Exclusion of construction organizations from sro. Termination of membership in a self-regulatory organization. What to do if your SRO was excluded from the state register

13.05.2020

If you decide to terminate your membership in the SRO on your own, then it is not at all difficult, it is enough to file an application for withdrawal from the SRO. At the same time, it is necessary to keep in mind a number of legal consequences that will arise after the voluntary termination of membership:

You lose the right to perform the relevant types of work.
No fees paid to the SRO will be refunded (exceptions below).
Within 1 year, the organization cannot be re-accepted as a member of the SRO.

If you nevertheless decided to withdraw from the SRO, but within a year, you may want to resume activities and again become a member of one or another self-regulatory organization, then you should not terminate your membership voluntarily, but expel you from membership on the initiative of the SRO itself. The reason for this may be non-payment of membership fees for several months, failure to pass a scheduled inspection, etc. In any case, these actions can be coordinated with the SRO itself and come to a mutually beneficial compromise.

What could be the reasons for termination of membership in the SRO and expulsion from the SRO membership?

Town-planning code of the Russian Federation Article 55.7. contains grounds for termination of membership in a self-regulatory organization.

Membership of an individual entrepreneur or a 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 internal documents self-regulatory organization additional grounds for exclusion from members of a self-regulatory organization.
The self-regulatory organization has the right to decide on the exclusion from the membership 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 state construction supervision bodies during construction, reconstruction of capital construction facilities;
2. in other cases established by the internal documents of the self-regulatory organization.
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.
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. The national association of self-regulatory organizations, of which such a self-regulatory organization is a member.
A person who has terminated membership in a self-regulatory organization shall not be refunded the paid entry fee, membership fee and contribution (contributions) to the compensation fund (compensation funds) of the self-regulatory organization, unless otherwise provided federal law on the entry into force of this Code.
In case of termination by an individual entrepreneur or legal entity of membership in a self-regulatory organization such individual entrepreneur or such entity within one year they cannot be re-accepted as members of a self-regulatory organization.
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.

The procedure for withdrawing from the SRO

The procedure is not difficult. It is enough just to apply to the SRO with a statement of withdrawal from the SRO and membership will be terminated in the near future.

Return of contributions to the compensation fund

The return of contributions made to the compensation fund of the SRO to its members is possible only in the event of the termination of the existence of the SRO. Federal Law of July 3, 2016 N 372-FZ "On Amendments to the Town Planning Code Russian Federation and separate legislative acts of the Russian Federation".

Article 6 of this law reads: “With the exclusion of non-profit organization having the status of a self-regulatory organization, from state register self-regulatory organizations in the case established by part 3 of this article, the rights of the owner of the account on which the funds of the compensation fund of the self-regulatory organization are placed shall be transferred to the National Association of Self-Regulatory Organizations, of which such a self-regulatory organization was a member. An individual entrepreneur or legal entity, upon exclusion of a non-profit organization having the status of a self-regulatory organization, of which they were members, from the state register of self-regulatory organizations in the case established by part 3 of this article, and upon acceptance of such an individual entrepreneur or legal entity as members of another self-regulatory organization corresponding to the requirements established by parts 1 - 4 of Article 554 of the Town Planning Code of the Russian Federation, have the right to apply to such a National Association of Self-Regulatory Organizations with an application for the transfer of funds credited to the account of such a National Association of the compensation fund of a self-regulatory organization, information about which is excluded from the state register, to the account of a self-regulatory organization , in which such an individual entrepreneur or legal entity is accepted as a member.

Transfer from one SRO to another

The legislation does not provide for the option of transferring to another SRO with the preservation and transfer of paid contributions. Thus, if for some reason you want to change one SRO to another, then you need to be ready to leave one organization with the loss of all contributions and join another. The section on withdrawal from the SRO is presented above.

Change of address and subject of the Russian Federation - is a change of SRO required?

Construction organizations planning to change their legal address to an address in another subject of the Russian Federation should be especially careful. The fact is that it is for builders that the principle of territoriality of being in an SRO in the subject of the Russian Federation where the company is registered has been established. And if the company changes its address to an address in another constituent entity of the Russian Federation, then it no longer has the right to remain a member of the SRO in the constituent entity of the Russian Federation at the previous address. Membership must be terminated. In this case, the change of the SRO and the transfer of the compensation fund paid by the SRO member are not provided for by law.

Design and survey organizations can be members of any SRO on the territory of the Russian Federation, and, accordingly, freely change addresses to addresses in other subjects of the Russian Federation, without the need to change the SRO itself.

Access to self-regulatory organizations (SROs) is granted for an unlimited period. However, a person may leave the organization in or forcibly. In the second case, the exclusion is carried out only if there are grounds established by law.

In what cases can they be excluded from the SRO

The grounds for exclusion are established by part 2 of Article 55.7 of the Civil Code of the Russian Federation. However, the wording of the law is rather vague. The following points are not entirely clear:

Is the list provided exhaustive? This point is explained by paragraph 4 of Article 8 of the Law on non-commercial structures. It states that non-profit entities can exclude members based on the provisions specified in the founding documents. However, this rule does not apply to SROs. Associations can be excluded from their ranks only on the basis of a list approved by law. Therefore, the grounds given in Part 2 of Article 55.7 of the Civil Code of the Russian Federation are exhaustive. At the same time, Article 55.7 of the Civil Code of the Russian Federation states that an association has the right to establish its own grounds for exclusion. They must be entered in local acts associations.
Is an association obligated to exclude SRO members? The right to exclude is a right, not an obligation of the SRO. However, this question cannot be answered unambiguously. It is still recommended to merge if there are grounds to exclude the firm. This is due to the fact that the SRO performs supervisory functions. In fact, it replaces state control. Therefore, the organization must stop all detected violations. A company that violates the law should not have membership in an association, since this membership gives the right to engage in activities with increased responsibility.

Consider the list of grounds for exclusion of an SRO participant, established by Article 55.7 of the Civil Code of the Russian Federation:

Failure to comply with the terms of technical regulations, which provoked damage to third parties.
Several violations of standards, regulations within one year or one gross violation.
Failure to pay mandatory contributions (including to the compensation fund) or late payment of funds.
Lack of a certificate of admission to the activities carried out by the company. For example, the SRO issued access to a specific job. However, the subject is engaged not only in it, but also in activities to which there is no access.
Repeated violation of migration rules for 12 months.

Important! When joining the SRO, a participant is endowed with a number of responsibilities. In particular, this is attendance at general meetings. If representatives of the firm regularly sabotage the meeting, they cannot be excluded from the association. In case of this violation of the rules, other disciplinary measures will be applied.

Financial obligations between SROs and participants

When joining an SRO, a company is required to pay fees. If the contribution to the compensation fund is not paid, the certificate of admission is not issued on the basis of 55.6 of the Civil Code of the Russian Federation. In addition, the association may recover from the company the formed debt. Article 309 of the Civil Code of the Russian Federation states that an SRO participant must properly make all payments. Article 310 of the Civil Code of the Russian Federation stipulates that a unilateral change in conditions is impossible. That is, the participant cannot simply stop paying.

Is it possible to collect debt from a company that has already been excluded from the SRO due to non-payment of contributions?

The debt is collected by the association through the court. The possibility of debt collection is confirmed judicial practice(for example, the decision of the FAS in case No. A57 of April 4, 2012). The debt is collected on the basis of a writ of execution issued by the bank.

In turn, SROs may have obligations to their members. Is it possible to return the contributions previously sent to the association? Only in some cases, given in the Urban Planning Code. In particular, this is an exit from the SRO, due to the fact that the company's activities are no longer included in the list of works subject to mandatory access. However, this cannot be called an exception to the association in full. Therefore, we can say that in case of exclusion from the SRO, it is impossible to return the contributions.

Illegal exclusion from SRO

On the this moment There are many violations in the field of activity of the SRO. In particular, this concerns illegal exclusion from the association. How does this happen? The SRO checks the activity of its participants. The partnership has the right to do so. However, inspections are carried out without warning. Firms simply do not have time to prepare all the required documents. Based on the results of the audit, a mass exclusion of participants is carried out. What is the reason for this trend? SROs are dominated by state structures.

If their representatives consider that self-regulatory bodies do not fulfill their functions, the latter can be liquidated. Therefore, the checks are tightened and a global exclusion is carried out.

What can companies do to protect themselves from illegal exclusion? You need to carefully follow the schedule of inspections. It is posted on the official website of the association. If an unexpected audit is nevertheless carried out and violations are found as a result of it, the firm will not be able to challenge its exclusion. When challenging, it is impossible to refer to the fact that the subject did not have time to prepare the documents. If the exception happened really illegally, the company needs to go to court. When is an exclusion invalid? In two cases:

It happened on grounds not included in the list from Article 55.7 of the Civil Code of the Russian Federation.
It was carried out legally, but in fact the company did not commit any offenses.

Features of drawing up a claim depend on what kind of offense the SRO committed. The firm may file a claim with an arbitration court.

What is the risk of exclusion from the SRO?

The consequences of exclusion from the association depend on whether the company's activities are subject to mandatory access. If so, the firm loses the right to engage in activities. However, in the opposite situation, exclusion from the SRO has negative consequences:

Decreased loyalty on the part of contractors and customers.
Deteriorating position in the market.
Decrease in competitiveness.
Loss of information and consulting support.
The need to compensate for damage to third parties independently.
If a difficult situation arises, the firm will have to represent itself in court.

Exclusion from the SRO may lead to a loss of confidence on the part of investors. All of these factors lead to a decrease in profits. However, all of these outcomes are not inevitable. It all depends on the initial position of the company. If it is sustainable, leaving the partnership will not affect the state of the company in any way.

The procedure for exclusion from the SRO

The features of the exclusion are stipulated in Article 55.7 of the Civil Code of the Russian Federation. The current order is:

The decision on exclusion is made by the collegiate governing body of the partnership.
Firms are notified within 3 days of the exclusion decision being made.
Contributions are not returned to the former participant, unless otherwise provided by the Federal Law.

The institution can be restored in the association. However, this can be done no earlier than one year after exclusion. The corresponding rule is specified in paragraph 6 of Article 55.7 of the Civil Code of the Russian Federation.

What to do if the SRO was excluded from the register, letters are received with offers to move “free of charge” to another SRO, etc.

Below we will consider these situations and try to figure it out.

If your SRO is closed, companies that are members of this NPO will no longer receive an extract from the register, which can be attached to documents for submitting an application for participation in bidding for a contract. It also threatens the closure of acts under current contracts.

What actions to take in this case (How to return the funds transferred to the compensation fund of an SRO excluded from the register):

1. Make sure that the SRO has indeed left the register of Rostekhnadzor and NOSTROY/NOPRIZ. This can be done on the respective websites by links.

2. Choose and join a new SRO. Emergencies require urgent action - if your contracts are at risk, you should not wait for the SRO to return to the register.

3. Send to NOSTROY an application for the transfer of CF funds from the “old” SRO excluded from the register to the current SRO (this application must include the name of the excluded SRO, of which the applicant was a member; the name of the SRO, of which the applicant joined, its number in the state register of the SRO and details of her special bank account, on which the funds of her CF are placed, and to which the previously deposited funds of the CF SRO are to be credited)

It should be noted that one may not wait for the money, since NOSTROY will transfer funds to the account of the “affected” members, excluded by the SRO, only if these funds are available.

That is, if the SRO was closed, and it did not transfer the money to the NOSTROY account in full, then payments will be made in the order in which NOSTROY receives applications from the affected construction companies to transfer funds from the KF from the excluded SROs to the existing ones. If the SRO that was expelled did not transfer money to the Association at all, then there will be nothing to share between the builders.

Most often it happens that the SRO was excluded from the register just because the CF funds were not placed on special accounts, but this happened for a simple reason - all the money has already "gone into the shadows", and neither through the court nor through the Association don't get your contributions back.

They want to "transfer" you to another SRO for free?

You received a letter allegedly from “your SRO” that was excluded from the register stating that the management decided to transfer all its members to other existing SROs, and that your company can “free of charge” move to another SRO, instead of the one that was excluded from registry?

These letters are meaningful free cheese” and are not legally valid because:

1. Automatic transition to another SRO is not regulated by Grad. Code of the Russian Federation, the transition is carried out only after writing an application for joining the SRO, subject to payment of contributions to the KF.

2. According to part 3 of article 55.16 of the Town Planning Code of the Russian Federation NOT ALLOWED payment of a contribution to the compensation fund of a self-regulatory organization in installments or in any other way that excludes the lump-sum payment of the said contribution, as well as THIRD PARTY PAYMENTS who are not members of such a self-regulatory organization. The only exception is the transfer of CF funds through NOSTROY / NOPRIZ, after writing an application and collecting these funds to the accounts of NOSTROY / NOPRIZ from the account of the excluded SRO.

This means that no one except your organization can write an application, transfer you to another NPO, and legally pay dues for you to the SRO.

What is the "mousetrap" of this venture:

1. Companies that fall into this trap will be forced to face constant checks and extortions, as they will become hostages of the situation. The mechanism has already been worked out, you can ask for feedback from organizations that are already members of these SROs.

2. Exit from these SROs will be complicated by problems in future work, since according to part 6 of article 55.7 of the Town Planning Code of the Russian Federation, in the event of termination of the IP or legal entity membership in a self-regulatory organization, such an IP or such legal entity cannot be re-admitted to the self-regulatory organization.

That is, you block the work of your company for 12 months.

Is the “former” SRO demanding money from you, the status of which was canceled and excluded from the register?

Be vigilant, the exclusion of an SRO from the register of RosTechNadzor does not mean the termination of its activities as a non-profit organization, therefore, membership in this NPO imposes certain obligations on you, enshrined in the charter of this NPO (monthly fees, checks, etc.)

In order not to impose unnecessary expenses and litigation on your company, you need to leave partnerships in which you do not need membership in time.

The grounds for depriving a self-regulatory organization of the right to issue permits for activities in the construction sector are provided for in Article 55.2, part 5 of the Civil Code of the Russian Federation. If the SRO is excluded from the register, all permits previously issued by the non-profit partnership become invalid. In the case of continuing activities on the evidence of an excluded self-regulatory organization, companies must bear criminal liability in accordance with Art. 171 of the Criminal Code of the Russian Federation.

Reasons and procedure for exclusion

The exclusion of a self-regulatory organization from the register may occur for one of the following reasons:

Non-compliance of the number of participants in the partnership or the size of the compensation fund of the organization with the prescribed norms.
Lack of internal standards and self-regulation rules for non-profit partnership participants.
Non-compliance of the developed and approved requirements for the issuance of certificates of admission to the norms provided for by Article 55.5 of the Civil Code of the Russian Federation.
Failure to provide information about the activities of the self-regulatory organization and the activities of individual members of the association.
Failure to pay the entrance or membership fee to NOSTROY.
Failure to provide information on the size of the compensation fund or the absence of a register of participants in the public domain.
Submission of false data about the address of a non-profit association.
Failure to provide information to NOSTROY on the name and type of SRO within 6 months after formation.

From July 1, 2017, amendments are made to the Civil Code of the Russian Federation in accordance with Federal Law No. 372 of 07/03/2016. Clause 5, which provides for exclusion from the register for non-payment of contributions to the National Association of Self-Regulatory Organizations, is recognized as having lost its effect.

Consequences for companies

After violations are revealed, the decision to exclude a non-profit partnership is made out of court. If the SRO is removed from the register, the consequences for the participating companies are the inability to continue professional activity and the loss of funds contributed to the compensation fund of a non-profit partnership. Legal entities risk loss of contract, denial of VAT refunds and complete cessation of activities.

What should members of the excluded SRO do to avoid downtime and resume work within the law? Companies must choose a new non-profit partnership and enter into it within 30 days after the deletion of the old SRO from the register. Another option is to challenge the decision of Rostekhnadzor in the Arbitration Court.

The question of the return of funds to the CF remains controversial. According to the GRK of the Russian Federation, the funds of the affected companies must be preserved. In accordance with the developed algorithm, money from the compensation fund of the excluded self-regulatory organization goes to NOSTROY, and then, at the request of legal entities, the funds are transferred to the account new organization. In the application for the transfer of the CF, a member of the SRO indicates the name of the SRO excluded from the state register, the name of the new association, its number in single register and bank details.

Copies of the decision of the Council of the new association on the acceptance of the company and the issuance of a permit to carry out activities in the field of construction, reconstruction and overhaul buildings and structures.

However, in practice, liquidated non-profit partnerships refuse to transfer money voluntarily. Funds are often collected only by court order, which delays the process. Therefore, within the prescribed month, the victim construction company cannot return the KF and is forced to re-pay the contribution to the SRO.

Choosing a New Organization

What to do if the SRO was excluded from the register, who will compensate for the loss of companies as a result of the liquidation of a non-profit partnership, and how to protect yourself in the future are the main questions that interest the participants of the association that fell under the sanctions.

SROs compensate only for the damage of the customer, which arose as a result of improper performance of contractual obligations by the member of the association. Payment of funds from the fund to ensure material liability is not provided. Consequently, a self-regulatory organization will not be able to protect its members, so companies should be careful in choosing an SRO to join. If a non-profit partnership is included in the risk group, the possibility of moving to another association should be foreseen in advance.

Construction companies should conduct a quality check of the self-regulatory organization before contributing funds to the compensation fund in order to exclude financial losses in the future.

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

1. Membership of an individual entrepreneur or legal entity in a self-regulatory organization shall be 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 state construction supervision bodies during construction, reconstruction of capital construction projects;

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 exclude an individual entrepreneur or legal entity from the members of the self-regulatory organization, the self-regulatory organization shall notify 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 members of a self-regulatory organization, the list of grounds for expulsion from members 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.