Transactions Under MART’s Control: When Is Approval Needed and When Is Notification Enough?
- When Is MART Approval Necessary?
- What Does the "First Criterion" Mean?
- Contact our lawyer for more details
Certain common business decisions—appointing a manager, selling shares or stakes, leasing property, etc.—may fall under the control of the Ministry of Antimonopoly Regulation and Trade of Belarus (MART). In some cases, these decisions require prior MART approval, while in others, it is sufficient to notify MART afterward.
Most frequently, the question of obtaining MART approval or notification arises during the sale of shares or stakes. Let’s clarify when MART approval is necessary and when notification suffices.
When Is MART Approval Necessary?
Let’s analyze the criteria. MART approval is required if two key criteria are met simultaneously:
OWNERSHIP SHARE AFTER THE TRANSACTION
- Acquiring more than 25% of voting shares/stakes when the acquirer previously owned less than 25%
or - Acquiring more than 50% of voting shares/stakes when the acquirer previously owned more than 25%, but less than 50%
FINANCIAL OR MARKET INDICATORS OF THE ACQUIRER OR TARGET
For the acquirer or the company whose voting shares/stakes are being acquired (the target), any of the following conditions apply:
- The balance sheet value of assets for the acquirer or target on the most recent reporting date exceeds 400,000 base units (16,800,000 BYN)
or - Revenue from the sale of goods (works, services) by the acquirer or target for the previous year (excluding VAT) exceeds 800,000 base units (33,600,000 BYN)
- or
- The acquirer or target is included in either the State Register of Dominant Market Entities or the State Register of Natural Monopolies.
Example
Company A acquires 26% of shares in Company B. Previously, Company A did not own shares in Company B. Company A’s revenue for the last fiscal year amounts to 40,000,000 BYN. Result: The transaction requires MART approval.
When Is MART Approval Not Required, but Notification Mandatory?
In some cases, prior MART approval for acquiring shares/stakes is not required, but MART must be notified of the completed transaction.
| Case 1: Transactions Within a Single Group of Entities (by the "First" Criterion) Notification is required if voting shares/stakes are acquired by entities that belong to the same group under the so-called "first" criterion. |
What Does the "First Criterion" Mean?
This criterion determines whether companies and their owners form a single group for antimonopoly regulation purposes.
Who Is Considered Part of a Single Group Under the First Criterion? If a physical or legal entity:
- Directly owns more than 50% of the votes for the voting shares/stakes in the company;
- Controls more than 50% of the votes through powers granted by others (e.g., through an agreement).
Example
The sole participant in Company A is Individual B, who owns 70% of the votes for the stakes in the charter capital. The sole participant in Company B is the same Individual B, who owns 100% of the stakes in the charter capital. Transaction: Individual B sells 70% of stakes in Company A’s charter capital to Company B. Company B’s balance sheet value of assets as of the most recent reporting date amounts to 38,000,000 BYN. Result: Since Individual B already controls both companies (Individual B and Company B belong to the same group under the "first" criterion), the transaction does not require MART approval. However, MART must be notified after its completion.
| Case 2: Unified Controlling Entities Notification is required if voting shares/stakes are acquired by entities where more than 50% of the votes for those shares/stakes are collectively controlled by the same individuals/entities. |
Example Company B:
99% of stakes belong to Company B itself (held on its balance sheet) and are thus not counted for voting purposes.
1% of stakes belong to Individual A, who controls 100% of the votes.
Company A:
100% of stakes belong to Individual A, granting them 100% of the votes.
Transaction: Company A buys 99% of stakes in Company B’s charter capital. Company B’s revenue for 2024 amounts to 50,000,000 BYN. Result: Since Individual A controls both companies (being the participants of both Company A and Company B, with a combined voting share exceeding 50%), the transaction does not require MART approval. However, MART must be notified of the completed transaction.
Authors: Iryna Andryieuskaya, Mikita Talkanitsa
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