The Wolf Theiss Guide To: Public Debt Management in Central, Eastern & Southeastern Europe
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The Wolf Theiss Guide to: Theiss Guide to: The Wolf Wolf Theiss is one of the largest and most respected law firms in Central, Eastern and Southeastern THE Europe (CEE/SEE). Since starting out in Vienna over Europe & Southeastern Eastern in Central, Public Debt Management 50 years ago, we have grown to a team of several hundred people, with offices throughout the region. WOLF THEISS During that time, we have worked on many cases that have broken new ground. GUIDE TO: We concentrate our energies on a unique part of the world: the complex, fast-moving markets of the CEE/ Public Debt Management SEE regions. This is a fascinating area, influenced by a variety of cultural, political and economic trends. in Central, Eastern & We enjoy analysing and reflecting on those changes, drawing on our experiences working on a wide range Southeastern Europe of domestic and cross-border cases. Sovereign bond issues, derivatives and www.wolftheiss.com finance transactions with public bodies Guide to: Public Debt Management THE WOLF THEISS GUIDE TO: Public Debt Management in Central, Eastern & Southeastern Europe Sovereign bond issues, derivatives and finance transactions with public bodies This 2013 Wolf Theiss Guide To: Public Debt Management in Central, Eastern & Southeastern Europe is intended as a practical guide to the general principles and features of the basic legislation and procedures in the countries included in the publication. While every effort has been made to ensure that the country guides were accurate when finalized, they should be used only as a general reference guide and should not be relied upon as definitive for planning or making definitive legal decisions. In these rapidly changing legal markets, the laws and regulations are frequently revised, either by amended legislation or by administrative interpretation. Status of information: Current as of 1 November 2013 Conception, design, and editing: WOLF THEISS Rechtsanwälte GmbH & Co KG, Attorneys-at-Law Schubertring 6, 1010 Vienna, Austria www.wolftheiss.com © 2013 WOLF THEISS Rechtsanwälte GmbH & Co KG. All Rights Reserved. 1 Guide to: Public Debt Management TABLE OF CONTENTS FOREWORD 3 COUNTRY CHAPTERS 4 ALBANIA 4 AUSTRIA 9 BOSNIA AND HERZEGOVINA 17 BULGARIA 24 CROATIA 31 CZECH REPUBLIC 37 HUNGARY 44 ROMANIA 52 SERBIA 60 SLOVAKIA 68 SLOVENIA 75 UKRAINE 82 CONTACT INFORMATION 90 OUR OFFICES 91 2 Guide to: Public Debt Management FOREWORD In the aftermath of the Financial Crisis of 2009, the issuance of public debt has become an increasingly popular way of financing vital governmental activities. Whereas the instruments remain similar in the CEE/SEE region, procedures and regulations forming the framework of such actions can differ considerably from one country to another. With this "Wolf Theiss Guide on Public Debt Management in Central, Eastern & Southeastern Europe" our experts intend to provide a consolidated overview of the procedures and regulations in the following countries: Albania, Austria, Bosnia and Herzegovina, Bulgaria, Croatia, Czech Republic, Hungary, Romania, Serbia, Slovakia, Slovenia and Ukraine. We hope that this Guide helps our clients and interested participants by providing succinct and useful information in an area of law which – at least so far – is still rather remote from harmonization and signification. While every effort has been made to ensure that the information contained in the Guide is accurate, the Guide should be used as a general reference tool only as the legal landscape evolves constantly especially in view of EU legislation and frequent amendments of local laws. In these rapidly changing legal markets, the laws and regulations are frequently revised, either by amended legislation or by administrative interpretation. Finally, I would like to thank each of the contributors to this Wolf Theiss Public Debt Management Guide for their valuable insights into their countries' laws and structures. Claus Schneider Partner Wolf Theiss 3 Guide to: Public Debt Management in Albania COUNTRY CHAPTERS ALBANIA By Endrit Shijaku 1. GENERAL 5 1.1 Legal Framework 5 1.2 Restrictions in public debt transactions 5 1.3 Authority 6 2. GOVERNMENT BONDS 6 2.1 Issue process 6 2.2 Restrictions on trading 6 2.4 Further requirements 7 3. FOREIGN EXCHANGE REGULATIONS 7 4. CLASSIFICATION OF PUBLIC SECTOR ENTITIES IN TERMS OF INVESTMENT REGULATION 7 5. TAXATION 8 6. DOCUMENTATION 8 6.1 Choice of law 8 6.2 Language requirements 8 6.3 Legal counsel 8 7. ENFORCEMENT AND INSOLVENCY 8 7.1 Enforcement against the State and Municipalities 8 7.2 Insolvency 8 4 Guide to: Public Debt Management in Albania 1. GENERAL 1.1 Legal Framework The management of the public debt incurred by the State is regulated under the Law "On state borrowing, state indebtness and state loan guarantees in the Republic of Albania" (Ligji per huamarrjen shteterore borxhin shteterore dhe garancite shteterore te huase ne Republiken e Sqhiperise). The management of the public debt incurred by local authorities is governed by the law "On local government borrowing" (Ligji per huamarrjen e qeverisjes vendore). The central government and the local government authorities are generally responsible for the management of their funds and their annual budget, including the incurrence of debt. However, various provisions on a constitutional and statutory level also have an impact on the budget planning of the State and the local government units. 1.1.1 State On a State level, financial debts may only be incurred by the Minister of Finance (i) on the basis of the respective annual Budget Law or (ii) to finance spending incurred through force majeure or emergencies. A State guarantee of indebtedness can also only be issued on the basis of the relevant annual budged law. 1.1.2 Local government units Local government units are responsible for autonomously deciding on and managing their budgets on the basis of, inter alia, laws governing their activities and their acts. The law on local government borrowing contains various provisions on the taking out of loans. According to this act, the supreme body competent to decide on the taking out of long-term loans is generally the Local Government Unit Council (Këshilli i Njesise se Qeverisjes Vendore). In respect of long-term loans, an approval of the Minister of Finance is also required. In general, when deciding whether to approve the loan the Minister of Finance should only consider compliance with the procedural rules and the fiscal rules imposing limitations on the amount of local government borrowing. As an exception, however, the Minister of Finance may use its discretion when considering approval of the local government borrowing in the following circumstances: . the loan is being taken out to refinance another loan; . the loan is being taken out in international markets; or . the loan is being taken out by a local government unit which has experienced financial difficulties within the five past years. 1.2 Restrictions in public debt transactions Albanian local government units may conclude financial transactions, e.g. issue government bonds, as a way of public debt management. Restrictions and limitations may be found in the laws governing these entities. On a State level, the major task is to secure the financial solvency of the State at all times. 5 Guide to: Public Debt Management in Albania Accordingly, debt shall only be incurred under conditions that are optimal in the long run, taking a rather risk averse approach. 1.3 Authority Compliance with internal decision making rules under public law is important. However, although there is no case law to confirm this, it is accepted amongst academics that generally any violation of internal fiscal rules will not usually result in the invalidity of the relevant transaction. Violations of rules regarding representation may however result in the invalidity of the respective transaction. 1.3.1 State Generally, the Minister of Finance is responsible under the law on state borrowing, state indebtedness and state guarantee for finance management, on the basis of strategies approved by the Council of Ministers. However, where debt is to be incurred on the basis of a so called "international agreement" the transaction documents must be signed by the Minister of Finance and the Minister responsible for the use of proceeds and countersigned by the Minister of Foreign Affairs based on authority given in writing by the Prime Minister. The relevant documents must then be ratified by Parliament. Although, the term "international agreement" has not been expressly defined in Albanian law, in practice this term is invoked in relation to all agreements between Albania and foreign entities. 1.3.2 States and Municipalities The conclusion of financial transactions by local government units is made by the chair of the relevant unit. In case of long-term debt the approval of the Local Government Unit Council is also required as well as the approval of the Minister of Finance. 2. GOVERNMENT BONDS 2.1 Issue process Except for the issuance of Eurobonds that are typically governed by English law, the Albanian State issues government bonds which are governed by Albanian law mainly through an auction procedure. In this case, the State sells government bonds by auction to the public. The bids of those institutions or members of the public providing the lowest rate of return will win. The auction is organised and carried out by the Bank of Albania. 2.2 Restrictions on trading There are no statutory restrictions on the trading and/or listing of Albanian government bonds. The trade in government bonds generally takes place over-the-counter (OTC). 2.3 Format of Securities, Offer, Trading 2.3.1 Form Generally, the form and representation of securities is regulated by the agreements between the Bank of Albania and the Ministry of Finance. 6 Guide to: Public Debt Management in Albania The Minister of Finance can incur debt through dematerialised notes or notes in book-entry form.