The new Rulebook on the Content of the Business Entities Register and Documents Required for Registration (RS Official Gazette No. 63/23) (hereinafter: "New Rulebook") has entered into force on August 5, 2023, thereby ceasing to be valid Rulebook on the Content of the Business Entities Register and Documents Required for Registration (RS Official Gazette, No. 42/2016) (hereinafter: "Previous Rulebook").
As the previous one, the New Rulebook regulates the content of the Business Entities Register (hereinafter: "Register") and the documentation required for registration. However, their content is not fundamentally different.
Namely, the New Rulebook is aligned with the planned digitization of public administration and the latest amendments to the Law on Registration Procedure in the Business Registers Agency, as well as the recent implementation of electronic incorporation of companies. In addition, the New Rulebook conducted terminology and minor material harmonization with the Companies Act.
Relevant changes to the New Rulebook are primarily reflected in the Register’s content: it must contain an address for receiving electronic mail, and depending on the type of subject of registration, it will also contain restrictions to representatives’ authorities in the form of a mandatory co-signature, telephone numbers or registration numbers assigned by other authorities (on the contrary, so far the registration numbers assigned by the Pension and Disability Insurance Fund and the Health Insurance Fund were mandatory).
For the registration of entering of in-kind contributions, already subscribed or at the same time as the company incorporation or share capital increase, from now on it is necessary to submit a shareholders’ or legal representatives’ statement that the in-kind contribution has been entered into the company. Exceptionally, if the value of the in-kind contribution was determined by an assessment and if more than one year has passed since the day of registration of the company incorporation or share capital increase, a new assessment of the in-kind contribution value has to be submitted.
Additional protection of the rights of dissenting stockholders, i.e. dissenting shareholders, is foreseen in the obligation to submit a statement from the competent company body that all its obligations in connection with the purchase of shares/stocks of dissenting shareholders/ stockholders have been fulfilled in accordance with the law, or that there were none, all in following cases of registration: change in the duration of the company, amendment of the articles of association of a joint stock company which reduces the rights of stockholders of common and preferred stocks established by law, decision to withdraw stocks from the regulated market, as well as in the case of legal form changes or status changes to a limited liability company and joint stock company.
Furthermore, the New Rulebook in particular stipulates the documentation required for the registration of a shareholder due to withdrawal without claiming a fee for the share (statement of the shareholder's withdrawal and proof that it was received by the company), withdrawal with a fee for the share (company's decision to approve the shareholder's request for withdrawal ), as well as the expulsion of a shareholder due to non-fulfillment of obligations towards the company for payment, i.e. entry of contributions or additional payments (company’s decision on expulsion of the shareholder and proof that the he accepted the unfulfilled obligation).
In case of registration of a data change on registered persons, the Previous Rulebook required a document that represents the legal basis thereof, which was individualized throughout practice, while the New Rulebook only further stipulates the type of document depending on the type of person whose data change is being registered. Thus, for example, for foreign companies an extract from the competent register is submitted, or another document confirming its identity and the relevant change, with a certified translation into Serbian.
One of the few reliefs brought by the New Rulebook is for the registration of a share capital increase by converting a claim of a creditor (who is not a company’s shareholder) into share capital. Namely, the Previous Rulebook stipulated that, along with other documentation, it is necessary to submit the agreement on the accession of a new shareholder with certified signatures of all shareholders of the company and the joining creditor, while the New Rulebook stipulates that the same agreement is being submitted with certified signatures of the authorized person and the joining creditor. The same provision is provided in the case of a share capital increase with new contributions by a joining shareholder.
The New Rulebook introduces two additional documents needed for a status change of a limited liability company and a joint stock company, namely the above-mentioned statement for the protection of dissenting stakeholders/shareholders, as well as a statement by the competent company body that each stakeholder/shareholder of the transferor company, except for those who exercise their right to payment instead of the acquisition of stakes/shares in the acquiring company, agreed to the exchange of stakes/shares in a different proportion, if carried out as such.
Application for registration of the suspension of the liquidation procedure is followed only by the decision on the suspension of the liquidation, but not the decision on the appointment of a legal representative, which was foreseen by the Previous Rulebook.
Addition in comparison to the Previous Rulebook is the list of documents required for the registration of ownership change after the sale of the bankruptcy debtor as a legal entity, namely: the court decision on the suspension of bankruptcy proceedings, the share purchase agreement, the decision on the appointment of a legal representative of the company, as well as the decision on legal form change if it occurs with the corresponding proof from the Central securities depository and clearing house.
Finally, in accordance with the current trend of public administration digitalization, the New Rulebook emphasizes that when the registration procedure is initiated by submitting an electronic application, the electronic application contains all the data prescribed by the said rulebook, and submitted with are electronic documents in accordance with the law.
It seems that the aforementioned changes additionally emphasize the responsibility of the competent company bodies by issuing statements when protecting the rights of dissenting stakeholders/shareholders, entering of in-kind contributions, exchanging stakes/shares in a different proportion during a status changes, etc. Question remains whether they will truly be beneficial or remain an additional bureaucratic burden.
By Katarina Milic, Senior Associate, JPM & Partners