At the same time, early termination, as well as the termination of a concession agreement concluded without specifying a period, are subject to mandatory state registration (clause 2 of Article 1037 of the Civil Code), as well as the corresponding termination of use of the registered object of exclusive right. From this moment on, the contract is considered no longer in force for third parties, including the user’s customers.

Differences between concession and lease

There are two types of such differences. Some of them become obvious when analyzing the comparable concepts of concession and lease agreements and do not go beyond the common civil law space for them. Others are related to the public legal features of concessions and, as a result, do not have comparable concepts and conditions not only in lease agreements, but also in other civil law agreements.

The largest, kind of generalizing difference of the first type should be considered significantly different interpretations of the legal nature of the rights of the tenant and the concessionaire. In particular, the Civil Code of the Russian Federation seems to attach a noticeably different meaning to the rights of a tenant than that given to the right to use natural resources under the legislation of the Russian Federation. According to Article 606 of the Civil Code of the Russian Federation, the tenant is provided with property (hereinafter highlighted by me - S.S.) for temporary possession and use or for temporary use. We are therefore talking about the transfer of property as such. In the case when the property is transferred to the tenant for possession and use, he becomes the title owner of the leased property. When the property is transferred only for use, the lessor remains its owner.

Unlike the Civil Code, Russian environmental legislation, as well as similar foreign legislation, as well as concession legislation, does not provide the concessionaire with property as such, but with the right to use or the exclusive right to use the property. In this case, the right of use, especially the exclusive right of use, is not at all an analogue of the lease right of the same name. It is comparable only to title rental ownership and use, but in reality it is more complete, weighty, and “better quality” than rental rights. It is appropriate in this regard to note that according to German law, France and a number of other countries, the concessionaire is granted the right to “mining property” and, although this concept is rather conditional (if only because it is granted temporarily), it nevertheless takes the concession right of use beyond the scope of rental relations.

The fact that the concept of “mountain property” is unknown Russian law, does not change the essence of the matter. After all, the current Russian legislation provides the subsoil user with exclusive rights of the same type and scope that correspond to foreign “mining property” rights. Thus, according to the law on production sharing agreements (which are a specific type of mining concession), the investor is granted exclusive rights to search, explore, extract mineral raw materials and carry out related work, as well as to transport, process, store, process, use, sale or disposal of raw materials in any other way. Similar dissimilar property rights together they form a kind of “synthetic” property law (or rights).

Well-known specialist B.D. Klyukin also believes that the rights to use plots subsoil and mineral deposits exercise the proprietary rights of subsoil users. Let us recall that according to Russian civil law, the tenant is the holder of rights of obligation. There is no need to explain the principle difference between the real rights of the concessionaire and the obligatory rights of the tenant. In sharp contrast with rent and a generally accepted provision in a concession agreement, according to which the ownership of the concessionaire’s property, acquired or created by him for concession purposes, is subject to gratuitous transfer to the grantor (the state or other public legal entity) upon expiration of the agreement. This rule is unknown to rental relations.

Another difference annuities from the concession becomes obvious from Art. 6 1 3 of the Civil Code of the Russian Federation, according to which the transfer of property to rentau is not a basis for terminating or changing the rights of third parties to this property. Concession practice is based on a different premise: the property, the right to use of which is granted to the concessionaire, must first be cleared of any other people's rights to it. This means that, as a rule, government property of the state or municipalities is transferred into concession. In addition, the grantor grants the right of use to the concessionaire, while the lessor, according to Art. 606 of the Civil Code of the Russian Federation only undertakes to provide the property to the tenant. This difference, subtle at first glance, determines the moment of transfer of rights in different ways. The concessionaire acquires his rights from the moment of conclusion (or registration) of the agreement, while the lessee - from the moment of actual transfer of the leased object to him, which, in principle, may not be tied to the moment of conclusion or registration of the agreement.

In economic terms, it does not meet the requirements of an investment project (especially the conditions of project financing), which the modern concession fully meets. Traditionally, renting is the rental of property, the proper condition of which is the responsibility of the lessor. This is not a solution for the Russian economy, which desperately needs an immediate influx of capital investment. And although the lease agreement can also provide for the tenant’s obligations to increase and update the leased property, a genuine investment project can only be implemented in a concession form with the provision of individual rental, tax, and currency regimes to the concessionaire.

As for non-renewable natural resources, in relation to them, a contradiction arises between the requirement of the Civil Code (Article 607) that leased things retain their natural properties during their use (non-consumable things), and the possible complete depletion of the used site subsoil, as a result of which the thing (subsoil area) not only loses its natural properties, but ceases to exist as such. A concession agreement that is not bound by non-consumable requirements removes this potential barrier to resource use.

The concession agreement, or more precisely, those varieties of it that are called concessions for the production of public works (concessions de travaux publics), also differs from civil contract agreements. Thus, if the contractor’s duty is to carry out certain work, upon completion of which he receives the payment established in the contract (Article 702 of the Civil Code of the Russian Federation), then, according to the concession agreement, the performance of work is a condition that the state establishes for the use of the provided property or the performance of a certain type of activity. The prevailing concession practice consists in the economic exploitation by the concessionaire himself of the result of the work, and he generally receives the produced products completely into his own ownership. Whereas under a contract, the result of the contract immediately becomes the property of the customer state.

These differences are fundamental. There may also be fundamental differences between a concession and a contract in terms of the contractor’s remuneration. In contracting, the contractor's work is paid by the customer. In various types of concession agreements, the services and work of the concessionaire are often paid for by third parties - clients, service recipients, etc. But even in cases where the payment is made by the grantor himself, it can be carried out in non-traditional forms, for example, on a compensation basis. In principle, similar conditions can be provided for in a contract, but a concession agreement is preferable for them due to a number of public legal requirements that the customer can present to the contractor.

Development of concession legislation

The rich history of investment, including concession, relations gives us the opportunity today, when adopting new laws to regulate investment activities, to take into account and apply our own experience, since the activities of foreign and national capital and its legal regulation at various historical stages of development Russian state serves, although private, but a clear example cyclical phenomena.

The economy of any country or society is a developing system, with its inherent cyclical fluctuations. The idea that economic, political and legal history is characterized by cyclical phenomena, that is, the repetition of certain stages with the constant renewal of patterns and events that have developed in the past, has long been substantiated by scientists. One of the significant reasons for this repetition is the inability to draw meaningful and productive conclusions from the history of economic, legal, and political development. It is the identification and disclosure of trends and patterns in the historical development of one or another process, and in our case - concessions and its legal regulation, will allow you to correctly assess the possibilities for the evolution of economic relations arising on the basis of concessions, their prospects and optimal options for legal regulation.

Even progressive Soviet scientists in the late 20s and early 30s called the use of pre-revolutionary concession experience as “one of the immediate tasks facing a lawyer.” Indeed, in particular, pre-revolutionary practice was much richer in the forms of application of foreign capital. Thus, in the USSR, unlike united Rus', there were practically no utility and railway concessions.

However, a number of provisions and conditions of Soviet concession agreements were directly borrowed from pre-revolutionary analogues. For example, the legislative procedure for granting a concession foreign capital; the functioning of the concession enterprise mainly on Russian (Soviet) raw materials; duty-free import of technically advanced equipment for its time, as well as capital; pre-emptive right for the state to purchase the products of such an enterprise; the urgency of contracts, as well as the gratuitous transfer to the state of fixed capital and property upon expiration of the concession period; conditions for early termination of the activities of enterprises with foreign capital (concessions), etc.

Based on a comparative analysis, it can be argued that modern Federal law dated July 21, 2005 No. 115-FZ “On Concession Agreements” nevertheless basically adopted the terms and conditions developed throughout history by domestic and world concession practice. Based on the purpose of this work and in support of the theory of cyclical development of legislative development, it is necessary to cite the main similar provisions of concession agreements that took place both in pre- and post-revolutionary practice, and those introduced at the present time.

The modern law on concessions includes a significant clause, already found in NEP concession agreements, according to which a condition may be included in the agreement obliging the foreign investor to sell on the domestic market of the Russian Federation certain part products produced by him on the terms agreed upon in the contract (clause 6, part 2, article 10 of the law). One more characteristic feature concession agreement, which distinguishes it, in particular, from the rent agreement and has deep historical roots, is reflected in the law under consideration. Upon expiration of the concession agreement, the investor’s property used directly for the implementation of contractual activities ( we're talking about on fixed assets), is transferred free of charge into the ownership of the state (Part 1 of Article 14 of the Law)... Unfortunately, the volume of work does not allow us to indicate all the similarities, as well as to specify and reveal their essence.

Even at the stage of adoption of the law, experts suggested that the state prepare a set of draft model concession agreements for various types economic activity in various fields. However, there is an opinion that any concession agreement is not a standard agreement, but a purely individual contract corresponding to a specific project. In our opinion, the practice of standard NEP agreements for different directions activities proved their feasibility, since even then the conditions found in concession agreements were not exhaustive and were of an individual nature, depending on the characteristics of each specific case.

As N.G. Doronina points out, during production modern approaches The experience of the 1920s was practically not used to regulate foreign investment in the Russian Federation. IN lately in the scientific works of various authors we find references to the need to take such experience into account when forming modern concession policy as an integral part of investment relations. But in determining the applicability of the experience of the new economic policy in the field of concessions and concession legislation, the author cannot agree with S.A. Sosna, who speaks of the limited significance of the Soviet concession experience in political and legal terms for the modern Russian Federation with its commitment to the liberal-capitalist model of development. Our task today is to take into account not only the positive domestic management experience, but also the negative. History must be approached and treated, on the one hand, with respect and understanding, and on the other hand, almost utilitarianly.

Consequently, the purely state-legal, centralized, scrupulous down to the smallest detail in administrative supervision and obstacles raised, regulation of concession relations is undoubtedly a negative experience, which we cannot but take into account in forming the foundations of concession activity and regulation process Today. It is important to see, define and isolate the line beyond which the role of the state as a subject of concession relations ceases and its total regulation of the process begins, infringing on private initiative and economic interests. And a violation of economic interests in this area will immediately hit the interests of the state, since the combined private-public nature of concession relations implies mutual benefit. At the same time, a positive feature of the experience of the 20s. lies in the state’s ability to exercise control over the activities of the investor, and should be adequately perceived by Russian specialists.

Thus, the presence of cyclicality in the development of concession legislation makes it possible not to reinvent something and blindly copy foreign developments, but to wisely adopt successful concepts for solving issues that interest us with adjustments to modern political and economic realities.

Sources and links

ru.wikipedia.org - free encyclopedia Wikipedia

dic.academic.ru - dictionaries and encyclopedias on Academician

dictionary-economics.ru - Internet project Financial Economics

tolkslovar.ru - general explanatory dictionary of the Russian language

- (from Latin concessio permission, assignment) a form of agreement on the transfer for use of a set of exclusive rights belonging to the copyright holder. The concession is carried out on a reimbursable basis for a certain period or without... ... Wikipedia

And, well. concession f., German Konzession lat. concessio grant, permission. 1. obsolete, diploma Concession. And they won’t sign more than two treatises. Also what should be given for the concession; I also don’t think that this was pleasant for them. 1710. AK 2 330… … Historical Dictionary of Gallicisms of the Russian Language

An outlet at a facility where the concessionaire/catering provider or other merchant sells or distributes food, beverages, or merchandise. A concession is any outlet that sells non-alcoholic drinks (but... ... Technical Translator's Guide

CONCESSION- CONCESSION, assignment, transfer, permission, assignment of rights, assignment. Dahl's Explanatory Dictionary. V.I. Dahl. 1863 1866 … Dahl's Explanatory Dictionary

CONCESSION- (from the Latin concessio granted permission, assignment) the state’s commissioning of part of its property to any foreign or domestic company natural resources, enterprises and technological complexes, other objects. Important... ... Legal dictionary

Concession- English concession A. Agreement on the transfer for operation to individuals and legal entities for a certain period of time of natural resources, companies, enterprises and other economic facilities belonging to the state or municipalities. K. is also called... Dictionary of business terms

CONCESSION- (from the Latin concessio permission, assignment), 1) an agreement on the transfer by the state to private entrepreneurs, foreign firms for a certain period of time of enterprises and other economic facilities, plots of land with the right to extract... ... Modern encyclopedia

CONCESSION- (from the Latin concessio permission assignment), an agreement on the transfer for operation to a foreign state, company or individual for a certain period of natural resources, enterprises and other economic facilities owned by the state... Big Encyclopedic Dictionary

CONCESSION- CONCESSION, concessions, women. (Latin: concessio). Granting by the government the right to organize an industrial enterprise to private individuals (in the USSR, foreign capitalists). Give the mines for concession. || The enterprise itself, which arose in this way... ... Ushakov's Explanatory Dictionary

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The economy of most countries depends on investment capital, including foreign ones. Along with finance, it includes technological innovations, the latest engineering developments, and a highly professional workforce. Concession agreements are a best practice method for resolving this issue.

Concession concept

The government considers it necessary to launch a project. For example: an air landing complex, a hydroelectric power station, a metro line, the development of a mineral deposit. Drawing up design estimates and construction work require large financial investments. In this matter, the participation of experienced engineers and technical workers is important. It is important to find a serious contractor. Not all organizations have all these conditions at once. Lack of funds may have an impact.

In this case, the contractor is given the opportunity use of the facility to make a profit. Then the funds invested in construction will not only pay off, but will also bring benefits.

Thus, a concession can be defined as a transfer by authorities state power special rights to the developer to create a specified object, which is then transferred to the ownership of the state or municipality. As a reward, the company is given the right to use the facility it has built for some time.

Example concession use - the construction of a bridge on the Ob River in the Novosibirsk region, as well as financial investments in the water supply system of the Volgograd region.

Remember: the concepts of lease and concession are not identical. When renting something, they use ready-made objects for a certain amount of money. The concession agreement is based on the need to invest funds in the construction or restructuring of an already created facility, and only then use it for the sake of profit.

In our country, history contains many examples of concessions. It goes back to the Middle Ages, when tax farming was very common. The collection of taxes from citizens to the state treasury was the prerogative of private owners. Only those companies whose activities were of the same type could engage in this business. For example, trade in vodka.

Concession agreement

De jure it is based on contractual relations. The contract stipulates the following points:

General provisions containing information about the organizations that are parties to the agreement, their goals, what they intend to do. These types of agreements are usually concluded after electronic auctions. In this case, the text refers to the final protocol.
Parameters: object size, production capacity, construction period, other data. A more detailed description is given in the passport.
Algorithm for operating the structure, payment amount and frequency.
Legal aspects and obligations of the company that is the concessionaire. She can build it herself or hire hired force. You cannot change the purpose of an object. All technical requirements specified in the documents must be met. After the period of use has expired, the company must transfer the facility to state ownership.
What the person called the grantor has the right to and what responsibilities he has. Control over construction and compliance with deadlines for the delivery of the facility remains with the state. In parallel, these functions are also performed by the grantor. He must strictly comply with the terms of the contract and transfer the land to the contractor. The interests of the concessionaire must not be infringed.
Interim measures on the part of the concessionaire. These include a bank guarantee.
Resolving controversial issues. To ensure a fair decision, independent arbitration is usually used.
Other conditions.

Each design solution provides your contract. Therefore, samples are inappropriate here.

The concept of grantor and concessionaire

There are two parties to the contract. One of them plays a role concessionaire, i.e. structure or person who implements the investment. Most often it is a private company or an entire group.

The second party is represented by a certain state performing the duties grantor. In this case, the agreement is signed by the prime minister, the chairman of the government, the relevant minister, the head of the region or municipality. Bilateral relations are regulated by agreement.

Commercial Plan Concession

This type allows a legal entity or individual to delegate their special rights to someone else. In this case, we can draw an analogy with a franchise. Such contractual relationships are common in fast food.

The owner of the brand transfers the rights to it, as well as its features, for money technological process. Other businesses are being launched using this template. different corners land.

Classic and commercial concessions have differences:

Role of the grantor In the traditional form, the state plays, while in the commercial form, anyone can play. When concluding a commercial agreement, property does not change hands.

In a commercial agreement, the granting party wants to receive maximum income from its technology. While government agencies sign an agreement to be given a ready-made infrastructure facility, because itself cannot build it.

Concession fee

The company using the constructed facility contributes to the state budget specific amount. The fee is calculated in several ways. This could be a share of the profit received, a fixed amount, or the transfer of your own real estate. The parties independently agree on the amount of payment. The concession helps to develop and create modern infrastructure, attracting resources and technologies.

Concession

The word for the Russian language is borrowed. The borrowing language is German or French. The time of borrowing is the end of the 18th century. The range of meanings is economic and legal. Economic significance- leasing by the state of enterprises or plots of land for use to a “foreigner”. Legal meaning- agreement on such surrender or a separate clause of the assignment agreement

The roots of the word are related to the Latin word concessio- permission, concession. New nuance is revealed if we turn to the deepest sources: English concede, Latin concedere admit, agree, acknowledge com- + cedere- receive income, harvest. If we add up - an agreement on joint receipt of income, that is, a mutually beneficial agreement.

The modern meaning of the word as an economic and legal concept:
Concession in a broad sense is an agreement between the state and business, fixing the conditions for the use of state property by business.
Concession in the narrow sense- an agreement on the transfer for operation to a foreign state, company or individual for a certain period of natural resources, enterprises and other economic facilities owned by the state.
A concession is an enterprise operating under a concession agreement.

Purpose of the concession- development or restoration of the national economy and development of natural resources.

Types of concession agreements:
BOT (Build - Operate - Transfer). The concessionaire is responsible for construction, operation and, after a certain period, transfer of the facility to the state;
BTO (Build - Transfer - Operate)- "Construction - transfer - management." For the concessionaire - construction, transfer to the state (concessor) of ownership immediately after completion of construction, then - transfer to the operation of the concessionaire;
SBI (Build - Own - Operate). For the concessionaire - construction, operation with the right of ownership, the validity of which is not limited;
WHAT (Build - Own - Operate - Transfer). The concessionaire has ownership and use of the constructed facility on the right of private ownership for a certain period, after which the facility is transferred to state ownership;
BBO (Buy - Build - Operate). The concessionaire is responsible for the purchase on the terms of restoration or expansion of the existing facility.

Derived concepts:
Concessionaire- the one who received the concession (physical or legal entity).
Concentrator- the state granting the concession.
Concessionaire- relating to the concessionaire, concessionaires.
Concession fee- established by the contract and determined on the basis of the expected results of the concession.

Extent of use. Actively used in 37 countries around the world. At various times, the USSR had railway facilities on concession terms in Afghanistan, Austria, Finland, Mongolia, and North Korea.

Category:
Related concepts:
rent, wealth, farm-out
farming, lease, wealth
核准, 许可, 特许, 经营权, 租让企业, 租借合同

In 1920, concessions were introduced. completely destroyed private property in Russia. This led to deep economic crisis in the country. The introduction of concessions was supposed to improve the situation. However, many historians and journalists think differently. They believe that it was intended to “clear the field” for foreign capital. Whether this is true or not, foreign “non-capitalist” companies really began to receive broad rights to economic activity. The policy of “red terror”, surplus appropriation, that is, the actual robbery of the population, is still hushed up in the West. However, after the liquidation of all foreign concessions, all foreign historians, politicians and public figures started talking about human rights, mass repressions, etc. What really happened? Still not known. However, the year the concessions were introduced is the year the country was completely destroyed. But first, a little theory.

What are concessions

“Concession” translated from Latin means “permission”, “assignment”. This is the transfer by the state to a foreign or domestic entity of a part of its natural resources, production facilities, factories, plants. As a rule, such a measure is taken in times of crisis, when the state itself is not able to organize production on its own. The introduction of concessions makes it possible to restore the destroyed state of the economy, provides jobs, income cash. A large role is given to foreign capital for the reason that investors are willing to pay in international currency, but domestic citizens simply do not have the money.

In 1920, the Council of People's Commissars decree “On Concessions” was adopted. A year before the official proclamation of the NEP. Although the project was discussed back in 1918.

Theses on the 1918 concessions: betrayal or pragmatism

Some journalists and historians today talk about attracting foreign capital to Soviet Russia as a national betrayal, and the country itself is called a colony of capital under the bright slogans of socialism and communism. However, one can analyze the articles of the 1918 theses to understand whether this was actually the case:

Concessions must be awarded in such a way that the influence of foreign states is minimal.
Foreign investors were required to adhere to internal Soviet laws.
At any time, concessions can be purchased from the owners.
The state must necessarily receive a share in the management of enterprises.

The fact that the authorities approached this issue cautiously can be concluded from the project of the first such companies in the Urals. It was assumed that with the authorized capital of the enterprise being 500 million rubles, 200 would be invested by the government, 200 by domestic investors and only 100 by foreign investors. We agree that with this division, the influence of foreign bankers on sectors of the economy is minimal. However, the capitalists were not going to invest money under such conditions. Germany with its enormous resources fell into the hands of the “predators”. American and European bankers imposed conditions on the Germans so beneficially for themselves that such proposals from Russia were simply not interesting. Capitalists needed to rob countries, not develop them. Therefore, the theses of 1918 remained only on paper. Then the civil war began.

Worsening situation in the country

By 1921 the country was in a deep crisis. First world war, intervention, civil war led to consequences:

¼ of all national wealth was destroyed. Oil and coal production decreased by half compared to 1913. This led to a fuel and industrial crisis.
The severance of all trade relations with As a result, our country tried to cope with difficulties alone.
Human losses are estimated at 25 million people. This number includes the potential loss of unborn children.

In addition to wars, the policy of war communism turned out to be a failure. The surplus appropriation system completely destroyed agriculture. There was simply no point in growing crops for farmers, since they knew that food detachments would come and take everything. The peasants not only stopped giving away their food, but also began to rise up in armed struggle in Tambov, Kuban, Siberia, etc.

In 1921, the already catastrophic state of affairs in agriculture was aggravated by drought. Grain production also halved.

All this led to the introduction of what actually meant a rollback to the hated capitalist system.

New Economic Policy

At the X Congress of the Russian Communist Party (Bolsheviks), a course was adopted that was called the “new economic policy.” This meant a temporary transition to market relations, the abolition of surplus appropriation in agriculture, and its replacement with a tax in kind. Such measures significantly improved the situation of the peasants. Of course, there were excesses even then. For example, it was necessary to hand over 20 kilograms per cow every year in some regions. How could this be done every year? Not clear. After all, you cannot cut off a piece of meat from one cow every year without slaughter. But these were already excesses on the ground. In general, the introduction of a tax in kind is a much more progressive measure than the bandit robbery of peasants by food detachments.

There was an active introduction of concessions (the term began to be applied only to foreign capital, since foreign investors refused to jointly manage enterprises, and there were no domestic investors. During the NEP period, the authorities began the reverse process of denationalization. Small and medium-sized enterprises returned to their previous owners. Foreign investors could rent Soviet enterprises.

Active introduction of concessions: NEP

Since 1921, there has been an increase in enterprises leased or acquired by foreign investors. In 1922 there were already 15 of them, in 1926 - 65. Such enterprises operated in the heavy industries, mining, mining, and woodworking. In total, the total number reached more than 350 enterprises for all time.

Lenin himself had no illusions about foreign capital. He talked about the stupidity of believing that the “socialist calf” would embrace the “capitalist wolf.” However, in the conditions of total devastation and plunder of the country, it was impossible to find ways to restore the economy.

Later, the introduction of concessions began for minerals. That is, the state began to give natural resources to foreign companies. Without this, as Lenin believed, it would be impossible to implement the GOERLO plan throughout the country. We saw something similar in the 1990s. after

Revision of agreements

The introduction of concessions is a forced measure associated with civil war, revolutions, crises, etc. However, by the mid-1920s. This policy is being rethought. There are several reasons:

Conflict situations between foreign companies and local authorities. Western investors are accustomed to complete autonomy in their enterprises. Private property was not only recognized in the West, but also sacredly protected. In our country, such enterprises were treated with hostility. Even among senior party workers there was constant talk about “betrayal of the interests of the revolution.” Of course, they can be understood. Many fought for the idea of equality, brotherhood, overthrowing the bourgeoisie, etc. Now it turns out that, having overthrown some capitalists, they invited others.
Foreign owners were constantly trying to get new preferences and benefits.
Many states began to recognize the new state of the USSR in the hope of receiving compensation for the nationalization of enterprises. The Soviet authorities issued a retaliatory bill for the destruction and intervention. These contradictions resulted in sanctions. Companies were prohibited from entering the Soviet market. By the mid-20s. Since the 20th century, applications for concessions have decreased significantly.
By 1926-1927, regulatory authorities began to receive balances of payments. It turned out that some foreign enterprises receive more than 400% of the annual capital return. In the mining industry, the average percentage was low, about 8%. However, in the processing plant it reached over 100%.

All these reasons influenced future fate foreign capital.

Sanctions: history repeats itself

An interesting fact, but 90 years later, history with Western sanctions repeated itself. In the twenties, their introduction was associated with the refusal of the Soviet authorities to pay the debts of Tsarist Russia, as well as to pay compensation for nationalization. Many states recognized the USSR as a country precisely for this reason. After this, many companies, especially technology ones, were prohibited from doing business with us. New technologies stopped coming from abroad, and concessions began to gradually wind down their activities. However, the Soviet authorities found a way out of the situation: they began to hire professional specialists under individual contracts. This led to the immigration of scientists and industrialists to the USSR, who began to create new high-tech enterprises and equipment within the country. The fate of the concessions was finally sealed.

The end of foreign capital in the USSR

In March 1930, the last agreement was concluded with the Leo Werke company for the production of dental products. In general, foreign companies already understood how everything would end soon, and gradually left the Soviet market.

In December 1930, a decree was issued banning all concession agreements. Glavkontsessky (GKK) was relegated to the position of a legal office, which was engaged in consultation with the remaining companies. By this time, industrial goods of the USSR were finally banned by Western sanctions. The only product that we were allowed to sell on international markets- bread. This is what led to the subsequent famine. Grain is the only product for which the USSR received currency for the necessary reforms. In this situation, a collective farm-state farm system with large-scale collectivization is created.

Conclusion

So, the introduction of concessions (the year in the USSR is 1921) occurs as a forced measure. In 1930, the government officially canceled all earlier agreements, although some businesses were allowed to remain as an exception.