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Category Archives: Määratlemata

The overview of most relevant circumstances related to coping with the COVID-19 virus

Different legislations cope differently with the pandemic, thus there can be seen distinct approaches to the coronavirus situation at hand. In this post we have made an overview of the most topical questions you might be interested in in regard to the COVID-19 situation and combined our answers considering the different approaches of three Baltic countries – Estonia, Latvia and Lithuania. In this overview you can find answers to the following topics:

(i) Breach of contractual obligations;

(ii) Performance of contractual obligations under changed circumstances;

(iii) Force Majeure;

(iv) General meeting of shareholders;

(v) Protection of Personal Data;

(vi) Inability to pay taxes or credit on time;

(vii) Managing the situation of employees;

(viii) Restructuring of the company. 

In the case you have any questions regarding the circumstances addressed in this post, feel free to contact us at info@lextal.ee and we will forward your inquiry to an attorney specializing in the relevant field of law.

 

Breach of contractual obligations

ESTONIALATVIALITHUANIA
Just as in Lithuania, in Estonia failure to perform or improper performance of an obligation, including a delay in performance, is deemed as a non-performance.

In the case of non-performance by an obligor and if the obligor is liable for the non-performance, the obligee may use different legal remedies:
i) require performance of the obligation;
ii) withhold performance of an obligation which is due from the obligee;
iii) demand compensation for damage;
iv) withdraw from or cancel the contract;
v) reduce the price;
vi) in the case of a delay in the performance of a monetary obligation, demand payment of a penalty for late payment.
In the event of delayed payment or other default the defaulting party may be obliged to pay contractual penalty, cover losses, pay to the innocent party interest or suffer other consequences stated in the contract of law.

A contractual penalty regarding unacceptable performance of the obligation or failing to perform it within due time (time period) may be laid down as a fixed sum or ascending (no more than 10 % in total of the principal debt or amount of the main obligation). If someone has to bear contractual penalties, then a creditor may request either its payment or the performance of the contract, unless the contractual penalty was set for failure to perform in the proper time rather than non-performance as such.

The interest rate, unless stated in the contract, is set by law – 6% or in case of contracts for the supply of goods, for purchase or provision of services – 8% on top of the refinancing rate of the European central bank. The total amount of interest the creditor is entitled to cannot exceed 100% of the principal amount of the main obligation.
The losses are to be proven by the creditor in the court.


The performance of the obligations, as it is stated in the Civil Code of the Republic of Lithuania, may be secured by contract or by law through forfeiture, mortgage, surety, security, deposit or any other means provided for in the contract. It can be specified as a specific amount of money or as a percentage of the amount of the underlying obligation and be calculated for each day, week, month, etc. of the default.

In the event of forfeiture, the creditor cannot claim from the debtor both the forfeiture and the fulfillment of the obligation, unless the debtor misses the due date to fulfill the obligation.

The debtor who has defaulted on a financial obligation is required to pay five per cent annual interest on the amount overdue, while in cases where both parties to the contract are entrepreneurs or private legal persons, default interest shall be payable at the rate of six percent per annum, unless the law or contract provides otherwise

Performance of contractual obligations under changed circumstances

ESTONIALATVIALITHUANIA
Pursuant to the Estonian Law of Obligations Act it is possible to alter the balance of the contractual obligations if the circumstances under which a contract is entered into change after the entry into the contract and this results in a material change in the balance of the obligations of the parties due to which the costs of one party for the performance of an obligation increases significantly or the value of that which is to be received from the other party under the contract decreases significantly.
The injured party may demand the amendment of the contract retroactively from the other party, for the time not earlier than the time when the balance of the obligations changed. The modification of the agreement needs the consent of both parties.
Under the Section 1589 of the Civil Law of the Republic of Latvia “A contract legally entered into shall impose on a contracting party a duty to perform that which was promised, and neither the exceptional difficulty of the transaction, nor difficulties in performance arising later, shall give the right to one party to withdraw from the contract, even if the other party is compensated for losses”.

Changed circumstances is generally not a legal reason to withdraw from the contract or fail to fulfill contractual obligations as well as they are not enabling unliteral amendments in the contract



Article 6.204 of the Civil Code of the Republic of Lithuania provides that, if in the course of performing a contract, the circumstances occur, which:
i) were not known until the conclusion of the contract,
ii) at the time of the conclusion of the contract could not have been foreseen,
iii) are beyond the control of the aggrieved party,
iv) the risk of occurrence of these circumstances was not assumed by the aggrieved party,

and mentioned circumstances is the reason why the cost of performance has essentially increased or the value thereof has essentially diminished, then the aggrieved party shall have the right to make a request to the other party for the modification of the contract.

A referral to the other contract’s party itself does not give a party the right to unilaterally modify the contract – the other party must accept the proposed changes.





Force Majeure

ESTONIALATVIALITHUANIA
Pursuant to the Estonian Law of Obligations Act, force majeure circumstances occur under analogous conditions, as provided for in Lithuanian law, i.e:
i) the existence of an impediment;
ii) the impediment must not have been caused by the debtor’s own conduct or inactivity;
iii) the unforseeability of the circumstance; and
iv) the inevitability and insurmountability of the circumstance.
If the effect of the force majeure is temporary, the non-performance of the obligation is excused only for the period during which force majeure impeded performance of the obligation.
The force majeure clause does not have to be added to the contract as it comes from the law, but all contracts should be reviewed as they may contain specific clauses that exclude the application of force majeure.
Force majeure, or “superior power”, is not defined in the Latvian law and is determined by court in every case individually.
Nonetheless, there are some instances where force majeure is applicable under the law. I.e., under Section 1657 of the Civil law of the Republic of Latvia „A court may release the debtor from consequential losses due to default also in other cases where the debtor cannot be considered at fault due to lack of care, recklessness or negligence, or if performance did not occur due to force majeure.“

The COVID-19 pandemic and the governmental orders related therewith can be used as a force majeure only in case the defaulting party can show and prove that these circumstances directly have caused the default of obligations without the fault of the defaulting party.
The existence of force majeure is determined by the parties or court on a case-by-case basis, in the light of the particular facts.
A party to a contract, which has faced force majeure, has the right to suspend the performance of the contract until the circumstances of force majeure disappear, and if such situation lasts for a longer period, there is a possibility to terminate the contract.

The basis to be exempt from liability arises from the moment of the occurrence of the force majeure occasion (obstacle) or from the moment of notification, if not reported in a timely manner, therefore the counterparty must be informed immediately regarding company’s inability to meet contractual obligations, their expected duration and the extent to which they are due.

The Lithuanian Chamber of Commerce, Industry and Crafts has officially identified Covid-19 as one of the circumstances that could be considered as force majeure. However, it must be proved that precisely circumstances related circumstances are the ones that led to the failure of performing the contract. Therefore, the existence of force majeure is determined on a case-by-case basis, in the light of the particular facts, and for each contract separately.

The force majeure certificate, issued by the Chamber within 20 working days, does not exempt the company from all its obligation. The certificate is additional evidence in negotiating with the other party to the contract regarding the circumstances of the force majeure during the period of their existence, default interest, interest, non-payment of fines, deferral, etc.

General meeting of shareholders

ESTONIA LATVIALITHUANIA
It is advisable not to held physical shareholders meetings until the emergency situation is terminated by the Estonian Government.
Company may make a written resolution that will be signed by all shareholders and must set out the names of shareholders, the number of votes and the time of passing the resolution. It is possible to carry out the voting by “mail in writing” and/or “electronically”.
Under the Commercial law of Latvia, the general meeting of shareholders shall convene at least once a year in order to approve the annual financial statement, to take a decision on distribution of profit, and to elect an auditor.
The time of the Meeting of Shareholders must be set considering the statutory term for submitting the annual financial report - 4 months or 7 months after the ending of the respective financial year.

According to Law on Measures for the Prevention and Suppression of Threat to the State and Its Consequences Due to the Spread of COVID-19, the term for submitting the Annual financial report for 2019 is extended for 3 months.

In connection with coronavirus an amendment to the law was adopted: the Shareholder is entitled to vote in writing for all items in the agenda of the meeting before the meeting takes place. All shareholders may attend the meeting by electronic means as well.
Under the Law on Companies of the Republic of Lithuania, it is a time for convening an ordinary annual General Meeting of Shareholders– it shall be done no later than 4 months after the end of the financial year, i. e. companies whose financial year coincides with a calendar year have to convene the General Meeting of Shareholders by May.

It is recommended to convene the Meeting after the quarantine period. If the General Meeting of Shareholders is already scheduled, there are several ways to proceed:
i) postpone the date of the Meeting,
ii) cancel the Meeting,
iii) invite Shareholders to attend the General Meeting and vote in writing on the general ballot paper by electronic means.

Protection of Personal Data

ESTONIALATVIALITHUANIA
The Estonian Data Protection Inspectorate has found that the employer cannot enforce the employee to disclose whether he or she has symptoms of or has been diagnosed with COVID-19.
However, the employer can request the employee to disclose information whether the employee has visited any risk countries, has had encounters with people who have been infected with COVID-19 and ask a confirmation that the employee does not impose threat to the other employees and to the work environment.
The same as in Lithuania.Although the GDPR provides for a general prohibition on the processing of health data, but in the case of epidemics, there is an exception where the processing is necessary for reasons of public interest in the area of public health.

Without prejudice to the GDPR, the employer has the right to receive the information from its employees about whether they have symptoms of COVID-19, whether they have been diagnosed with COVID-19, whether they have travelled abroad, or have contact with COVID-19 and other information necessary to protect employees, clients and to fulfil their duties as an employer.
This information cannot be made public or documented without reasonable justification (unless required by law to prove the employer's obligations or required by law).

Inability to pay taxes or credit on time

ESTONIALATVIALITHUANIA
Tax and other filings should be made by deadlines set out be the law.
The penalty interest (rate - 0.06% per day) on tax debts has been cancelled for a period 1.03 - 01.05.2020 and will be reduced by half to 0.03% per day after 01.05.2020.
There are also possibilities to apply for the payment of tax arrears in instalments.
The taxpayers might be entitled to use statutory measures to request extensions of the tax payment terms for the maximum period of 3 years.
The taxpayers representing the sectors affected by the crisis have the right to apply for an extension of the term for the payment of taxes, as well as to request that an extension of the term for the payment of taxes is granted to such late tax payments the term for the payment of which has been extended in accordance with Section 24 of the law On Taxes and Duties if the delay in the payment term has occurred due to the spread of COVID-19.
Credit (loan) payments are considered a private contractual obligation and therefore are not postponed by the government order. However, ALTUM, the state development financial institution, is planning to provide two loan programs for entrepreneurs affected by COVID-19: the current assets loan and, credit vacation‘ loan guarantee.
In case of inability to pay taxes on time or if it is clear that the company will not be able to pay taxes on time, the company is entitled to apply to the State Tax Inspectorate (STI) under Article 88 of the Law on Tax Administration of the Republic of Lithuania due to deferral or spreading the time limit for discharging arrears in payments.

In cases where taxpayers are temporarily out of business activities due to the quarantine and coronavirus pandemic, they may be temporarily exempt from submission of tax returns and / or other documents specified in legal acts to the STI submission.
Due to COVID-19 caused quarantine, lot of the time limits for submitting documents, information or declarations to the Registers or STI are extended (mostly for 2 months) as well.

Benefits are as well for companies with customs debts for customs-administered taxes and companies which provide assistance by supporting medical institutions with money, food, security measures and charity as well as assistance provided by fund-raising charities and support funds.
Lenders of real estate and consumer credit are obliged to defer payment of the installments at the request of the borrower when at least one third of the income of the borrower or his spouse is lost.






Managing the situation of employees

ESTONIALATVIALITHUANIA
The parties of the employment contract may agree to organize work remotely. However, the employer cannot force the employee to do telework and the employee cannot demand telework.
The employer and the employee may as well agree to provide either unpaid or paid (additional) leave.
According to the Article 37 of the Employment Contracts Act, the employer may reduce an employee’s pay for up to 3 months over a period of 12 months if, due to unforeseen economic circumstances beyond the employer’s control (for instance as occurred with COVID-19), the employer cannot provide the employee with the agreed amount of work and payment of the agreed remuneration would be an unreasonable burden on the employer. The remuneration may be reduced to a reasonable extent, but not below the minimum wage.
Before reducing pay, the employer must offer the employee other work (including remote work) if possible.
If the continuance of the employment relationship under the agreed conditions becomes impossible due to a decrease in the work volume or reorganization of work (including as a result of COVID-19), an employer may extraordinarily terminate an employment contract (lay-off).
Temporary salary subsidies will be paid to those employees whose employers are significantly impacted by the current extraordinary circumstances (and meet the established criteria).
The amount of the subsidy will be 70% of the average monthly wage of the employee. The maximum amount of the subsidy is €1000. In addition to that, the employer must pay a wage of at least €150 to the employee.
The employee who has returned from abroad shall self-isolate in the residence for the period of 14 days. The employer must ensure remote work option, if possible.
The allowed maximum weekly overtime is increased, stating that it may not exceed 60 hours a week (before – 56 hours) for employees in certain fields, including medical personnel.

In case employer is not able to provide employees with work causing idle-time, employees are entitled to “downtime compensation” equal to the employee’s regular salary.
In case downtime (idle time) occurs in workplaces of merchants of “industries affected by outbreak of Covid-19”, as determined by the Chamber of Ministers, employers are entitled to receive a state funding payment for employees in the amount of 75% of the average income of the employee, but no more than EUR 700 per month.
State paid sick leave is available only to employees tested positive to COVID-19 and employees officially places in quarantine (does not include self-isolation).
Employers are not allowed to unilaterally reduce salaries.
If the employee has returned from abroad or had contacts with persons from countries at risk, the employer must oblige the mentioned employee to work from home and take any additional measures necessary to protect the remaining employees.
The employers can propose to employees to work remotely; declare idle time; grant leave on employee‘s request; working time regime could be changed; or short-time may be introduced.

The costs incurred by employers, while the idle time is declared, will be reimbursed as a subsidy to the employer. Subsidy rates:
i) 90% of the salary calculated to the employee, but no more than EUR 607 gross
ii) 70% of the salary calculated to the employee, but not more than EUR 910.5 gross.

For self-employed persons, the guarantee fund will pay EUR 257 per month, but it will not be paid to those self-employed persons who also work under an employment contract.

Parents, adoptive parents, grandparents and guardians, i. e. employees raising children with regards to closed education institutions may receive sick leave for 60 days, but not longer than until the end of quarantine or the end of the emergency situation.

Restructuring of the company

ESTONIALATVIALITHUANIA
In order to open restructuring proceedings in Estonia the company must substantiate that:
i) the company is likely to become insolvent in the future;
ii) the company requires reorganization;
iii) the sustainable management of the company is likely after the reorganization.
Main advantages of the restructuring proceedings: calculation of a fine for delay or a contractual penalty is suspended until the restructuring plan is approved; enforcement proceedings are suspended; any bankruptcy applications brought against the company are put on hold until the approval of restructuring plan or termination of restructuring proceedings and etc.
Under Section 3 of the Insolvency Law “Legal protection proceedings (LPP) are an aggregate of measures of a legal nature, whose purpose is to renew the ability of a debtor to settle their debt obligations, if a debtor has come into financial difficulties or expects to do so”.
LPP is carried out according to the Plan of Measures of Legal Protection Proceedings developed by the debtor and confirmed by creditors and court.

Advantages of the LDD process: possibility to postpone payment obligations; possibility to increase the basic capital of a debtor - capital company; possibility to erase or suspend the side claims, such as accrued interest for delayed payments and contractual penalties.
Specific regulations apply to handling tax debts in the LPP, including ban to reduce or erase the basic tax debt, divide the basic tax debt in instalments or postponing the payment for more than 6 months, etc.
The maximum term for the execution of LPP is 2 years, which by consent of creditors may be extended for another 2 years.

Restructuring is possible when the company is insolvent, i. e. the company is unable to fulfil its property obligations in due time or the liabilities of the company exceed the value of its assets, but has current transactions and the ability to restore solvency in the future.

The restructuring process provides some advantages, such as: a legal person to reach an agreement with the interested creditors helping to save a business (securing these creditors in the front row); default interest and interest payment during restructuring process is suspended; the Enterprise Insolvency Law provides the possibility of cancelling bankruptcy case and initiating restructuring process and vice versa.
The Enterprise Insolvency Law also provides the possibility to sell a legal entity that is no longer able to fulfil its obligations as a property complex or to extract a substantial part of a legal entity, thus enabling the investor to "revive" the chosen business. It is also beneficial to the seller, creditors and employees of the company.
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Read here all the relevant info on UBO (Central Register of Beneficial Owners) in 26 jurisdictions with this Telfa country-by-country summary!

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

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TELFA Fall Conference

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

 

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TNG meeting 2019

This year TELFA Nordic Group meeting took place in Vilnius, Lithuania on 24th 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.

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April 12, 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.
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The International Conference „Current Challenges of Estonian and European Insurance Law” sponsored by LEXTAL

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

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Country by country guide of commercial leases

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.

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TELFA Fall Conference 2018

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

Attorney at Law / Partner
lina@lextal.lt
+370 5210 2733

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„FinTech Inn“ 2018

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/

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Amendments to regulations on notification on concentration clearance in Lithuania. Concentration clearance permits will be required less frequently

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

Attorney at Law / Partner
lina@lextal.lt
+370 5210 2733

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