Roschier Holmberg logo

May-June 2007
Estonia, Latvia, Lithuania, Finland, Sweden

RoschierRaidla News

 
   
Inside this Issue:

    Estonia
   
    Latvia
   
    Lithuania
   
    Finland
   
    Sweden
   
 
Estonia
Estonian National Broadcasting Act Adopted   
 
On 18 January 2007 the Estonian Parliament (Riigikogu) adopted the Estonian National Broadcasting Act. Under the new act the public television and radio organizations of Eesti Televisioon and Eesti Raadio, which to date had been operating as separate legal entities are merged and become a single new public legal entity, called the national broadcast entity (Eesti Rahvusringhääling). The new act prescribes the legal status, objective and tasks of the national broadcast entity, as well as the organization of its funding, management and activities. Based on the law, the national broadcast entity is obligated to help satisfy related goals set forth in the Estonian Constitution. As a rule, the national broadcast agency shall not broadcast advertising or tele-shopping and shall not accept support in the form of sponsorship. The law entered into force on 1 June 2007.

Toptop

  
Changes in Taxation Act
 
On 15 February 2007 the Riigikogu passed the Taxation Act Amendment Act. Most importantly, the amendments allow undertakings to seek binding preliminary rulings concerning the tax treatment of anticipated transactions from the Tax and Customs Board. This comes into effect at the beginning of 2008. The aim of the new approach is to offer taxpayers more legal certainty and help them reduce tax risks related to new transactions and combinations of transactions. Undertakings are free to choose whether to follow the ruling or not, but if they do, the tax authority must observe the ruling. The tax authorities also must set forth on their website summaries of such preliminary rulings that describe transactions of general importance or which have been the object of repeated requests for preliminary rulings. At the same time the tax authorities must maintain confidentiality and may not publish data that could lead to the disclosure of persons involved in any individual transactions. Undertakings may not seek preliminary rulings in matters pertaining to determining the value of transactions between associated persons. Under the law the tax authority may refuse to issue a preliminary ruling in the event that the application of the legal provisions is clear, the transaction is hypothetical or the purpose of the transaction is tax evasion. The fee for review of an application for a preliminary ruling is 1 200 EEK (c.a. 77 EUR). In addition, the law now allows the Tax and Customs Board to delete at its own initiative from the register sole proprietors who are not actually engaged in business activities. The tax authorities are also granted the right to question any person who is present on the premises on the basis of an observation, and if reasonable doubt exists, to submit a bankruptcy petition before the performance of enforcement actions by the tax authorities or a bailiff. Most of the amendments enter into force on 1 July 2007, some provisions are in force from 16 March 2007 and some shall enter into force on 1 January 2008. 

Toptop

  
Provisions of Electricity Market Act Amended
 
On 21 February 2007 the Riigikogu passed the Electricity Market Act Amendment Act. The objective of the amendment is to transpose European Union directives 2001/77/EC and 2004/8/EC and to promote generation of electricity produced from renewable energy sources as well as cogeneration, while maintaining the security of supply of the Estonian electricity system. A further aim is to harmonize the provisions of directive 2003/54/EC concerning common rules for the internal market in electricity. Among other things, the amendments lay out a development plan for the electricity sector, clarify the rights of eligible consumers, as well as issues pertaining to activity licenses of network service providers. Under the new provisions it is possible to launch a tendering procedure in case the system of granting activity licenses fails to bring a sufficient number of producers to the electricity market to meet consumption demand. Producers using wind as their source of energy shall have to ensure the electricity balance on an equal footing with all other market participants. Legislation regulating guarantees of origin was introduced as well. Pursuant to the law, transmission network operators must issue a guarantee of origin to the producer upon the request of the latter, certifying the generation of electricity from a renewable source of energy or by using high-efficiency cogeneration. The law also introduces new principles for supporting entry into the market of producers using renewable sources of energy and cogeneration. Under the new scheme producers may continue to use the obligation to purchase or sell electricity on their own and receive a subsidy for electricity transferred to the network and sold. The amendments also introduce the possibility for commercial consumers to reach agreement with sellers concerning more suitable selling conditions, which differ from standard terms and conditions. Under the new rules network operators and sellers must begin disclosing certain prices of electricity sold as well as various other data on their websites. Most of the amendments entered into force on 1 May 2007, with some coming into effect from 1 January 2009 and 1 January 2010.

Toptop

  
Provisions Governing Utility Works and Networks Specified
 
On 21 February 2007 the Riigikogu adopted provisions concerning utility works and networks. A provision was added to the General Part of the Civil Code Act to the effect that utility works or utility networks are deemed to be separate from immovables. The rights and obligations pertaining to accommodating utility works and networks are introduced both for the owners of immovables and for the owners of utility works and networks. Among the new developments is a provision for payment for accommodating utility works. The Building Act specifies provisions concerning the issuing of building permits and authorizations for use. Utility networks must be entered in the state construction register by 1 April 2009 at the latest. The general principles of planning utility works and networks were specified in the Planning Act. The amendments entered into force on 26 March 2007.

Toptop

  
Value Added Tax Act Amended
 
On 8 February 2007 the Riigikogu adopted the Value Added Tax Act Amendment Act. The amendments introduce legislation, which allows undertakings meeting certain conditions to state value added tax due on imported goods in their value added tax return. Prior to this change value added tax on imports had to be paid at the moment of releasing the goods for free circulation. Certain chemical pest control agents will now be taxed at the regular 18% rate instead of the current 5%. A value added tax exemption was introduced to services provided as part of their professional activities by dental technicians. Further specifications were added with respect to requirements for invoices. The provisions regulating the placing of supply of electronically supplied services as well as the special regime of taxation of such services are now valid indefinitely. The amendments entered into force on 1 March 2007, except those, which await entry into force on 1 January 2008.

Toptop

  
New Personal Data Protection Act Adopted
 
On 18 February 2007 the Riigikogu passed the Personal Data Protection Act. The purpose of the Act is to protect the fundamental rights and freedoms of natural persons with regard to processing of personal data, in particular the inviolability of private life. The law specifies sensitive personal data as a type of personal data requiring special protection. The conditions for registering the processing of sensitive personal data have been simplified. As a rule, processing of personal data requires the consent of the data subject, which may be partial or conditional. A separate provision prescribes the right of the data subject to prohibit all processing of data concerning the data subject. As a rule, processing of personal data is permitted without the consent of the data subject if processing is conducted in coded format. The rights of data subjects include the right to receive information and personal data pertaining to the data subject, the right to demand termination of processing or amendment of personal data. The act enters into force on 1 January 2008.

Toptop

  
 
For further information please contact Raino Paron, Partner at Raidla & Partners in Tallinn.
 
Latvia
Legislative Measures Introduced to Combat Inflation in Latvia
  
On 17 May 2007 the Saeima (the Latvian Parliament) amended a number of laws in order to implement certain legislative measures under the government’s anti-inflation program. Among others, amendments were made to the Law on Individual’s Income Tax, Law on Enterprise Income Tax, Consumer Protection Law and Law on Credit Institutions. The amendments entered into force on 12 June 2007. While the practical intricacies of the application of the new provisions still remain to be tested, a number of uncertainties and interpretation difficulties already have arisen.

Amendments to the Law on Individual’s Income Tax

Amendments to the Law on Individual’s Income Tax primarily concern taxation of income from the sale or transfer of real estate. Thus, the law “On Amendments to the Law on Individual’s Income Tax” has withdrawn the existing tax exemption under which capital gains from the sale of an individual’s real estate were not taxed if the real estate was owned by the individual for at least 12 months before its sale, and has introduced a new exemption under which the capital gains would only be tax exempt if the real estate was owned by the individual as its private property for at least 60 months (as of the date of registration of the individual’s title to the real estate in the Land Register) and the individual had its declared place of residence (domicile) in that real estate for at least 12 months prior to the date of transfer. The taxable amount of capital gains from the sale or transfer of real estate will be determined by the difference between the real estate transfer price and the real estate acquisition price and certain acquisition costs (notary fees, state duties, court fees and duties payable in inheritance cases, and other similar expenses).

In the period until 1 July 2010 the new capital gains tax will not be applicable to sale of real estate which was owned by the taxpayer on or before the date the new tax regime entered in force, i.e. on or before 12 June 2007, provided that the tax payer’s title to the land has been duly registered in the land register prior to 12 June 2007 or, if not, that the title will be duly registered by 31 December 2008 or any of the other special conditions set out in the transitional provisions of the Law on Individual’s Income Tax are applicable.

Taxation of capital gains will also apply to capital gains from sale or transfer of shares in certain real estate companies. Latvian tax residents will be required to pay income tax on the capital gains obtained in sale or transfer of shares or other form of participation in such Latvian or foreign companies or other parties the asset value of which during the year when the shares (or other form of participation) are sold, or during the immediately preceding year, by more than half (50%) consisted of, directly or through participation in one or several Latvian or foreign companies, the value of the real estate in Latvia. The determination of whether or not the income obtained from the sale of shares is subject to capital gains tax has to be made based on the company’s balance sheet as at the beginning of the respective year. While there will be no difficulty to make the determination when the shares are sold by a person which has incorporated and operated or controlled the business shares in which he/she is selling, it is not clear how the new capital gains tax will be applied, for example, to sale of shares in listed companies by a minority shareholder, or in other cases when the selling shareholder does not have sufficient data available to make the relevant calculations, especially in respect of the value of indirectly held real estate.

The same rules will also apply to taxation of capital gains of non-residents.

New tax exemption has been introduced in respect of income obtained in the sale of investment fund certificates. In addition, costs of acquisition of investment fund certificates of the funds established in Latvia or other EU or EEA member state will be tax deductible if the respective investment certificates have been held by the tax payer for at least 60 months, provided that these costs do not exceed 20% of the tax payer’s annual taxable income.

Amendments to the Law on Enterprise Income Tax

The Law on Enterprise Income Tax has been amended to exclude from the tax deductible business expenses the costs of acquisition of motor vehicles which qualified as "representative cars", as well as to introduce a withholding tax on certain capital gains obtained from the sale of shares.

For the purposes of the Law on Enterprise Income Tax a car will be deemed to be a representative car if it has not more than 8 seats, and the value of which (excluding VAT) is more than
25 424 LVL  (approximately 36 175 EUR). The rule will not apply to certain types of special transport, as well as to cars acquired by authorized dealers for representation purposes. According to the amendments the costs of acquisition of representative cars, including acquisition in financial leasing, as well as their maintenance and service costs will not qualify as a tax deductible business cost, except if the tax payer is engaged in the business of leasing vehicles and more than 90% of its annual revenue is obtained from the business of leasing vehicles.

The law has been supplemented with a new provision on withholding tax on capital gains obtained by non-resident legal entities from the sale of shares or other form of participation in Latvian or foreign companies or other parties the asset value of which during the year when the shares (or other form of participation) are sold, or during the immediately preceding year, by more than half (50%) consisted of, directly or through participation in one or several Latvian or foreign companies, the value of the real estate in Latvia. The applicable withholding tax will be 2% of the income obtained. The withholding tax will not apply if the respective company is a company whose shares are traded in a regulated market in Latvia or in another member state of the EU or EEA, or if the income is obtained in sale of investment certificates of investment funds established in Latvia or in another EU or EEA Member State.

Amendments to the Law on Credit Institutions

The Law on Credit Institutions has been amended in order to create a legal basis for the establishment of the Borrowers and Guarantors register. The register will be maintained by the Bank of Latvia based on the data collected by the Bank of Latvia from all banks and their subsidiaries engaged in financial services involving a credit risk. All banks and their subsidiaries engaged in financial services involving a credit risk will be subject to the Bank of Latvia’s requirements concerning delivery of information for the purposes of the Borrowers and Guarantors register. The above requirements, however, will not apply to non-banking entities like leasing companies and consumer credit institutions which are not owned or controlled by a bank.

The Amendments to the Law on Credit Institutions will also introduce new penalties payable by credit institutions in respect of breach of certain credit restrictions. Thus, any credit institution which has granted a loan to a consumer
exceeding an amount equivalent to 100 minimum salaries (at present 120 LVL per month) or more without obtaining a State Revenue Service’s certificate on their income, may be subject to a fine of 1 000 LVL (~ 1 423 EUR). For a repeated offence the credit institution may be subject to fine of 3 000 LVL (~ 4 269 EUR). The same penalties will apply if the credit institution has granted a loan in an amount equivalent to 100 minimum salaries or more secured by a mortgage in the amount of 90% of the respective collateral value, or if a loan in an amount equivalent to 100 minimum salaries or more is granted to the borrower without the Borrower’s own participation.

Amendments to the Law on Consumer Protection

The Law on Consumer Protection has been amended to introduce more strict requirements concerning issuance of consumer credit in an amount equivalent to 100 minimum salaries or more (~
17 075 EUR). The new rules are almost identical to the new penalty provisions in the Law on Credit Institutions described above, i.e., no consumer loan may be granted in an amount equivalent to 100 minimum salaries or more unless the consumer provides their own financing in the amount of at least 10%, and no mortgage loans can be issued for more than 90% of the mortgaged real estate value. The new rules will apply both to regulated financial institutions, as well as non-regulated consumer financing providers like leasing companies and consumer credit institutions. The rules are not applicable to consumer credit to residents of other countries, except where they are granted for the purposes of acquisition of real estate or another asset subject to registration in Latvia.

Toptop

  
 
For further information please contact Dace Silava-Tomsone (CV), Partner at Lejins, Torgans & Partners in Riga.
 
Lithuania
Amendments and Supplements to the Lithuanian Patent Law
 
On 10 May 2007 the Lithuanian Parliament (Seimas) amended and supplemented the Lithuanian Patent Law. The modifications made have implemented Regulation (EC) No 816/2006 of the European Parliament and of the Council of 17 May 2006 on compulsory licensing of patents relating to the manufacture of pharmaceutical products for export to countries with significant public health problems. This Regulation establishes a procedure for the issuance of compulsory licenses in relation to patents and supplementary protection certificates concerning the manufacture and sale of pharmaceutical products, when such products are intended for export to eligible importing countries in need of such products in order to address public health problems. The Regulation is intended to be a part of wider European and international action to address public health problems faced by the least developed countries and other developing countries, and in particular to improve access to affordable medicines which are safe and effective and whose quality is guaranteed. Noteworthy is that any company in the EU may apply for a license to manufacture pharmaceutical products – without the authorization of the patent holder. Accordingly, the Government of the Republic of Lithuania has undertaken to designate a competent authority which would be entrusted with the granting of compulsory licenses under the national patent law. Under the Regulation, the issuance of a license must be communicated to the European Commission. The amount of products manufactured under license may not exceed that which is necessary to meet the needs of the importing countries. In addition, products made under license are required to be clearly identified through specific labeling or marking requirements (shape, color etc.).

Toptop

 
Lithuanian Law on Construction Amended
 
On 3 May 2007 the Lithuanian Parliament (Seimas) adopted amendments to the Law on Construction. The amended law establishes stricter requirements in respect of the preparation of building design conditions, issuance of compulsory building design documents and implementation of building design inspection and control. Stricter conditions have also been established in respect of the building usage as well as issuance of building construction permits. In order to reduce bureaucratic procedures, the requirement of compulsory registration of construction rules with the Ministry of Environment was withdrawn. Among other amendments, the law also implemented the principle of mutual acknowledgement with regard to construction products that were legally produced in Turkey or legally imported from a third country to Turkey.

Toptop

 
New Wording of the Lithuanian Law on Natural Gas
 
On 19 April 2007 a new wording of the Law on Natural Gas came into force. The law aims at harmonizing national legal acts regulating activities in the natural gas sector with the Directive 2003/55/EC concerning common rules for the internal market in natural gas and repealing Directive 98/30/EC as well as with Directive 2004/67/EC concerning measures to safeguard security of the natural gas supply. The new wording seeks to establish general principles in respect of the activities carried out in the natural gas sector, its organization and functioning, inter-relations among gas companies and relations with the consumers while supplying, distributing, transferring, liquefying and storing natural gas. A new gas market liberalization schedule has also been introduced whereby non-domestic consumers gained the right to choose a gas supply company freely as of 1 July 2004 and all other consumers are going to be granted such right as of 1 July 2007. Other significant changes include a new obligation of the integrated gas companies to separate transfer, distribution and other activities from the gas supply activities in their companies, and new requirements aimed to secure gas supply activities.

Toptop

 
For further information please contact Irmantas Norkus, (CV), Managing Partner at Norcous & Partners in Vilnius.
 
Finland
Implementation of the Transparency Directive and Disclosure of Shareholdings
  

The EU Transparency Directive (2004/109/EC) was implemented into Finnish law on 15 February 2007. As a result of the implementation, inter alia, certain provisions of the Finnish Securities Market Act (495/1989) were amended as well as two Finnish Ministry of Finance regulations updated. The new provisions regulate listed companies’ regular reporting requirements, the publication and availability of company-specific information as well as the shareholder’s duty of disclosure. The following discussion focuses on the disclosure of shareholdings in listed companies.

Most of the provisions relating to the shareholder’s duty of disclosure, including the current thresholds (5, 10, 15, 20, 25, 30, 50 and 66.7% of the share capital or the voting rights) triggering the disclosure obligation, remain unchanged in connection with the implementation of the Directive. However, a new Ministry of Finance Decree on Disclosure of Holdings (154/2007) introduces certain amendments, such as new exemptions from flagging obligations.

In accordance with the new provisions, a parent company of a mutual fund company or a securities dealer authorized in an EEA member state is not obliged to aggregate its holdings with shares owned by an investment fund or collective investment undertaking, or with shares held as a result of asset management agreements if the voting rights pertaining to the shares are exercised independently of the parent company. Application of the exemption requires a notification for this purpose to be filed with the Finnish Financial Supervision Authority (FFSA). A similar exemption applies to parent companies authorized outside the EEA as well but this exemption presupposes a separate application to be filed with the FFSA which may grant the permission at its discretion, provided, inter alia, that it considers the home state legislation of the non-EEA mutual fund company or securities dealer sufficient.

In addition, shares held by a market maker authorized in an EEA member state are to be disregarded for the purpose of determining the disclosure obligation if such holding would lead to the relevant threshold of 5% being reached or exceeded or if the holding would fall below 5%, subject to the market maker not influencing the management of the issuer. Further, shares acquired for the sole purpose of clearing and settlement for a period of not more than four trading days are exempted from the disclosure obligation. 

Toptop

 
For further information please contact Dimitrios Himonas (CV), Partner at Roschier in Helsinki
 
 
Sweden
New Disclosure Rules as of 1 July 2007
  

A new law regarding the implementation of the EC Transparency Directive (2004/109/EC) was passed on 30 May 2007. The new law implements new disclosure rules in the Swedish market as of 1 July of this year.

Disclosure obligations under the new disclosure rules will be triggered at percentages of 5, 10, 15, 20, 25, 30, 50, 66.7 and 90 of the shares owned as well as at the voting thresholds. The matrix below provides a comparison with the current regime:

Old law (votes only)   10   20     33.3       50       66.7          
Old self regulation (votes and shares) 5 10 15 20 25 30   35 40 45 50 55 60 65   70 75 80 85 90
New law (votes and shares) 5 10 15 20 25 30         50       66.7         90

Interestingly enough, the new law implementing the Transparency Directive will give rise to less transparency than the current national regime. Except for the fact that there will be fewer thresh-olds, certain actions such as the execution of option agreements (which are not financial instruments) will not trigger disclosure requirements.

The transitional provision of the proposed law will impose initial disclosure requirements on shareholders that have passed the thresholds set out in the new rules without having disclosed their acquisitions. However, if the same information has been provided to the market under the old regime, no one-time disclosure will have to be made at the time when the new law comes into force. Since most shareholders have already made an announcement when they passed the thresholds of the new law under the old rules, very few shareholders are expected to make any additional disclosure.

Toptop

 

New Equity Financing Product
  
A new equity financing product, Standby Equity Distribution Agreement (SEDA), has recently been accepted in principle by the Swedish Securities Council and introduced to the Swedish market.

In brief:

  • SEDAs provide companies in growth and early phases with the opportunity to quickly and relatively cost efficiently get access to additional equity funding.
  • SEDAs are acceptable from a Swedish stock market perspective.
  • SEDAs as currently structured are not legally enforceable. Such agreements should hence only be entered into with reliable investors who can not afford the reputational loss of walking away from their obligations.
  • Incentives to honor the unenforceable contractual obligations can be created by way of liquidated damages payable to a third party.
  • A discount for the share subscriber of four percent to the market price is per se on market terms.

The Swedish Securities Council has approved the use of standby equity distribution agreements in the statement (2007:09). In the proposed structure, Cornell Capital Partners enter into an agreement with small and mid cap listed companies pursuant to which it is committed to subscribe for shares on demand from the companies. This provides the companies with the opportunity to quickly and relatively cost efficiently get access to additional funding. This is especially attractive for companies in growth or early phases without a positive cash flow. The Securities Council found that the arrangement was acceptable from the perspective of good stock market practice.

The Securities Council has previously stated that the market price for listed shares shall serve as a benchmark for setting the subscription price in a directed share issue. A smaller discount to the market price is acceptable if it is on market terms. Larger discounts must be motivated by strong and exceptional circumstances. A discount of four percent was per se considered to be on market terms by the Council in statement 2007:09.

The decision is interesting because it further clarifies the view of the Council on directed share issues. It is the common view that a company that needs additional equity should offer its shareholders subscription of the new shares on a pro rata basis and only take dilutive measures such as directed share issues as a last resort. Also, if directed share issues are made to a shareholder, the other shareholders should, as a general rule, be compensated to avoid any dilution and unequal treatment, even if the share issue is made on market terms. Sweden clearly takes a much stricter and less market-friendly approach than many other countries in this respect. Standby Equity Distribution Agreements are acceptable if it is not practicable to request additional equity from the shareholders.

Standby equity distribution agreements between the company and the investor only will not be legally enforceable in Sweden (as is equally the case with underwriting agreements entered into between the issuer and the underwriter only). The reason for the unenforceability is that the company may not deviate from the procedural rules of the Companies Act requiring certain formalities when issuing new shares. We find it less likely that large financial institutions will not live up to their obligations regardless of the formal validity of the agreement. However, agreements between the issuer and underwriter only, should certainly not be entered into with investors of a less than solid reputation. Alternatively, incentives to honor the contractual obligations can be created by way of liquidated damages payable to a third party.

Toptop

 
For further information please contact Axel Calissendorff (CV), Partner at Roschier in Stockholm. 
 

This Newsletter is a periodic publication of RoschierRaidla and should not be construed as legal advice or legal opinion on any specific facts or circumstances. We have used reasonable efforts in collecting, preparing and providing the information in this newsletter, but we do not warrant or guarantee the accuracy, completeness, adequacy or currency of the information contained herein. The contents are for general informational purposes only, and you are urged to consult a lawyer concerning your situation and any specific legal questions you might have.