BELARUS

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Content last updated: 10-09-2019

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  • Merger Control Regime
  • Merger Screening
  • Merger Filing

1. Overall description of merger control regime

1.1 Supranationality

1.1.1 Is the jurisdiction a member of/party to a supranational jurisdiction?

Not applicable.

1.1.2 Is the jurisdiction itself a supranational jurisdiction?

Not applicable.

1.1.3 If the answer to Section 1.1.1 and/or 1.1.2 above is in the affirmative, what are the implications hereof?

Not applicable.

2. Nature of merger control regime

2.1 Mandatory or voluntary

2.1.1 Is filing mandatory or voluntary?

Filing is mandatory, if the thresholds or conditions described in Section 2.3.1 under the Merger Screening Schedule are met.

2.2 Suspensory effect

2.2.1 Must completion of the transaction await clearance by the relevant authorities?

The permit shall be obtained prior to the completion of the merger.

1. What type of transactions are caught by the merger control regime?

1.1 Concentrations

1.1.1 Type of transactions that are caught by the merger control rules?

The following transactions are caught by the merger control rules:

 a) the merger of two or more previously independent undertakings; or

b) creation of a commercial organization if this new commercial organization acquires shares, stocks or fixed assets, which may be used in business activities, and (or) intangible assets of another commercial organization and this acquisition is subject to the conditions specified in sections d)-f) below; or

c) the creation of holdings, associations, unions, state associations, the inclusion of a commercial entity in the holding participants; or

d) the acquisition by business entities with market share dominance or by a business entity or person which are considered to be one group of persons with such business entity with market share dominance, in aggregate more than twenty-five percent of the voting stocks (or shares in the authorized capital) of another business entity operating in the same market; or

e) the acquisition of more than 25 % of the voting stocks in a joint stock company (or shares in the authorized capital of an LLC or company with additional liability) with market dominance, as well as other transactions as a result of which arises the opportunity to influence the decision-making of the business entity with market dominance; or

f) the acquisition of voting stocks in a joint stock company (or shares in the authorized capital of an LLC or company with additional liability) resulting in 25 % threshold exceeding or the acquisition of voting stocks in a joint stock company (or shares in the authorized capital of an LLC or company with additional liability) resulting in 50 % threshold exceeding if such business entities had not less than 25 % and not more than 50 % of the voting stocks in this joint stock company (or shares in the authorized capital of this LLC or company with additional liability); or

g) obtaining by a business entity or an individual who is not a business entity, or by several persons belonging to the same group of persons, the rights to make binding instructions to another business entity in the course of their business activities or perform functions of the executive body of another business entity; or

h) the conclusion between business entities that are competitors of a simple partnership agreement (agreement on joint activities) in the territory of the Republic of Belarus; or

i) obtaining ownership, right of use or possession of property that is fixed assets and (or) intangible assets of a commercial organization, by a business entity in the Republic of Belarus, if the book value of the property subject to the transaction or related transactions exceeds 20 % of the book value of fixed assets and intangible assets of the commercial organization whose property is alienated; or

j) obtaining the right to participate in executive bodies, boards of directors (supervisory boards) or other management bodies, of two or more business entities operating in the market of interchangeable (similar) goods by the same business entities or by individuals who are not a business entity, or obtaining the availability otherwise determining the conditions for conducting the business activities of abovementioned business entities.

1.2 Joint ventures

1.2.1 What types of joint ventures are caught by the merger control rules?

There is no special regulation for joint ventures.

1.3 Definition of "control"

1.3.1 How are the concepts of "control" and "change of control" defined?

The concept of “control” is not the basis for application of merger control rules.

The basis for merger control is the list of legal activities, including but not limited to transactions, which may lead to economic concentrations. Please see Section 1.1.1 above.

1.4 Minority shareholdings

1.4.1 Are minority and other interests less than control caught by the merger control rules?

Acquisitions of minority or other interests that do not exceed the 25 % threshold do not fall within the Belarus merger control rules and will not be considered by the antimonopoly authorities.

2. Establishing jurisdiction for notification of mergers

2.1 Merging parties/undertakings concerned

2.1.1 Which undertakings are considered parties to the merger ("undertakings concerned") in the various types of transactions identified under Section 1.1.1 and 1.2.1?

In a merger, the "undertakings concerned" are each of the merging entities.

2.2 Date for establishing jurisdiction

2.2.1 Which date is relevant for concluding whether the transaction is notifiable?

The consent of the antimonopoly authority shall be obtained before the execution of the transaction. 

2.3 General thresholds

2.3.1 Threshold(s) for when a concentration must be notified under the general merger control regime?

Merger Control filing is required when:

  • The asset value of any of the undertakings exceeds 200,000 basic units*; or
  • The turnover of any of the undertakings is more than 400,000 basic units*; or
  • Any of the undertakings is included in the State register of business entities dominating the commodity market or in the State register of natural monopolies.

*The amount of the 'basic unit' is established by the legislation of the Republic of Belarus. As from January 1, 2019 it amounts to BYN 25.5 which is approximately EUR 10.4.

2.3.2 For each threshold, can the threshold be triggered by only one party having local turnover?

The basis for threshold is turnover of the entities regardless of whether it is received in the local market or in the global one.

2.3.3 For each threshold, can the threshold be triggered without any party having local turnover?

The basis for threshold is turnover of the entities regardless of whether it is received in the local market or in the global one.

2.3.4 Are there any circumstances where transactions falling below these thresholds may be still investigated?

No.

2.4 Other national thresholds for ex ante merger control (e.g. sector-specific rules)

2.4.1 Relevant thresholds for sector-specific or other ex ante merger control rules?

There are no sector-specific or other ex ante merger control rules.

2.4.2 Are any such schemes mandatory or voluntary?

Not applicable.

2.5 Foreign-to-foreign mergers

2.5.1 Do any exemptions, special thresholds etc. apply to foreign-to-foreign mergers, i.e. where none of the undertakings concerned is domiciled in the jurisdiction?

Accomplishment outside the Republic of Belarus of actions defined by antimonopoly legislation as an economic concentration in relation to business entities registered in the Republic of Belarus are subject to Belarusian antimonopoly legislation.

3. Calculation and allocation of turnover, asset value, transaction value etc.

3.1 Relevant turnover

3.1.1 How is turnover defined (e.g. is income from other sources than "ordinary activities to be included, and how are rebates, taxes, internal turnover etc. treated)?

The relevant turnover to be taken into account is the net turnover related to the sale of goods and/or services in the ordinary course of business exclusive of the amount of value added tax.

Revenue of joint ventures outside Belarus or foreign companies generated outside the Belarusian market is not taken into account for the purpose of threshold calculation.

3.1.2 Identification and link to any official rules, guidance etc. on how to calculate turnover?

The figures from financial statements of the fiscal year immediately preceding the year of the merger are used.

There are no special rules or guidance.

3.2 Relevant period for calculation of turnover

3.2.1 Which financial year(s) is relevant for the calculation of turnover?

The turnover should be based on the latest fiscal year immediately preceding the year of the merger.

3.2.2 Should adjustments be made for e.g. divestitures, acquisitions, closings and other changes of the economic reality of the undertaking concerned made after or during the relevant financial year?

No adjustments shall be made.

3.3 Relevant undertakings for the calculation of turnover

3.3.1 The "undertakings concerned", i.e. which parties?

See Section 2.1.1 above.

3.3.2 The undertakings whose turnover is taken into account?

See the definition of the "undertakings concerned" in Section 2.1.1 above. In short, the undertakings whose turnover is taken into account comprises the entire group that the acquirer belongs to or the target's group (i.e. target and any of its wholly or jointly-owned subsidiaries). 

3.3.3 Shall the turnover of the existing seller be included in the target's group turnover?

The seller's turnover shall not be included in the target's group turnover.

3.4 Geographical allocation of turnover

3.4.1 The principles for the geographical allocation of turnover?

The basis for threshold is the turnover of the entities regardless of whether it is received in the local market or in the global one.

3.5 Valuation and allocation of assets

3.5.1 The principles for valuation and allocation of assets?

The valuation of assets should be based on the latest fiscal year immediately preceding the year of the merger.

3.6 Calculation of other thresholds

3.6.1 The principles for calculation of metrics for other thresholds (e.g. transaction value, market share, share of supply etc.)?

Not applicable.

3.7 Special rules

3.7.1 Do any special rules or principles apply to the calculation, allocation etc. of turnover, assets etc. for specific undertakings (e.g. State-owned undertakings, investment funds, credit and financial institutions, insurance companies, financial holding companies, others)?

Not applicable.

3.7.2 Does any exemptions apply?

Not applicable.

1. Practical information

1.1 Responsibility for filing

1.1.1 The parties responsible for filing?

In case of merger, any of the undertakings may file the application.

In case of acquisition of shares or stocks, the application may be filed by the acquirer, the target company, the shareholder or stockholder of the target company or the shareholder or stockholder of the acquirer.

1.2 Deadlines for filing

1.2.1 Are there any mandatory deadlines for filing, and, if so, how these are calculated?

The consent of the antimonopoly authority shall be obtained before the execution of the transaction.

1.2.2 Are there any sanctions for not filing within the deadlines?

If the actions requiring the consent of the antimonopoly authority were actually committed and this led to the emergence or strengthening of the dominant position of the business entity and (or) prevention, restriction or elimination of competition, they are grounds for the court to recognize such actions as invalid by claim of the antimonopoly authority.

1.3 Early filing

1.3.1 Is it possible to file before the signing of merger agreement?

Yes.

1.4 Filing fees

1.4.1 Are there any fees for filing, and, if so, please describe how such fees are calculated?

There are no filing fees.

1.4.2 When must the filing fee must be paid?

Not applicable.

1.5 Publicity

1.5.1 When and in which format will the authority publish receiving a notification?

There is no practice of publishing such information in Belarus.

1.5.2 How will the authority in general handle the case publicly, e.g. will it usually comment in the media, send out press releases etc.?

There is no practice of providing any information by the antimonopoly authority regarding mergers to the public in Belarus.

1.5.3 Will third parties be able to review the notification?

There are no rules regarding the right of third parties to review the notification.

2. Procedure and timing

2.1 Normal and simplified procedures

2.1.1. Does the regime allow for a simplified (fast track) procedure, and, if so, what are the criteria for using the simplified procedure?

There is no simplified (fast track) procedure.

2.2 Procedural stages (cf. timetable below)

2.2.1 The various stages of (i) a simplified procedure and (ii) a normal procedure?

There is only the stage of filling the application with documents.

2.2.2 Is pre-notification contact with the relevant authorities customary/obligatory/encouraged/etc.?

Pre-notification contact with the relevant authorities is not customary. 

2.2.3 Are there any sanctions for not filing within the deadlines?

If the actions requiring the consent of the antimonopoly authority were actually committed and this led to the emergence or strengthening of the dominant position of the business entity and (or) prevention, restriction or elimination of competition, they are grounds for the court to recognize such actions as invalid by claim of the antimonopoly authority.

2.3 Timetable (cf. timetable below)

2.3.1 The statutory timetable/deadlines for review of a notification?

30 days.

2.3.2 Can the statutory timetable/deadlines be suspended ("stop-the-clock"), and if so under which conditions?

No.

2.3.3 If pre-notification with the relevant authorities contact is possible/customary, how long will the duration of such contact usually be?

Not applicable.

3. Format and content of notification

3.1 Notification forms

3.1.1 Must the notifying parties use any mandatory notification forms, e.g. for simplified and normal procedures, and, if relevant, add a link to the relevant forms?

There is no mandatory notification form, but there are requirements to the content of the application in the legislation.

3.2 Supporting documentation

3.2.1 List of the supporting documentation which must as a minimum be submitted along with the notification?

Cf. checklist below.

3.3 Originals, legalization and apostillation (cf. checklist below)

3.3.1 List of all documents which must be submitted in original/legalized versions and whether any documents must be apostilled?

Not applicable.

3.3.2 If the merger regime has a mandatory filing deadline, must all the documents identified under Section 3.3.1 be submitted within this deadline?

Not applicable.

3.4 Language

3.4.1 Which languages may be used for drafting and filing a notification?

The notification can be made in any of the official languages of Belarus (Russian or Belarusian). 

3.4.2 Does translations have to be certified/legalized and apostilled?

Not applicable.

Statutory timetable

Step Description Time
1

Pre-notification

Pre-notification contact with the relevant authorities is not customary.

Not applicable.

2

Stage 1

Filling the application with documents.




The deadline for notification review is 30 days.

  • Step 1 1
  • Step 2 2
  • Not applicable
  • 30 days

Checklist

List of the supporting documentation which must as a minimum be submitted along with the notification.

Supporting documentation

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and last updated on 10-09-2019 by
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