Category Archives: Määratlemata

According to the 4th AML Directive, all EU Member States are required to set up registers of beneficial owners which will obtain and hold information on beneficial owners of corporate entities/trusts established under the law of a given country. Registers are one of many changes introduced by the 4th AML Directive, which aim to be a remedy for lack of transparency in the financial sector. The purpose of the Registers is to disclose data of natural persons actually controlling corporate entities/trusts.

As for the 5th AML Directive, which must be implemented by the Member States by 10 January 2020, it extends beneficial ownership reporting and widens access to the central register on beneficial owners.

This summary is intended to provide a short practical overview of the different implementations regarding the central register of beneficial owners. Whilst the 4th and 5th AML Directive’s content is the same for all EU Member States the result of implementation differs.

Beneficial ownership topics covered by the summary:

• definition of the UBO;
• entities obliged to report;
• information of the UBO subject disclosure;
• access to the Register;
• deadlines and penalties.

Download the e-book here: TELFA ebook UBO register

Partner Lina Siksniute Vaitiekunienė represented LEXTAL in TELFA fall conference in Belgrade and shared her views and insights on recruiting and training young lawyers. Big thanks to hosts of conference law firm Vukovic & partners and colleagues lawyers from all over Europe for interesting discussions and sharing experience.

“Young and in law” discussion

Lina Šikšniutė-Vaitiekūnienė and colleagues

TELFA members

This year TELFA Nordic Group meeting took place in Vilnius, Lithuania on 24^th of May and was hosted by LEXTAL Vilnius Law Firm. During the morning meeting, in addition to discussion of ongoing projects and prospects, TNG members met Neringa Petrauskaitė, a marketing strategist from “We are marketing” agency, who presented the newest marketing trends and strategies in the field of legal services. In the afternoon meeting,   an idea of international debt recovery platform was presented and discussed as a future possibility to simplify the communication between clients and lawyers relating debt matters. Annual TNG meeting 2019 in Vilnius was concluded with an exciting hot-air balloon flight over a historic city Trakai and its medieval Gothic-style island castle.

TELFA (The Trans-European Law Firm Alliance) is designated to serve clients doing business across the jurisdictions of Europe. TELFA member firms now have more than 1000 lawyers throughout Europe, and including USLAW the network consists of over 6000 professionals. LEXTAL Law Firm joined TELFA in 2009 and since then actively participates in its activities.

Thank you all for coming and making our meeting that productive.

Have a glance at some moments of the TNG  meeting 2019.

Law firm’s Lextal lawyer Lina Vaitiekūnienė successfully represented Latvian company SIA Olimps in the court for the right to deduct costs related to repairing the defects of the contractor’s work, from the amounts detained under the contract. The essence of this case is that the contractor, the bankrupt company, applied to the court, requiring the client to pay the detained amounts according to the contract to the contractor, the bankrupt company, since the non-payment of the detained amount violates the interests of the creditors of the bankrupt company, despite the fact that the company did not correct the deficiencies properly, which was a condition under the contract for the payment to the contractor of the amounts detained. The court accepted the arguments of Lextal’s lawyer that deductions from the amounts detained would not be considered as offsetting against counterclaims and could not be considered to be a violation of the bankruptcy law of the company, and also indicated that the bankruptcy proceedings against the contractor do not automatically deprive the contractor’s right to detain the corresponding amounts agreed in the contract for a warranty period. In the event of bankruptcy or restructuring, the implementation of the continuing obligations of the contract, such as warranty for several years, etc., is made more difficult, assuming that in the event of the contractor’s bankruptcy, the legitimate expectations of the client arising from the implementation of the original terms of the construction contract may be violated. Obviously, a contractor who is a subject to bankruptcy proceedings will not be able to provide after-sales service, so the client’s behavior to detain the amount of money corresponding to the warranty size is reasonable from a fair business practices point of view. It should be noted that the court, in deciding on this dispute, followed the provisions of the contract and evidence of non-corrected deficiencies and well-founded costs by repairing the deficiencies of the works at its own expense by the contractor. It is important that the contractor was constantly informed of the progress of the repair of the defects.

This experience prompted Lextal’s lawyers to share their advice with the participants of the construction process. Lextal’s lawyers always recommend clients to include warranties concerning the contractor’s responsibility for remedying any defects in the works performed and obligations for the warranty period. There is a number of cases in law firm Lextal practice when clients apply for help as a contractor goes bankrupt and is no longer able to remedy the defects. How to avoid such a situation?

Law Firm Lextal recommends:

1. To identify in the contract the relevant amounts that are withheld by the client from the price of the works performed and are detained until the final works are presented after the defects are corrected or the contractor’s obligation to provide a bank or insurance company guarantee for the repair of the defects and the warranty period;
2. To discuss in detail the procedure for accepting final works and remedying work defects;
3. To specify in the works acceptance-transfer act what specific defects must be corrected and in what period of time;
4. To note that if the contractor fails to remedy the deficiencies, the contractor may correct them by using other contractors and reduce the detained amount by the costs of repairing the defects;
5. To notify the contractor in writing of the intention to remedy the deficiencies at the client’s expense and to reduce the amounts detained by the costs of repairing the defects or intending to use the warranty, if the contractor fails to comply with his obligations to correct the defects.
6. To keep the contractor informed of the progress and costs of the correction of the defects and the reduction of the amounts of money detained or the usage of the guarantee.

Join the International Conference „Current Challenges of Estonian and European Insurance Law” held in Tartu (21 – 22 March 2019)!

It is the first international conference focused only in insurance law that is organised in Estonia. Acknowledged European experts of the insurance law, Estonian legal researchers and insurance practitioners (including Olavi-Jüri Luik from LEXTAL) will give speeches at the conference.

The working language will be English and Estonian. The first day speeches will be in English. The second day speeches will mainly be in Estonian with the simultaneous interpretation into English.

To register for this conference, please fill out the form (https://lnkd.in/dVJaDkb) by 28th of February.

There is a fee of € 50. The invoice will be sent to you after registration.

Program: https://lnkd.in/dYsuaga

LEXTAL law firm is a member of TELFA since 2009 and actively participates in preparing TELFA publications on different legal topics. A new e-Book is a country by country guide of commercial leases (2018) which provides a short practical overview of the different specialities regarding the lease of commercial property in the legal systems across Europe. The guide covers topics of civil law such as legal regulation, form, object of the lease, duration, maintenance, rent, new ownership, lease termination, compensations. LEXTAL attorneys at law together with other TELFA members published the e-Book which gives an opportunity for clients to learn the differences and similarities of commercial leases in different jurisdictions, including Lithuania, Estonia and Latvia.

You can find the e-Book here.

LEXTAL is a member of TELFA from year 2009.  TELFA (The Trans-European Law Firm Alliance) is designated to serve clients doing business across the jurisdictions of Europe. TELFA member firms now have more than 1000 lawyers throughout Europe, and including USLAW the network consists of over 6000 professionals. The fact that the member firms of TELFA are independent offers clients a flexible alternative to the global law firm model, where internal politics sometimes compete with the needs of client service.

A big number of Telfa lawyers participated in conference in Copenhagen this weekend. We shared our views on development of Fintech practice group activities, exchanged information on cross border M&A projects held by Telfa lawyers and shared ideas on further cooperation.

Big thanks to the host of conference Lund Elmer Sandager Law firm and special thanks to Mette, Jacob and Sebastian who made our stay both professionally beneficial and fun.

Lina Šikšniutė-Vaitiekūnienė

Due to a growing quantity of FinTech-related inquiries from clients, On 8 November 2018 Lina Šikšniutė-Vaitiekūnienė and Tadas Vilčinskas participated in the „FinTech Inn“ conference, which was organized by Ministry of Finance and Bank of Lithuania, where discussions on challenges for FinTech industry and its benefits for the society among other investment, blockchain and payment related issues were held in pannels and industry leaders‘ individual presentations.

Read more: https://www.fintechinn.lt/

As from 1 January 2018 the intended concentration must be notified to the Competition Council of the Republic of Lithuania and its permission must be obtained where the combined aggregate turnover of the undertakings concerned in the business year preceding the concentration is more than EUR 20 mln. and the aggregate turnover of each of at least two undertakings concerned in the business year preceding the concentration is more than EUR 2 mln. The turnover thresholds increased from EUR 1,45 EUR 2 mln. EUR in respect to individual aggregate turnover and from EUR 14, 5 mln. to EUR 20 mln. in respect to combined aggregate turnover.

Amendments to regulations on notification on concentration clearance in Lithuania lower bureaucratic burden for mergers and acquisitions. Increase in turnover thresholds for concentration clearance may result in less frequent concentration notifications, however procedures remain quite complex and shall be observed carefully.

In order to calculate the aggregate turnover of the undertakings participating in the concentration it is important to consider the fact of belonging of such undertakings to a group. If undertaking participating in the concentration belongs to a group of associated companies, the aggregate turnover shall be calculated as the total amount of aggregate turnover of all the undertakings belonging to the group of associated companies. The group of associated undertakings means two or more undertakings which, due to their mutual control or interdependence and possible concerted actions are considered as one undertaking when calculating joint turnover and market share (e.g. companies which own 1/2 or bigger part of shares of the company participating in concentration as well as companies which are owned in 1/2 or bigger part by company participating in concentration etc.).

In case of foreign undertaking participating in the concentration or belonging to the group of associated undertakings, the aggregate turnover of this foreign undertaking shall be calculated as the total amount of turnover received on the product markets within the Republic of Lithuania.

According to the new regulations of notification on concentration clearance the notification shall be supported by financial accounts of one past year instead of three, the turnover shall be calculated taking into account turnover of the past one financial year.

Lina Šikšniutė-Vaitiekūnienė

The General Data Protection Regulation which became directly applicable on the 25th of May 2018 has triggered a real boom in privacy policies among companies. The threat of penalties has woken up the business which earlier had quite a negligent attitude towards data protection issues. Many had quite a struggle identifying what data and for what purposes as well as legal grounds are they processing.

Speaking of the legal basis for processing personal data, there is no doubt that one of the most popular among the business is a person‘s consent. You have obtained a number of consents and you feel calm. After all, if a person has given his consent, what can be wrong? Processing personal data based on consent provides a sense of security, and when it comes to fines up to 20 million euros, we want to feel safe. However, for the consent to be valid it must meet certain criteria, one of which is the free will of the data subject. Namely, the flaws of the obtained consents manifest through the lack of free will, which in fact means that the processing is not legal. So, when shall it be considered that a person has freely given you his consent to the processing of his personal data?

The provisions of the Regulation imply that freely given means a real power to make a choice – to decide whether the person wishes for his data to be processed for a certain purpose or not, without experiencing any pressure for it or negative influence, etc. Assessing whether a person had a real decisive power while giving consent, (i) the balance between the controller and the data subject is taken into consideration as well as (ii) non-conditionality, (iii) granularity of the consent and (iv) absence of risk of facing any detriment in case of refusal to consent.

(i) Balance of power. The consent is not an appropriate legal basis for processing personal data when the controller is in a position of power, i.e. when the controller is the stronger and therefor more influential party (for example a public authority, employer). When the data controller is in the position of power it is likely that a person will give his consent because of the pressure he feels and not because he expresses his true will. Therefore, a quite common mistake in practice is to rely on legal basis of consent in employment relations, since an employee will always be the weaker party, and the employer – the controller – the stronger party which dictates conditions, and from which will an employee depends. It should be noted that, in exceptional cases, the employer may rely on consent when processing employee’s personal data, particularly in those cases where the processing operations themselves are of benefit to the employee – for example, to allow a worker to apply for discounts when purchasing employer’s products.

(ii) Non-conditionality of consent. Any pressure or influence upon a person while obtaining consent proves the lack of free will and, consequently, makes such a consent invalid. These are particularly the situations where a contract or terms and conditions state that by signing the contract or accepting terms and conditions a person expresses his or hers consent to data processing (objectively not necessary for the provision of a contract or service). Or where the data controller claims that the contract shall not be signed/ a service provided unless the person consents to the processing (objectively unnecessary) of data. However, in such cases, the person wishing to receive a service or conclude a contract is prevented from expressing his or her true will for the processing of the said data.

(iii) Granularity of the Consent. Data processing operations can have different goals, in cases where the consent of the data subject is to be relied on, separate consent is required for each of them. Consent will not be considered freely given, for example, where on the website data subjects are provided with a single box to mark their consent for using their data for direct marketing and for transferring of personal data to the company’s partners.

(iv) Absence of negative effects. If the refusal to consent to data processing would adversely affect (financial losses, lower quality of service, longer waiting period, etc.) a person, the consent would not be considered freely given. For example, the person who has not given consent to the sharing of data with the service provider’s partners must pay more than the one who has consented.

Considering the above said, if while obtaining consent from the data subjects the mentioned conditions are met you are in the right path. Although it should not be forgotten, that apart from the criterion of free will there are more requirements set out in the Regulation regarding the validity of consent, but it is a separate theme to be discussed in the next article.