Opening a business: is MART’s consent required?

Incorporating a company is usually the first formal step in business. However, in some cases this step may require the consent of the antimonopoly authority (hereinafter – MART).

Let us examine when it is impossible to proceed without MART’s consent.

Contribution to the charter capital (transfer of assets)

MART’s consent is required if two conditions are met simultaneously:

• fixed assets (FA) and/or intangible assets (IA) of another company which:

− are used in entrepreneurial activity (relate to the production or sale of goods (works, services) or to management);

− have a value exceeding 20% of the book value of the FA and IA of the transferring company;

OR

• more than 25% of the voting shares / interests in the charter capital of another company;

OR

• 25% or more of the voting shares / interests in a company holding a dominant position on the product market.

Financial and market criteria

At least one of the following conditions must be met:

• the aggregate book value of the assets of all founders and the transferring company as at the last reporting date exceeds 400,000 base units;
• the aggregate revenue from the sale of goods (works, services) for the previous year (exclusive of VAT) of all founders and the transferring company exceeds 800,000 base units;

Any of the founders and/or the transferring company is included in:

• the State Register of Business Entities Holding a Dominant Position on Commodity Markets; or
• the State Register of Subjects of Natural Monopolies.

The newly established legal entity has two founders:

• an individual – contributes cash to the charter capital;
•  a legal entity – contributes immovable property to the charter capital, which:

1. exceeds 20% of the book value of its assets;
2.  is used in entrepreneurial activity (is leased and generates profit).

The aggregate book value of the assets of all founders (in this case – only of the legal entity, since there is no such indicator for an individual) amounts to 550,000 base units.

1. a court may declare the state registration invalid and recover the income received by the company;
2. administrative liability – a fine ranging from 20 to 100 base units.

However, there are exceptions where it is sufficient merely to NOTIFY the antimonopoly authority of actions ALREADY taken. This applies where the business entities performing the actions are:

1. a parent company and its subsidiary(-ies), where the parent company holds more than 50% of the votes in the subsidiary;
2. entities in which the same persons collectively hold more than 50% of the votes.

Incorporating a company may seem a simple step, but failing to obtain MART’s consent can result in serious consequences.

Your next step: Check yourself before registration!