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Select Topics
Relevant legislation and authorities
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  1. Is a merger control regulation in force?
  1. Which authorities enforce the merger control regulation?
  1. Relevant regulations and guidelines with links:
  1. Does general competition regulation apply to mergers or ancillary restrictions?
  1. May an authority order a split-up of a business irrespective of a merger?
  1. 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.)
  1. Are any parts of the territory exempted or covered by particular regulation?
Voluntary or mandatory filing
show/hide chapter
  1. Is merger filing mandatory or voluntary?
Types of transactions to file – what constitutes a merger
show/hide chapter
  1. Is there a general definition of transactions subject to merger control?
  1. Is "change of control" of a business required?
  1. How is "control" defined?
  1. Acquisition of a minority interest
  1. Joint ventures/joint control – which transactions constitute mergers?
Thresholds that decide whether a merger notification must be filed
show/hide chapter
  1. Which thresholds decide whether a merger notification must be filed?
  1. Special thresholds for particular businesses
  1. Rules on calculation and geographical allocation of turnover
  1. Special rules on calculation of turnover for particular businesses
  1. Series of transactions that must be treated as one transaction
Exempted transactions and industries (no merger control even if thresholds ARE met)
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  1. Temporary change of control
  1. Special industries, owners or types of transactions
  1. Transactions involving only foreign businesses (foreign-to-foreign)
  1. No overlap of activities of the parties
  1. Other exemptions from notification duty even if thresholds ARE met?
Merger control even if thresholds are NOT met
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  1. May a merging party file voluntarily even if the thresholds are not exceeded?
  1. May the competition authority request a merger notification or oppose a transaction even if thresholds are not met?
Referral to and from other authorities
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  1. Referral within the jurisdiction
  1. Referral from another jurisdiction
  1. Referral to another jurisdiction
  1. May the merging parties request or oppose a referral decision?
Filing requirements and fees
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  1. Stage of transaction when notification must be filed
  1. Pre-notification consultations
  1. Special rules for acquisitions on stock exchanges and public takeover bids
  1. Forms available for completing a notification
  1. Languages that may be applied in notifications and communication
  1. Documents that must be supplied with notification
  1. Filing fees
Implementation of merger before approval – "gun jumping" and "carve out"
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  1. Is implementation of the merger before approval prohibited?
  1. May the parties get permission to implement before approval?
  1. Due diligence and other preparatory steps
  1. Veto rights before closing and “Ordinary course of business” clauses
  1. Implementation outside the jurisdiction before approval – "Carve out"
  1. Consequences of implementing without approval/permission
The process – phases and deadlines
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  1. Phases and deadlines
Assessment and remedies/decisions
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  1. Tests or criteria applied when a merger is assessed
  1. May any non-competition issues be considered?
  1. Special tests or criteria applicable for joint ventures
  1. Decisions and remedies/commitments available
Publicity and access to the file
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  1. How and when will details about the merger be published?
  1. Access to the file for the merging parties and third parties
Judicial review
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  1. Who can appeal and what may be appealed?

 
BELARUS

Dennis Turovets, LL.M.
Managing Partner
(Belarus), Advocate

Dennis_turovets@epap.by

Tel: +375172688282

Anna Rusetskaya, LL.M.
Partner, Advocate

Anna_rusetskaya@epap.by

Tel: +375172688282

Alexander Buzo
Senior Associate, Advocate

Alexander_buzo@epap.by

Tel: +375172688282

Yana Leshchenko
Associate

Yana_leshchenko@epap.by

Tel: +375172688282

No new regulation adopted or proposed

Note that relevant regulations may be changed before your contemplated transaction is completed. Mergerfilers.com and our national experts keep information on regulations up to date and even provide alerts on adopted or proposed changes that have not come into force yet but may come into effect before the transaction is completed. When this field is green, we have no knowledge of such imminent changes to the relevant regulations.

Relevant legislation and authorities

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). Generally, merger notifications shall be filed to its regional offices at the location of the target company. There are 7 regional offices (Main Departments) of MART: one in each region of Belarus and one in the city of Minsk. The central office of MART considers the transactions with participation of legal entities included into the State register of business entities holding a dominant position or the State register of natural monopolies or with participation of such entities’ shareholders.

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):

Original Russian version

Unofficial English name  

Закон Республики Беларусь от 12.12.2013 № 94‑З
«О противодействии монополистической
деятельности и развитии конкуренции»
 

в новой редакции,
принятой 08.01.2018 и вступившей в силу с 03.08.2018.

Law of the Republic of Belarus dated 12.12.2013 No. 94–Z “On Counteraction to Monopolistic Activities and Development of Competition” in the new wording adopted on 08.01.2018 and effective since 03.08.2018

Закон Республики Беларусь от 16.12.2002 № 162-З «О естественных монополиях» (с изменениями и дополнениями)

Law of the Republic of Belarus dated16.12.2002 No.162-Z “On Natural Monopolies”(as amended)

Инструкция о порядке рассмотрения заявлений, документов и (или) 
сведений о даче согласия на реорганизацию 
хозяйствующих субъектов, создание 
коммерческих организаций и объединений 
хозяйствующих субъектов

утвержденная постановлением МАРТ от 03.01.2018 № 1 («Инструкция № 1»)

Instruction on procedure for consideration of applications, documents and (or) information for providing consent to reorganization of business entities, establishment of commercial organizations and associations of business entities, approved by the Resolution of MART dated 03.01.2018 No. 1 (“Instruction No. 1”)

Инструкция о порядке рассмотрения заявлений, документов и 
(или) сведений о даче согласия на совершение сделок 
с акциями (долями в уставных фондах) хозяйствующих субъектов

утвержденная постановлением МАРТ от 03.01.2018 № 2 («Инструкция № 2»)

Instruction on procedure for consideration of applications, documents and (or) information for consent to transactions with stocks (shares in the charter capitals) of business entities, approved by the Resolution of MART dated 03.01.2018 No. 2 (“Instruction No. 2”)

Инструкция о требованиях к ходатайству, документам и (или) сведениям, уведомлению, представляемым для контроля за сделкамиутвержденная постановлением МАРТ от 03.04.2020 № 25 («Инструкция № 25»)

Instructions on requirements for application, documents and/or information, notification submitted for merger control, approved by the Resolution of MART dated 03.04.2020 No. 25 (“Instruction No. 25”)

Инструкция о порядке предоставления в антимонопольный
орган уведомлений

утвержденная постановлением МАРТ от 10.08.2018 № 62 («Инструкция № 62»)

Instruction on procedure for submission of notifications to antitrust authority, approved by the Resolution of MART dated 10.08.2018 No. 62 (“Instruction No. 62”)

Filing forms in Russian are contained in annexes to Instruction No. 1, Instruction No. 2, Instruction No. 25 and Instruction No. 62.

Instruction No. 1 and Instruction No. 2 were adopted on 03.01.2018 prior to adoption of the new wording of the Belarusian Antitrust Law. Therefore, they may be subject to further amendments to comply with the new wording of the Belarusian Antitrust Law.

Разъяснение МАРТ от 19.08.2019
«О порядке обращения в антимонопольный орган
за получением согласия на экономическую
концентрацию»

Clarification of MART dated 19.08.2019
“On procedure for applying to MART in order to obtain consent for merger”

Разъяснение МАРТ от 26.06.2019
«О предоставлении информации о лицах, входящих в 
одну группу лиц, для получения согласия антимонопольного 
органа на экономическую концентрацию»

Clarification of MART dated 26.06.2019
“On provision of information on entities belonging to one group of entities in order to obtain consent of MART for merger”

Разъяснение МАРТ от 05.06.2019
«О разъяснении норм антимонопольного законодательства 
в отношении экономической концентрации 
при создании коммерческой организации»

Clarification of MART dated 05.06.2019
“On clarification of the antitrust legislation in relation to merger in the form of creation of a commercial company”

Разъяснение МАРТ от 14.02.2019 
«О разъяснении норм антимонопольного законодательства 
в отношении экономической концентрации»

Clarification of MART dated 14.02.2019
“On clarification of the antitrust legislation in relation to merger”

Разъяснение МАРТ от 14.11.2018
«Контроль антимонопольного органа за сделками с 
имуществом коммерческих организаций»

Clarification of MART dated 14.11.2018
“Control of MART over transactions with property of commercial companies”

MART is entitled to give clarifications on application of the Belarusian Antitrust Law. It should be noted, currently Belarusian legislation does not contain provisions on legal status of written clarifications on application of the legislation given by state bodies.

On 03.10.2019 the Constitutional Court of the Republic of Belarus adopted the Decision “On legal regulation of written clarifications on application of the legislation”. By this Decision, the Constitutional Court recognized legal uncertainty in regard to written clarifications by state authorities on application of the legislation and legal risks associated with such uncertainty. Therefore, the Constitutional Court recommended to the Government of the Republic of Belarus to prepare a respective draft law to cover this issue.

Единый перечень административных процедур,
 осуществляемых государственными органами и иными 
организациями в отношении юридических 
лиц и индивидуальных предпринимателей

утвержденный постановлением Совета Министров Республики
 Беларусь от 17.02.2012 № 156
(с изменениями и дополнениями) 
(«Единый перечень административных процедур»).

Unified list of administrative procedures carried out by state authorities and other organizations in relation to legal entities and individual entrepreneurs, approved by the Resolution of the Council of Ministers of the Republic of Belarus dated 17.02.2012 No. 156 (as amended) (the “Unified list of administrative procedures”).

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.)

Financial businesses

In addition to antitrust approval by MART the following requirements apply to financial business mergers. 

Acquisition of 5 % or more shares of a bank or other credit and financial companies, acquisition of or subscription to any number of shares of a bank or other credit and financial companies by a non-resident, some forms of reorganization of a bank or other credit and financial companies 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. (Hereinafter, "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.)

Shareholders of insurance companies are obliged to obtain prior approval from the Ministry of Finance of the Republic of Belarus to sell or purchase shares of insurance companies regardless of the number of shares sold or acquired.

An insurance company is obliged to obtain prior approval from the Ministry of Finance of the Republic of Belarus to:

  1. sale of shares in its charter capital to foreign investors and/or subsidiaries of foreign investors;
  2. increase of its charter capital if the new capital is provided by foreign investors and (or) subsidiaries of foreign investors;
  3. sale of 5% or more shares in its charter capital.

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.

Voluntary or mandatory filing

8) Is merger filing mandatory or voluntary?

Merger filing is mandatory, provided the thresholds are met.

Types of transactions to file – what constitutes a merger

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) 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 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 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 shares of a natural monopoly or more than 10 % of shares of a commercial company by natural monopoly.

11) How is “control” defined?

When filing a merger in Belarus, the applicant must disclose controlling persons and controlled entities in the form contained in Annex 3 to the Instruction No. 2. According to Annex 3 to the Instruction No. 2 controlling persons are persons having more than 20 % of the charter capital of a legal entity.

Besides, we note that 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 shares, provided the thresholds are met.

Additionally, if the acquirer already has at least 25 % and not more than 50 % of shares, acquisition of a minority interest may trigger a merger filing if as the results the acquirer possesses more than 50 % of 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 shares of a natural monopoly entity or the acquirer-natural monopoly entity possesses more than 10% shares of a commercial company located in Belarus. An acquirer holding more than 10 % of shares is obliged to notify MART about all cases of changes of the number of 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 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 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 shares of a joint venture as a result of which the number of 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.
Thresholds that decide whether a merger notification must be filed

14) Which thresholds decide whether a merger notification must be filed?

a) Turnover thresholds

A merger notification must be filed if there is a local nexus (e.g. the merger implies direct acquisition of 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 shares, rights, property, the worldwide annual turnover of at least one of the business entities involved in the merger (except for seller of shares) exceeded 400,000 basic values (BYN 10.8 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 400,000 basic values (BYN 10.8 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 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 25% or more 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 acquisition of shares in (property of) a Belarusian company, reorganization of Belarusian companies, establishment of legal entities in Belarus) and:

  1. in case of for mergers in the form of reorganizations or transactions with the 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 shares) exceeded 200,000 basic values (BYN 5.4 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 200,000 basic values (BYN 5.4 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. adding a business entity to the list of members of a holding registered in the Belarusian Register of Holdings, and
  4. acquisition of shares or assets of natural monopolies entities or acquisition of 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 Annex 2 to the Instruction No. 1 and in Annex 4 to the Instruction No. 2 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.

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.

Exempted transactions and industries (no merger control even if thresholds ARE met)

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. establishment of companies, except for cases described in topic 13;
  2. when shares are transferred to a professional participant at the securities market for trust management;
  3. when shares are transferred in the framework of executing of requirements of the state service legislation and anticorruption legislation;
  4. reorganization of a company in the form of transformation when the composition and shares of the shareholders do not change except for transformation of a business entity holding a dominant position in a joint-stock company;
  5. when an individual receives the authority of the sole executive body of a business entity per entering into an employment agreement;
  6. when a company acquires its own shares.

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 High Technology Park or in case of transactions with shares of residents of the High Technology Park.

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 in another party to the transaction (i.e. transactions between a parent company and its subsidiary), or 
  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).

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

As a general rule, foreign-to-foreign transactions are not subject to merger control unless direct acquisition of shares in Belarusian company is considered. However, in some cases foreign-to-foreign transactions may require notification even if the buyer does not directly acquire any shares in a Belarusian business entity, e.g. if a transaction affects competition in Belarus or may be qualified as a merger subject to merger control according to the Belarusian Antitrust Law. 

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.

Merger control even if thresholds are NOT met

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.

Referral to and from other authorities

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).

Filing requirements and fees

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 only 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. Within these 10 business days, the parties are entitled to provide any missing documents and information, otherwise MART shall take a decision on refusal to accept the merger notification. In practice, it is recommended just after the filing to contact MART (namely, the responsible person considering the application) and find out whether additional information or documents are required.

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

There are two forms available: one for full pre-closing merger notification and one for simplified post-closing merger notification.

Simplified post-closing notification may be applied for intra-group transactions (see topic 20) and acquisition of shares of natural monopolies entities or acquisition of 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 paragraphs 2.3 – 2.7-1 of the Unified list of administrative procedures.

Generally, the following documents should be supplied with a merger notification:

  1. application with explanation of purposes of the merger;
  2. copies of documents certifying state registration of each of the parties to the merger;
  3. for non-resident legal entities – legalized (apostilled) extract from the trade (companies) register issued not earlier than 6 months before merger notification with the certified translation into Russian or Belarusian as well as document on state registration of the representative office in Belarus (if any);
  4. corporate approvals of the merging parties on participation in the merger (applicable to the mergers in the form of reorganization, establishment of an association, inclusion a new company into a holding and establishment of a company);
  5. data on book value of assets of the merging parties as of the last reporting date preceding the date of notification;
  6. balance sheet of the target company as of the last reporting date preceding the date of notification;
  7. data on worldwide annual turnover of the merging parties for the last financial year;
  8. group chart/overview for each of the parties to the merger;
  9. data on any persons holding 20 or more percent of shares of each of the parties to the merger;
  10. data on main types of goods (works, services), cost and volume of their production, delivery to Belarus and for export and share in the relevant market 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;
  11. draft charter of association being established; legal entity being reorganized or joint venture being established;
  12. draft agreement on the specific merger.

36) Filing fees

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

Implementation of merger before approval – “gun jumping” and “carve out”

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 540 to BYN 2,700) 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 10,800).

The process – phases and deadlines

43) Phases and deadlines

Phase

Duration/deadline

Pre-notification

There are no formal rules on pre-notification consultations.

It is normally advisable in problematic cases to contact the officials of MART on the intended transaction and the scope of filing. 

It is also normally advisable to submit request for clarification to MART if there is any uncertainty about the necessity to make a notification (see topic 31).

No set duration or deadline

Consideration of completeness

When the merger notification has been formally submitted, MART must assess whether the notification is complete within 10 business days. If the notification is deemed incomplete, within the 10 business days’ deadline the authority must contact the applicant and inform which information and documents are missing. 

If the missing information and documents are not provided within the 10 business days’ deadline MART may take decision on refusal to consider the merger notification with indication of missing information and documents.

Even when the notification has been declared complete, MART may still request more information and documents as well as clarifications on the provided information and documents.

10 business days.

Consideration of notification

MART shall issue an approval to a merger (with commitments if relevant) or refuse to grant such approval.

The investigation (consideration of notification) does not have phases.

30 calendar days from the date of submission of notification, if the notification is complete.

Approval of MART is valid for 1 year, consequently the parties must implement the merger within 1 year from obtaining approval.

 

Assessment and remedies/decisions

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.

Publicity and access to the file

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.

Judicial review

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.


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