1) Is a merger control regulation in force?

Yes. Merger control is governed by Chapter 4 of the Latvian Competition Law (2001). In Latvia, merger control was introduced first by the Law on Competition and Restriction on Monopoly Activity in 1991.

2) Which authorities enforce the merger control regulation?

The Competition Council of the Republic of Latvia enforces the Competition Law including the merger regulation contained therein.

Decisions of the Latvian Competition Council may be appealed to the Administrative Regional Court.

3) Relevant regulations and guidelines with links:

The merger regulation is contained in Chapter 4 of the Competition Law. More detailed rules may be found in various by-laws adopted by the Latvian Government. Links to the relevant legislation, guidelines and forms are listed here (please note that the English language version might not contain the latest amendments):

4) Does general competition regulation apply to mergers or ancillary restrictions?

Generally, restrictions on competition that are ancillary to a merger, for instance a standard non-competition obligation imposed upon the seller, are considered inherent parts of the merger and are not subject to separate scrutiny under general competition regulation.

However, restrictions that go beyond what may be considered ancillary are governed by the general prohibition of anti-competitive agreements. The rules of the Latvian competition law must be applied in conjunction with the pertinent provisions of the EU competition law.

The general competition regulation may – in special circumstances – be used to oppose a transaction as such (not merely a specific restriction in the transaction documents). For instance, the general prohibition on anti-competitive agreements may be applied to full-function joint ventures that have coordination of the market behaviour of the parent companies as their object or effect. Furthermore, in rare cases, a dominant undertaking may be held to abuse its dominance by acquiring a competitor. These scenarios are probably only of interest if the transaction does not meet the thresholds for merger filing.

5) May an authority order a split-up of a business irrespective of a merger?

No.

6) Other authorities that also require merger filing or may prohibit transaction
(Note that this may not be an exhaustive list and that industry-specific legislation should always be considered. Furthermore, a merger will often require change of registrations with – but not approval from – the companies register, land register and authorities that have issued permits for the activities of the merging parties.)

In several sectors other authorities need to be informed about intended mergers. However, this does not waive or replace a notification to the Competition Council but forms an additional obligation. Supervision by other authorities normally concerns sector-specific risks of the merger but not competition law.

For instance, mergers involving financial businesses such as banks or credit institutions, insurance companies and collective investment undertakings require approval from the Financial and Capital Market Commission as the supervisory authority.

7) Are any parts of the territory exempted or covered by particular regulation?

No.

8) Is merger filing mandatory or voluntary?

Merger filing is mandatory if the thresholds are met or if the Competition Council requires the parties of a merger to notify a transaction using its own right to initiate investigations if other specific criteria are met (see topic 9).

9) Is there a general definition of transactions subject to merger control?

Yes, according to the Competition Law a merger is subject to merger control if it constitutes a merger in the meaning of the Competition law, namely:

1. the merging of two or more independent market participants in order to become one market participant (consolidation);
2. the joining of one market participant to another market participant (acquisition);
3. where one or more individuals who already have a decisive influence over another market participant acquire part or all of the fixed assets of another market participant or the right to use such, or a direct or indirect decisive influence over another market participant. An acquisition of assets or of the right to use such assets is considered to be a merger if the acquisition of the assets or of the right to use such assets increases the market share of the acquirer; or
4. where all of the assets of two or several market participants are acquired simultaneously (or rights to use such assets are obtained) by one individual or by several individuals jointly.

Note that certain transactions of a special nature are not considered to be mergers subject to merger control (see topics 19 and 20).

10) Is "change of control" of a business required?

Yes, generally a merger will only be considered to take place if the transaction results in a change of control over a business.

However, transactions that result in the establishment of a new business (a joint venture) controlled by two or more businesses or persons already controlling one or more businesses will also constitute a merger.

11) How is “control” defined?

“Control” – or “decisive influence” in the meaning of Competition Law – is considered as any rights arising from laws or transactions which entitle a legal entity or individual to decisively influence the activity of an economic undertaking. This includes:

1. control over more than a half of the capital assets or economic activity, including property rights;
2. the opportunity to exercise more than 50 % of the voting rights;
3. the opportunity to appoint more than a half of the members of the administrative bodies (e. g. Shareholders’ Meeting, Supervisory Council, Management Board) or rights-holders (unions thereof), which legally represent the market participants;
4. the right to manage the affairs of the market participant – including the right to exercise the blocking power, not restricting oneself only to the management of the economic activity.

12) Acquisition of a minority interest

Acquisition of a minority interest that does not result in anyone gaining control over a business is not subject to merger control.

However, if the acquisition of a minority interest confers on someone de facto control of a business, the transaction will be subject to merger control. This is, for instance, the case if the buyer is provided with veto rights over decisions that are essential for the strategic behaviour of the business or if the remaining shares are spread over a large number of shareholders and the acquired shares de facto confer on the buyer a decisive influence on general meetings.

13) Joint ventures/joint control – which transactions constitute mergers?

The following transactions involving businesses subject to joint control may be subject to merger control if the joint venture is "full function", i.e. it performs, on a lasting basis, all the functions of an autonomous economic entity:

1. Establishment of a joint venture
2. Change from joint to sole control
3. Dissolution – if (part of) the business of the joint venture is transferred to one or more of the businesses controlling the joint venture or to a third part
4. Change in or extension of the activities of a joint venture – if further assets, contracts, know-how, rights etc. are transferred to the joint venture to form the basis for the new activities.
5. Change in participants/owners – for instance, if one of the controlling businesses sells its share in a joint venture to another business, or if one of the controlling businesses is acquired by another business. In the latter case, the competition authorities may consider that the transaction results in two separate mergers and that these should be assessed separately with respect to who are parties to the transaction and whether the thresholds for merger filing are exceeded.

A joint venture that is not “full function”, because it does not, on a lasting basis, perform all the functions of an autonomous economic entity, is not subject to merger control but may be scrutinized under the general prohibition on anti-competitive agreements. Whether a joint venture is considered “full function” or merely “cooperative” depends on the level of the joint venture’s dependence on its parents and to what extent the joint venture has an independent presence in the market.

14) Which thresholds decide whether a merger notification must be filed?
(Unless explicitly stated otherwise, the thresholds described under one threshold category are not cumulative with those described under another category. Thus for instance if there is a market share threshold and a turnover threshold, it is sufficient to meet one of these, unless stated otherwise.)

a) Turnover thresholds

A merger notification must be filed if the aggregate turnover in Latvia of the participants in the merger in the last financial year has been not less than 30 million euros, and the turnover in Latvia of at least two participants in the merger in the last financial year has been not less than 1.5 million euros for each.

b) Market share thresholds

If the turnover thresholds above are not exceeded, the Competition Council is entitled - at its discretion - to require filing of a merger notification (i) if the merging parties operate in the same market and their aggregate market share in the relevant market exceeds 40% and (ii) the merger might result in or strengthen a dominant position, or the competition in the relevant market might be substantially reduced.

c) Value of transaction thresholds

N/A

d) Assets requirements

N/A

e) Other

N/A

15) Special thresholds for particular businesses

The thresholds stated in topic 14 apply to all transactions.

16) Rules on calculation and geographical allocation of turnover

Rules on the calculation and geographical allocation of turnover are contained in the Regulation No. 800 of the Cabinet of Ministers. This is interpreted in accordance with the European Commission’s Consolidated Jurisdictional Notice and the EU case law.

The net turnover of an undertaking participating in a merger must be calculated by adding up the income from the activities, the sale of goods and the provision of services of the participating undertaking in the territory of Latvia during the previous financial year, and by deducting sales discount and other allocated discounts, as well as the value added tax and other taxes directly related to the turnover.

Turnover is calculated not only from the participating undertakings but also from any undertakings associated with each participating undertaking, including any direct or indirect parent companies, subsidiaries, joint ventures and subsidiaries of parent companies. However, any group internal turnover must deducted, so that double calculation of turnover is avoided.

The turnover of a joint venture has to be calculated on the basis of the turnover of companies which will have control over the joint venture.

If only a part of an undertaking or of its assets is acquired, and this part is an autonomous commercial unit, with its own turnover in the respective market, the turnover is calculated on the basis of the turnover of the undertaking gaining control and the turnover of the part of the undertaking respectively of the assets acquired.

Turnover includes also any received public funding received if such public support is directly related to the company’s sales or provision of services.

Generally, turnover from products and services sold within the territory of Latvia is considered as a Latvian turnover.

Is the seller/seller's group turnover relevant in a standard acquisition of sole control?

No.

17) Special rules on calculation of turnover for particular businesses

Insurance undertakings
The turnover of insurance companies must be calculated, taking into account the gross value of signed premiums which includes all sums received and to be received for insurance contracts (also reinsurance premiums) entered into by an insurance company or entered into on behalf thereof, deducting the tax payments and state duties or other mandatory payments, imposed on an insurance premium or the total amount of premiums.

Credit institutions
The turnover of credit institutions must include the income (from interest, from securities, commissions, net profit acquired from financial operations, and income from other operations) provided in the annual reports and consolidated annual reports of credit institutions.

18) Series of transactions that must be treated as one transaction

One or several transactions, which take place among the same undertakings within two years and in the result of which one undertaking obtains assets (fully or partly) of two or more other undertakings or the right to use them, must be deemed as one merger occurring on the day when the last transaction takes place.

In addition, the Competition Council is guided by the principles enshrined in Part 1.5. of the European Commission’s Consolidated Jurisdictional Notice.

19) Temporary change of control

Merger filing is required for each change of control.

If change of control is only temporary, this fact should be mentioned. If change of control occurs in several steps, the Competition Council should be informed about all planned transactions, the temporary nature of the change of control and the planned final result in order to enable the Competition Council to properly evaluate whether the transaction results in a merger or not.

20) Special industries, owners or types of transactions

Under the Competition Law no merger notification needs be filed where:

1. credit institutions or insurance companies the activities of which include transactions with securities for own or other funds, have time-limited ownership rights in an undertaking, which they have acquired for further sale, if such credit institutions or insurance companies do not utilise voting rights created in order to influence the competitive activities of the undertaking, or utilize the voting rights only in order to prepare the divestment of fixed assets or relevant securities, or a part thereof, and such divestments occur within one year after the creation of voting rights. The Competition Council may extend the time period upon application, if it is proven that divestment within one year was not possible.
2. a liquidator or an insolvency administrator acquires a decisive influence in case of the liquidation or insolvency of an undertaking.

Since Latvian competition law is applied in the light of the EU competition law, there is no obligation to file a notification where the transactions are carried out by a financial holding company (as defined in the EU Annual Accounts Directive), provided that the voting rights held by such company are only exercised to retain the full value of the acquired undertaking and not to determine its competitive conduct.

21) Transactions involving only foreign businesses (foreign-to-foreign)

There is no exemption for foreign-to-foreign transactions. All transactions that meet the thresholds are subject to merger control regardless of where the undertakings concerned are registered, operate or own assets.

22) No overlap of activities of the parties

There is no exemption for transactions with no overlap of activities. 

23) Other exemptions from notification duty even if thresholds ARE met?

As a consequence of the EU "one-stop shop" principle, the Latvian merger control rules do not apply if the thresholds for the EU merger control are exceeded and the European Commission has not referred the merger to the Latvian Competition Authority.

24) May a merging party file voluntarily even if the thresholds are not exceeded?

Yes. If the thresholds are not met, the market participants are entitled to:

1. request a written confirmation that the Competition Council will not exercise the rights to request at its discretion that the participants in the merger to submit a merger notification (see topic 14b); or
2. upon its own initiative, submit to the Competition Council a full-form or short-form merger notification.

25) May the competition authority request a merger notification or oppose a transaction even if thresholds are not met?

Yes, if the merger might result in or strengthen a dominant position, or the competition in the relevant market might be notably reduced, provided the aggregate market share of the merging entities in the relevant market exceeds 40% (see topic 14b).

In addition, the Competition Council may request a merger notification or oppose the transaction in cases of referral from the European Commission (see topic 27).

26) Referral within the jurisdiction

N/A

27) Referral from another jurisdiction

The Latvian Competition Council cannot handle mergers based on referrals from other jurisdictions, except referrals from the European Commission.

The European Commission may refer a merger or a part of a merger to the Competition Council. In that case, the Competition Council may handle the merger even if the thresholds for a merger notification in Latvia are not met. In case of a partial referral, the European Commission will handle certain (international) aspects of the merger, whereas the Competition Authority will handle the strictly Latvian aspects.

28) Referral to another jurisdiction

If the thresholds for a merger notification are met in at least three EU member states, the parties may request that a single merger notification is made to the European Commission instead of notifications to each of the relevant national authorities (see topic 29).

Except for referrals to the European Commission, a merger cannot be referred to competition authorities in other jurisdictions.

29) May the merging parties request or oppose a referral decision?

Referral to the Competition Council:
If a merger is subject to EU merger control, the parties may – prior to an EU merger notification – request that the merger is referred to the Latvian Competition Council, provided that the merger may significantly affect competition in a distinct market in Latvia. If the Competition Council does not oppose such referral, the European Commission may decide to refer the merger in whole or in part.

The European Commission must decide whether to refer a merger within 25 business days of receipt of the request (reasoned submission).

The European Commission may also, on its own initiative or upon request from the Latvian Competition Council, decide to refer to the Competition Council a merger that has already been notified to the European Commission. Such a referral decision must be taken within 65 business days after the merger notification has been filed. The merging parties cannot oppose such referral decision.

Referral from the Competition Council
If a merger is not subject to EU merger control but is subject to merger control in Latvia and at least two other EU member states, the parties may request that a single merger notification is made to the European Commission instead of notifications to each of the relevant national authorities. If none of the relevant authorities oppose the referral, the European Commission will handle the merger notification and no notifications are needed in Latvia or any other EU member state. If any of the national authorities in question oppose the referral within 15 business days, the merger must be notified to each of the relevant national authorities.

30) Stage of transaction when notification must be filed

A merger notification must be filed before implementation of the transaction. Submission of notification should be made after submission of a proposal to conclude an agreement, to acquire shares, securities or assets, after an instruction to conclude an agreement, after conclusion of an agreement or after acquisition of an ownership right or a right to dispose of assets.

The Competition Council will also process the notification submitted to it if the parties can demonstrate a good faith intention to conclude an agreement or to submit a public offer to acquire shares of a target company.

31) Pre-notification consultations

The Competition Council encourages pre-notification consultations. Especially in complex merger transactions pre-notification consultations are advisable. The Competition Council – generally within five business days (depending on availability) – provides its comments and recommendations on the draft merger notification.

Deadlines for formal review of the merger notifications by the Competition Council will only start from the moment when a complete formal final notification, which fulfils all legal requirements, has been filed with the Competition Council.

32) Special rules on timing of notification in case of public takeover bids and acquisitions on stock exchanges

Mergers that are a consequence of acquisition of securities on a stock exchange or a public takeover bid must be notified after the acquisition/publication of the takeover bid.

Note that special regulations apply for handling of acquisitions on stock exchanges and public takeover bids, including requirements for notifications to the Financial and Capital Market Commission as a supervisory authority and to the operator of the regulated market.

33) Forms available for completing a notification

There are no specific forms. The content of the full-form notification and short-form notification are described by the Regulation No. 800 of the Cabinet of Ministers.

34) Languages that may be applied in notifications and communication

Latvian.

Documents must be enclosed to the notification in their original language. If the original language is a foreign language, their certified translations also need to be attached. Translations of public documents must be certified by the translator before a notary, while translations of private documents can be certified by the translator without involving a notary.

35) Documents that must be supplied with notification

The following documents must be supplied with a full-form or short-form merger notification:

1. powers of attorney (the right of the authorised person to represent one or all participants of a merger during submission and examination of the notification shall be indicated in powers of attorney);
2. articles of association of each participating undertaking;
3. copies of annual reports of the last financial year of each participating undertaking;
4. a certification of the veracity of the submitted information, displayed on the notification and certified – by means of a signature – by the applicant himself;
5. copies of contracts between the participating undertakings, copies of decisions of administrative institutions, copies of the minutes of agreements, a copy of a proposal to participate in a bid or copies or other documents, which are accepted in relation to the merger and confirm the progress of the merger process.

In addition, the applicant may enclose documents reflecting information regarding relevant markets, as well as the markets affected in relation to competition conditions, the existing and potential competitors and market conditions.

Depending on the type of merger, additional documents may also be relevant.

36) Filing fees

37) Is implementation of the merger before approval prohibited?

Yes. The merging businesses must be run separately and independently until the merger has been approved.

Please also see topic 32 regarding public takeover bids and acquisitions on stock exchanges.

38) May the parties get permission to implement before approval?

Yes, the Competition Council may exempt from the prohibition on implementation before approval, but such occasions are very rare and not likely to be granted in the majority of cases.

39) Due diligence and other preparatory steps

Due diligence must be conducted in such a manner that no sensitive market information is used for purposes other than assessing the viability of the merger. No explicit exemption is required for standard due diligence. The parties should nevertheless carefully select the manner of due diligence and the information provided to avoid prohibited agreements and concerted practices.

There are no guidelines on what may be considered acceptable preparatory steps. Each case has to be evaluated separately.

40) Veto rights before closing and "Ordinary course of business" clauses

An "ordinary course of business" clause that prevents the target company from taking decisions outside the course of its ordinary business until the closing date is commonly practiced and generally considered acceptable.

However, it must be assessed on a case-by-case basis to what extent the parties may provide each other with veto rights concerning any decisions in their respective businesses.

41) Implementation outside the jurisdiction before approval – "Carve out"

There are no specific rules on “carve out” of the Latvian part of a transaction to avoid delaying implementation elsewhere pending approval in Latvia.

Whether it is possible to carve out the Latvian part of a transaction must be assessed on a case-by-case basis.

42) Consequences of implementing without approval/permission

43) Phases and deadlines

44) Tests or criteria applied when a merger is assessed

It is assessed whether the merger will "result in creation or strengthening of a dominant position or significant impediment of competition in a relevant market".

A range of factors may be taken into consideration, including efficiencies that may be gained from the merger (efficiency defence) and whether one of the parties is likely to fail as an independent business (failing firm defence).

45) May any non-competition issues be considered?

No.

46) Special tests or criteria applicable for joint ventures

The assessment for joint ventures is the same as for other mergers, but if the joint venture also has coordination between the owners as object or effect, then whether such coordination is acceptable under the general prohibition against anti-competitive agreements will also be assessed.

47) Decisions and remedies/commitments available

A merger may be approved, approved with conditions/commitments or prohibited.

If the Competition Council expresses serious concerns about a merger, it is important that the parties enter into negotiations as to possible commitments before the end of Phase II, as the Council will normally only consider approval with conditions if the parties have offered commitments.

Commitments may take any form and they can be either structural or behavioral and with or without time limitations.

The authority may revoke approval if at any time it becomes aware that incorrect or misleading information has been provided by the parties or if the parties do not comply with the conditions/commitments contained in the approval.

If a merger has been implemented without approval, the Competition Council is entitled to prohibit the merger and order a separation of the businesses or any other measure capable of restoring competition.

48) How and when will details about the merger be published?

The Competition Council will make a public announcement on its webpage when it has received a complete merger notification and again when a decision has been taken.

After receipt of notification, the Competition Council publishes on its webpage information on the receipt of respective notification (including a brief description of the type of the merger), the date of its reception and the parties to the merger. Duration of review of the notification is also indicated. To protect the trade secrets, the parties are entitled to request the Competition Council not to publish a certain range of information that constitutes trade secrets.

Announcement of a decision will include a non-confidential version of the decision. The level of detail of decisions varies considerably.

49) Access to the file for the merging parties and third parties

The merging parties:

Undertakings participating in a merger and controlling persons can access the file which includes the materials for evaluation of the merger, except for documents with restricted access and information that contains business or professional secrets of other undertakings.

Third parties:

Third parties do have access to the file. This first and foremost applies to undertakings affected by the proposed merger. Besides, any person can request access to the merger file based on the Freedom of Information Law. Information which has been classified as restricted information by the Competition Council (upon request of one of the participants to the merger) is not available to third parties.

50) Who can appeal and what may be appealed?

Undertakings participating in the merger and third parties, who believe that their rights protected under the competition law were infringed by a decision, can appeal any decision of the Competition Council to the Administrative Regional Court.

An appeal should be submitted to the Court within one month from the entrance into force of the decision of the Competition Council.

For the appeal (unlike other administrative proceedings having three court instances, the litigation in competition related matters has only two), a ruling of the Administrative Regional Court may be appealed to the Administrative Cases Department of the Latvian Supreme Court.