1) Is a merger control regulation in force?

Yes. Merger control regulation is contained in Chapter 5 of the Law of the Republic of Belarus dated 12.12.2013 No. 94–Z “On Counteraction to Monopolistic Activities and Development of Competition” (as amended) (the ”Belarusian Antitrust Law”) and in articles 13 and 14 of the Law of the Republic of Belarus dated 16.12.2002 No.162-Z “On Natural Monopolies” (as amended) (the ”Law on natural monopolies”).

2) Which authorities enforce the merger control regulation?

The merger control regulation in Belarus is enforced by the Ministry of Antimonopoly Regulations and Trade of the Republic of Belarus (“MART”).

Merger notifications shall be filed with the central office of MART, which may delegate notifications to one of 7 regional offices (Main Departments) of MART: one in each region of Belarus and one in the city of Minsk. Nevertheless, the decisions are executed on the letterhead of MART.

Decisions of MART may be appealed to the Council of Ministers of the Republic of Belarus and to the court (see topic 50).

3) Relevant regulations and guidelines with links:

The merger regulation is contained in Chapter 5 of the Belarusian Antitrust Law. More detailed rules may be found in various executive regulations. Links to the relevant legislation, guidelines and forms are listed here (documents are available in Russian only with the exception of the Belarusian Antitrust Law, a link to an unofficial translation of which is given below):

4) Does general competition regulation apply to mergers or ancillary restrictions?

Yes, general competition regulation applies to both mergers and ancillary restrictions. 

Generally, non-competition agreements and coordinated actions are prohibited by the Belarusian Antitrust Law. Therefore, restrictions of competition that are ancillary to the merger, for instance a non-competition obligation on the seller, are subject to separate scrutiny under the general competition regulation.

5) May an authority order a split-up of a business irrespective of a merger?

No. However, MART is entitled to file a lawsuit with a claim to split-up a business entity holding a dominant position in a market. Such a claim may be filed against a business entity if MART has issued a decision establishing a fact of a violation of the Law (for instance, abuse of a dominant position or unfair competition) committed by this entity twice within two years.

6) Other authorities that also require merger filing or may prohibit transaction
(Note that this may not be an exhaustive list and that industry-specific legislation should always be considered. Furthermore, a merger will often require change of registrations with – but not approval from – the companies register, land register and authorities that have issued permits for the activities of the merging parties.)

In addition to antitrust approval by MART in some sectors and cases approvals of other authorities may be required for mergers. (The following applies to foreign as well as national investors, whereas the text under the Foreign investment control heading below only applies to foreign investors).

Banking sector

Acquisition of 10% or more shares of a bank or other credit and financial companies (and each subsequent acquisition), some forms of its reorganization and acquisition of shares of any company by a bank or other credit and financial companies require preliminary approval of the National Bank of the Republic of Belarus (“NBRB”). (Hereinafter, unless “stocks” and “shares in the charter capital” are mentioned directly, "shares" mean: (i) stocks of the joint-stock companies which are regarded as securities under the Belarusian laws; or (ii) shares in the charter capital of limited liability companies and superadded liability company which are not regarded as securities under the Belarusian laws.)

In case of acquisition of 1-10% of shares in a bank or other credit and financial company, acquirer of shares shall send a notification to NBRB with information on the transaction in the scope established by legislation within 1 month from the date of the transaction (post factum).

The Belarusian bank or other credit and financial company is obliged to notify NBRB within 10 business days after the following changes:

• change of stockholders holding at least 1% of the shares,
• change of beneficial owners and other owners holding at least 10% of the shares.

Additionally please see the Foreign investment control heading below.

Insurance sector

Shareholders of insurance companies are obliged to obtain prior approval from the Ministry of Finance of the Republic of Belarus (“MFRB”) to sell or purchase shares of insurance companies regardless of the number of shares sold or acquired and state of residence of the acquirer.

An insurance company is obliged to obtain prior approval from MFRB to sale of 5% or more of its shares.

Additionally please see the Foreign investment control heading below.

Investment agreements with the Republic of Belarus

As a rule, large investments (including the foreign ones) are made in Belarus on the basis of an investment agreement entered into with the Republic of Belarus. In such case in relation to an investor and its Belarusian subsidiary implementing an investment project in Belarus a special legal regime (preferential taxation, non-application of certain general regulatory requirements, etc.) is applied. 

At the same time, an investment agreement entered into before July 11, 2024 (date of entering the new wording of the Law on Investments into force) shall contain the obligation of an investor (a Belarusian subsidiary) to notify in writing the state body which has executed an investment agreement on behalf of the Republic of Belarus about any reorganization and/or any equity transaction in relation to a charter capital of the investor (the Belarusian subsidiary) at least 2 months in advance. If there are any objections, a state body shall notify the investor (the Belarusian subsidiary) thereof before reorganizing and/or implementation of an equity transaction. Failure to notify by the investor (the Belarusian subsidiary), as well as its reorganization and/or implementation of an equity transaction, if there is an objection of a state body, are grounds for refusal of the Republic of Belarus to fulfill its obligations under the relevant investment agreement with the investor.

There is no requirement that an investment agreement entered into on or after July 11, 2024 (date of the new wording of the Law on Investments entering into force) shall contain the abovementioned obligation of an investor.

If the investor or implementing organisation (party to the investment agreement) has changed, it is necessary to apply to the state body, which is a party to the investment agreement, with a list of documents defined by the legislation for conclusion of an additional agreement.

Legal entities registered as residents in the High Technology Park (“HTP”)

The HTP residents must notify the Hi-Tech Park Secretariat about reorganization, registration of amendments and modifications to the charter, including in connection with change of shareholders and making decision on liquidation. Such notification (including short summary of changes and relevant documentation) must be made within 10 business days post factum by postal service. 

The HTP residents are also obliged to submit to the Hi-Tech Park Secretariat the prior notification on change of its owner of property or shareholder(s) no later than 10 business days before the entry into force of the respective agreement. The notification should contain general information about the new owner of property or shareholder(s), contact details, the amount of the proposed share in the charter capital of the HTP resident, and can be sent by e-mail.

There are additional requirements for HTP residents operating in the sphere of cryptocurrency exchange and trade. These entities shall provide the amended list of beneficial owners no later than 5 business days from the date on which the entity became aware or should have become aware of such change, or if the change in beneficial ownership is planned, provide it in advance.

Legal entities registered as residents of Special Economic Zone “Bremino-Orsha” (SEZ “Bremino-Orsha”).

Residents of the SEZ “Bremino-Orsha” must notify the management company of SEZ “Bremino-Orsha” on amendments to the charter, including in connection with change of shareholders, receipt of a new certificate of state registration and new certificate of registration as a resident of SEZ “Bremino-Orsha” by means of providing their certified copies within 5 business days post factum.

Other restrictions

There is a general prohibition on investments (including foreign ones) in activity, prohibited by legislation of the Republic of Belarus. 

NB! Obligations to notify the administrations of special legal regimes may be stipulated in the agreement on the conditions of activity, which is entered into between the resident and the administration.

Additional restrictions on investments (including foreign ones) may be imposed by legislative acts of the Republic of Belarus in the interests of national security, public order, protection of morals, public health and rights and freedoms of other persons.

There are certain types of activity with exclusive right of the state. Some of them may be conducted by local and foreign investors on the basis of concessions only.

Foreign investment control: 

As a general rule, Belarusian and foreign investors are equal in their rights, and incorporation of a company in Belarus, acquisition of shares in charter capital of a Belarusian company is carried out by Belarusian investors and foreign investors in accordance with the same procedure.

However, foreign capital quotas in some sectors are applied as described in the following. Furthermore, sanctions countermeasures have been implemented with respect to certain states committing unfriendly acts against Belarusian legal entities. 

Banking sector

Currently, there is a 50% quota for foreign participation in Belarusian banks, established by the National Bank of the Republic of Belarus (“NBRB”). This quota is calculated as a ratio of total foreign capital in charter capitals of banks with foreign investment and the total amount of charter capitals of all banks registered in Belarus. According to the NBRB report for 2023, the share of total foreign capital in charter capitals of Belarusian banks is 12.8%.

A foreign investor (or its Belarusian counterparty) shall get a prior approval of NBRB in order to acquire stocks of a Belarusian bank from the Belarusian bank itself or a Belarusian stockholder. In case of increase of a charter capital of a bank at the expense of a foreign investor, the approval of NBRB is also required.

NBRB may refuse to issue an approval once the quota is reached.

Insurance sector

A quota for foreign participation in the Belarusian insurance market set by the Council of Ministers of the Republic of Belarus is 30%. This quota is calculated as a ratio of total amounts of all contributions of foreign investors and/or their Belarusian subsidiaries to the charter capitals of insurance companies registered in Belarus and the total amount of charter capitals of all insurance companies registered in Belarus. The Ministry of Finance of the Republic of Belarus (“MFRB”) would deny registration of insurance companies with foreign investments once the quota is reached. According to the public sources, the quota has not been exceeded yet.

A Belarusian insurance company shall obtain a prior approval of MFRB in order to alienate shares to a foreign investor (Belarusian subsidiary of a foreign investor) or increase its charter capital at the expense of a foreign investor (Belarusian subsidiary of a foreign investor). 

MFRB may refuse to issue an approval once the quota is reached and/or in order to “ensure the national security of the Republic of Belarus, including in the economic sphere, protect interests of national insurance companies”.

Mass media sector

A foreign legal entity, as well as a foreign citizen and a stateless person cannot be founders of a mass media in the Republic of Belarus.

For a legal entity being a founder of mass media and/or a mass media editorial office, a quota of 20% of the charter capital applies for foreign direct or indirect participation.

In case of any change of the foreign participation in a legal entity being a founder of mass media and/or a mass media editorial office, the Ministry of Information of the Republic of Belarus shall be notified within one month from the moment of change for introduction of the amendments into the State Register of Mass Media.

Sanctions - countermeasures

As a response to the sanctions adopted against Belarus and its legal entities and individuals, Belarusian authorities introduced a set of countermeasures. Edict No. 93 provides, inter alia, for limitation of the possibility of foreign shareholders being persons from the states committing unfriendly acts against Belarusian legal entities and (or) individuals to dispose of their shares in Belarusian companies.

The restrictions apply to all Belarusian legal entities with shareholders being persons from states committing unfriendly acts against Belarusian legal entities and (or) individuals.

The list of states committing unfriendly acts against Belarusian legal entities and (or) individuals (the “unfriendly” states”) is defined in the Resolution of the Council of Ministers No. 209 dated April 6, 2022 “On the list of foreign states committing unfriendly acts against Belarusian legal entities and (or) individuals”, is available in Russian here and currently includes the USA, the UK, Canada, Australia, New Zealand, the EU countries, Switzerland, Liechtenstein, Norway, Iceland, Albania, North Macedonia, Montenegro.

At the same time, please note that “persons from the states committing unfriendly acts against Belarusian legal entities and (or) individuals” are understood broadly as:

• foreign persons connected with such states, including having citizenship / place of registration / place of main economic activity / main place of profit in such states, and
• persons under control of the indicated foreign persons regardless of their place of registration or place of main economic activity.

The edict No. 93 provides for an authorization procedure for certain transactions. In particular, the following transactions may be carried out only on the basis of a permit in the form of the resolution of the Council of Ministers:

1. alienation of shares by shareholders of Belarusian legal entities being persons from “unfriendly” states;
2. alienation of real estate by the owners of the property of Belarusian legal entities being persons from “unfriendly” states (it is mainly applicable for the Belarusian companies in the form of a unitary enterprise);
3. alienation of real estate by Belarusian legal entities in whose charter capitals persons from “unfriendly” states hold 25% and more;
4. reorganization of Belarusian legal entities whose property owners, shareholders are persons from “unfriendly” states;
5. withdrawal from the Belarusian legal entity of a shareholder being a person from an “unfriendly” state (it is applicable for the Belarusian companies in the form of a limited liability company or superadded liability company).

Before exercising transactions on the alienation of shares, real estate, mentioned in paras. 1)-3) above, it is necessary to pay a contribution (which is paid either by the seller or the buyer) to the budget in the amount of at least 25% of their market value determined on the basis of the results of an independent assessment conducted by state assessment organizations. Reorganization of Belarusian legal entities and withdrawal therefrom mentioned in paras. 4) and 5) above are carried out without paying such a contribution.

There is no need to obtain the permit or pay the contribution when alienating specified types of property (shares/real estate) in the following cases:

1. when banks and the Development Bank of the Republic of Belarus alienate property received from debtors to third parties regardless of the type and method of its acquisition;
2. alienation of property by the debtor in procedures applied in the course of insolvency or bankruptcy proceedings;
3. gratuitous transfer of property into state ownership, as well as into the ownership of companies where the state holds 50% or more of the charter capital.

As regards real estate, additionally it is not necessary to obtain the permit and pay the contribution in the following cases:

1. alienation by legal entities of real estate:
   • being the subject of the finance lease agreement terminated with the purchase of the leased item, upon transfer of the right of ownership from the lessor to the lessee;
   • leased under finance lease agreements to a third party during the lease term;
   • previously acquired for the purposes of transfer under finance lease agreements and returned to them by lessees under terminated finance lease agreements that have not been completed with the purchase of leased items;
   • accepted as security for the fulfilment of obligations under a finance lease agreement in the event of levy of execution on such real estate and its sale if the lessee fails to fulfil its obligations;
2. alienation of real estate to individuals by developers, construction customers in accordance with the legislation on architectural and urban planning activities;
3. state registration of creation, transfer, termination of rights, restrictions (encumbrances) of rights based on transactions on alienation of real estate registered before October 22, 2023;
4. alienation of real estate by the debtor in enforcement proceedings on the basis of a court bailiff’s decision;
5. alienation by insurance companies of real estate received as a result of the transfer of the right of subrogation claim or acting as an object of investment of insurance reserve funds.

Other exceptions may be established by the decision of the President of the Republic of Belarus.

According to the Regulation on the procedure and conditions for issuance of permits and the procedure for refund of the contribution approved by the Resolution of the Council of Ministers of the Republic of Belarus dated January 12, 2024 No. 27 “On the issuance of permits” which entered into force on January 18, 2024 the procedure for obtaining the permit is as follows:

1. Property owners, shareholders, legal entities (when a legal entity takes decisions on the alienation of real estate, reorganization) submit their applications to the regional (Minsk City) executive committees together with supporting documents (which may include, depending on the transaction, information on the activities of a legal entity together with balance sheet, profit and loss statement as of the last reporting date, the scale of production (performance of works, provision of services), the composition and number of employees, payments to the republican and local budgets, state extra-budgetary funds; a copy of the opinion of the state assessment organization on the market value of the shares, real estate; a legalized extract from the trade register of the country of establishment or other equivalent proof of the legal status of the company in accordance with the legislation of the country of its establishment with notarized translation; statement of the depot account; information about the acquirer of the shares, real estate, etc.).
2. Regional (Minsk City) executive committees prepare their decisions (including the amount of contribution and the deadline for its payment, if necessary) within not more than 30 business days from the day of submission of all necessary documents. The decisions are sent to the State Property Committee within 5 business days from their adoption. The application is left without consideration in case of non-submission (incomplete submission) or submission of documents that do not comply with the established requirements, of which the applicant is notified in writing within 5 business days from the date of registration of the application with return of the documents attached to the application. Once the deficiencies have been corrected, the application may be submitted again. 
3. Based on the decisions submitted by the regional (Minsk City) executive committees, the State Property Committee prepares a consolidated draft resolution of the Council of Ministers of the Republic of Belarus on a monthly basis (if necessary) and agrees it with the Ministry of Justice (as regards information on a legal entity, its shareholders, owner of property) and the Ministry of Finance (as regards information on the owner of stocks and their number). After that, the draft is submitted to the Council of Ministers of the Republic of Belarus for consideration.
4. The decision to issue the permit is executed in the form of a resolution of the Council of Ministers of the Republic of Belarus, which is effective for 1 year from the date of its adoption and does not exempt property owners, participants, legal entities from fulfilling the requirements provided for by other legislation.

The permit may be amended in accordance with the same procedure.

Presence of such a permit and payment of a contribution to the budget (where applicable) are prerequisites for the transfer of stocks, as well as for the state registration of:

1. the transfer of ownership over real estate, rights thereto and transactions therewith;
2. a legal entity being created as a result of reorganization of a Belarusian legal entity with shareholders being persons from “unfriendly” states;
3. amendments to the charter of a Belarusian legal entity, shareholders or the owner of property of which are persons from “unfriendly” states, in connection with:
   • its reorganization;
   • change of the owner of its property;
   • alienation of shares in the charter capital of shareholders being persons from “unfriendly” states;
   • withdrawal of such a shareholder from a Belarusian legal entity.

Transactions made in violation of the requirements of the Edict No. 93 are void. The state registration of a legal entity being created as a result of reorganization, certain amendments and/or modifications to the charter of a legal entity without obtaining permits is recognized invalid by a decision of the economic court.

In case the transaction on the alienation of the real estate by Belarusian legal entities in whose charter capitals persons from “unfriendly” states hold 25% and more is not made or not fulfilled, regional (Minsk City) executive committee refunds the paid contribution, subject to confirmation of its legality within 5 business days after receiving a written application from the payer (applicant or acquirer) containing a justification for the refund of funds together with an extract from the registration book of rights, restrictions (encumbrances) of rights to real estate in relation to the respective real estate object.

According to the Law of the Republic of Belarus No. 239-Z dated January 3, 2023 “On the issues of transfer under temporary external management” (effective from January 17, 2023 till December 31, 2025) Belarusian commercial companies having foreign shareholders/owners of property may be transferred to temporary external management upon decisions of local executive committees. The Law and the Regulation on the issues of transfer under temporary external management approved by the Resolution of the Council of Ministers of the Republic of Belarus No. 56 dated January 24, 2023 “On implementation of the Law of the Republic of Belarus No. 239-Z dated January 3, 2023 “On the issues of transfer under temporary external management” stipulate that such transfer is possible in the following cases:

• the management of a commercial company by executive and/or other management bodies has actually been terminated;
• the executive and (or) other management bodies of a commercial company take economically unjustified actions that may lead to the actual termination of activities, liquidation and (or) bankruptcy of such a commercial company, causing damage to a commercial company;
• owner of property of a commercial company has actually terminated its participation in the management of its activities;
• owner of property of a commercial company conducts economically unjustified actions that may lead to the actual termination of activities, liquidation and/or bankruptcy of such a commercial company, causing damage to a commercial company.

Proceeding from a literal interpretation, temporary external management can be established in relation to any commercial company with foreign ownership, as the law does not stipulate any limitations or thresholds (e.g. shareholders / owners of property from foreign states taking unfriendly measures only or a particular ownership percentage).

According to the Law of the Republic of Belarus No. 240-Z dated January 3, 2023 “On seizure of property” (effective from January 17, 2023) the Council of Ministers of the Republic of Belarus is entitled to take decision on the necessity to seize property on the ground of unfriendly actions against the Republic of Belarus, its legal entities and/or individuals as a responsive measure.

Such measures may be taken in relation to property located in Belarus and owned by:

• foreign states taking unfriendly measures (in accordance with the Resolution of the Council of Ministers No. 209 dated 06.04.2022 “On the list of foreign states committing unfriendly acts against Belarusian legal entities and (or) individuals”);
• persons from foreign states taking unfriendly measures, i.e. foreign persons related to the foreign states included on the list of “unfriendly” states, including: a) persons having citizenship / place of registration / place of main economic activity / main place of profit in such states, and b) persons under control of the indicated foreign persons regardless of their place of registration or place of main economic activity;
• affiliated persons, i.e. legal entities and/or individuals that directly or indirectly (through other legal entities and/or individuals) determined decisions on taking unfriendly actions or that had influence on taking such decisions by foreign states taking unfriendly actions, as well as legal entities and/or individuals that depend on the decisions of persons from such states and included in the list defined by the Council of Ministers of the Republic of Belarus.

Upon the respective decision of the Council of Ministers of the Republic of Belarus, the State Committee on Property of the Republic of Belarus applies to the economic court of Minsk city for seizure of property which shall consider the case within 1 month.

Seized property shall be transferred to the ownership of the Republic of Belarus. Upon the court’s decision, all state bodies and other companies shall perform immediately and without prior warning all necessary actions to enforce the decision.

7) Are any parts of the territory exempted or covered by particular regulation?

No. The Belarusian Antitrust Law is in force in the whole territory of the Republic of Belarus.

8) Is merger filing mandatory or voluntary?

Merger filing is mandatory, provided the thresholds are met.

9) Is there a general definition of transactions subject to merger control?

Yes, according to the Belarusian Antitrust Law mergers subject to merger control are defined as

1. transactions with (i) voting shares, (ii) property of commercial companies, or (iii) rights in relation to commercial companies,
2. other actions, including establishment and reorganization of business entities,

which have affected or may affect the conditions of competition in Belarus. Please also see topic 10 and 21.

10) Is "change of control" of a business required?

No. A merger does not require "change of control" over a business to be subject to merger control. A merger will be considered to take place if the transaction results in anyone gaining an ability to influence the operation of a business. 

Generally, the Belarusian Antitrust Law associates gaining of such an ability with acquisition of more than 25% of voting shares or more than 20% of fixed and intangible assets of a commercial company located in Belarus. Furthermore, the Belarusian Antitrust Law indicates acquisition of rights to give mandatory instructions to a business entity regarding its business activity or rights to perform functions of the executive body (except employment relations) as a separate basis for merger control provided the thresholds are met.

It should also be noted that even intra-group transactions may be subject to merger control. However, as mentioned in topic 33 such transactions may be subject to a simplified post-closing notification.

With respect to natural monopolies including, in particular, airport services; transport terminal services; rail transportation; transportation of gas, oil, oil products through pipelines, transfer and distribution of electric energy, heat energy and centralized water supply and sanitation, the Law on natural monopolies requires an approval from MART for:

1. acquisition by a natural monopoly entity of fixed and intangible assets not intended for the provision of services related to the sphere of the natural monopoly if the value of such assets exceeds 10 % of the net assets of the natural monopoly entity according to the last balance sheet;
2. investments of a natural monopoly entity into rendering of services which are not related to the sphere of natural monopolies if the amount of investments exceeds 10% of net assets of the natural monopoly entity according to the last balance sheet;
3. acquisition of fixed and intangible assets of a natural monopoly entity intended for rendering services related to the sphere of natural monopolies, if the balance sheet value of such assets exceeds 10% of net assets of the natural monopoly entity according to the last balance sheet.

The Law on natural monopolies also requires a simplified post-closing notification as mentioned in topic 33 in cases of acquisition of more than 10% of voting shares of a natural monopoly or more than 10% of voting shares of a commercial company by natural monopoly.

11) How is “control” defined?

The Belarusian Antitrust Law refers to the concept of “control” in relation to anti-competitive agreements and practices, rather than merger control. 

According to the Belarusian Antitrust Law a “control” is defined as an ability of an individual or legal entity, directly or indirectly (through a legal entity or several legal entities) to determine decisions made by another legal entity, due to:

1. possession or having right to dispose of more than 50% of voting shares of the legal entity;
2. performing functions of the executive body of the legal entity;
3. ability to give binding instructions to a legal entity on the basis of charter documents or an agreement.

The term “control” is used to describe exceptions to the rules prohibiting anti-competitive agreements and practices: these rules are not applied to agreements between business entities provided that one of these business entities holds control over another business entity or if such business entities are controlled by one entity.

12) Acquisition of a minority interest

Under the Belarusian Antitrust Law acquisition of a minority interest may trigger a merger filing procedure (regardless of whether there is change of control). Acquisition of any minority interest is subject to merger control if as the result the acquirer possesses more than 25% of voting shares, provided the thresholds are met.

Additionally, if the acquirer already has at least 25% and not more than 50% of voting shares, acquisition of a minority interest may trigger a merger filing if as the results the acquirer possesses more than 50% of voting shares (provided the thresholds are met).

Acquisition of the rights (including through acquisition of the minority interest) in relation to companies holding a dominant position at the market or two and more companies operating at the same market providing the possibility to influence the decision making of such companies may be subject to merger control provided the thresholds are met.

According to the Law on natural monopolies acquisition of any minority interest requires a simplified post-closing notification as mentioned in topic 33 if as the result the acquirer possesses more than 10% of voting shares of a natural monopoly entity or the acquirer-natural monopoly entity possesses more than 10% voting shares of a commercial company located in Belarus. An acquirer holding more than 10% of voting shares is obliged to notify MART about all cases of changes of the number of voting shares belonging to it. 

13) Joint ventures/joint control – which transactions constitute mergers?

The following transactions regarding businesses under joint control in Belarus are subject to merger control provided the thresholds (if any) are met:

1. Reorganization of a joint venture in the form of merger or acquisition;
2. Establishment of a joint venture if (i) shares of an existing commercial company and/or fixed and/or intangible assets of an existing commercial company are contributed to the charter capital of such joint venture, or (ii) the joint venture being established acquires voting shares of an existing commercial company and/or fixed and/or intangible assets of an existing commercial company on the basis of transfer act or dividing balance sheet;
3. Acquisition of voting shares of a joint venture as a result of which the number of voting shares held by the acquirer will exceed 25% or 50% (see topic 12);
4. Establishment in Belarus of associations of legal entities in the form of holdings, associations, unions and state associations, or adding a business entity to the list of members of a holding registered in the Belarusian Register of Holdings;
5. Entering into partnership agreements (joint activity agreements) between competitors regarding activities in Belarus;
6. Reorganization of a joint venture holding a dominant position by means of transformation into a joint-stock company;
7. Acquisition of the rights in relation to a joint venture providing the possibility to influence the decision making of such joint venture or provide obligatory instructions for such joint venture.

14) Which thresholds decide whether a merger notification must be filed?
(Unless explicitly stated otherwise, the thresholds described under one threshold category are not cumulative with those described under another category. Thus for instance if there is a market share threshold and a turnover threshold, it is sufficient to meet one of these, unless stated otherwise.)

a) Turnover thresholds

A merger notification must be filed if there is a local nexus (e.g. the merger implies direct or indirect acquisition of voting shares in (property of) a Belarusian company, reorganization of Belarusian companies, establishment of legal entities in Belarus) and:

1. in case of mergers in the form of reorganizations or transactions with the voting shares, rights, property, the worldwide annual turnover of at least one of the business entities involved in the merger (except for seller of voting shares) exceeded 800,000 basic values (BYN 32 M);
2. in case of mergers in the form of establishment of a commercial company, associations of legal entities and entering into partnership agreements, the combined worldwide annual turnover of all business entities participating in the merger exceeded 800,000 basic values (BYN 32 M).

b) Market share thresholds

A merger notification must be filed in connection with the following transactions involving a company having a dominant position in a market in Belarus:

1. the transaction involves acquisition of 25% or more voting shares of such a company or the possibility to influence the decision making of such a company; or
2. the transaction involves an acquisition by such a company of more than 25% voting shares of another company operating at the same market.

Generally, a business may be considered dominant if it holds a market share of 35% or more. In some cases dominance may be found with less than 35% market share, however, the market share must exceed 15%.

c) Value of transaction thresholds

N/A

d) Assets requirements

A merger notification must be filed if there is a local nexus (e.g. the merger implies direct or indirect acquisition of voting shares in (property of) a Belarusian company, reorganization of Belarusian companies, establishment of legal entities in Belarus) and:

1. in case of mergers in the form of reorganizations or transactions with the voting shares, rights, property, at the last reporting date the balance-sheet value of the worldwide assets of at least one of the business entities involved in the merger (except for seller of the voting shares) exceeded 400,000 basic values (BYN 16 M);
2. in case of mergers in the form of establishment of a commercial company, associations of legal entities and entering into partnership agreements, at the last reporting date the combined balance-sheet value of the worldwide assets of all business entities participating in the merger exceeded 400,000 basic values (BYN 16 M).

e) Other

Please also see topic 15 regarding events subject to merger control regardless of the thresholds otherwise described in topic 14.

15) Special thresholds for particular businesses

The following transactions are subject to merger control regardless of the thresholds stated in topic 14:

1. if one of the parties to the transaction (except for the seller) is included in the State register of business entities holding a dominant position or State register of natural monopolies in Belarus
2. reorganization of a business entity holding a dominant position in a market in Belarus by means of transformation into a joint-stock company, 
3. establishment of holdings or adding a business entity to the list of members of a holding registered in the Belarusian Register of Holdings; 
4. acquisition of voting shares or assets of natural monopolies entities or acquisition of voting shares or assets of commercial companies by natural monopolies entities as indicated in topic 10.

16) Rules on calculation and geographical allocation of turnover

There are no rules on geographical allocation of turnover for the purposes of thresholds; however, the forms contained in regulations approved by the Resolution No. 11 and to be filed with MART should include information on turnover from the specific products and services in the region where the target company is registered and in Belarus as a whole.

For foreign-to-foreign transaction it is very important to know about turnover in Belarus to estimate whether such transaction may influence competition in Belarus and, therefore, be subject to merger control in Belarus.

Turnover is calculated on the basis of the annual financial statements for the last financial year. If the company operates less than 1 year, turnover is calculated for the period of such activity.

"Turnover" is the net turnover derived from sale of all products and services of the company after deduction of value added tax.

Is the seller/seller's group turnover relevant in a standard acquisition of sole control?"

No.

17) Special rules on calculation of turnover for particular businesses

N/A

18) Series of transactions that must be treated as one transaction

The Belarusian Antitrust Law directly states that acquisition of more than 20% of the fixed and the intangible assets of a business through interdependent transactions is subject to merger control, provided the thresholds are met. MART has published clarification regarding acquisition of assets subject to merger control. In this clarification, MART indicates the following features of interdependent transactions:

1. transactions establish homogeneous obligations;
2. transactions are executed with the participation of the same entities;
3. transactions are executed at the same time or period between transactions is insignificant (usually up to 1 year);
4. each transaction is aimed at achieving one result or pursues the same purpose.

It is very likely that transactions with shares that have all the above-mentioned features will be treated by MART as one transaction.

19) Temporary change of control

A merger does not require "change of control" over a business to be subject to merger control (see topic 10), and it is of no consequence under the Belarusian Antitrust Law whether control is temporary or not. 

20) Special industries, owners or types of transactions

The Belarusian Antitrust Law specifies that there is no obligation to file a merger notification in the following situations:

1. a range of actions made on the basis of legislative acts:
   • reorganization in the form of merger or acquisition;
   • establishment of a commercial company if (i) shares of an existing commercial company and/or fixed and/or intangible assets of an existing commercial company are contributed to the charter capital of such new company, or (ii) the company being established acquires voting shares of an existing commercial company and/or fixed and/or intangible assets of an existing commercial company on the basis of transfer act or dividing balance sheet;
   • acquisition by the entity having a dominant position of more than 25% of voting shares of another company operating at the same market;
   • acquisition of 25% or more voting shares of the entity having a dominant position, as well as other transactions resulting in the possibility to influence its decision making;
   • acquisition of voting shares as a result of which the number of voting shares held by the acquirer will exceed 25% or 50%;
   • acquisition of rights to give mandatory instructions to a business entity regarding its business activity or rights to perform functions of the executive body;
   • acquisition of the right of participation of the same persons in management bodies of 2 or more entities operating in the market of interchangeable goods, if they are able to determine the conditions for conducting business by these entities.
2. a range of actions committed by the founders of a legal entity within its incorporation:
   • acquisition by the entity having a dominant position of more than 25% of voting shares of another company operating at the same market;
   • acquisition of 25% or more voting shares of the entity having a dominant position, as well as other transactions resulting in the possibility to influence its decision making;
   • acquisition of voting shares as a result of which the number of voting shares held by the acquirer will exceed 25% or 50%;
   • acquisition of rights to give mandatory instructions to a business entity regarding its business activity or rights to perform functions of the executive body;
3. establishment of a commercial company if (i) shares of an existing commercial company and/or fixed and/or intangible assets of an existing commercial company are contributed to the charter capital of such new company, or (ii) the company being established acquires voting shares of an existing commercial company and/or fixed and/or intangible assets of an existing commercial company on the basis of transfer act or dividing balance sheet, when such actions are committed as a result of the forced division of business entities, forced demerger from the business entity;
4. transfer of shares to a professional participant at the securities market for trust management, as well as transfer of shares in the framework of fulfilling requirements of the state service legislation and anticorruption legislation;
5. acquisition by the company of its own shares;
6. acquisition by an individual of the authority of the sole executive body of a business entity per entering into an employment agreement;
7. acquisition of property in the framework of enforcement proceedings, during the insolvency or bankruptcy procedures;
8. reorganization of a company in the form of transformation when the composition and voting shares of the shareholders (owners) do not change, except for transformation of a business entity holding a dominant position in a joint-stock company;
9. transfer of ownership, other property rights by way of inheritance.

The President of the Republic of Belarus is entitled to determine other transactions that do not require merger filing. This may be determined either for specific businesses or for a specific group of businesses (e.g. working in special industries or having special status).

The simplified post-closing merger notification (see topic 33) is required instead of preliminary merger filing for the following intra-group transactions:

1. one party to the transaction has more than 50% of all votes (including when the powers are received from other persons, inter alia, on the basis of the agreement) in another party to the transaction (i.e. transactions between a parent company and its subsidiary);
2. if the same entity (person) has more than 50% of all votes in each party to the transaction (i.e. transactions between subsidiaries of the same parent company);
3. if the same person owns the property of unitary enterprises being parties to the transaction.
4. if the same person owns the property of the unitary enterprise and holds more than 50% of the voting shares of the business company being parties to the transaction;
5. transactions between a business company, a consumer society, a union of consumer societies and a unitary enterprise whose property is owned by such a business company, such a consumer society, such a union of consumer societies.

According to the Decree of the President of the Republic of Belarus dated 22.09.2005 No. 12 (as amended) merger filing is not required in case of reorganization of legal entities registered as residents of the HTP or in case of transactions with shares of HTP residents.

Additionally to standard filing with the registering authority, the HTP residents must notify the Hi-Tech Park Secretariat on reorganization, registration of amendments and modifications to the charter, including in connection with change of shareholders, and making decision on liquidation. Such notification (including short summary of changes and relevant documentation) must be made within 10 business days post factum by postal service.

The HTP residents are also obliged to submit to the Hi-Tech Park Secretariat the prior notification on change of its owner of property or shareholder(s) no later than 10 business days before the entry into force of the respective agreement. The notification should contain general information about the new owner of property or shareholder(s), contact details, the amount of the proposed share in the charter capital of the HTP resident and can be sent by e-mail.

There are additional requirements for HTP residents operating in the sphere of cryptocurrency exchange and trade. These entities shall provide the amended list of beneficial owners no later than 5 business days from the date on which the entity became aware or should have become aware of such change, or if the change in beneficial ownership is planned, provide it in advance.

21) Transactions involving only foreign businesses (foreign-to-foreign)

As a general rule, foreign-to-foreign transactions (actions) are not subject to merger control unless direct or indirect acquisition of voting shares in Belarusian company is considered. Provided the thresholds are met, indirect acquisition of voting shares in a Belarusian company may be qualified as acquisition of rights to give mandatory instructions to a business entity regarding its business activity.

In some other cases foreign-to-foreign transactions (actions) may require notification even if the buyer does not directly or indirectly acquire any voting shares in a Belarusian business entity, e.g. if a transaction (an action) affects or may affect competition in Belarus or may be qualified under the Belarusian Antitrust Law as a merger, which affects or may affect activities of any business entities registered in Belarus.

While there is no statutory guidance, in accordance with current practice the following cases may require notification:

1. the buyer or target (or their affiliates) owns a Belarusian business entity which has a substantial market share in Belarus (e.g. 15% and more);
2. the buyer or target (or their affiliates) has significant turnover in Belarus;
3. the buyer's or target's (or their affiliates') products represent a significant part of the market in Belarus (e.g. 35% and more); 
4. transaction that may (directly or indirectly) reduce of number of competitors in a market in Belarus;
5. transaction that may (directly or indirectly) increase or reduce product prices in Belarus.

In such case it is recommended to request from MART its official opinion on necessity of antitrust filing with short description of the transaction and the parties involved.

22) No overlap of activities of the parties

There is no exemption for transactions with no overlap of activities. However, overlapping of activities is a necessary condition for antitrust filing in some cases (e.g. in cases described in paragraphs 5) and 7) of topic 13 and in paragraph 2) of topic 14b). In practice, in case of overlapping activities, the filed documents and information will be considered by MART more thoroughly.

23) Other exemptions from notification duty even if thresholds ARE met?

There are no other exemptions from notification duty.

As mentioned in topic 20 under the Belarusian Antitrust Law the President of the Republic of Belarus is entitled to determine other cases when the merger filing is not required. In practice it is used for exemptions from notification duty for important investors in connection with implementation of big investment projects in Belarus together with other benefits.

24) May a merging party file voluntarily even if the thresholds are not exceeded?

MART will only handle a merger notification if the thresholds are met. There is no direct prohibition for a merging party to file voluntary if the thresholds are not exceeded. However, in this case, MART will answer to the merger party that such a transaction is not subject to merger control.

25) May the competition authority request a merger notification or oppose a transaction even if thresholds are not met?

No. MART is not entitled to request a merger notification or oppose a transaction if thresholds are not met. However, business entities, their officials, individuals are obliged to submit to MART at its request, documents, explanations, information in written and (or) oral form, necessary for implementation of the duties assigned to MART.

26) Referral within the jurisdiction

MART is the only state agency authorized to exercise merger control in Belarus.

27) Referral from another jurisdiction

MART cannot handle mergers based on referrals from other jurisdictions.

28) Referral to another jurisdiction

A merger subject to merger control in Belarus cannot be referred to other jurisdictions.

29) May the merging parties request or oppose a referral decision?

N/A (see topics 27 and 28).

30) Stage of transaction when notification must be filed

There is no specific deadline, but the transaction subject to merger control may not be implemented before the merger has been approved by MART. Generally, the merger filing should be made before the signing a binding agreement on the basis of its draft (the essential provisions of which will not change), however, it is possible to make the merger filing after signing the agreement but before the closing if transfer of shares (property) is conditional on obtaining approval from MART.

31) Pre-notification consultations

The Belarusian Antitrust Law does not directly provide for pre-notification consultations. However, MART is entitled and obliged to give explanations on application of the Belarusian Antitrust Law. Therefore, if there is any uncertainty about the necessity of merger notification with respect to a transaction, the parties may submit to MART a request for clarification with a short description of the transaction and its parties. This procedure is different from the merger notification itself, however, parties may receive MART’s opinion whether the notification should be made and decide accordingly to do the merger notification or not (taking into account whether all essential details of the transaction were disclosed). The process takes up to 15 calendar days. MART can extend the period of review and set a period of extension if, for example, additional information is needed.

The deadlines for MART will start to run from the formal submission of merger notification. However, MART has 10 business days as from the date of submission of notification to assess whether all the necessary documents and information were provided. A complete package of required documents shall be initially submitted – in case they are not submitted or do not meet the established requirements, MART decides to refuse to accept the notification. Within these 10 business days, the parties are not entitled to make amendments into the notification or to provide any missing documents and information.

32) Special rules on timing of notification in case of public takeover bids and acquisitions on stock exchanges

There are no special rules on timing of notifications in case of public takeover bids and acquisitions on stock exchanges. Therefore, generally the approval of MART must be obtained before acquisition of the shares (property). In practice, tender documentation contains provision that the offer shall contain the approval of MART. In such cases the seller prepares all relevant information and documents related to the seller and the target company in advance and the purchaser should provide the information and documents related to it only.

33) Forms available for completing a notification

Depending on particular procedure, there are several forms available: forms for full pre-closing merger notifications adjusted for particular merger control grounds and forms for simplified post-closing merger notifications.

Simplified post-closing notification may be applied for intra-group transactions (see topic 20) and acquisition of voting shares of natural monopolies entities or acquisition of voting shares of commercial companies by natural monopolies entities as indicated in topic 12. The simplified post-closing merger notification must be submitted to MART no later than 1 month (30 days in case of transactions related to natural monopolies) from the day of the closing a transaction.

34) Languages that may be applied in notifications and communication

Russian or Belarusian. Documents in a foreign language must be submitted as certified translations (the translation itself or the certified translator’s signature should be certified by a notary, for this purpose usually apostille on the documents is required).

35) Documents that must be supplied with notification

Depending on the type of transaction, a range of documents related to the merger should be filed according to the Regulations approved by the Resolution No. 11. Generally, the following documents should be supplied:

1. application with explanation of purposes of the merger;
2. for non-resident legal entities – a legalized (apostilled) extract from the trade (companies) register issued not earlier than 6 months before the application with the certified translation into Russian or Belarusian, as well as document on state registration of the representative office in Belarus (if any); for non-resident natural persons – ID document;
3. corporate approvals of the merging parties on participation in the merger (e.g. merger, acquisition, joining the union, association, state association, creating a commercial company);
4. data on book value of assets of the merging parties as of the last reporting date preceding the date of notification;
5. balance sheet of the target company (and in certain cases – of other companies, e.g. entities being reorganized, founders of the associations, commercial companies, entity acquiring the shares) as of the last reporting date preceding the date of notification together with the respective profit and loss report  – such balance sheet and profit and loss report shall be signed by the chief accountant and the head of the company;
6. group overview for each of the parties to the merger – group chart may be provided, but is not necessary;
7. data on main types of activities, main types of goods (works, services), cost and volume of their production, delivery to Belarus and for export and share in the relevant market (with the exception of cases when the information necessary for calculating the share cannot be obtained by the interested person in connection with its classification as state secrets or official information of limited distribution) for each of the parties to the merger for the last financial year and for any reporting periods preceding the date of filing within the current financial year with the exception of cases when the information necessary for calculating the share cannot be obtained by the interested person in connection with its classification as state secrets or official information of limited distribution – usually, statistical data on market share is requested from the Data Processing Center of the National Statistical Committee of the Republic of Belarus. Data is provided on a paid basis with regard to specific codes of activities and codes of goods, with regard to Belarus in general and the company’s region in particular;
8. draft charter of the association, commercial company being established;
9. draft documents formalizing the transaction (e.g. merger, acquisition of voting shares, acquisition of participation rights, etc.);
10. powers of attorney or other documents confirming the authority of the representatives of the companies participating in the merger.

36) Filing fees

There are no filing fees. Submitting a request for clarification to MART (see topic 31) is also free.

37) Is implementation of the merger before approval prohibited?

Yes. The merging businesses must be run separately and independently until the merger has been approved. However, normal preparatory reversible steps are not prohibited (see topic 39).

Where the simplified post-closing merger notification applies (see topic 33), implementation of merger may be done before such notification.

38) May the parties get permission to implement before approval?

No. Where pre-closure notification applies (see topic 33), the Belarusian Antitrust Law does not stipulate the opportunity to get permission to implement merger before its approval.

39) Due diligence and other preparatory steps

There are no specific rules regarding due diligence and preparatory steps before obtaining the approval of the merger. 

Actions that are directly related to the merger сlosing, i.e. transferring money, shares, property, etc. may not be implemented before approval where pre-closure notification applies (see topic 33). Any other actions that are not directly related to the merger сlosing such as for instance preparation of IT-integration may be implemented before approval. However, such actions should be acceptable under the general prohibition against anti-competitive agreements and practice.

40) Veto rights before closing and "Ordinary course of business" clauses

An "ordinary course of business" clause that prevents the target company from taking decisions outside the course of its ordinary business until the closing date is generally considered acceptable (see topic 39).

However, the parties should assess their actions in terms of general prohibition against anti-competitive agreements and practice.

41) Implementation outside the jurisdiction before approval – "Carve out"

There are no specific rules on “carve out” of the Belarusian part of a transaction to avoid delaying implementation in the rest of the world pending approval in Belarus.

It must be assessed on a case-by-case basis whether it is possible to carve out the Belarusian part of a transaction. If the Belarusian part of the transaction and the rest of the transaction are interdependent, implementation outside Belarus is generally possible. However, in this case applying to MART with request for clarification (see topic 31) may be recommended.

42) Consequences of implementing without approval/permission

A fine in the range from 20 to 100 basic values (BYN 800 to BYN 4,000) may be imposed on officials of the parties.

Upon an action filed by MART, a court may declare the merger transaction to be null and void, if a merger has created or strengthened the dominant position or prevented, restricted or eliminated competition

There is a risk that a legal entity may be fined if the respective transaction with shares is qualified as an agreement restricting competition. In such case the amount of fines may be up to 10% of income on the respective market in the calendar year preceding the day of revealing the violation but not less than 400 basic values (BYN 16,000).

43) Phases and deadlines

44) Tests or criteria applied when a merger is assessed

In general, it is assessed whether the merger may lead to prevention, restriction or elimination of competition on the commodity markets of the Republic of Belarus and (or) to create or strengthen a dominant position, or whether the information contained in the documents and (or) information submitted for merger control is false and (or) incomplete.

MART is entitled to approve the merger even though it may lead to prevention, restriction or elimination of competition or to creation or strengthening of a dominant position provided the merging parties prove that merger may result in:

1. improving the production, sale of goods and/or stimulating technical (economic) progress or increasing the competitiveness of goods produced in Belarus on the world commodity market;
2. consumers obtaining a proportionate part of the advantages (benefits) achieved by the merging parties.

According to the Law on natural monopolies in relation to the transactions pertaining to sphere of natural monopolies indicated in topic 10 it is assessed whether the transaction may lead to infringement of the rights and legitimate interests of consumers or whether the information contained in the documents and (or) information submitted for merger control is false and/or incomplete.

45) May any non-competition issues be considered?

No.

46) Special tests or criteria applicable for joint ventures

The assessment for joint ventures is the same as for other mergers, but if the joint venture also has coordination between the owners as object or effect, it will also be assessed whether such coordination is acceptable under the general prohibition against anti-competitive agreements and practice.

47) Decisions and remedies/commitments available

A merger may be approved, approved with conditions/commitments or prohibited.

The Belarusian Antitrust Law does not contain a list of remedies to be imposed as conditions/commitments of approval. Therefore, conditions/commitments may take any form and they can be either structural or behavioral and with or without time limitations.

If a merger has been implemented without approval and has created or strengthened a dominant position or prevented, restricted or eliminated competition, the merger can be declared as invalid by the court at the lawsuit of MART.

48) How and when will details about the merger be published?

Information about merger control notifications is not public. MART does not make any public announcement about a merger neither upon receipt of a merger notification, nor upon a decision on the results of investigation. Furthermore, the merging parties may indicate that the information contained in the merger notification is confidential. 

49) Access to the file for the merging parties and third parties

The merging parties:

Notification is an administrative procedure. The merging parties have a right to access to the materials related to the consideration of their merger notification, including documents and/or information received by MART from other state authorities, other entities, make extracts from them, unless otherwise provided by legislation on state secrets and/or commercial or other secrets protected by law. There is no right of access to the authority’s internal documents and correspondence.

Third parties:

Third parties do not have access to the file, but there is no prohibition for MART to provide third parties with non-confidential information from the merger notification and other documents.

50) Who can appeal and what may be appealed?

Notification is an administrative procedure and decisions of MART may be appealed by the applicant and third parties to the Council of Ministers of the Republic of Belarus within 1 year from the date of the decision. If the applicant is not satisfied with decision of the Council of Ministers, it can subsequently bring an appeal to the Supreme Court of the Republic of Belarus. The Supreme Court will check compliance of the decisions of MART and the Council of Ministers with the legislations and standard procedures.

The decision of MART can be appealed by a third party in case its rights and/or interests have been affected.

By virtue of the Law on natural monopolies if within 15 days from expiration of the period for consideration of a notification on the transactions pertaining to sphere of natural monopolies indicated in topic 10 a decision of MART is not received or an application is refused, the applicant can appeal directly to the сourt within 3 months from the date of the decision or from the date of expiration of the above-mentioned 15-day period. According to the jurisdiction rules decisions of MART may be appealed only to the Supreme Court of the Republic of Belarus.