LEGAL FRAMEWORK Foreign Investments in Serbia by Vladimir

LEGAL FRAMEWORK Foreign Investments in Serbia by Vladimir Bojanovic 1 * This presentation does not deal with every topic or cover every aspect of the topics with which it deals. It is not designed to provide legal or other advice.

Janković, Popović & Mitić International Law Firm Vladimir Bojanović Attorney at Law, MBA (Cambridge) — Membership: Serbian and Belgrade Bar Association admitted — Expertise: Commercial Law , Corporate/M&A, Foreign Investments, Privatisations — Industry Sectors: Energy & Infrastructure, Telecommunications and Pharmaceuticals 2

Janković, Popović & Mitić International Law Firm FULL SERVICE LAW FIRM — — — Corporate and Commercial M&A Privatizations Competition / Antitrust Banking and Finance / Capital Markets Real Estate / Construction Energy & Infrastructure PPPs/PFIs Dispute Resolution IP Employment & Labour 3

Presentation Summary PART 1: General Legal Framework PART 2: Specific Legal Issues PART 3: Conclusion 4

PART 1: General Legal Framework 5

PART 1: General Legal Framework § § § § § Law on Foreign Investments Law on Free Zones Law on Foreign Exchange Transactions Law on Foreign Trade Transactions Customs Law Privatization Law on the Agency for Privatization Share Fund Law Company Law on Securities and other Financial Instruments Market Law on Takeover of Joint Stock Companies Law on Registration of Commercial Entities Law on Concessions Insurance Law Bankruptcy Law on Games of Chance Energy Law 6

PART 1: 1. Regulation General Legal Framework § The Foreign Investments Law (Official Journal of the FRY, nos. 3/2002 and 5/2003, the “FI Law”) regulates foreign investments in legal entities engaged in profitgenerating activities in Serbia. § Exceptions: Foreign investments in (1) insurance companies, (2) banks, (3) other financial institutions and (4) free trade zones are regulated in conformity with the laws governing their establishment and legal status. 3. Foreign Investments Foreign legal entity whose seat is abroad; Foreign natural person; 3) Foreign Investors 1) 2) 2. Serbian national having their domicile or residence abroad for a period 1+ year. § A foreign investment is : 1) an investment in a Serbian company by which a foreign investor acquires a share or shares in the company’s capital; 2) acquiring any other property right for accomplishing business interests. 7

PART 1: 4. 6. National and Preferential Treatment Import of equipment representing a contribution of a foreign investor is exempt from customs and other import duties. Exceptions are: motor vehicles and amusement and game of chance machines. Controversial: two opinions issued by the Ministry of Finance allowing for custom exemptions in a case of importing equipment bought from the money representing monetary contribution of a foreign investor. § Foreign investors’ rights acquired on registration of foreign investment cannot be subject to restrictions by subsequent amendment of laws and other regulations. § Legal Security § § 5. Custom Exemptions General Legal Framework Share in a company and assets of the company with foreign share, may not be subject to expropriation, unless there is a public interest established by the law. § Foreign investors have an equal treatment as domestic investors, unless more favorable treatment is established by bilateral or multilateral treaty. 8

PART 2: Specific Legal Issues 9

SPECIFIC ISSUES Corporate Accounting and Audit Dispute Resolution Employment Taxation 10

Part 2 - Specific Legal Issues: CORPORATE Foreign investor may independently or in association with other foreign or domestic investors: § 1) 2) establish a new company (Model A); or purchase stocks or shares in an existing companies (Model B); 1. Partnership Ortačko Društvo 2. Limited Partnership Komanditno društvo 3. Limited Liability Company (“LLC”) Društvo sa ograničemom odgovornošću 4. Joint Stock Company (“JSC”) – open and closed Akcionarsko društvo – otvoreno i zatvoreno Foreign investor may establish : § 1. Representative Office Predstavništvo 2. Branch Office Ogranak 3. Direct Strategic Partnerships “Direktna strateška partnerstva” 11

Part 2 - Specific Legal Issues: CORPORATE LIMITED LIABILITY COMPANY - General § In practice, foreign investors usually prefer to incorporate an LLC because of its simple form and fast incorporation. § Its advantages include the following: 1) Capital increase may be made without supervision of the SEC 2) Minimum share capital is EUR 500, as opposed to EUR 10, 000 for a closed joint stock company 3) Registration is performed in practice in 2 -5 days. 12

Part 2 - Specific Legal Issues: CORPORATE LIMITED LIABILITY COMPANY - Registration § LLC Registration documents: – – – Filled-in BRA registration form; Founder’s certificate of incorporation (for legal person) or copy of ID/passport (for natural persons); Decision of the founding company on establishing a limited liability company in Serbia with designation of the persons authorized to sign Memorandum of Association (the “Mo. A”) before the Serbian court; Mo. A with the notarized signatures of founders (or their authorized representatives) by the Serbian court; Decision on appointment of the company’s legal representative, if not appointed in the Mo. A; Copy of the passport (or ID for domestic citizens) of the designated representatives of the company; Duly notarized OP form for certification of the representative’s signature (notarized by the Serbian court); Duly completed application forms for opening of a temporary bank account and bank certificate on payment of the monetary founding contribution in the temporary bank account; – – – § All the documents coming from abroad should be notarized, with apostil, accompanied with the official translation into Serbian by a sworn-to-court interpreter. 13

Part 2 - Specific Legal Issues: CORPORATE BUSINESS ACTIVITIES: A. COMPANIES: § A company with foreign share may perform all activities, except : 1) 2) § In the field of production of and trade in arms, or in areas defined as restricted zones (e. g. border zones, national parks). Foreign investor may establish the company in the above-mentioned field, or invest its capital in it together with a domestic entity: 1) 2) without acquiring the majority rights in the management of such company, and only with the consent of the Ministry of Defence of Serbia. § Special laws also regulate business areas in which foreign investors may not, alone or with another foreign investor, establish a company e. g. Broadcasting Law. B. REPRESENTATION OFFICES: § Foreign company’s rep office can perform only activities registered as the prevailing activity of the main company (EXCEPTIONS – Rep offices of the companies registered in Serbia). 14

Part 2 - Specific Legal Issues: ACCOUNTING AND AUDIT § Legal entities are to apply the International Financial Reporting Standards (IFRS) in preparing their financial statements. § The application of these standards and accounting framework are prescribed by Decrees of the Minister of Finance for companies, and the Governor of the National Bank for banks. § The Decrees and the Law differ in some aspects from IFRS, resulting in some deviations of local accounting standards actually applied from IFRS. § Company with the foreign share may decide to keep books in accordance with: 1) Serbian regulations, or 2) International Accounting Standards (IAS), i. e. (IFRS). 15

Part 2 - Specific Legal Issues: ACCOUNTING AND AUDIT § Annual Financial Statements are prepared on December 31, with two exceptions: 1) 2) § Foreign company subsidiaries, for which the financial year differs from the calendar year, may prepare and submit their financial statements at the parent company's financial year end, with the prior obligatory approval from the Ministry of Finance; Entities undergoing a change of status (e. g. merger, liquidation, or bankruptcy) are required to prepare their financial statements at the date on which this procedure is completed. In principle, legal entities must file: 1) 2) 3) § financial statements by 28 February; consolidated financial statements by 31 April; approved financial statements by 30 September (30 October for consolidated FS). Audit is mandatory for all medium-sized and large companies. Medium-sized companies must change auditors every five years, large companies every three years. 16

Part 2 - Specific Legal Issues: DISPUTE RESOLUTION A. DISPUTES BETWEEN THE REPUBLIC OF SERBIA AND A POTENTIAL INVESTOR § The RS and the Kingdom of Spain concluded the Bilateral Agreement on mutual investment protection on 25 June 2002, which, inter alia, regulates dispute resolution regarding foreign investment, between the RS at one side and a foreign investor on the other side: disputes Step 1: ― ― Step 2: If ― Step 3: a) b) c) represented by the competent authority; the RS and the foreign investor shall try to resolve the dispute ammicably; the written notification to the RS, the dispute may be addressed to: competent court of the RS; “ad hoc” arbitration tribunal, in line with UNCITRAL Rules; International Center for the Resolvment of international Disputes (ICSID); 17

Part 2 - Specific Legal Issues: DISPUTE RESOLUTION B. DISPUTES BETWEEN FOREIGN INVESTOR AND POTENTIAL SERBIAN PARTNERS § Any dispute related to foreign investment may be settled either before the Serbian court or in arbitration as agreed between the parties. In May 2006, Serbia enacted its first Law on Arbitration permitting the use of: a. b. c. d. § institutional arbitration “ad hoc” arbitration international arbitration domestic arbitration. DOMESTIC INSTITUTIONAL ARBITRATION: The Foreign Trade Court of Arbitration (founded in 1947) is located within the Serbian Chamber of Commerce and is a domestic arbitration body. Arbitration is voluntary and conforms to the UNICTRAL model law. 18

Part 2 - Specific Legal Issues: EMPLOYMENT RESIDENCE AND WORK PERMITS ― Foreign national intending to work in Serbia under employment contract would have to obtain: a) Temporary Residence Permit (the “TRP”) ― TRP is necessary foreign nationals intending to work/reside in Serbia, and it is issued in 2 steps: 1. 2. b) Registration of the foreigner’s presence at the territory of Serbia in a period of 24 hours from arrival by obtaining the "white card”. White card may be issued by the local police (if a foreign citizen leased the apartment) or by a hotel (if a foreign citizen stays in a hotel). Visit to police and applying for residence permit with required documents, within 90 days as of the arrival to Serbia. Work Permits ― An employee would need to apply for issuance of work permit and submit documents to the National Employment Service (NES) whereby NES issues the work permit within several days provided that all submitted documents are satisfactory 19

Part 2 - Specific Legal Issues: EMPLOYMENT TERMINATION OF EMPLOYMENT FOR BUSINESS REASONS: § The employment relationship can be terminated for various reasons, including decrease in the volume of work due to technological, economic or organizational changes. § The employer is obliged to pay redundancy compensation to the employee, and it is prohibited to employ another person at the same position in the period of six months following termination. § If the demand for work on the same position arises before expiry of the six months, preference shall be given to the employee whose employment on the same position was terminated. § Adoption of a Redundancy Programme is the obligation of the employers if a certain number of employees, depending on the total number of employees, are to be declared redundant. 20

Part 2 - Specific Legal Issues: TAXATION SUB-PART 1: CORPORATE INCOME TAX 1. Regulation § Corporate Income Tax Law (“CIT”) 2. Accounting Period § Accounting period which is to be used for tax purposes is the financial year. Financial year is a calendar year, except when the business is dissolved or started up or status-related changes are made in the course of a year. 3. CIT Rate § 10% 4. CIT Base § Income from the Profit and Loss Statement, made in accordance with the IAS and IFRS. § Non-residents that do not have the permanent establishment pay 20% witholding tax on income from dividends and participation in profits of legal entities, intellectual property, interest, lease of real estate and movable property, as well as capital gains 21

Part 2 - Specific Legal Issues: TAXATION 5. Serbian tax resident entities are taxed on their income generated on the territory of the Republic of Serbia, as well as on their worldwide income. An entity is considered a resident of Serbia if it is established or has its place of effective management and control at RS. Non-residents are taxed only on their income sourced through a permanent establishment on the Serbian territory. A permanent establishment is any permanent place of business in Serbia through which a non-resident conducts its business. § Holding Companies § § 6. Taxable Entities A branch constitutes a permanent establishment of a non-resident taxpayer per default. Consequently, CIT is payable on profit attributable to the operations of a branch. Tax transparent entities do not exist. § No special holding company regime exists in Serbia. Holding companies operate under the same rules as any other company 22

Part 2 - Specific Legal Issues: TAXATION 9. Tax Credits § Up to ten-year tax holidays for companies investing RSD 800 million (approximately EUR 8 million) and employing at least 100 workers, in proportion to investment. § 10. Tax Holidays Up to five-year tax holidays for companies investing RSD 8 million (approximately EUR 80 thousand) and employing a minimum of five workers in underdeveloped regions, in proportion to investment. § Tax credit of 20% (small enterprises 40 %) for investment in fixed assets, up to 50 % (small enterprises up to 70%) of CIT liability. Any unused tax credit can be carried forward for ten years. Transfer of tax credits in mergers, de-mergers, spin offs and other corporate group reorganizations is not possible. § A taxpayer, classified in accordance with relevant legislation and registered for conducting business in certain industries, is granted a tax credit for 80% of its investment in its own fixed assets in the current year. There are no limitations related to taxable profit made by the taxpayer. This tax credit can be carried forward for up to ten years. § A company generating profit in a newly established business unit of a Serbian company in an underdeveloped area has the right to decrease its tax liability, proportionally to the share of total profit attributable to the business unit over a period of two years. The newly established business unit must keep separate accounting records. 23

Part 2 - Specific Legal Issues: TAXATION 11. Double Taxation Treaties in force § Albania, Belgium, Belarus, Bosnia and Herzegovina, Bulgaria, Czech Republic, Denmark, DPR Korea, Egypt, Finland, France, Holland, Croatia, India, Italia, China, Cyprus, Kuwait, Latvia, Lithuania, Hungary, FYR Macedonia, Malaysia, Moldova, Germany, Norway, Poland, Romania, Russia, Slovakia, Slovenia, Sri Lanka, Switzerland, Sweden, Turkey, Ukraine, Great Britain 12. Double Taxation Treaties In procedure § Austria, Greece, Spain, Pakistan, Azerbaijan, Malta, Republic of Ireland, Estonia, Libya, Qatar 13. Example: § Double Taxation treaties with the Netherlands and Cyprus. 24

Part 2 - Specific Legal Issues: TAXATION SUB-PART 2: PERSONAL INCOME TAX § Non-residents are only liable to tax on Serbian sourced income. § Double Tax Treaties between Serbia and expatriates’ residence countries can limit the Serbian right to tax or offer relief for the double taxation of certain types of income. § Double Tax Treaties provide for resolving tax residency disputes, i. e. situations in which, according to the local rules of the respective countries, a person is deemed to be a tax resident of both countries. § In certain cases, remuneration of non-residents working for diplomatic and consular missions or international organizations in Serbia is not taxable. 25

Part 2 - Specific Legal Issues: TAXATION SUB-PART 2: PERSONAL INCOME TAX AND SOCIAL CONTRIBUTIONS REGARDING SALARIES § Formula for calculation of the total costs for an employer related to salary of one employee: TC=G+0. 179 G (TC is total cost, G is gross salary and 0, 179 is joint percentage of social contributions). § Gross salary is calculated in the following way: G=(N-786. 48)/ 0, 701 (N is net salary and 786, 48 RSD is not taxable part of the salary applied on monthly basis to the total amount of net salary in the relevant month. This figure is amended on an annual basis each January) 26

PART 3: CONCLUSION 27

Part 3: Conclusion Investments § § § Equal treatment of foreigners Statutory guarantees for the protection of investments Bilateral agreement with Spain Corporate § § Most common legal form is an LLC Registration of an LLC from 2 to 5 days in practice, with low costs involved It can perform all legally allowed activities apart from certain exceptions It can acquire real estate for accomplishing of business purposes Accounting § § Possibility to change the duration of a business year Possibility to keep books and financial reports according to IFRS standards Dispute § § § Parties can agree to have arbitration in a case of dispute Arbitration can be domestic or international, ad hoc or institutional Flexibility in choosing the impartial forum in a case of dispute with the state Employment § § Work permit required foreigners Business-related termination of contracts possible Taxation § § § CIT 10% Tax Rate Double taxation treaties with many countries Tax Credits and Tax Holidays 28

Thank you for your Attention. Q&A E-mail: Phone: vladimir. bojanovic@jpm. rs +381. 60. 3. 777. 444 29