Antimonopoly control in cross-border transactions

Transactions to acquire large companies often simultaneously affect entities located in several jurisdictions.

By way of example: a controlling stake in a foreign company is being acquired. However, that foreign company has a subsidiary in Belarus. In such a case it is necessary to assess whether the consent of the Belarusian antimonopoly authority — the Ministry of Antimonopoly Regulation and Trade (hereinafter, “MART”) — is required for such an acquisition, notwithstanding that the principal asset being acquired is shares in a foreign company.

Why must a cross-border transaction be checked for the need to obtain MART consent?

Certain actions in Belarus are recognised as an “economic concentration” (for example, the acquisition of shares/participatory interests, reorganisations, etc.).

Carrying out an act of economic concentration, subject to certain conditions, may require:

• MART consent (obtained before the action is taken);
• notification to MART (made after the action is taken).

In the context of cross-border transactions, a frequently encountered act of economic concentration is the “acquisition of rights enabling one to give instructions that are binding on another commercial organisation in the course of its entrepreneurial activity” (hereinafter, the “acquisition of rights of control”).

The legislation does not define what is meant by “acquisition of rights of control”. In practice, however, this is understood to include, for example, the acquisition of rights enabling one to:

• take part in decisions on the reorganisation and liquidation of a company;
• take part in approving various transactions of the company, including major transactions;
• amend the articles of association and the amount of the charter capital;
• elect the director;
• take part in other decisions within the exercise of a participant’s rights to manage the relevant company.

Acquiring a controlling stake in a foreign company often makes it possible to “indirectly” control the taking of such decisions in respect of its subsidiary.

It is also important to note that Belarusian competition (antimonopoly) law may apply extraterritorially, i.e., to actions carried out outside Belarus. The extraterritorial principle applies in cases where, outside Belarus:

• actions are carried out that lead or may lead to the prevention, restriction or elimination of competition on product markets in Belarus;
• actions constituting an economic concentration are carried out that have or may have an impact on the activities of Belarusian companies.

Accordingly, for the extraterritorial application of the requirement to obtain MART consent, it is sufficient that such actions have, or may have, an effect on a company registered in Belarus.

When is MART consent required?

The acquisition of rights of control is undertaken with MART consent where any one of the following conditions is met:

• the book value of the assets of the company in respect of which the rights are being acquired, or of the acquirer, as at the latest reporting date exceeds 400,000 base values (BV);
• the revenue from the sale of goods (works, services) of the acquirer or of the company in respect of which the rights are being acquired for the preceding year exceeds 800,000 BV;
• the acquirer or the company in respect of which the rights are being acquired is included in the State Register of Business Entities Holding a Dominant Position on Product Markets or in the State Register of Natural Monopoly Entities.

Why is this important?

If the acquisition of rights of control is carried out without obtaining MART consent, adverse consequences for the entire transaction may follow (for example, the transaction may be declared invalid or administrative liability may be imposed).

Accordingly, be vigilant: even if the principal asset being acquired is not a Belarusian company, obtaining MART consent may still be required.

If you have questions about whether MART consent or notification is necessary, we can help you work this out.

Author: Iryna Andryieuskaya.