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EU Strikes New Provisional Agreement Regarding Anti-Money Laundering

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Petrovic Legal advised SPS ME on acquisition of Gulf International Pipe Industry

Petrovic Legal advised SPS M.E., a Middle East trader of carbon steel, stainless steel, and special steel pipes, in its acquisition of 100% of the shares of Gulf International Pipe Industry.

Gulf International Pipe Industry is the first manufacturer of High Pressure Steel Line Pipes and Casing Pipes in Oman and the first mill in the MENA region. The purchase of the shares was made from five sellers, four of whom were minority shareholders. The negotiations lasted for six months, and our client successfully closed the transaction.

The Petrovic Legal team, led by Partner Stefan Petrovic, assisted in structuring the transaction, conducting negotiations, preparing transactional documents, and handling closing and post-closing activities related to the acquisition.

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EU Regulatory Developments on NPL Market

EU Directive 2021/2167 introduces a standardized regulatory framework for managing non-performing loans (NPL) across Member States, with implementation required by 29 December 2023. This forthcoming regulatory framework is poised to reshape NPL markets within the European Union. As of now, only a few EU member states have made public their draft legislation for implementing the Credit Servicers Directive (CSD) into national law. Germany, for example, disclosed the draft Credit Service Institutions Act on 20 July2023. This draft designates the Federal Financial Supervisory Authority (BaFin) and the Deutsche Bundesbank with the responsibility for overseeing Credit Servicers and Credit Purchasers.

The CSD introduces a harmonized regulatory framework for NPL-transactions between banks, Credit Purchasers and firms providing NPL-related services. The CSD aims at creating a deep and liquid secondary market for distressed assets in the EU that provides banks with the possibility to reduce their NPL stocks by selling portfolios to third-party investors. However, the CSD also regulates Credit Purchasers and firms that support Credit Purchasers in their interaction with borrowers.

The new regulatory framework specifically pertains to transactions and services directly associated with non-performing credit agreements, commonly referred to as NPLs. According to Article 3(13) of the CSD, a non-performing credit agreement is defined as a “credit agreement that is classified as a non-performing exposure in accordance with Article 47a of Regulation (EU) No 575/2013,” known as the Capital Requirements Regulation (CRR). These non-performing exposures encompass instances where (i) a default has been deemed to occur or (ii) exposures are considered impaired under the applicable accounting standards.

It’s worth noting that both the CSD and the draft of German Credit Service Institutions Act exclusively address non-performing credit agreements that meet two criteria: (i) they were initially issued by credit institutions established within the EU and (ii) the initial transfer of these agreements or the initial assignment of rights under such agreements occurred on or after 30 December 2023.

DEFINITIONS OF ENTITIES

The CSD provides precise definitions for the key entities involved in NPL transactions:

  1. Credit Servicer: Credit Servicers are entities engaged in credit servicing activities, as per Article 3(8) of the CSD. These entities are responsible for managing and enforcing the rights and obligations arising from non-performing credit agreements on behalf of a Credit Purchaser.
  2. Credit Servicer Institutions: Credit Servicer Institutions refer to firms authorized to carry out credit servicing activities on behalf of Credit Purchasers under licenses provided by the CSD/Draft KrDIG. It’s important to note that this definition explicitly excludes credit institutions subject to the CRR, Alternative Investment Fund Managers (AIFM), and certain non-banking entities conducting activities that generally fall within the scope of Credit Services as defined in the CSD.
  3. Credit Servicer: Notably, credit institutions subject to the CRR and certain non-banking entities conducting Credit Services activities, while not classified as Credit Servicer Institutions, are still subject to specific requirements outlined in the CSD/Draft KrDIG, including conduct rules. To account for this, the Draft KrDIG in Germany introduces the term “Credit Servicers,” which encompasses both Credit Servicer Institutions and CRR credit institutions, as well as non-banking entities subject to particular requirements stipulated in the CSD.
  4. Credit Purchaser: refers to any individual or legal entity, excluding credit institutions, that acquires a creditor’s rights associated with a non-performing credit agreement or the non-performing credit agreement itself. This acquisition takes place within the scope of their trade, business, or professional activities, in adherence to relevant EU and national legal regulations.

ENTITIES OUT OF SCOPE

The CSD contains exemptions for certain entities that, based on the definition, would ordinarily fall under its regulatory purview. The rationale behind these exemptions can be attributed to a variety of factors, including the existence of established supervisory frameworks, prevailing market standards, and considerations related to operational efficiency.

CREDIT SERVICES

In the context of the CSD, “Credit Services” are delineated as credit servicing activities. The CSD furnishes a comprehensive list of activities that qualify as such. Importantly, a prospective Credit Servicer only needs to engage in one of these activities to come under the regulatory purview of the CSD. In other words, undertaking any one of the specified credit servicing activities subjects an entity to the regulations stipulated in the CSD:

  • Collection and/or Recovery of payments
  • Renegotiating terms with the borrower
  • Administration of complaints
  • Notification of the borrower of changes

REQUIREMENTS

Article 4 of the CSD mandates that Credit Servicers must obtain authorization from the National Competent Authority (NCA) in their respective home Member State before commencing their operations. In essence, the following criteria must be provided:

  1. Trustworthiness and Expertise: Credit Servicers must demonstrate the trustworthiness, as well as the adequate knowledge and experience, of their board members and supervisory board.
  2. Good Reputation of Qualifying Holders: Evidence of the good reputation of individuals or entities holding qualifying holdings in the applicant, specifically those holding 10% or more of its share capital.
  3. Separate Fund Holding Accounts: If the applicant plans to hold funds from borrowers on behalf of Credit Purchasers, they must furnish evidence of separate accounts designated for holding these funds.
  4. Viable Business Plan: A viable business plan must be provided, outlining the intended business activities, governance structure, and arrangements designed to ensure compliance with organizational requirements.
  5. Information on Outsourcing Arrangements: Details concerning outsourcing arrangements and any associated outsourcing agreements should also be included as part of the authorization application.

These requirements are essential to confirm that Credit Servicers possess the necessary qualifications, integrity, and operational capacity to conduct their activities responsibly and in accordance with regulatory standards.

Outlook

In the foreseeable future, both existing firms already operating within the purview of the CSD and those contemplating entering the realm of activities regulated by the CSD will encounter a regulatory landscape that bears resemblance to the regulatory framework governing credit institutions, investment firms, and payment institutions. The core focus of the CSD centers on fit and proper requirements for key personnel and adherence to essential business rules. This regulatory emphasis differs from aspects such as own funds requirements, which hold less prominence within the CSD framework.

For some clients, it will be imperative to assess whether their business activities fall under the jurisdiction of the CSD. Those who anticipate that they will be subject to these requirements should initiate a gap analysis to ascertain their compliance with the forthcoming regulatory standards. Furthermore, it is advisable for clients to commence preparations for the application process to obtain any necessary licenses under this new regulatory regime as early as possible. Timely preparation and understanding of these regulatory requirements will be crucial for a smooth transition into this regulatory environment.

For additional information, you can contact us by sending an e-mail to office@petroviclegal.com.

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Incentives in the field of Renewable Energy Sources

Before the adoption of the Law on the Use of Renewable Energy Sources (RES), which would fully regulate this area, only a few articles in the Law on Energy were dedicated to renewable energy sources.

As the use of RES is of great importance for the Republic of Serbia, in addition to the fact that it is obliged to regulate this area because it is a member of the Energy Community, it was decided that the Law on the Use of RES will enter into force on March 30, 2021.

The regulation of the use of RES aims, among other things:

1. in the first place, reducing the use of fossil fuels and increasing the use of RES for environmental protection;

2. long-term reduction of dependence on energy imports i

3. creation of new jobs and development of entrepreneurship in that area

n order to achieve the stated goals and to attract investors in this sector, certain incentives have been prescribed that would contribute to greater and faster production of RES. Thus, the Law on RES foresees the following incentives that are implemented in a specific incentive period, namely:

Market premium:

The right to a market premium is acquired in the auction process conducted by the Ministry on the basis of quotas prescribed by the Government.

The auction process is initiated and conducted based on a public call and consists of three phases:

-The qualification phase is an elimination phase, in which the registered participants are selected based on the conditions prescribed in art. 19 paragraph 1 of the Law on RES.

-The bidding phase implies that the participants who were selected in the qualification procedure compete with their bids according to the criterion of which bid offers a lower market premium in relation to the maximum market premium, that is, a lower purchase price in relation to the maximum purchase price. Offers that exceed the maximum purchase price will not be considered.

-The last stage in the auction process is the selection of the best offer. The participants of the auction process are ranked depending on the offer they made, from the lowest to the highest offered price, and they fill the quota according to that order. 

The market premium is a type of operational state aid that represents an addition to the market price of electricity that users of the market premium deliver to the market and which is determined in eurocents per kWh in the auction process.

-Users of the market premium sell the above-mentioned electricity on the electricity market.

-It can be acquired for all or part of the power plant’s capacity, which must amount to at least 70% of the power plant’s approved power.

-It is paid on a monthly basis for the electricity supplied by the power plant to the power system.

-In case it is acquired for part of the power plant’s capacity, the electricity for which the market premium is paid is obtained by multiplying the percentage of the power plant’s capacity that entered the quota with the electricity delivered to the power system during the accounting period.

-If it is determined depending on the reference market price, and the market price of electricity, which is the basis for calculating the reference market price, is negative, the market premium is not paid for the period of negative market price of electricity.

The incentive period lasts 15 years.

Feed – in tariff:

The feed-in tariff is a type of operational state aid that is awarded in the form of an incentive purchase price guaranteed per kWh for electricity supplied to the power system during the incentive period.

-It can only be acquired for small plants and demonstration projects.

-Demonstration projects are RES projects in which a technology is demonstrated as the first of its kind and represents a significant innovation that greatly exceeds the highest level of existing RES technology and has the status of an innovation project in accordance with the law regulating innovation activity.

-This characteristic distinguishes the feed-in tariff from the market premium.

-It is calculated and paid on a monthly basis.

-It can be acquired for all or part of the power plant’s capacity.

-The Ministry assigns the right to the feed-in tariff in the auction process based on the available quotas prescribed by the Government.

-We have already explained the auction procedure once in the part related to the market premium.-

-In the event that it is acquired for part of the power plant’s capacity, the electricity for which the feed-in tariff is paid is obtained by multiplying the percentage of the power plant’s capacity that entered the quota with the electricity delivered to the power system during the accounting period.

The incentive period lasts 15 years.

Buyer – producer:

-It can produce energy for its own consumption.

It can store electricity for its own needs.

-It can deliver excess electricity to the transmission system, distribution system, or closed distribution system.

-It cannot use incentive measures in the form of a market premium or feed-in tariff, nor have the right to a guarantee of origin

Taking over the balance responsibility:

The guaranteed supplier is obliged to assume the balance responsibility for the privileged producers who are in the market premium system. This duty lasts 6 months from the date of the merger of the organized intraday market of the Republic of Serbia with the single European organized intraday market or 30 months from the date of establishment of the organized intraday market in the Republic of Serbia, depending on which period expires first.

The privileged producer has the right to transfer the balance responsibility to another party responsible for the balance in accordance with the law.

The guaranteed supplier assumes balancing responsibility and bears the balancing costs for favoring producers who are in the feed-in tariff system until the end of the incentive period, for power plants whose approved power is less than 400 kW, that is, from January 1, 2026, for power plants whose approved power less than 200 kW.

Priority access to the transmission or distribution system:

The operator of the transmission or distribution system is obliged to prioritize electricity produced from renewable sources in demonstration projects, in power plants with an approved power of less than 400 kW, i.e. for power plants that are connected to the grid after January 1, 2026, with an approved power of less than of 200 kW, regardless of whether it is in the incentive system.

This does not apply if the operational safety of the transmission or distribution system is threatened. If this is the case, the operator is obliged to inform the Agency for Energy and the producers whose work is affected by the measures taken, as well as to inform about the measures that need to be taken in order to prevent possible future restrictions.

Finally, it is important to note that the Amendments to the Law on Value Added Tax prescribes a more favorable calculation of VAT for customers – producers of electricity.

Namely, the Law on Value Added Tax stipulates that when an electricity supplier carries out sales to a producer of electricity from RES, the basis is the amount of compensation for used electricity determined in accordance with the law regulating the use of RES, excluding VAT.

For additional help, you can contact us by sending an e-mail to office@petroviclegal.com.

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Corporate Tax Rules in UAE

The long-awaited changes in legislation in the United Arab Emirates came into force. On 1 June 2023, the UAE Ministry of Finance released Cabinet Decision No. 55 of 2023 on Determining Qualifying Income and Ministerial Decision No. 139 of 2023 on Qualifying Activities and Excluded Activities.

The applicable tax rates for Qualifying Free Zone Persons (QFZP) are as follows:

-Qualifying Income: QFZP are taxed at a rate of 0% on income that qualifies as Qualifying Income.

-Taxable Income which is non-Qualifying Income: QFZP are taxed at a rate of 9%.

The definition of Qualifying Income has been prescribed to encompass the following:

-Income derived from transactions with other Free Zone Persons, except for income arising from Excluded Activities. In considering goods transactions that are provided to another Free Zone Person, the Free Zone Person recipient must be the beneficial owner of those goods;

-Domestic and foreign-sourced income which is derived from conducting any of the Qualifying Activities;

-Any other income, provided that the QFZP satisfies the de minimis requirements.

Qualifying Activities, which are considered eligible for favorable tax treatment, include the following:

-Manufacturing of goods or materials;

-Processing of goods or materials;

-Holding of shares and other securities;

-Ownership, management and operation of ships;

-Reinsurance services that are subject to regulatory oversight of the competent authority in the UAE;

-Fund management services that are subject to regulatory oversight of the competent authority in the UAE;

-Wealth and investment management services that are subject to regulatory oversight of the competent authority in the UAE;

-Headquarter services to related parties;

-Treasury and financing services to related parties;

-Financing and leasing of aircraft, including engines and rotable components;

-Distribution of goods or materials in or from a Designated Zone to a customer that resells such goods or materials, or parts thereof or processes or alters such goods or materials or parts thereof for the purposes of sale or resale;

-Logistics services;

-Any activities that are ancillary to the activities listed above.

On the other hand, Excluded Activities include the following:

-Transactions involving natural persons, with certain exceptions for Qualifying Activities;

-Banking activities, insurance activities and finance and leasing activities that are subject to regulatory oversight in the UAE unless they are specifically permitted as a Qualifying Activity under Article 2(a);

-Ownership or exploitation of immovable property, other than commercial property that is located in a Free Zone where the transaction is with other Free Zone Persons;

-Ownership or exploitation of intellectual property assets;

-Any activities that are ancillary to the activities listed above.

In order to satisfy the de minimis requirements, the following conditions need to be met:

-Non-qualifying Revenue, which refers to revenue derived from Excluded Activities or activities that do not fall under Qualifying Activities, should not exceed either 5% of the total revenue or AED 5,000,000, whichever is lower.

It is important to note that Non-qualifying Revenue is generated from Excluded Activities or activities that do not qualify as Qualifying Activities when the counterparty involved is a non-Free Zone Person.

To ascertain this, the calculation does not incorporate income derived from a domestic permanent establishment (such as a branch located in the UAE mainland) or a foreign permanent establishment. If the De Minimis threshold is exceeded or the QFZP fails to meet the eligibility criteria stated in Article 18 of the UAE Corporate Tax Law, the Free Zone Person will no longer qualify as a QFZP for the current tax year and the following 4 tax years. This income will be subject to Corporate Tax at a rate of 9%. However, it is important to note that the existence of a Domestic PE will not disqualify the Free Zone Person from benefiting from a 0% Corporate Tax rate on Qualifying Income. Additionally, the income from the Domestic PE will not be factored into the de minimis test mentioned earlier.

A mainland branch of a Qualifying Free Zone Person will generally be considered a Domestic PE and will be subject to corporate tax at a rate of 9%.

It is worth mentioning that the introduction of a de minimis threshold will have implications for Free Zone entities, as it could potentially subject them to full taxation under the new rules. For further assistance, you can contact us by sending an email to office@petroviclegal.com.

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EU sanctions on Russia – completion of the pilot project

The European Union has imposed sanctions on specific sectors of the Russian economy and entities that provide support to Russia’s defense capabilities. For instance, professional services are prohibited from being offered to legal entities established in Russia by the EU.

To further enforce its sanctions regime, the EU is working with third countries to ensure that loopholes are closed and that operators do not circumvent its prohibitions. The new special envoy of the EU has confirmed that efforts are underway to work with countries such as the United Arab Emirates, and more countries, including Turkey, are expected to follow.

Asset confiscation is a major focus of EU sanctions enforcement. EU regulations permit the confiscation of assets resulting from sanctions breaches, such as money used to help a sanctioned person evade financial restrictions. The proposed EU directive on asset recovery and confiscation aims to allow national authorities in the EU to identify, freeze, confiscate, and manage tainted assets. This means that if any assets are the product of sanctions breaches, such as money received to facilitate a sanctioned person’s evasion of financial restrictions, they could be confiscated under EU regulations. The confiscation of assets resulting from sanctions breaches is one of the main focal points for sanctions enforcement in the EU. Some countries proposed the establishment of a central agency in the EU Similar to the Office of Foreign Assets Control (OFAC) in the United States, but suggestions have yet to progress.

Under the 10th Package from the beginning of this year, the EU has added 87 more individuals and 34 entities to its sanctions list. This new list includes Alfa-Bank, Rosbank, Tinkoff Bank, the National Wealth Fund of the Russian Federation, and the Russian National Reinsurance Company, among others. Many of the designations target Russian companies involved in the military and defense sectors, such as those producing missiles, drones, aircraft, military vehicles, warships, control systems, and those providing supplies to the Russian Armed Forces.

In the coming months, it will be crucial for companies to assess their compliance with EU regulations, as the EU moves towards greater sanctions enforcement. This is especially important for financial services firms, as a transaction or a counterparty could ostensibly be captured by the EU regimes. The reputational impact of enforcement action can be significant, as it may affect third parties’ willingness to transact with these firms in the future.

On the basis of the above, it seems that the previous sanctions were only a pilot project of the EU, and that now Russia, Russian companies and Russian citizens will face significantly harsher sanctions with a narrowed possibility of circumventing the application of valid directives.

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e-Registration of incorporation of a company

In order to improve the conditions for starting a business, the registration application for incorporation of a company from 17 May 2023 is submitted to the Agency for Business Registers exclusively in electronic form, according to the Law on Registration Procedure. In the eRegistration process, all documents that are attached must be in electronic form. This practically means that from 17 May 2023, there will no longer be a possibility to submit an application for the establishment of a company to the APR in paper form. In this way, conditions are created for reducing costs and time for establishing a company, the level of services for citizens and entities is improved and expanded, and the processing time of requests by the Agency is reduced, which contributes to greater efficiency.

The revised process simplifies company formation, conserves resources, and enhances its appeal to entrepreneurs. To take advantage of this more straightforward process, applicants (or their representatives) must have an account on the SBRA online platform and a qualified electronic certificate issued by a competent Serbian authority.

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Petrovic Legal advised Hefestos Capital on acquisition of TMK Europe

Petrovic Legal advised Hefestos Capital, the largest investment banking company in Southeast Europe, in its acquisition of 100% of the shares in TMK Europe GmbH, which is the majority shareholder of TMK Artrom SA, leading European pipe manufacturer.

Petrovic Legal team led by Partner Stefan Petrovic assisted with structuring of the transaction, negotiations, preparation of transactional documents, as well as closing and post-closing activities related to the acquisition.

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New rules for freelancers

The new draft Law on Personal Income Tax of the Republic of Serbia (the „Law“) foresees the application of new tax rules for freelancers, who this time get a unique choice regarding the taxation model.

Namely, according to the new draft of the Law, the tax return for the income earned by a freelancer will be submitted in quarters, while the deadline for the return of income with calculated tax will be 30 days from the end of the quarter in which the income was earned.

The novelty is that freelancers will be able to choose one of the two taxation models offered in each quarter, which means that freelancers have the option to change the taxation model in each quarter.

According to one model of taxation, recognized costs in the amount of RSD 96,000 are deducted from the quarterly income, and tax is paid at the rate of 20% on the base thus obtained. This means that freelancers who earn RSD 96,000 per quarter (RSD 32,000 per month) do not pay taxes or contributions for pension and disability insurance. Health insurance is mandatory and amounts to RSD 1,402.17 per month or 10.3%. For incomes exceeding the amount of RSD 96,000, starting next year, contributions for pension and disability insurance will be 24%, health insurance 10.3%, and tax 20% on the base determined in the above manner. This model is favorable for freelancers with lower incomes, as well as for those freelancers who occasionally generate income in this way.

According to the second model of taxation, recognized expenses in the amount of RSD 57,900 increased by 34% of the gross income realized in the quarter are deducted from the quarterly income. A tax of 10% is payable on the difference thus obtained. PIO is paid at 24% of the taxable part of income or at least RSD 7,720 per month, and health insurance at 10.3% or at least RSD 1,402.17 per month.

In case you have any questions regarding this topic, please feel free to contact us.

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Obligations after TIN has been suspended

In the event that the Tax Administration suspends the TIN assigned to the taxpayer by decision, it delivers a copy of the decision to the bank and the competent organizational unit for forced collection. Then the bank is obliged to suspend the execution of the taxpayer’s order for the transfer of funds, except for the purpose of settling obligations based on taxes and secondary tax payments.

Therefore, the legal consequences of suspended TIN are as follows:

1) suspension of the execution of the taxpayer’s order for the transfer of funds, except for the above-mentioned purpose;

2) Impossibility of identifying the taxpayer in payment instruments, which means the impossibility of issuing invoices, submitting tax returns, as well as any payment instrument that orders the performance of any payment transaction, except for the above purpose.

In this regard, the taxpayer is de facto prevented from performing the activity, although the performance of the activity is not formally prohibited.

On the other hand, a temporary absence from the tax relationship, which occurred as a result of the TIN suspension, does not constitute a legal basis for exemption from tax payments.

Regarding this topic, with respect to the entrepreneurs, the Ministry of Finance published the following opinion:

A taxpayer who is temporarily absent from the tax relationship, and whose situation arose as a result of the suspended TIN, is effectively prevented from performing activities, even though the performance of activities is not formally prohibited. On the other hand, a temporary absence from the tax relationship that occurred as a result of the suspended TIN does not constitute a legal basis for exemption from the payment of mandatory social security contributions.