"This article first appeared in the 4th edition of The International Comparative Legal Guide to: Merger Control; published by Global Legal Group Ltd, London (www.iclg.co.uk)"
1 Relevant Authorities and Legislation
1.1 Who is/are the relevant merger authority(ies)?
The Russian main merger control authority is the Federal Antimonopoly Service (FAS). The Central Bank of the Russian Federation (CBR) also performs some merger control functions in respect of transactions involving banks and financial institutions. The FAS pursues its activities on the basis of the head office (consisting in its turn of departments responsible for certain fields of economy) and local branches.
1.2 What is the merger legislation?
The Russian antimonopoly legislation is based primarily on Federal Law No. 135-FZ "On the Competition Protection" (the "Competition Law"), adopted on 26 July, 2006, effective as of 26 October, 2006. The Competition Law regulates competition in both the commodities market and the financial services market. The current regulatory framework also includes other laws, international treaties entered into by the Russian Federation and regulations of the Russian governmental authorities. Resolution No. 30 "On application of the antimonopoly legislation" issued by the Supreme Arbitrazh Court of the Russian Federation aims at elaboration of the unified approach to interpretation of certain provisions of the Competition Law. This resolution shall serve as a guideline for lower courts when considering similar issues.
1.3 Is there any other relevant legislation for foreign mergers?
Foreign investments in Russia are governed by the Federal Law No. 160-FZ "On Foreign Investments in the Russian Federation", dated 9 July, 1999 and by some other laws applicable to specific fields. Federal Law No. 209-FZ "On development of medium and minor undertakings in the Russian Federation", dated 24 July, 2007 restricts foreign shares in companies considered to be medium or minor undertakings of not more than 25% of the charter capital of such companies.
The Air Code of the Russian Federation dated 19 March, 1997, stipulates that the incorporation of an aviation company with the participation of foreign capital is permitted only if the following requirements are met: (i) the foreign share is less than 49% of the company's charter; (ii) the CEO of the company is a Russian citizen; and (iii) the number of foreign citizens in the governing body of the company does not exceed 1/3 of its members.
Law No. 4015-1 "On the Organisation of Insurance in the Russian Federation" dated 27 November, 1992, envisages special procedures for foreign investment in insurance companies.
Law No. 2124-1 "On mass media" dated 27 December, 1991, imposes certain restrictions on the establishment of Russian mass media companies by foreign legal entities and individuals and on the amount of foreign shares therein. Pursuant to Federal Law No. 69-FZ "On gas supply in the Russian Federation" dated 31 March, 1999, foreign shares in gas supply systems and gas distribution systems shall not exceed 20% of the charter capital thereof. Pursuant to Federal Law No. 101-FZ "On Circulation of agricultural lands" dated 24 July, 2002, foreigners are not allowed to own agricultural lands in the Russian Federation. The Land Code of the Russian Federation dated 1 October, 2001, governs the acquisition and use of land plots by foreign legal entities and individuals on the territory of the Russian Federation.
Federal law No. 57-FZ "On procedures for Foreign Investments in Companies of Strategic Significance for National Defence and Security" of 29 April 2008 specifies 42 activities that have strategic importance for national defence and security and lists transactions subject to preliminary approval by a special commission chaired by the Prime Minister of the Russian Federation. The said activities may be grouped as follows: (i) nuclear industry and materials; (ii) cryptographic equipment; (iii) military equipment and technology; (iv) aviation and space; (v) television and radio broadcasting; (vi) telecoms save for internet providers; (vii) geological survey and exploration, exploration and development of subsoil areas of federal significance; and (viii) natural monopolies designated by Federal law No. 147-FZ "On Natural Monopolies" dated 17 August, 1995. The transactions are those resulting in obtaining by a foreign investor of: a) a right to hold, directly or indirectly, more than 50% of the aggregate number of votes at shareholder level; b) the right to appoint the CEO and/or more than 50% of the members of the collective executive body, and/or the unconditional ability to elect more than 50% of the members of the board of directors or any other decision making collective body of the company; c) rights to perform the functions of a management company; and d) rights to determine the decisions of the governing bodies of a strategic company, including the rights to control the business activities of the strategic company. Pursuant to this law in relation to companies engaged in geological survey or exploration and development of a subsoil area of federal significance the requirements envisaged above apply but the percentage is 10% rather than 50%. Also acquisition of any subsequent share in a company engaged in geological survey or exploration and development of a subsoil area of federal significance provided that this investor (its group) already holds 10% of voting shares in the target company shall trigger the said control. The law prohibits foreign states, international organisations and companies including Russian companies, controlled by them from acquiring control of a strategic company. Therefore, the law sets out that preliminary consent shall be obtained for acquisition of more than 25% of the aggregate number of votes or other blocking rights in a strategic company, or more than 5% in a company engaged in geological survey or exploration and development of a subsoil area of federal significance. Under Resolution No. 510 "On Government Commission for Control Over Making Foreign Investments in the Russian Federation" applications shall be filed with the FAS. The duties of the FAS are to receive and review the application and supporting documents, make a preliminary determination whether the approval is required, coordinate the application with the FSB and other governmental bodies who need to have input into the approval process, and present its decision and supporting documentation to the governmental commission for the final decision.
1.4 Is there any other relevant legislation for mergers in particular sectors?
Pursuant to Federal Law No. 395-1 "On Banks and Banking Activities", dated 2 December, 1990, (the "Banking Law") the purchase or acquisition in trust management, as a result of one or several transactions by one legal entity or individual, or a group of legal entities and/or individuals under an agreement, or a group of legal entities acting as subsidiaries or dependent on each other, of more than 1% of shares of a credit organisation requires submission of a notification to the CBR, and if more than 20%, a preliminary consent of the CBR. The CBR shall inform the applicant in writing of its approval or rejection of the transaction within 30 days from the moment of a request receipt. The CBR exercises merger control along with the FAS.
Federal law No. 147-FZ "On Natural Monopolies" dated 17 August, 1995, establishes merger control over transactions involving so-called "natural monopoly entities" or the companies dominating in certain fields due to historical reasons.
Law No. 4015-1 "On the Organisation of Insurance in the Russian Federation" dated 27 November, 1992, covers certain matters related to the state control in the insurance sphere.
Federal Law No. 208-FZ "On Joint Stock Companies" dated 26 December, 1995, prescribes special procedures for the acquisition of more than 30%, 50% and 75% of the charter capital in an open joint stock company. Federal Law No. 40-FZ "On the Insolvency (Bankruptcy) of Lending Organisations", dated 25 February, 1999, stipulates certain restrictions on the acquisition of shares in lending organisations by the founders and shareholders of lending institutions previously proved to have led to the insolvency thereof.
2 Transactions Caught by Merger Control Legislation
2.1 Which types of transaction are caught – in particular, how is the concept of "control" defined?
The Competition Law does not provide a definition of control.
However the Law sets a list of situations which may trigger merger control, such as:
1. reorganisation of companies in the form of consolidation or accession;
2. incorporation of a company (including incorporation as a result of reorganisation) if the charter capital thereof shall be paid by contribution of more than either (i) 25%, 50%, 75% of voting shares in another company, (ii) 1/3, 1/2, 2/3 of participation interests in another company, or (iii) 20% of another company's fixed assets and intangible assets;
3. acquisition by a person (group of persons) of more than either (i) 25%, 50% or 75% of voting shares in another company, (ii) 1/3, 1/2, 2/3 of participation interests in another company, or (iii) 20% of another company's fixed assets and intangible assets as a result of one or several transactions; and
4. acquisition by a person (group of persons) of direct or indirect rights to determine business activities of another company (e.g. through shareholders' agreements) or rights enabling to exercise functions of another company's executive body as a result of one or several transactions.
2.2 Can the acquisition of a minority shareholding amount to a "merger"?
For the answer see question 2.1 hereof.
2.3 Are joint ventures subject to merger control?
Joint ventures are subject to the general rules set out in question 2.1. There are no specific rules on full-function and non full-function joint ventures save for merger transactions in certain spheres (e.g. banking and insurance).
2.4 What are the jurisdictional thresholds for application of merger control?
The pre-merger application shall be filed in cases envisaged in question 2.1 provided that:
1. the aggregate book value of assets of the companies (their group) involved in reorganisation exceeds RUB 3,000,000,000 (EUR 81,583,148.18 or USD 126,886,270.36) according to the most recent balance sheet and/or the previous year total turnover of the companies (their group) involved in reorganisation exceeds RUB 6,000,000,000 (EUR 163,166,296.36 or USD 253,772,540.74) and/or any of the companies participating in reorganisation is recorded in the Russian register of undertakings with a market share exceeding 35% or holding a dominant position in the certain market stipulated by other federal laws (hereinafter the "Register");
2. the aggregate book value of assets of the companies (their group) involved in incorporation of another company and of the legal entity, the shares and assets of which are contributed to the charter capital of another company exceeds RUB 3,000,000,000 (EUR 81,583,148.18 or USD 126,886,270.36) according to the most recent balance sheet and/or their previous year total turnover exceeds RUB 6,000,000,000 (EUR 163,166,296.36 or USD 253,772,540.74) and/or any of them is recorded in the Register; and
3. as to the situations envisaged in points 3 and 4 of paragraph 1 of question 2.1 the aggregate book value of assets of all the companies within the acquirer's group and the target company's group exceeds RUB 3,000,000,000 (EUR 81,583,148.18 or USD 126,886,270.36) according to the most recent balance sheet, provided the aggregate book value of assets of the target company is not less than RUB 150,000,000 (EUR 4,079,157.40 or USD 6,344,313.51) or their previous year total turnover exceeds RUB 6,000,000,000 (EUR 163,166,296.36 or USD 253,772,540.74) and/or any of them is recorded in the Register.
Post completion notification shall be submitted:
1. in situations envisaged in point 1 of question 2.1 if according to the most recent balance sheet the aggregate book value of the assets of the companies (their group) involved in the reorganisation or in the form of consolidation or accession or their previous year's total turnover exceeds RUB 200,000,000 (EUR 5,438,876.54 or USD 8,459,084.70); and
2. in situations envisaged in points 3 and 4 of question 2.1 if according to the most recent balance sheet the aggregate book value of the assets of all the companies within the acquirer's group and the target company's group or their previous year's total turnover exceeds RUB 200,000,000 (EUR 5,438,876.54 or USD 8,459,084.70) provided the aggregate book value of assets of the target company (group of companies) is not less than RUB 30,000,000 (EUR 815,831.48 or USD 1,268,862.70) and/or any of them is recorded in the Register. It shall be noted that the implementation of the Register threshold is not absolutely clear.
2.5 Does merger control apply in the absence of a substantive overlap?
Any transaction which meets the formal criteria envisaged by the law shall be subject to clearance by the antimonopoly authorities. Only the antimonopoly authorities may determine whether or not a certain transaction is to lead to the restriction of competition.
2.6 In what circumstances is it likely that transactions between parties outside Russia ("foreign to foreign" transactions) would be caught by your merger control legislation?
Pursuant to the Competition Law foreign-to-foreign transactions in respect of Russia-based assets, shares/participation interests of Russian legal entities and/or rights over Russian legal entities are subject to Russian merger control if they have or may have an impact on competition in the Russian Federation.
2.7 Please describe any mechanisms whereby the operation of the jurisdictional thresholds may be overridden by other provisions.
Transactions are exempted from prior clearance if their completion is stipulated by acts of the President of the Russian Federation or Government. Also there are special thresholds for financial organisations.
2.8 Where a merger takes place in stages, what principles are applied in order to identify whether the various stages constitute a single transaction or a series of transactions?
Russian law doesn't stipulate such principles. If a merger consists of several transactions, customarily filing is required for each and every transaction subject to the merger control.
3 Notification and its Impact on the Transaction Timetable
3.1 Where the jurisdictional thresholds are met, is notification compulsory and is there a deadline for notification?
Both pre-merger filing and post-completion notification are always compulsory.
Post-completion notification shall be submitted to the antimonopoly authorities within 45 days from the completion date.
The prior consent shall be received before the completion of the transaction. The prior consent is effective within one year from its issuance.
3.2 Please describe any exceptions where, even though the jurisdictional thresholds are met, clearance is not required.
See situations envisaged in question 2.7. Also intra-group transactions which meet jurisdictional thresholds for pre-merger filing may require only post transaction notification according to the procedure envisaged in question 3.9.
3.3 Where a merger technically requires notification and clearance, what are the risks of not filing?
The risks include administrative and civil liability.
Administrative liability.
Failure to submit either pre-merger filing or post-completion notification may be penalised by fines on legal entities, its officials and individuals.
The fines to be imposed on legal entities may amount from RUB 300,000 (EUR 8,158.31 or USD 12,688.63) to RUB 500,000 (EUR 13,597.19 or USD 21,147.71) for failure to submit premerger filing; and from RUB 150,000 (EUR 4,079.16 or USD 6,344.31) to RUB 250,000 (EUR 6,798.59 or USD 10,573.85) for failure to submit post-completion notification. The fines to be imposed on officials of legal entities amount from RUB 15,000 (EUR 407.91 or USD 634.43) to RUB 20,000 (EUR 543.89 or USD 845.91) for failure to submit pre-merger filing and from RUB 5,000 (EUR 135.97 or USD 211.48) to RUB 7,500 (EUR 203.96 or USD 317.21) for failure to submit post-completion notification.
The fines to be imposed on individuals amount from RUB 1,500 (EUR 40.79 or USD 63.44) to RUB 2,500 (EUR 67.98 or USD 105.74) for failure to submit pre-merger filing; and from RUB 800 (EUR 21.75 or USD 33.84) to RUB 1,200 (EUR 32.63 or USD 50.75) for failure to submit post-completion notification.
Civil liability.
Either a company incorporated as a result of consolidation or by contribution of another company's assets or shares, or company reorganised by the means of another company's accession may be liquidated or reorganised in the form of split-up or split-off and transactions may be invalidated, provided that a compulsory prior consent has not been granted or post-completion notification has not been submitted. But such liquidation, reorganisation and invalidation are possible only in judicial order upon a lawsuit of the antimonopoly authorities.
3.4 Is it possible to carve out local completion of a merger to avoid delaying global completion?
If the global merger per se is subject to prior clearance in the Russian Federation there is no mechanism to avoid clearance.
3.5 At what stage in the transaction timetable can the notification be filed?
The prior consent shall be filed and granted any time before the completion of the transaction provided that the completion shall take place within a year following the receipt of the consent (failing which a new consent is needed). Post-completion notification shall be submitted within 45 days from the transaction completion.
3.6 What is the timeframe for scrutiny of the merger by the merger authority? What are the main stages in the regulatory process? Can the timeframe be suspended by the authority?
The general timeframe for application review is 30 days. This period may be extended for another two months. In the case of reorganisation or incorporation the review may last as long as 10 months. The timeframe for considering post-completion notifications is not prescribed by law. But customarily such notifications are scrutinised within 30 days from the filing date.
3.7 Is there any prohibition on completing the transaction before clearance is received or any compulsory waiting period has ended? What are the risks in completing before clearance is received?
Transactions subject to prior clearance may be completed after obtaining the prior consent of the antimonopoly authorities. The consequences of failure to do so are described in question 3.3. Transactions which meet the criteria for post-completion notification are not subject to any restrictions relating to their completion.
3.8 Where notification is required, is there a prescribed format?
The format for pre-merger filing and post-completion notification is stipulated by Decree No. 129 issued by the FAS on 17 April 2008. Pursuant to the Competition Law the following documents and information shall be submitted along with the pre-merger application and post-completion notification:
1. Notarised copies of the constituent documents of the applicant (foundation documents of foreign companies shall carry an apostille (provided the country where the documents are issued is a party to the 1961 Hague Convention on Apostille)), otherwise they are to be legalised.
2. Documents defining the subject and content of the transaction, and other actions subjected to governmental control.
3. Information on the types of activity exercised by the applicant over the last two years before the date of submitting pre-merger application.
4. Copies of documents enabling the performance of types of activity which can be exercised only under special permission pursuant to the law.
5. Description of the types of products, volume of products produced and sold by the applicant over the last two years before the date of submitting pre-merger application.
6. Information on the types of activity exercised by the other persons involved in the transaction during the last two years before the date of submitting the pre-merger application and a description of the types of products, volume of products produced and sold by the other persons involved in the transaction for the last two years before the date of submitting the pre-merger application, provided the information is available to the applicant.
7. The most recent balance sheet.
8. Financial, economic and other reports submitted to the CBR and the federal bodies of executive authority regulating the financial services market.
9. A list of commercial organisations where the applicant administers more than 5% of shares/participatory interests on any grounds or written notice stating that the applicant does not administer shares/participatory interests in commercial organisations.
10. A list of persons belonging to the applicant's group or to the group of the other persons involved in the relevant transaction provided the information is available to the applicant. All the documents shall be translated into the Russian language and signed by the translator which is to be certified by a Russian notary.
However this list is expanded and detailed by Decree No. 129 issued by the FAS on 17 April 2008.
3.9 Is there a short form or accelerated procedure for any types of mergers?
In general there are no legal means to speed up clearance. But inter-group mergers subject to prior consent may be notified to the FAS upon completion. For that purpose the current information on the group shall be filed with the antimonopoly authorities no later than one month before execution of the relevant transaction. Then this information is displayed on the official website of the FAS. Post transaction notification shall be filed within 45 days upon its completion.
3.10 Who is responsible for making the notification and are there any filing fees?
Pre-merger filings with the antimonopoly authorities are to be made by any of the parties involved in the relevant transaction. There are no restrictions for all the parties to the transaction to approach the antimonopoly authorities. Pre-merger filings are subject to a fee of RUB 10,000 per filing (EUR 271.94 or USD 422.95). The fee is to be paid by an applicant or its authorised representative before filing the applications.
Post-completion notifications shall be filed with the antimonopoly authorities by the acquirer of the shares (participation interest), rights or assets or by the company which has been created as a result of the relevant incorporation and reorganisation or by the absorbing company.
In cases related to a group of persons, post-completion filings shall be made by one of the parties involved in the relevant transaction with shares (participation interests), assets or rights or by the company which has been created as a result of the relevant incorporation and reorganisation or by the absorbing company.
Post-completion notifications are not subject to any fee.
Pre-merger applications and post completion notifications as to incorporation, consolidation and accession shall be signed by all persons involved in the relevant incorporation, consolidation and accession.
4 Substantive Assessment of the Merger and Outcome of the Process
4.1 What is the substantive test against which a merger will be assessed?
A merger must be prohibited or made conditional by the FAS if it leads to the creation or strengthening of a dominant position in the relevant Russian market sector or otherwise leads to limitation of competition in the Russian market.
4.2 What is the scope for the involvement of third parties (or complainants) in the regulatory scrutiny process?
The FAS displays on its official website information on pre-merger filings which review is extended due to reasons envisaged in question 5.1. All the interested persons are entitled to submit to the antimonopoly authority data related to the impact of such transactions on the competition.
4.3 What information gathering powers does the regulator enjoy in relation to the scrutiny of a merger?
In the course of the investigation, antimonopoly officials are entitled to free access to federal or local executive authorities and to nongovernmental bodies and commercial organisations with the view to collect documents and information required by the antimonopoly authority.
4.4 During the regulatory process, what provision is there for the protection of commercially sensitive information?
Commercial information shall not be withheld in a filing. The FAS has the right to demand it from individuals, legal entities, state and local authorities. The FAS shall not disclose information containing commercial, official or other secrets protected by law and received while exercising its powers. FAS officials bear civil, administrative and criminal liability for unauthorised disclosure, with any damage caused by such disclosure to be compensated for from the Russian federal budget.
5 The End of the Process: Remedies, Appeals and Enforcement
5.1 How does the regulatory process end?
Within 30 days following the pre-merger filing the antimonopoly authority shall examine the application and notify the applicant in written form of the made decision.
The antimonopoly authority will reach one of the following decisions:
1) Clearance, provided that the transaction or another action envisaged in the application does not lead to any restriction of competition.
2) Prolongation of the investigation period due to the need for further examination of the application and collection of additional information in order to make the decision.
3) Prolongation of the period for examination of the application for approval of the company's reorganisation or incorporation and determination of the conditions to be fulfilled by the applicant and (or) other persons involved in relevant incorporation or reorganisation in order to receive clearance and stipulating a period for fulfilling such conditions, which shall not exceed nine months.
4) Clearance of transaction or another action envisaged in the application and simultaneous issue of instruction stating certain remedies to be complied in order to complete transaction or another action envisaged in the application.
5) Prohibition provided that:
a) the transaction or another action envisaged in the application results in the restriction of competition; or
b) information significant to the investigation and submitted by the applicant is found unreliable by the antimonopoly authorities.
5.2 Where competition problems are identified, is it possible to negotiate "remedies" which are acceptable to the parties?
Pursuant to the Russian legislation there is no way to discuss remedies. However, clearance of corporate reorganisation may be achieved after demonstration that certain conditions have been fulfilled (see question 5.1, point 3). Also conditional clearance may be issued (see question 5.1).
5.3 At what stage in the process can the negotiation of remedies be commenced?
Not applicable as no remedies may be discussed.
5.4 If a divestment remedy is required, does the merger authority have a standard approach to the terms and conditions to be applied to the divestment?
A court decision on liquidation of the legal entity or on reorganisation thereof in the form of spin-up or spin-off shall be fulfilled by the entity's owner or his authorised representative on the conditions and within the timeframe (which cannot be less than six months) stipulated by the said decision. If the divestment remedy has not been complied with within the prescribed period the court appoints an external administrator who will carry out such divestment.
5.5 Can the parties complete the merger before the remedies have been complied with?
Usually remedies stipulated by injunctions envisaged in point 4) of question 5.1 may be complied after the completion of the merger.
Remedies prescribed by resolutions envisaged in points 2) and 3) of question 5.1 are to be implemented before completion.
5.6 How are any negotiated remedies enforced?
Failure to fulfil lawful prescriptions of antimonopoly authorities is penalised in an administrative order. The fine to be imposed on officials amounts to RUB 20,000 (EUR 543.89 or USD 845.90). An alternative sanction covers disqualification for a period of up to three years. The fine to be imposed on legal entities is up to RUB 500,000 (EUR 13,597.19 or USD 21,147.71). Also, failure to fulfil injunctions of the FAS envisaged in point 4) of question 5.1 may lead to invalidation of the relevant transaction upon lawsuit of antimonopoly authorities. It shall be noted that the turnover fines may be applied for the following violations of the antimonopoly legislation: abuse of dominant position; conclusion of agreements restricting competition; and unfair competition related to the illegal usage of intellectual property.
5.7 Will a clearance decision cover ancillary restrictions?
Ancillary restrictions are covered provided that full information thereon has been submitted to the antimonopoly authority and they are not subject to consent themselves. If the merger consists of several arrangements requiring clearance separate filings are more preferable. However, unconditional clearance envisaged in point 1) of question 5.1 is assumed to cover the whole transaction. And in the situation envisaged in point 4) of question 5.1 certain ancillary restrictions may be changed or impeded by the antimonopoly authority's injunction.
5.8 Can a decision on merger clearance be appealed?
Decisions and prescriptions of the FAS may be challenged in judicial order within three months from their issue. However the elapsed period may be revived if the reason for a term default is grounded. Prescriptions of the antimonopoly authorities shall be suspended until the court decision comes into legal force.
Decisions of the trial shall be rendered within two months from receipt of the petitioner's application. If the claimant or another participant of the judicial proceedings is a foreign undertaking the trial may turn out to be a rather long process. Russia is a party to the Hague Convention on the service abroad of judicial and extrajudicial documents in civil or commercial matters of 1965 and to the Convention on the taking of evidence abroad in civil or commercial matters of 1970.
5.9 Is there a time limit for enforcement of merger control legislation?
As to administrative violations, the limitation period is one year following the offence being committed or following detection thereof in relation to continuous offences. As to civil liability, the limitation period is three years save for transaction invalidation which may be claimed within a year.
6 Miscellaneous
6.1 To what extent does the merger authority in Russia liaise with those in other jurisdictions?
The antimonopoly authorities of the Russian Federation are involved in active collaboration with antitrust authorities of the Eastern European countries, Central European states, CIS countries, Asian states and South American states. Russia being represented by the FAS is a member to the International Competition Network, Organisation for Economic Cooperation and Development and United Nations Conference on Trade and Development.
6.2 Please identify the date as at which your answers are up to date.The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
