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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)
show/hide chapter
  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
show/hide chapter
  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"
show/hide chapter
  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?

 
RUSSIA

Natalia Korosteleva
Partner

natalya_korosteleva@epam.ru

Tel: +7(495) 935-80-10 (ext: 1541)

Anna Numerova
Partner

anna_numerova@epam.ru

Tel: +7(495) 935-80-10 (ext:1350)

Elena Kazak
Senior Associate

elena_kazak@epam.ru

Tel: +7(495) 935-80-10 (ext:1272)

Ksenia Firsova
Associate

ksenia_firsova@epam.ru

Tel: +7(495) 935-80-10 (ext.:1228)

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 was introduced in Chapter 7 of the Federal Law No. 135-FZ dated July 26, 2006 “On Competition Protection”, as amended (the Russian Competition Law).

Along with the merger control clearance, a transaction by a foreign acquirer may also require separate filings if the respective filing requirements under the following laws are met: the Foreign Investments Law (Federal Law No.160-FZ dated July 09, 1999 “On Foreign Investments in the Russian Federation”) and the Strategic Investments Law (Federal Law No 57-FZ dated April 29, 2008 “On Procedures for Foreign Investments in Companies Having Strategic Importance for National Defense and State Security”) (for details see clause 6 below).

2) Which authorities enforce the merger control regulation?

The Federal Antimonopoly Service (FAS Russia) enforces the Competition Law and is responsible for merger control clearances.

Decisions of the FAS Russia may be appealed to the arbitrazh courts.

3) Relevant regulations and guidelines with links:

The merger regulation is contained in Chapter 7 of the Russian Competition Law. More detailed rules may be found in various executive orders. Links to the relevant legislation, guidelines and forms are listed here:

Original Russian version

Unofficial English translation

Федеральный закон от 26.07.2006 N 135-ФЗ

"О защите конкуренции"

The Russian Competition Law (as amended in 2016)

Федеральный закон от 29.04.2008 N 57-ФЗ

"О порядке осуществления иностранных
инвестиций в хозяйственные общества, имеющие
стратегическое значение для обеспечения обороны страны и безопасности государства"

Federal Law No 57-FZ dated April 29, 2008 “On Procedures for Foreign Investments in Companies Having Strategic Importance for National Defense and State Security” (old version, non-topical).

Федеральный закон от 09.07.1999 N 160-ФЗ

"Об иностранных инвестициях
в Российской Федерации"

Federal Law No.160-FZ dated July 09, 1999 “On Foreign Investments in the Russian Federation”.

Приказ ФАС РФ от17.04.2008 
N 129 "Об утвержденииФормыпредставленияантимонопольномуоргану 
сведенийпри обращении сходатайствами иуведомлениями, 
предусмотреннымистатьями 27 - 31 Федеральногозакона "О защитеконкуренции".

FAS Russia Order N 129 of 17.04.2008 on Merger Notification form and on Merger Application form (no translation available)

Приказ ФАСРоссии от28.12.2007 N 
457 "Об утверждениирегламентаФедеральнойантимонопольнойслужбы 
поосуществлениюгосударственногоконтроля 
заэкономическойконцентрацией, 
осуществляемойгруппой лиц".

FAS Russia Order N 457 of 28.12.2007 on The State Control over Economic Concentration carried out by a group of persons (No translation available)

Разъяснения ФАСРоссии по порядкуи 
методике анализасоглашений осовместнойдеятельности
.

FAS Russia guidelines on the process and methodic of joint ventures analysis (No translation available)

 

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

Yes, general competition regulation set forth by the Competition Law applies to both mergers and ancillary restrictions. In the Russian law there are unfortunately no statutory criteria similar to EU ancillary restraints notice setting forth grounds for non-compete and similar restrictive arrangements admissibility. Such restrictive arrangements can be considered as violating part 4 Article 11 of the Competition Law, which prohibits agreements between legal entities that lead or can lead to restriction of the competition. The FAS tends to take a conservative and formalistic approach to such provisions. So ancillary restrictions have to be considered along with other restrictive arrangements and are caught by the general prohibition on anti-competitive agreements. It is possible to clear with the FAS non-compete and similar restrictive arrangements either within a merger filing or by a separate filing procedure under Article 35 of the Competition Law regarding approval of restrictive agreements which can be considered admissible. 

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

No.

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.)

The Government Commission on Monitoring Foreign Investments chaired by the Russian Prime Minister (the Government Commission)

According to the Strategic Investments Law a pre-closing strategic clearance of the Government Commission is required for acquisition of control over a Russian company having strategic importance for national defense and state security (“Strategic companies”). A Strategic company is a Russian company engaged in any of 46 business areas of strategic importance for the national security and defense listed in the Law, including manufacturing of aerospace technic, production for weapons and military equipment, activity in the sphere of nuclear and weapon; usage of infectious agents; natural resources; coding and cryptographic equipment, etc. 

Under the Foreign Investments Law foreign governments, international organizations or companies under their control are subject to a separate filing in case of acquisition of more than 25% in any Russian companies directly or indirectly, or a right to block decisions of such companies’ managing bodies according to the procedure set forth by the Strategic Investments Law.

The agency in charge of control over foreign investments is also the FAS making all the paperwork and analysis, while the final decision is taken by a special high-ranked governmental body comprising ministers and top state officers – the Government Commission. 

If a transaction is subject to both merger control and strategic investments filings, no clearance under the Competition Law can be issued unless approval of the Government Commission is obtained. Moreover, a transaction rejected by the Government Commission (although this happens rarely) cannot be cleared under the merger control regulation.

The Russian Prime Minister

According to the 2017 amendments to the Foreign Investments Law the Russian Prime Minister is empowered to forward a transaction of a foreign investor in respect of any Russian entity for consideration of the Governmental Commission under procedure provided by the Strategic Investments Law, if such a transaction can pose a threat to national defense and state security.  

The Central Bank of Russia

The Central Bank of Russia has the authority to grant clearance in case of acquisition of shares or participation interests of credit organizations, such as banks.

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

No, the Competition Law is applicable to the whole territory of the Russian Federation.

The Competition Law has extraterritorial effect and is applicable to foreign-to-foreign transactions with certain peculiarities. 

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?

The Russian Competition Law does not contain a general definition of transactions subject to merger control, but there is definition of “economic concentration” (in this guide referred to as a “merger”) meaning transactions and other actions, execution of which influences the competitive environment.

Chapter 7 of the Competition Law outlines transactions subject to state control over mergers, namely meeting the triggering events listed below:

The following triggering events are general and relate to both Russian and foreign targets:

  • mergers and takeovers; 
  • incorporation of a company (if its charter capital is paid by shares and/or assets);
  • joint ventures;
  • acquisition of controlling rights (to determine business activity) or to perform the functions of an executive body;
  • acquisition of assets (fixed production assets and/or intangible assets located/registered in Russia, book value of which exceeds 20% of the total book value of the fixed production assets and intangible assets of the selling company).

As regards Russian targets there is the following specific triggering event:

  • acquisition of more than 25%, 50%, 75% of voting shares in a Russian joint–stock company, or 1/3, 1/2, 2/3 of the participatory shares in a Russian limited liability company.

As regards foreign targets there is the following specific triggering event:

  • acquisition of more than 50% of voting shares of a foreign company.

The Competition Law does not provide for any special foreign-to-foreign exemptions. However, there is an additional turnover threshold of RUR 1 billion (constituting approx. EUR 12.6 million, approx. USD 14,4 million) which excludes minor foreign-to-foreign transactions having very insignificant effect on competition in Russia. So, if a foreign target did not generate significant turnover in Russia or did not have any Russian subsidiaries or assets, respective foreign-to-foreign transaction should not be subject to Russian merger control.

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

The Competition Law does not highlight "change of control" as a triggering event for merger control.

11) How is “control” defined?

The Competition Law expands the definition of “control” to both merger control and restrictive agreements outlining that it is a possibility of an individual or a legal entity to define directly or indirectly decisions taken by another legal entity as a result of disposal of more than 50% of voting shares or exercising functions of an executive body. As mentioned, under the Competition Law acquisition or change of control is not a mandatory element for a merger to take place, rather there is a number of triggering events, which sometimes are not related to control issues (e.g. acquisition of 25% shares of a Russian joint-stock company).

There is one triggering event which is very close to acquisition of control, namely: acquisition as a result of a single or several transactions of the “rights to define business activity” of a Russian entity. The Competition Law does not provide for a statutory definition of the “rights to define business activity”. There are also no FAS guidelines in this respect. Based on comprehensive interpretation of the Competition Law and case law the following rights may count to the “rights to define business activity”: rights to determine important decisions, give binding instructions or otherwise exercise control, inter alia through blocking of management decisions, veto rights (negative control), etc. In practice whether such rights are to be acquired is determined on case by case basis taking into account all circumstances of a particular transaction. The final decision is vested with the FAS.

12) Acquisition of a minority interest

Generally acquisition of a minority interest that does not result in anyone gaining control over a business is not subject to merger control, unless such investment will result in an acquisition of “rights to determine business activity” (control). Taken into account absence of the statutory definition of the notion “rights to determine business activity” whether the acquirer as result of a transaction obtains such rights is determined by the FAS on a case by case basis. In practice, such notion may apply to the extensive list of rights the acquirer may get with regard to the target and its group, including de facto control, veto rights (negative control), management rights, special voting and appointment rights, etc.

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

Entering by competitors into an agreement on joint activity in the territory of the Russian Federation is reportable, provided the thresholds are met. This is a separate triggering event set forth by the Competition Law implying that (i) the parties to a notifiable JV agreement should be competitors (potential competitors) in Russia; and that the JV agreement shall concern (ii) joint activity, which shall focus or relate to (iii) the territory of the Russian Federation. 

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 control notification must be filed if the following filing thresholds are met (except for mergers and takeovers, incorporation of a company and joint ventures for which there are separate thresholds, see below):

  1. the worldwide aggregate turnover of the acquirer (with its group) and the target company (with its group) in the last business year exceeds RUB 10 billion; and
  2. the worldwide aggregate value of assets of the target company (with its group) according to the latest accounts exceeds RUB 400 million.

Please also see the asset requirements applicable in combination with turnover threshold in topic 14d.

With regard to mergers and takeovers, incorporation of a company and joint ventures the following filing thresholds should be met: the worldwide aggregate turnover of the parties (with their groups) in the last business year exceeds RUB 10 billion.

If target is a foreign company,there is an exemption/additional threshold (i.e. if target with its group does not exceed this additional threshold, there is no filing obligation): target group’s supplied goods to Russia exceeds RUB 1 billion during the year preceding the transaction closing. However, if a foreign target company has a Russian subsidiary or Russian assets, the RUB 1 billion threshold is not applicable and the transaction is subject to merger clearance, if the above filing thresholds are met.

b) Market share thresholds

N/A

c) Value of transaction thresholds

N/A

d) Assets requirements

A merger control notification must be filed if the following filing thresholds are met (except for mergers and takeovers, incorporation of a company and joint ventures for which there are separate thresholds, see below):

  1. the worldwide aggregate value of assets of the acquirer (with its group) and the target company (with its group) according to the latest accounts exceeds RUB 7 billion; and
  2. the worldwide aggregate value of assets of the target company (with its group) according to the latest accounts exceeds RUB 400 million; 

Please also see the turnover requirements applicable in combination with asset threshold in topic 14a.

With regard to mergers and takeovers, incorporation of a company and joint ventures the following filing threshold should be met: the worldwide aggregate value of assets of the parties (with their groups) according to the latest accounts exceeds RUB 7 billion;

If target is a foreign company, there is an exemption/additional threshold (i.e. if target with its group does not exceed this additional threshold, there is no filing obligation): target group’s supplied goods to Russia exceeds RUB 1 billion during the year preceding the transaction closing. However, if a foreign target company has a Russian subsidiary or Russian assets, the RUB 1 billion threshold is not applicable and the transaction is subject to merger clearance, if the above filing thresholds are met.

e) Other

N/A

15) Special thresholds for particular businesses

Filing thresholds for financial organizations are different and set forth by the Russian Government on its own, or together with the Central Bank of Russia. 

16) Rules on calculation and geographical allocation of turnover

There are no special rules on calculation and geographical allocation of turnover.

The turnover threshold as well as assets thresholds mentioned above should be counted basing on the latest consolidated annual report (financial statements) outlining the combined turnover/combined total assets of the whole group of the acquirer and/or the target worldwide. 

17) Special rules on calculation of turnover for particular businesses

No.

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

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

19) Temporary change of control

The Russian Competition Law does not contain regulations regarding “temporary change of control”.  In this regard, each change of control should be analyzed on a case by case basis to determine if it is possible to avoid filing a merger notification because the transaction does not involve a change of control on a lasting basis. However, even temporary change of control may be subject to merger control, if the thresholds are met.

20) Special industries, owners or types of transactions

N/A

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

Generally, the Competition Law is applicable to a foreign-to-foreign transaction in case such a transaction results in acquisition of, inter alia, (i) control over a Russian subsidiary of a foreign target company; or (ii) more than 50% shares of or control over a foreign target company which supplied goods to Russia in the amount exceeding RUB 1 billion during the preceding year; or (iii) tangible and/or intangible assets, book value of which exceeds 20% of the book value of the fixed production assets and intangible assets of the seller – provided the filing thresholds are met.

As mentioned in topic 14, there is an exemption/additional threshold if target (and its group) is foreign. This threshold embodies principles similar to effects doctrine and is aimed at exclusion of foreign-to-foreign transactions with very insignificant effect on competition in Russia. 

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?

Even if thresholds are met, the transaction may be exempted from the pre-closing notification in case the Competition Law allows submitting a post-closing notification.

There are two forms of merger control in Russia: pre-closing clearance and post-closing notification.

A post-closing filing is required for intra-group transactions, except for the transactions between a parent company and its subsidiaries with direct / indirect shareholding above 50% shares (such transactions do not require neither post-closing notifications, nor pre-closing clearance). So any other intra-group transactions are still subject to a post-closing notification. The procedure of the post-closing notifications for non-exempted intra-group transactions includes, inter alia, publication of the transaction on the FAS official website (under Article 31 of the Russian Competition Law).

Merger control even if thresholds are NOT met

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

No. However, with regard to joint ventures the Competition Law grants the right to the parties aiming to enter into a joint venture agreement to file the notification to the FAS, even if the filing thresholds are not met.

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

No.

However, if the FAS becomes aware of a transaction which does not meet the thresholds, but may threaten national defense and state security, it may inform the Russian Prime Minister, who is empowered under the Foreign Investments Law to forward the transaction to review of the Government Commission, if the transaction has not been closed.  

Referral to and from other authorities

26) Referral within the jurisdiction

The FAS has its regional offices in each constitutional entity of the Russian Federation. In case the transaction’s parties do not meet special assets and turnover thresholds set forth by FAS Order, the notification should be submitted to such regional offices, rather than the FAS. Moreover, the FAS has a right to forward the notification to the regional office for review and vice versa.

27) Referral from another jurisdiction

The FAS Russia cannot handle mergers based on referrals from other jurisdictions.

28) Referral to another jurisdiction

The FAS Russia cannot refer a merger to competition authorities in other jurisdictions. However, it may inform foreign agency that the transaction may concern its jurisdiction. 

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

No special procedure is provided.

Filing requirements and fees

30) Stage of transaction when notification must be filed

There is no specific deadline for when notification must be filed, but the transaction may not be implemented before the merger has been approved by the FAS Russia. The notification may be filed with a draft of the binding agreement provided all the important matters for the merger control review (not related to commercial matters) are defined and should not change. 

31) Pre-notification consultations

The Russian Competition Law does not provide for pre-notification consultations. However, the Competition Law establishes a separate procedure enabling the parties before the filing to submit information on a contemplated transaction to the FAS and to propose remedies aimed at ensuring competition and eliminating the potential competition concerns. In practice, this procedure is rarely used. 

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

No special rules are provided by the Competition Law for acquisitions on stock exchanges and public takeover bids. 

33) Forms available for completing a notification

The Competition Law provides for full notification only, so no simplified notification is available.

34) Languages that may be applied in notifications and communication

Russian only. If the transaction documents (e.g. binding agreement, SHA, corporate documents of the parties, etc.) are drafted in other languages, such documents should be filed with certified translation into Russian.

35) Documents that must be supplied with notification

Documents that must be supplied with the notification are indicated in Article 32 of the Russian Competition Law.

The following documents should always be supplied with a merger notification:

  1. all documents concerning the merger, regardless of whether the merger is brought about by agreement between the parties to the merger, acquisition of a controlling interest or a public takeover bid;
  2. incorporation documents and certificates of registration of the parties to the transaction. 
  3. the most recent audited annual financial statements and annual reports for each of the parties to the merger (both non-consolidated and consolidated);
  4. group chart for each of the parties’ group of persons including both legal entities and individuals belonging to a single group with the list providing detailed information on grounds for forming the single group of persons (according to form established by the FAS);
  5. list of the direct subsidiaries and shareholders with shareholding of more than 5% regarding both parties;
  6. financial tables (according to forms established by the FAS) with information on the main business indicators, main customers and suppliers for the last two years regarding the parties and their groups;
  7. valid licenses and/or permits required to carry out business in Russia;
  8. list of and information on ultimate beneficial owners of the acquirer
  9. details of the CEO of each of the parties;
  10. power of attorney for representing the parties before the regulator.
  11. documentation of payment of the applicable filing fee.

The parties may submit other documents relevant for the merger notification review.

All documents prepared in foreign jurisdictions shall be notarized and apostilled (legalized) in the foreign jurisdiction. A document drafted in a foreign language should be filed with a certified translation into Russian. 

The FAS has a right to request additional documents necessary for the transaction review. 

36) Filing fees

The filing fee for the Russian merger control filing is currently RUB 35,000.

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.

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

No.

39) Due diligence and other preparatory steps

There are no guidelines on what may be considered acceptable preparatory steps and due diligence. So the parties should follow the general principles of the Competition Law and ensure confidentiality of the information.  

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

No. The Competition Law does not provide for a possibility for buyer to exercise influence on decisions in the target business before approval of the merger is obtained.

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

There are no specific rules on “carve out” of the Russian part of a transaction to avoid delaying implementation in the rest of the world pending approval in Russia. Under the Russian law, a carve-out, a hold separate agreement or similar arrangements are considered as a grey zone. So it must be assessed on a case-by-case basis whether it is possible to carve out the Russian part of a transaction. 

42) Consequences of implementing without approval/permission

Failure to meet the merger control requirements may result in negative PR, administrative fine and invalidation of the deal, if the deal leads or could lead to a restriction of competition. The most likely consequence would be an administrative fine on the acquirer in the amount of up to RUB 500,000 for violation of the filing obligations as well as closing the deal without clearance. An administrative fine may also be imposed on the CEO of the acquirer up to RUB 20,000 depending on the character and gravity of the violation. 

If the FAS discovers that a transaction implemented without clearance has resulted, or may result, in competition restriction in Russia, the FAS may bring the claim for invalidation of the transactions to the court. 

Furthermore, failure to meet the merger control requirements may result in negative PR and bad publicity with the FAS effecting negatively further possible interaction with the FAS. 

The process – phases and deadlines

43) Phases and deadlines

Phase

Duration/deadline

Pre-notification phase:

The Competition Law does not provide for pre-notification discussions.

No set duration or deadline

Assessment of completeness of notification:

When the merger notification has been formally submitted, the authority must assess whether the notification is complete within 10 working days. If the notification is deemed incomplete, the authority must declare this within the 10 working days’ deadline and the notification is considered not submitted.

10 working days with no extension.

 

Phase I:

The merger is either approved (with commitments if relevant), or prohibited, or it is decided to initiate a phase II investigation of the merger.

30 calendar days starting from the date of notification submission, if a transaction does not give rise to competition concerns.

Phase II:

The initial 30 calendar days waiting period may be prolonged upon the FAS decision up to 2 months for further consideration and submission of additionally requested data if there are competition concerns. The FAS has the right to request additional information if it deems it necessary for the notification consideration. The investigation is likely to involve detailed market surveys, economic analysis and possibly negotiation of commitments that may eliminate the concerns that the authority may have regarding anti-competitive effects of the merger.

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

Up to 2 months.

In case structural conditions/commitments have been imposed as pre-closing conditions, the waiting period is prolonged until such structural remedies are fulfilled, after which the final approval is granted.

It should be noticed that structural remedies are a very rare practice, used if a transaction seriously impedes competition in Russia.

The term for implementation of the structural remedies can be up to 9 months.

Assessment and remedies/decisions

44) Tests or criteria applied when a merger is assessed

Under the Competition Law the FAS shall assess and consequently may reject a clearance in case a transaction leads or may lead to competition restriction, including as a result of creation or strengthening a dominant position. However, even if a transaction may impede competition, the FAS tends not to prohibit it, but rather to impose remedies, either behavioral (which are more widespread), or structural (rather rarely used).

45) May any non-competition issues be considered?

Yes, the FAS is an agency in charge of both merger control review as well as for foreign investments and strategic investments review. The notifications under the Strategic Investments Law and Foreign Investments Law should be submitted to the FAS. 

46) Special tests or criteria applicable for joint ventures

The assessment for joint ventures is the same as for other mergers. However, there are special guidelines on the process and methodic of joint ventures analysis issued by the FAS providing for additional tests of the joint ventures admissibility (see topic 3).

47) Decisions and remedies/commitments available

A merger may be approved, approved with conditions/commitments or prohibited. The FAS can issue the following decisions:

  1. to approve a transaction;
  2. to approve a transaction subject to conditions, if a transaction or other action will lead or may lead to the restriction of competition;
  3. to refuse clearing a transaction, if a transaction or other action will lead or may lead to the restriction of competition (including creation or strengthen of a dominant position of the applicant or new entity created), or if the FAS find out that the information provided by an applicant which is important for making a decision is inaccurate, or if an applicant has not provided such information upon the request of the FAS, or if a transaction was rejected by Government Commission within the frameworks of strategic investments filing (being a separate filing).

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

Publicity and access to the file

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

Under the Russian Competition Law information on a merger filing submitted should be published on the FAS official web-site, unless exempted by the Russian Government. The third parties having interest are entitled to provide information on the transaction’s influence on competition. Meanwhile, in practice information about all notifications is not published on the FAS official web-site. There is no requirement for the parties to provide a non-confidential description of the transaction with the notification.

The FAS decisions are also published on the FAS official web-site from time to time. If published, usually this is the decision itself which is very short (names of the parties, their addresses and activity, filing ground and decision taken) and remedies in case of conditional clearance. 

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

The merging parties:

The Competition Law does not provide for access to the file for the merging parties or the third parties. Moreover, interaction between the FAS and the parties during the notification review is not regulated.  

Third parties:

No.

Judicial review

50) Who can appeal and what may be appealed?

The merging parties can generally appeal any decisions by the FAS Russia and remedies imposed to a commercial (arbitrazh) court. 

Decisions and remedies imposed by the FAS regional offices can be appealed to the FAS. 

Third parties may not appeal any decisions under the merger control regulations.


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