Chương II Nghị định 69/2014/NĐ-CP: Thành lập, tổ chức lại, chấm dứt hoạt động dưới hình thức tập đoàn kinh tế, tổng công ty

Chapter II

ESTABLISHMENT AND RE-ORGANIZATION OF ECONOMIC GROUPS AND CORPORATIONS AND TERMINATION OF OPERATION IN THE FORM OF ECONOMIC GROUP OR CORPORATION

Article 8. Establishment of economic groups and corporations

1. Economic groups and corporations shall be established on the basis of state corporations or groups of companies which satisfy the conditions prescribed in Article 9 of this Decree.

2. Economic groups and corporations shall be established in the following forms:

a/ Merger or consolidation of enterprises;

b/ Redemption of shares or capital contributions;

c/ Investment or contribution as capital of tangible or intangible assets;

d/ Other lawful forms of affiliation as agreed by enterprises themselves.

Article 9. Conditions for establishment of economic groups and corporations

1. The Government shall only consider selecting corporations to act as the core in forming economic groups when the conditions prescribed in Clause 2 of this Article are fully met and consider establishing new economic groups or corporations when the conditions prescribed in Clause 3 or 4 of this Article are fully met.

2. A state corporation selected to act as the core in forming an economic group must fully satisfy the following conditions:

a/ Having conducted business at a profit for three (3) consecutive years preceding the year when it is selected;

b/ Having its financial status assessed by its owner as being at a safe level;

c/ Having human resources with qualifications and a productivity higher than the average levels of other enterprises operating in the same sector or field;

d/ Possessing advanced equipment and technologies; modem management;

dd/ Effectively managing its shares and capital contributions at other enterprises;

e/ Operating nationwide and overseas.

3. A to-be-established economic group must satisfy the following conditions:

a/ Its main business lines fall into the sectors and fields which produce products or provide services of special importance to national economic security; create the foundation for national economic infrastructure; and create a driving force for increasing the competitiveness of enterprises and the whole economy. The Prime Minister shall determine business sectors and fields eligible for consideration for establishment of economic groups in each period;

b/ The economic group’s parent company must meet the following conditions:

- Having a charter capital of at least VND 10 trillion. In case the parent company is organized in the form of joint-stock company or limited liability company with two or more members, state capital must account for at least 75% of its charter capital. The Prime Minister shall consider and decide on the case in which a parent company’s charter capital or the ratio of state capital to its charter capital is lower than the prescribed level.

- Having human resources with sufficient qualifications, experiences and capabilities to operate its main and related business lines and manage capital invested in, govern, administer and coordinate operations of, subsidiary and affiliate companies.

- Being capable of using technological know-how and making use of its brand name and markets to control subsidiary companies and enter into affiliation with other affiliate companies.

- Possessing financial resources or having feasible plans to mobilize financial resources to ensure sufficient capital for investment in subsidiary and affiliate companies.

c/ The economic group must have at least 50% of its subsidiary companies operating in key stages or steps of its main business lines and fields and the total value of the parent company’s shares and capital contributions at these companies must account for at least 60% of the parent company’s total investment capital at subsidiary and affiliate companies.

Subsidiary companies with charter capital wholly owned by the parent company must be companies which are established to develop and hold technological know-how directly serving the performance of main tasks and business lines of the parent company.

4. A to-be-established corporation must meet the following conditions:

a/ Its main business lines fall into the sectors and fields which produce or provide important products or services; create the foundation for the development of a sector or region; and create a driving force for raising the competitiveness of enterprises, a sector or a region. The Prime Minister shall determine business sectors and fields eligible for consideration for establishment of corporations in each period;

b/ The parent company must meet the following conditions:

- Having a charter capital of at least VND 1,800 billion. In case the parent company is organized in the form of joint-stock company or limited liability company with two or more members, state capital must account for at least 65% of its charter capital. The Prime Minister shall consider and decide on the case in which the parent company’s charter capital or the ratio of state capital to its charter capital is lower than the prescribed level.

- Having human resources with sufficient qualifications, experiences and capabilities to operate its main and related business lines; manage capital invested in, govern, administer and coordinate operations of, subsidiary and affiliate companies.

- Possessing financial resources or having feasible plans to mobilize financial resources so as to ensure sufficient capital for investment in subsidiary and affiliate companies.

c/ The corporation must have at least 50% of its subsidiary companies operating in key steps or stages of its main business lines and the total value of the parent company’s shares and capital contributions at these companies must account for at least 60% of the parent company’s total investment capital in subsidiary and affiliate companies.

Subsidiary companies with charter capital wholly owned by the parent company must be companies established to develop and hold technological know-how directly serving the performance of main tasks and business lines of the parent company.

Article 10. Order and procedures for establishment of economic groups and corporations

1. Based on the conditions prescribed in Article 9 of this Decree, the Prime Minister shall decide on parent companies in corporations and groups of companies permitted to elaborate schemes on establishment of economic groups or corporations in each period at the proposal of line ministries or People’s Committees of provinces and centrally run cities (below referred to as provincial-level People’s Committees) and opinions of the Ministry of Planning and Investment.

2. The Members’ Councils or representatives who are authorized to perform the rights of shareholders and the state member (below referred to as authorized representatives) at the parent companies shall elaborate schemes on establishment of economic groups or corporations and submit them to line ministries or provincial-level People’s Committees for opinion and then finalize the draft schemes.

3. A dossier of establishment of an economic group or a corporation must comprise:

a/ A submission paper on the scheme on establishment of the economic group or corporation;

b/ The scheme on establishment of the economic group or corporation.

The scheme must have the following principal details: the necessity for and purpose of the establishment of the economic group or corporation; the actual situation of organization, management and operation of the corporation or group of companies; method of forming, and structure of, the economic group or corporation; methods of establishing, maintaining and developing forms of affiliation between the parent company and member enterprises and among member enterprises; mode of establishing the parent company, including also a plan on equitization of the parent company, in case of establishing the economic group concurrently with equitizing the parent company; the legal form, name, organizational and managerial structure of the parent company; names, legal forms and organizational structures of member enterprises; main business lines and related business lines; structure of investment in the business lines of the economic group or corporation; plan on use and development of leading and managerial personnel in the parent company; personnel to perform the function of representing the parent company as the owner at member enterprises; business plan of the economic group or corporation; analysis of effectiveness indicators of the establishment of the economic group or corporation compered to the period before establishment; assessment of socio-economic impacts and the conformity of the establishment of the economic group or corporation with sectoral and regional development master plans and strategies; report on the completion of procedures for economic concentration in accordance with the competition law; organization, operation, management and administration in the economic group or corporation; information system and mechanisms to ensure smooth communication within the economic group or corporation; and scheme implementation roadmap and plan.

c/ The draft charter of the parent company.

4. Appraisal of schemes:

a/ In case of establishing an economic group:

- The line ministry shall make at least eight (8) original sets of the dossier of request for establishment of an economic group and send them to the Ministry of Planning and Investment.

- The Ministry of Planning and Investment shall consult the Ministries of Finance; Labor, War Invalids and Social Affairs; and Home Affairs, the provincial-level People’s Committee of the locality where the parent company is located, and at least three (3) independent economic experts.

Within thirty (30) working days after receiving a set of the dossier of request for establishment of the economic group, related agencies and persons shall send to the Ministry of Planning and Investment their written opinions on the contents falling within the scope of their functions and task.

- Within fifteen (15) working days after receiving written opinions of related agencies, the Ministry of Planning and Investment shall submit the dossier and appraisal report to the Prime Minister for consideration and decision.

b/ In case of establishing a corporation:

- The line ministry or provincial-level People’s Committee shall make five (5) original sets of the dossier of request for establishment of a corporation and consult the Ministries of Planning and Investment; Finance; Labor, War Invalids and Social Affairs; Home Affairs; and the line ministry (in case the to-be-established corporation will be attached to a provincial-level People’s Committee) or the provincial-level People’s Committee (in case the to-be-established corporation will be attached to a line ministry).

- Within fifteen (15) working days after receiving a set of the dossier of request for establishment of the corporation, related agencies shall send to the line ministry (in case the to-be-established corporation will be attached to a line ministry) or the provincial-level People’s Committee (in case the to-be-established corporation will be attached to a provincial-level People’s Committee) their written opinions on the contents falling within the scope of their functions and tasks.

- Within fifteen (15) working days receiving written opinions of related agencies, the line ministry or provincial-level People’s Committee shall elaborate an appraisal report explaining the assimilation of opinions of related agencies, finalize the dossier and submit it to the Prime Minister for consideration and decision.

5. Approval of schemes:

Based on the conditions prescribed in this Decree and appraisal reports, the Prime Minister shall approve schemes on establishment of economic groups and the policy on establishment of corporations under ministries or provincial-level People’s Committees.

6. Implementation of schemes on establishment of economic groups and corporations:

a/ For economic groups:

- In case of establishing an economic group with the parent company operating in the form of state-owned single-member limited liability company: The Prime Minister shall decide on the establishment of the parent company; appoint the chairman of the Members’ Council of the parent company at the proposal of the line ministry after obtaining the appraisal opinion of the Ministry of Home Affairs. The line minister shall appoint members of the Members’ Council, general director, and specialized controllers of the parent company. The Minister of Finance shall appoint financial controllers of the parent company.

- In case of establishing an economic group with the parent company operating in the form of joint-stock company or limited liability company with two or more member with controlling shares or capital contributions of the State and case of establishing an economic group concurrently with transforming the parent company into a joint-stock company or limited liability company with two or more members with controlling shares or capital contributions of the State: The line minister shall appoint a person to act as the authorized representative at the parent company; and nominate candidates for the posts of chairman and member of the Board of Directors or Members’ Council of the parent company.

- The Members’ Council or authorized representative and persons appointed to join the Board of Directors of the parent company shall exercise the controlling rights so as to set orientations for the parent company’s Shareholders’ General Meeting and Members’ Council or Board of Directors to further implement the scheme; develop forms of affiliation between the parent company and subsidiary companies and among member enterprises in the course of implementation of the scheme, and throughout the operation of the economic group. The Members’ Council or authorized representative at the parent company shall report on the implementation of the scheme and arising difficulties and problems to the owner and coordinate with related agencies in implementing the scheme.

b/ For corporations:

- In case of establishing a corporation with the parent company operating in the form of state-owned single-member limited liability company: The line minister or provincial-level People’s Committee chairperson shall decide on the establishment of the parent company; and appoint the chairman and members of the Members’ Council, general director and controllers of the parent company.

- In case of establishing a corporation with the parent company operating in the form of joint-stock company or limited liability company with two or more members with controlling shares or capital contributions of the State and in case of establishing a corporation concurrently with transforming the parent company into a joint-stock company or limited liability company with two or more members with controlling shares or capital contributions of the State: The line minister or the provincial-level People’s Committee chairperson shall appoint the authorized representative at the parent company; and nominate candidates for the posts of chairman and members of the Board of Directors or Members’ Council of the parent company.

- The Members’ Council or authorized representative and persons appointed to join the Board of Directors of the parent company shall exercise the controlling rights so as to set orientations for the parent company’s Shareholders’ General Meeting and Members’ Council or Board of Directors to further implement the scheme; develop forms of affiliation between the parent company and subsidiary companies and among member enterprises in the course of implementing the scheme, and throughout operation of the corporation. The Members’ Council and authorized representative shall report on the implementation of the scheme and arising difficulties and problems to the owner and coordinate with related agencies in implementing the scheme.

7. For self-developed corporations and groups of companies which fully meet the conditions prescribed in Article 9 of this Decree, the order and procedures for establishing economic groups or corporations are as follow:

a/ For a self-developed corporation which meets the conditions for establishment of an economic group:

- The Members’ Council or authorized representative at the parent company shall make a report proposing the establishment of an economic group and send it to the line ministry.

- The line ministry shall make a report proposing the establishment of the economic group and send it to the Ministry of Planning and Investment. The Ministry of Planning and Investment shall consult the Ministries of Finance; Planning and Investment; Labor, War Invalids and Social Affairs; and Home Affairs, and the provincial-level People’s Committee of the locality where the parent company is located. The Ministry of Planning and Investment shall submit to the Prime Minister a report summarizing opinions of related agencies for consideration and decision.

b/ For a self-developed group of companies which fully meets the conditions for establishment of a corporation:

- The Members’ Council or authorized representative at the parent company shall make a report proposing the establishment of a corporation and send it to the line ministry or provincial-level People’s Committee.

- The line ministry or provincial-level People’s Committee shall make a report proposing the establishment of the corporation and consult the Ministries of Planning and Investment; Finance; Labor, War Invalids and Social Affairs; and Home Affairs and the line ministry (in case the to-be-established corporation will be attached to a provincial-level People’s Committee) or the provincial-level People’s Committee where the parent company is located (in case the to-be-established corporation will be attached to a line ministry). The line ministry or provincial-level People’s Committee shall make a report summarizing opinions of related agencies to the Prime Minister for consideration and decision.

Article 11. Re-organization of economic groups and corporations

1. An economic group or a corporation shall be re-organized by the following methods:

a/ Consolidating the parent company with one or more than one company of the same type but, after the consolidation, the State remains the owner or still owns controlling shares or capital contributions;

b/ Merging the parent company with one or more than one company of the same type but, after the merger, the State remains the owner or still owns controlling shares or capital contributions;

c/ Dividing the parent company into several companies of the same type and, after the division, the State remains the owner or still owns controlling shares or capital contributions;

d/ Splitting the parent company into several companies of the same type and, after the splitting, the State remains the owner or still owns controlling shares or capital contributions;

dd/ Transforming the parent company which is currently operating in the form of state- owned limited liability company into a limited liability company with two or more members or joint-stock company where the State still holds controlling rights;

e/ Increasing or decreasing the numbers of level-II and -III enterprises.

2. Conditions for re-organization:

An economic group or a corporation shall be re-organized when fully meeting the following conditions:

a/ The re-organization is consistent with the Prime Minister-approved overall scheme on re-organization and renewal of wholly state-owned enterprises. In case the re-organization of an economic group or a corporation is not yet mentioned in this scheme, the line ministry (for the economic groups or corporations prescribed in Clause 2, Article 7 of the Government’s Decree No. 99/2012/ND-CP of November 15, 2012, on assignment and delegation of rights, responsibilities and obligations of the state owner toward state-owned enterprises and state capital invested in enterprises (below referred to as Decree No. 99/2012/ND-CP) and corporations under ministries) or provincial-level People’s Committee (for corporations under provincial-level People’s Committees) shall report the case to the Prime Minister for decision;

b/ After being re-organized, the economic group or corporation still fully meets the conditions prescribed in Article 9 of this Decree.

3. Order and procedures for re-organizing an economic group or a corporation:

a/ The re-organization of an economic group or a corporation in the form of consolidation, merger, division or splitting of the parent company must comply with the law on re-organization of companies and the Prime Minister-approved overall scheme on re-organization and renewal of wholly state-owned enterprises;

b/ The re-organization of an economic group or a corporation by increasing or decreasing the number of level-II and -III enterprises must comply with the Prime Minister-approved overall scheme on re-organization and renewal of wholly state-owned enterprises.

Article 12. Termination of operation in the form of economic group or corporation

1. An economic group or a corporation shall terminate its operation in the form of economic group or corporation in the following cases:

a/ The parent company is dissolved or goes bankrupt;

b/ The economic group or corporation no longer satisfies the conditions prescribed in Article 9 of this Decree;

c/ The parent company is merged or consolidated with another enterprise and, after the merger or consolidation, the State no longer owns controlling shares or capital contributions;

d/ Other cases as prescribed by the Government or the Prime Minister.

2. Order and procedures:

a/ Cases in which the parent company is dissolved or goes bankrupt must comply with the laws on dissolution and bankruptcy. The Ministry of Finance shall guide the settlement of debts; the Ministry of Labor, War Invalids and Social Affairs shall guide regimes and policies toward employees upon dissolution of parent companies of economic groups or corporations;

b/ Cases in which the economic group or corporation no longer satisfies the conditions prescribed in Article 9 of this Decree must comply with the Prime Minister-approved overall scheme on re-organization and renewal of wholly state-owned enterprises.

Annually, line ministries and provincial-level People’s Committees shall review and propose:

- The Ministry of Planning and Investment to verify and report cases in which economic groups no longer satisfy the conditions prescribed in Article 9 of this Decree to the Prime Minister for the latter to decide on the termination of operation in the form of economic group.

- The Prime Minister to approve the policy on termination of operation in the form of corporation, for corporations that no longer satisfy the conditions prescribed in Article 9 of this Decree.