3.1 Transactions subject to approval

As a general rule, despite potential application of extraterritoriality competence provision, Belarusian antimonopoly authority (DPP) monitors straightforward acquisitions of Belarusian target companies (see below for applicable thresholds).

There are no specific regulations for different sectors of economy in terms of antimonopoly compliance, although in some sectors (e.g. banking, insurance and financial services) the applicability of the Antimonopoly Law is limited to the cases when market dominancy is involved.

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3.2 Approval / notification thresholds

Approval of a transaction by the antimonopoly authority is required:

1. when a company holding more than a 30% share of a relevant product/services market acquires participatory interests in another company operating in a similar product/services market; OR
2. when a company holding more than 30% share of a relevant product market enters into a transaction in respect of shares of another company operating in a similar product/services market; OR
3. when a company, an individual, a foreign state, an international organisation or their bodies acquire more than 25% of participatory interest in a company or enter into any other transactions, whereby as a result of such transactions they obtain a possibility to influence decisions of a company which has a dominant position on the market; OR
4. when a company, an individual, a foreign state, an international organisation or their bodies enter into transactions involving more than 25% of shares of a company as well as other transactions provided as a result of such transactions they obtain a possibility to influence decisions of a company which has a dominant position on the market; OR
5. when a company, an individual, or groups thereof, as well as a foreign state, international organisation and its bodies acquire 20% or more shares / participating interest in a company under a share sale-purchase agreement, trust agreement, joint venture agreement or commission agreement and such a company's financials exceed following thresholds: (i) balance value of assets as of the latest reported date exceeds 100 000 basic units (currently about € 857,200), or (ii) receipts of the company for the preceding financial year exceed 200 000 basic units (currently about EUR € 1,714, 400).

When assessing market share/dominancy to determine whether the thresholds are met for applying paragraphs (a) – (d) above, relevant shares of both parties (the acquirer and the target) at national and regional markets in Belarus are to be considered.

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3.3 "Groups" and "intragroup deals"

There are no express exemptions for intra-group transactions – an intra-group acquisition is still subject to the antimonopoly approval in case it meets the above thresholds. In practice, DPP normally takes into consideration the intra-group character of the transaction, which facilitates the issue of the approval.

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3.4 Exceptions from transaction approval requirements

No statutory exceptions are applicable. In practice, indirect acquisition (i.e. when shares/participatory interest in a Belarusian entity are acquired indirectly) do not require antimonopoly approval, however, such an approach is confirmed by DPP on a case-by-case basis, upon submission of a preliminary inquiry by the parties to the transaction.

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3.5 General approval procedure

Where one of the above thresholds are met, seeking DPP's approval of the transaction becomes mandatory. The burden of obtaining the DPP's approval rests with the acquirer.

Although it is still a debatable issue, conservative (and the safest) approach is that approval of the antimonopoly authority is to be sought before execution of a transaction subject to merger control. Belarusian procedure for seeking antimonopoly approval is rather strict: not just the parties are required to suspend implementation of the transaction, they are not allowed to sign it prior to issue of the approval.

For a merger control filing, scope of the information to be disclosed is as follows: details and description of financial position and business activities of the target and the acquirer, statement of products/works/services output and market share of the target entity, chart showing corporate interconnection, affiliates and subsidiaries of the parties involved. It should be noted that for foreign acquirers it would be necessary to provide copies of constitutive documents, trade registry excerpts (good-standing certificates) and statement of sound financial position issued by the foreign parties' servicing bank.

In addition to the above the acquirer may need to provide further info to facilitate approval of the transaction (description of the market, technologies, competitors, business plans showing positive prospects of the transaction, etc.)

There is no filing fee.

Normally the procedure is kept fully confidential and no third parties are involved. In the course of the proceedings, however, DPP may contact various governmental authorities to double-check information supplied by transaction parties. Competitors of the parties are never involved in the proceedings.

The procedure is not broken down into any specific stages – there are no formal hearings contemplated by the regulations. In practice, the parties or their representatives are normally invited to voice their understanding of the transaction and its impact on competition.

DPP is to issue antimonopoly approval within 30 days from the filing date (the filing date is the date on which DPP receives full package of the required documents).

It should also be noted that approval issued by DPP is valid for 12 months.

The Antimonopoly Law fails to set out a substantive test for DPP's clearance or non-clearance of transactions. It is only stipulated that transactions should be cleared where such transactions do not excessively restrict or eliminate competition in a given market. The interpretation and practical implementation of this general statutory provision is totally in the hands of DPP.

Although it is not expressly provided by the Antimonopoly Law and regulations, DPP may issue "conditional approvals", i.e. to impose conditions on the parties' post transaction market behaviour. Such conditions are normally sector-specific or social ones, but thus far there is no uniform practice in place.

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3.6 Implications of a failure to obtain approval

Failure to seek approval or implementing transaction before or without such approval may result in potential invalidity of the transaction: DPP can challenge the transaction in court.

Failure to provide required information to DPP in the course of merger control proceedings entails administrative liability in the form of a fine (for details see Section 2.6 above).

It is not clear under the Antimonopoly Law as to whether DPP's refusal for merger clearance can be appealed in court. go to top