Merger thresholds
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LITHUANIA

Yvonne Goldammer, LL.M.
Attorney-at-Law

yvonne.goldammer@bnt.eu

Tel: +370 688 18 397

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.

Confirmed up-to-date: 08/06/2021

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Relevant legislation and authorities

1) Is a merger control regulation in force?

Yes. Merger control regulation was introduced in Part 2 Chapter 3 of the Lithuanian Competition Act in 1999.

2) Which authorities enforce the merger control regulation?

The Competition Council of the Republic of Lithuania enforces the Lithuanian Competition Act including the merger regulation contained therein. 

Decisions of the Lithuanian Competition Council may be appealed to the Vilnius Regional Administrative Court.

3) Relevant regulations and guidelines with links:

The merger regulation is contained in Part 2 Chapter 3 of the Lithuanian Competition Act. More detailed rules may be found in various executive orders. Links to the relevant legislation, guidelines and forms are listed here:

Original Lithuanian version

Unofficial English translation

Lietuvos Respublikos konkurencijos įstatymas

The Lithuanian Competition Act

(English translation not available in the latest version)

Nutarimas dėl Pranešimo apie koncentraciją pateikimo ir nagrinėjimo tvarkos patvirtinimo

Executive Order on the Procedure for Submission and Examination of Merger Notifications 

(English translation not available)

A filing form in Lithuanian may be downloaded in Word format from the webpage of the Lithuanian Competition Council here.

 

Resolution 26/2006

Regarding consultative opinions from the CNDC on whether a transaction is subject to merger control.

 

Nutarimas dėl Paaiškinimų dėl atitinkamos rinkos apibrėžimo patvirtinimo

Executive Order on the Explanation concerning Determination of the Relevant Market

(English translation not available)

Nutarimas dėl užmokesčių už pranešimų apie koncentraciją ir prašymų leisti atlikti atskirus koncentracijos veiksmus nagrinėjimą dydžių ir užmokesčių mokėjimo tvarkos aprašo patvirtinimo

Executive Order on the Amount of Fees for Merger Notifications and Requests to Examine the Right to Execution of Separate Merger Operations as well as on the Payment Procedure

(English translation not available)

Lietuvos Respublikos nacionaliniam saugumui užtikrinti svarbių objektų apsaugos įstatymas

Law on the Protection of Objects of Importance for Ensuring National Security

(English translation not available)

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

Lithuanian competition law is interpreted in accordance with EU competition law in this respect (as in any other competition regulation matters).

Generally, restrictions of competition that are ancillary to a merger, for instance a standard non-competition obligation on the seller, are considered inherent parts of the merger and are not subject to separate scrutiny under general competition regulation. However, restrictions that go beyond what may be considered ancillary may be caught by the general prohibition on anti-competitive agreements.

The general competition regulation may in special circumstances be used to oppose a transaction as such (not merely a specific restriction in the transaction documents). For instance, the general prohibition on anti-competitive agreements may be applied to full-function joint ventures that have coordination of the market behaviour of the parent companies as their object or effect. Furthermore, in rare cases, a dominant undertaking may be held to abuse its dominance by acquiring a competitor. These scenarios are probably only of interest if the transaction does not meet the thresholds for merger filing.

In addition, joint ventures that are not full-functioning are examined under the provisions on prohibited agreements.

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

Yes, this is foreseen in the Law on Competition in the case of abuse of a dominant position.

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 several sectors other authorities need to be informed about intended mergers. However, this does not replace notification to the Lithuanian Competition Council but forms an additional obligation. Supervision by other authorities normally concerns sector-specific risks of the merger but not competition law.

Broadcasting and re-broadcasting services

Under the Law on Provision of Information to the Public, the Radio and Television Commission of Lithuania has to grant its consent for any sale or other transfer of at least 10% of the shares (interests, member shares) of a broadcaster and/or re-broadcaster holding a broadcasting and/or re-broadcasting license.

The Radio and Television Commission will refuse consent if the transfer and acquisition of shares and/or control results in a merger under competition law and no authorization from the Lithuanian Competition Council has been obtained.

Financial businesses

Mergers involving financial businesses such as banks or credit institutions, insurance companies and collective investment undertakings require approval from the Bank of Lithuania as supervisory institution.

 

Foreign investment control

An investor has to notify the Commission for Coordination of Protection of Objects of Importance to Ensuring National Security (Commission) if the investor intends to:

  • acquire a portion of shares in an enterprise of importance to ensuring national security or 
  • conclude agreements on the transfer of the voting right and the right to exercise non-property rights attached to a portion of shares

Upon receipt of such notification, it is in the discretion of the Commission to initiate a procedure in order to assess whether the interests of the prospective investor comply with the national security interest.

Those enterprises that are important to ensure national security are listed (exhaustively) in 3 categories in Annexes 1-3 of the Law on the Protection of Objects of Importance for Ensuring National Security.

Only an investor conforming to national security interests, may acquire independently or jointly with other persons shares with more than 1/4 voting rights in an enterprise of Category I or II or more than 1/3 in case of a Category III company.

Furthermore, a threshold of 1/4 applies for enterprises performing certain activities determined by an Order of the Lithuanian Government in the following economic sectors of strategic importance in order to ensure national security:

  • energy
  • transport
  • information technologies, telecommunications and other high technologies
  • finance and credit
  • military equipment

In addition, other laws may provide for cases when an investor of a specific third country (i.e. not from a Member State of EU, NATO, OECD or EFTA) may not act as an investor or a specific activity would be recognized as a threat to the national security.

Exemption:

Enterprises important for ensuring national security, state-owned enterprises, municipal enterprises, as well as state-owned companies and their subsidiaries are considered to act in the interests of national security and their verification of compliance with the interests of national security is not performed. The same applies for:

  • Public limited liability companies and private limited liability companies with central, regional and/or local public authorities as shareholders, owning more than 1/2 of the votes, international financial organizations of which the Republic of Lithuania is a member, as well as other international financial institutions or organizations whose objectives, investment policy and activities do not jeopardize national security;
  • Any of the abovementioned enterprises of Member States of the EU, NATO, OECD or EFTA and
  • Lithuanian or foreign investors with long-term operations in a Member State of the EU, NATO, OECD or EFTA and experience in the relevant field.

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

No.

Voluntary or mandatory filing

8) Is merger filing mandatory or voluntary?

Merger filing is mandatory if the thresholds are met or the Competition Council requires the parties to a merger to notify a transaction using its own right to initiate investigation even if thresholds are not met.

Types of transactions to file – what constitutes a merger

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

Yes, transactions subject to merger control include the following (which is a somewhat simplified translation of the relevant parts of the Lithuanian Competition Act):

  1. mergers, i.e. when one or more undertakings which terminate their activity as independent undertakings are merged with an undertaking which continues its operations, or when a new undertaking is established from two or more undertakings which terminate their activity as independent undertakings; 
  2. acquisition of control of another undertaking or assets of another undertaking, by a person or entity already controlling one or more undertakings; and
  3. establishment of a joint venture performing all the functions of an independent undertaking and other transactions regarding joint ventures as further explained in topic 13. 

These transactions are all generally referred to as “mergers” in this guide.

Note that certain transactions of a special nature are not considered to be mergers subject to merger control (see topics 19 and 20).

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

Yes, generally a merger will only be considered to take place if the transaction results in a change of control over a business.

However, transactions that result in the establishment of a new business (a full-function joint venture) controlled by two or more businesses or persons already controlling one or more businesses will also constitute a merger.

11) How is “control” defined?

The Lithuanian Competition Act defines “control” as any rights arising from laws or transactions which entitle a legal or natural person to decisively influence the activity of an economic undertaking. This includes:

  1. the right of ownership to all or part of the assets of an undertaking or the right to use all or part of the assets of the undertaking;
  2. other rights which permit exertion of a decisive influence on the decisions of the bodies of the undertaking or the composition of its personnel.

Decisive influence is defined as a situation where the controlling person is in a position to implement their decisions in relation to the economic activity of the controlled undertaking, the decisions of its bodies or the composition of its personnel.

12) Acquisition of a minority interest

Acquisition of a minority interest that does not result in anyone gaining control over a business is not subject to merger control.

However, if acquisition of a minority interest confers on someone the de facto control of a business, the transaction will be subject to merger control. This is, for instance, the case if the buyer is provided with veto rights over decisions that are essential for the strategic behaviour of the business or if the remaining shares are spread over a large number of shareholders and the acquired shares de facto confer on the buyer a decisive influence on general meetings.

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

The following transactions involving businesses subject to joint control may be subject to merger control if the joint venture is "full function":

  1. Establishment of a joint venture
  2. Change from joint to sole control
  3. Dissolution – if (part of) the business of the joint venture is transferred to one or more of the businesses controlling the joint venture or to a third party
  4. Change in or extension of the activities of a joint venture – if further assets, contracts, know-how, rights etc. are transferred to the joint venture to form the basis for the new activities.
  5. Change in participants/owners – for instance if one of the controlling businesses sells its share in a joint venture to another business, or if one of the controlling businesses is acquired by another business. In the latter case, the competition authorities may consider that the transaction results in two separate mergers and that these should be assessed separately with respect to who are parties to the transaction and whether the thresholds for merger filing are exceeded.

A joint venture that is not “full function”, because it does not, on a lasting basis, perform all the functions of an autonomous economic entity, is not subject to merger control but may be scrutinized under the general prohibition on anti-competitive agreements. Whether a joint venture is considered “full function” or merely “cooperative” depends on the level of the joint venture’s dependence on its parents and to what extent the joint venture has an independent presence in the market.

Thresholds that decide whether a merger notification must be filed

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 the combined aggregate annual turnover in Lithuania of all undertakings involved in the business year before the merger takes place is more than EUR 20 million and the aggregate annual turnover in Lithuania of each of at least two of the undertakings involved is more than EUR 2 million.

b) Market share thresholds

N/A

c) Value of transaction thresholds

N/A

d) Assets requirements

N/A

e) Other

N/A

15) Special thresholds for particular businesses

The thresholds stated in topic 14 apply to all transactions.

16) Rules on calculation and geographical allocation of turnover

Rules on calculation and geographical allocation of turnover are contained in the Executive Order on the Procedure for Submission and Examination of Merger Notifications. This is interpreted in accordance with EU merger control provisions, including the European Commission’s Consolidated Jurisdictional Notice and EU court practice.

Turnover is normally calculated on the basis of the aggregate turnover in Lithuania of the financial year preceding the merger. Audited accounts (if auditing is not necessary according to national laws, a signature of the manager is sufficient) of the financial year preceding the merger must be attached to the notification. If audited accounts are not yet available, then the audited accounts of the year before the year preceding the merger and the non-audited financial data of the financial year preceding the merger need to be submitted.

In determining whether the notification thresholds are met, the following parties are relevant: 

  1. Acquisition of control: the party or parties acquiring control and the target undertaking;
  2. Merger: the merging parties;
  3. Creation of a full function joint venture: the jointly controlling parent companies. (In case of change of control over an existing full function joint venture, the joint venture itself may also be considered a separate participating undertaking with respect to the thresholds.)

In the case of acquisition of control, the total turnover of the buying group or groups and the turnover of the target, but not the sellers, are taken into account. 

In case of a merger or the creation of a joint venture, the relevant turnover to be attributed to the undertakings concerned is the total turnover of the whole group of which the undertaking concerned is a part including any direct or indirect parent companies, subsidiaries, joint ventures and subsidiaries of parent companies. The turnover a joint venture has with third parties must be divided equally between the controlling owners irrespective of their share in the capital and the actual distribution of profit; i.e., if the shares in a joint venture are divided 60/40 between two participants who exert joint control, half of the turnover of the joint venture must be attributed to each participant. 

"Turnover" is the net turnover derived from sale of products and services within the undertaking’s ordinary activities after deduction of (i) value added tax and excise taxes and (ii) any turnover between associated undertakings.

Turnover includes any financial support received from public subjects in Lithuania if the support is directly connected with the company’s sales or provision of services.

Generally, turnover from products and services sold within the territory of Lithuania is considered Lithuanian turnover. 

17) Special rules on calculation of turnover for particular businesses

Insurance undertakings
For an insurance undertaking the value of gross insurance premiums applies. 

Collective investment undertakings and their managing companies
Aggregate turnover is the sum of the aggregate turnover of all undertakings controlled by (i) the management company, (ii) a closed-end investment company or (iii) an investment company with variable capital, where management of assets has not been transferred to a management company.

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

If two or more transactions take place between the same persons or undertakings within a two-year period, these must be treated as one transaction if, as a result, the filing thresholds are met for the first time.

Additionally, several transactions will be deemed interrelated if they are unitary in nature and mutually interdependent (legally or economically) so that they represent one and the same merger. The principles enshrined in Part 1.5. of the European Commission’s Consolidated Jurisdictional Notice apply.

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

19) Temporary change of control

Merger filing is required for each change of control. 

If change of control is only temporary, this fact should be mentioned. If control changes in several steps, the Competition Council should be informed about all planned transactions, the temporary nature of the change in control and the planned final result to enable the Council to properly evaluate whether each change of control/step until the final result needs to be notified as merger or not.

20) Special industries, owners or types of transactions

Under the Competition Act no merger notification need be filed where commercial banks, credit institutions, intermediaries of public trading in securities, collective investment undertakings or management companies managing them or insurance companies acquire 1/3 or more of the shares in another enterprise with the aim of transferring them further, provided that a) they do not exercise voting rights conferred by the shares; b) the transfer takes place within one year of the date of acquisition and c) information about the acquisition is submitted to the Competition Council within one month from the acquisition

Furthermore, since Lithuanian competition law is applied in correspondence with EU competition law, in the following two situations contained in the EU Merger Regulation no obligation to file notification should exist:

  1. Where control is acquired by a professional who has powers under current insolvency legislation to deal with and dispose of the undertaking; or
  2. Where the transactions are carried out by a financial holding company (as defined in the EU Annual Accounts Directive), provided that the voting rights held by such a company are only exercised to retain the full value of the acquired undertaking and not to determine its competitive conduct.

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

There is no exemption for foreign-to-foreign transactions. All transactions that meet the thresholds are subject to merger control regardless of where the undertakings concerned are registered, operate or own assets.

22) No overlap of activities of the parties

There is no exemption for transactions with no overlap of activities. 

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

As a consequence of the EU "one-stop shop" principle, the Lithuanian merger control rules do not apply if the thresholds for EU merger control are exceeded and the European Commission has not referred the merger to the Lithuanian Competition Council.

If the quality of control does not change, notification is not necessary. This is the case for internal restructuring within a group of companies or incorporation of a new company within one group of companies. This may also be the case if a clearance decision for a merger has been received from the Competition Council but the company gaining control receives insignificant higher voting rights or an insignificantly higher proportion of securities or shares than notified. 

Parties to a merger may submit a public offer to subscribe for shares and to conclude transactions concerning securities traded on regulated markets if information duties are complied with and the acquirer does not make use of the voting rights referred upon them by the acquisition (see topic 32).

Merger control even if thresholds are NOT met

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

No such right is specifically foreseen. But also no prohibition exists on voluntary notification, either. Thus, especially in cases where companies have doubts as to whether there is an obligation to file a merger notification or where it is likely that the merger creates or strengthens a dominant position or notably impedes competition in the respective market, then voluntary notification might be advisable (also see topic 25).

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

Yes. The Competition Council can request notification of mergers not meeting the threshold, if the merger presumably creates or strengthens a dominant position or notably impedes competition in the respective market. The request must be issued within 12 months from implementation of the merger.

Such a request cannot be appealed.

Referral to and from other authorities

26) Referral within the jurisdiction

N/A

27) Referral from another jurisdiction

The Lithuanian Competition Council usually does not receive referrals from other jurisdictions, except referrals from the European Commission. However, close cooperation is maintained with competition authorities of other countries, especially of Member States of the EU. Should an institution from another country indicate that a merger might correspond to the Lithuanian merger control criteria, the Lithuanian Competition Council might look into the situation and might initiate proceedings on its own initiative (see topic 25).

The European Commission may refer a merger or a part of a merger to the Lithuanian Competition Council. In that case, the Lithuanian Competition Council may handle the merger even if the thresholds for merger notification in Lithuania are not exceeded. In the case of a partial referral, the European Commission will handle certain (international) aspects of the merger, while the Lithuanian Competition Council will handle the strictly Lithuanian aspects.

Referral of a merger from the European Commission may be requested either by the Lithuanian Competition Council or by the merging parties.

28) Referral to another jurisdiction

If the thresholds for merger notification are met in at least three EU Member States, the parties may request that a single merger notification be made to the European Commission in the place of notifications to each of the relevant national authorities (see topic 29).

The Lithuanian Competition Council may also request the European Commission to examine a merger that does not have an EU dimension within the meaning of Article 1 of the EU Merger Regulation (No. 139/2004) but affects trade between EU Member States and threatens to significantly affect competition in Lithuania. A request must be made within 15 working days from the date on which the merger was notified to the Lithuanian Competition Council. The European Commission will immediately notify the other EU Member States of the request and will decide within 25 days after notification whether to examine the merger.

Besides referral to the European Commission, a merger is usually not referred to the competition authorities in other jurisdictions.

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

Referral to the Lithuanian Competition Council:
If a merger is subject to EU merger control, the parties may – prior to an EU merger notification – request that the merger be referred to the Lithuanian Competition Council if the merger may significantly affect competition in a distinct market in Lithuania. If the Lithuanian Competition Council does not oppose such referral, the European Commission may decide to refer the merger in whole or in part.

The European Commission must decide whether to refer a merger within 25 working days of receipt of the request (reasoned submission).

The European Commission may also, on its own initiative or upon request from the Lithuanian Competition Council, decide to refer to the Lithuanian Competition Council a merger that has already been notified to the European Commission. Such a referral decision must be taken within 65 working days after the merger notification has been filed. The merging parties cannot oppose such a referral decision.

Referral from the Lithuanian Competition Council:
If a merger is not subject to EU merger control but is subject to merger control in Lithuania and at least two other EU Member States, the parties may request that a single merger notification be made to the European Commission in place of notifications to each of the relevant national authorities. If none of the relevant authorities oppose the referral, the European Commission will handle the merger notification and no notifications are needed in Lithuania or any other EU Member State. If any of the national authorities in question oppose the referral within 15 working days, the merger must be notified to each of the relevant national authorities.

Filing requirements and fees

30) Stage of transaction when notification must be filed

A merger notification must be filed before implementation of the transaction. Submission of notification should be after submission of a proposal to conclude an agreement, to acquire shares, securities or assets, after an instruction to conclude an agreement, after conclusion of an agreement, after acquisition of an ownership right or a right to dispose of assets.

The Lithuanian Competition Council will also handle a notification submitted if the parties can demonstrate a good faith intention to conclude an agreement or to submit a public offer to acquire shares.

31) Pre-notification consultations

The Lithuanian Competition Council encourages pre-notification consultations. Especially in complex merger notifications, pre-notification consultations are advisable.

Deadlines for the Lithuanian Competition Council will only start to run from the formal submission of a complete notification in conformity with all legal requirements.

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

Mergers that are a consequence of acquisition of securities on a stock exchange or a public takeover bid must be notified after the acquisition/publication of the takeover bid. 

The acquisition/takeover bid may be implemented before approval from the Lithuanian Competition Council has been obtained if the merger is notified to the Competition Council within 7 days and the acquirer does not exercise the voting rights attached to the securities in question.

Note: special regulations apply for handling of acquisitions on stock exchanges and public takeover bids, including requirements for notifications to the Bank of Lithuania as supervisory authority and operator of the regulated market. 

33) Forms available for completing a notification

A filing form is available in Lithuanian to be downloaded from the webpage of the Lithuanian Competition Council here.

34) Languages that may be applied in notifications and communication

Lithuanian. Documents must be attached to the notification in their original language. If the original language is a foreign language, their approved translations also need to be attached. However, there is an exemption for documents in English. For English documents no translation is necessary as long as the Lithuanian Competition Council does not request a translation.

Informal communication with the Lithuanian Competition Council might also take place in English, even though all formal acts and hearings are to be in Lithuania.

35) Documents that must be supplied with notification

The following documents must be supplied with a merger notification:

  1. copies of annual financial statements and annual financial reports of the last financial year before the merger for each of the parties to the merger and if a party belongs to a group of undertakings either the annual financial statements of each subject of the group or the consolidated annual financial statements of the group;
  2. copies of documents which form the basis of the merger;
  3. copies of documents which show the good faith intentions of the parties to conclude the transaction on the basis of which the merger will be implemented;
  4. protocols (or excerpts) from meetings of shareholders or the supervisory or management board during which the transaction was discussed;
  5. analyses, reports, studies or any other documents in possession of the participating companies on the basis of which the concentration is evaluated or analysed (among others concerning the main reason for the concentration, market shares, conditions of competition);
  6. analyses, reports, studies or any other documents of the last two years in the possession of the participating companies, on the basis of which the markets concerned and the market that might be heavily influenced by the merger are evaluated (among others concerning market shares, conditions of competition, present and potential competitors);
  7. group chart/overview of the structure of each of the parties to the merger and of connected undertakings and their owners before and after implementation of the merger;
  8. any documentation on which the parties have based their market definition and assessment of market shares;
  9. written powers of attorney proving the rights of representatives to act in the name of the parties to the merger;
  10. copies of agreements concerning cooperation with the most important undertakings of the respective market participating in the merger (e.g. RD agreements, licensing agreements, agreements on common production or distribution);
  11. documentation proving the general value and scope of products imported from foreign markets;
  12. documentation of payment of the applicable filing fee.

Depending on the type of merger, a range of further documents may also be relevant.

36) Filing fees

The filing fee for notification is EUR 9,000.

The fee for evaluation of a permit for separate actions is EUR 2,700.

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. 

Please also see topic 32 regarding public takeover bids and acquisitions on stock exchanges.

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

Yes, the Lithuanian Competition Council may exempt from the prohibition on implementation for certain actions before approval. However, there are no specific guidelines and each case is to be evaluated separately. 

The Competition Act foresees a possibility for companies to approach the Competition Council with the request to permit certain actions already before clearance. Before issuing such a permit, the Competition Council evaluates the consequences of a further suspension of the merger as well as the consequences for competition in the market if a permit was issued. The permit might be accompanied with specific conditions and obligations. A special fee needs to be paid for such a request. 

39) Due diligence and other preparatory steps

Due diligence must be conducted so that it prevents sensitive market information from being used for purposes other than assessing the viability of the merger. No explicit exemption is required for standard due diligence. But the parties should nevertheless carefully select the manner of due diligence and the information provided to avoid prohibited agreements and concerted practices. 

There are no guidelines on what may be considered acceptable preparatory steps. Each case has to be evaluated separately.

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

Veto rights for the acquirer and "ordinary course of business" clause that prevents the target company from taking decisions outside the course of its ordinary business until the closing date have to be assessed on a case-by-case basis as to whether they lead to a partial implementation of the merger in violation of the standstill obligation.

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

There are no specific rules on “carve out” of the Lithuanian part of a transaction to avoid delaying implementation elsewhere pending approval in Lithuania.

Whether it is possible to carve out the Lithuanian part of a transaction must be assessed on a case-by-case basis. If the Lithuanian part of the transaction and the rest of the transaction are interdependent, it is strongly advisable to request specific permission from the Lithuanian Competition Council to implement outside Lithuania (see topic 38).

42) Consequences of implementing without approval/permission

The parties may be fined if a merger is implemented before approval is obtained. The amount of the fine will be fixed based on the nature, gravity and duration of the infringement, and in any event the fine cannot exceed 10% of the parties’ aggregate worldwide yearly turnover in the previous financial year.

For providing incorrect, misleading or incomplete information or for delayed supply of information a fine of up to 1% of the parties’ aggregate worldwide yearly turnover in the previous financial year may be applied.

Furthermore, a merger may be prohibited and the Competition Council may decide to split up the merged entity, order the sale of companies, assets, shares or parts of them, or request that the company is restructured, termination or amendment of an agreement or other measures necessary to restore the former situation on the market and to remove the consequences of the merger.

The Competition Council can apply interim measures necessary for implementation of the final decision of the Competition Council in order to prevent substantial or irreparable damage to the interests of undertakings or the public,

If the decision of the Competition Council is based on either incorrect or incomplete information submitted, the Council can either amend or revoke its decision.

The process – phases and deadlines

43) Phases and deadlines

Phase Duration/deadline

Pre-notification phase:

There are no formal rules on pre-notification consultations, but especially for complex mergers it is normally advisable to inform the Lithuanian Competition Council of the intended transaction at an early stage and to enter into pre-notification consultations. 

No set duration or deadline

Assessment of completeness of notification:

When a merger notification has been formally submitted, the authority must assess within 7 working days whether the notification is complete. If the notification is deemed incomplete, the authority must declare this within a 7 working days’ deadline and state what information is missing. This procedure might be repeated several times. Thus, in practice it may take several months until a notification is complete.

Notification is deemed to be received when all additional information and documentation is received and complete. 

Even when the notification has been declared complete, the authority may still request more information and documentation. 

Where the Competition Council has already started substantive evaluation of the merger after receipt of notification and objectively has had no possibility to notice that information or documentation is not complete at an earlier stage, the date of notification is deemed to be the date when the missing information or documentation is received.

7 working days.

Extension:

Possibility to repeat requests for additional information and documentation several times.

Phase I:

Within 10 working days from the day notification was published on the webpage, interested persons can submit motivated and argued opinions on whether the planned merger could impede competition or not. Consequently in practice Phase I will not be finalized before the end of this period.

The merger is either approved (with commitments if relevant) or a decision is made to initiate a phase II investigation of the merger.

In practice the Competition Council may undertake the same types of investigations under phase I and II, and the authority may also negotiate commitments in both phases. Most mergers are cleared in Phase I. However, complex and/or problematic mergers will often require the longer deadlines applicable in phase II.

Note: the Competition Council can suspend the time limits if the parties do not provide the Competition Council with information requested in due time. Suspension lasts until all information requested is received. If suspension lasts longer than three months, the whole procedure will be stopped and the notification is deemed to have not been submitted. 

1 month from the date when complete notification was received.

Extension:
1 month if commitments are offered by one of the parties.

Suspension:

As long as information requested has not been submitted.

Phase II:

The merger is either approved, approved with conditions/commitments or prohibited.

Investigation is likely to involve detailed market surveys, economic analysis and possibly negotiation of commitments that may eliminate concerns that the authority may have as to the anti-competitive effects of the merger.

If the Competition Council intends to adopt a prohibition decision, it informs the undertakings participating in the merger and the controlling persons in writing about its conclusions together with its motivations for such a decision as well as the period (usually 7 calendar days) during which written explanation on the conclusions might be submitted to the Competition Council. In addition information about the date of a possible hearing before the Competition Council must be added. 

If the Competition Council does not adopt a decision within the specified time limits, the merger might be implemented in accordance with the conditions foreseen in the merger notification submitted.

Note: as in phase I, the Competition Council can suspend the time limits if the parties do not provide the Competition Council with information requested in due time. Suspension lasts until all information requested is received.

Not later than 4 months from the date when complete notification was received.

Extension:
1 month if commitments are offered by one of the parties or up to 1 month if either parties agree to the extension or provide additional information at a late stage of Phase II

Suspension

As long as information requestedhas not been submitted.

Assessment and remedies/decisions

44) Tests or criteria applied when a merger is assessed

It is assessed whether the merger will "result in creation or strengthening of a dominant position or significant impediment of competition in a relevant market".

A range of factors may be taken into consideration, including efficiencies that may be gained from the merger (efficiency defence) and whether one of the parties is likely to fail as an independent business (failing firm defence).

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.

47) Decisions and remedies/commitments available

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

If the Competition Council expresses serious concerns about a merger, it is important that the parties enter into negotiations as to possible commitments before the end of Phase II, as the Council will normally only consider approval with conditions if the parties have offered commitments.

Commitments may take any form and they can be either structural or behavioural and with or without time limitations.

The authority may revoke approval if at any time it becomes aware that incorrect or misleading information has been provided by the parties or if the parties do not comply with the conditions/commitments contained in the approval.

If a merger has been implemented without approval, the Competition Council may prohibit the merger and order a separation of the businesses or any other measure capable of restoring competition.

Publicity and access to the file

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

The Competition Council will generally make a public announcement on its webpage when it has received a completed merger notification and again when a decision has been taken. 

After receipt of notification, the Competition Council publishes on its webpage for a period of two years a notice about the character of the merger, the date of notification and the parties participating in the merger, among others the names of persons possessing or acquiring control and about legal persons, which they control directly or indirectly as well as other information about the undertaking over which control is acquired. A brief summary of the merger (provided by the parties to the notification) is published as well. To protect business secrets, the parties are requested to provide a non-confidential description of the transaction with the notification.

Announcement of a decision will include a non-confidential version of the decision. The level of detail of decisions varies considerably.

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

The merging parties:

Undertakings participating in a merger and controlling persons can access the file which includes the materials for evaluation of the merger, except for documents with restricted access and information that contains business or professional secrets of other undertakings. This right applies from the moment when conclusions on evaluation of the notification have been submitted to the parties by the Competition Council.

Third parties:

Third parties do not have access to the file.

Judicial review

50) Who can appeal and what may be appealed?

Undertakings participating in the merger and third parties which think that their rights protected under competition law were infringed by a decision can generally appeal any decision by the Competition Council to the Vilnius District Administrative Court. This covers conditions contained in an approval decision – even if these are based on commitments suggested by the parties themselves.

An appeal should be submitted to the Court within one month from the date of receipt of the decision of the Competition Council or from the date of announcement of the decision on the webpage of the Council, depending on what happens earlier.

At second instance, a decision of the Vilnius District Administrative Court may be appealed to the Lithuanian Supreme Administrative Court.


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