|
|
|
July-August
2009
Estonia, Latvia, Lithuania, Finland, Sweden |
|
RoschierRaidla News
|
| |
| |
|
Inside this Issue:
|
| |
|
Estonia |
| |
|
|
| |
|
Latvia |
| |
|
|
| |
|
Lithuania |
| |
|
|
|
|
|
| |
|
Estonia
|
|
|
|
Employment Contracts Act |
|
|
|
On 10 June 2009, the Estonian Parliament (Riigikogu) passed
the Employment Contracts Act and Associated Acts Amendment Act. This
act amends the new Employment Contracts Act that was first adopted
on 17 December 2008 and entered into force on 1 July 2009. The
changes are intended to ensure the sustainability of the Estonian
Unemployment Insurance Fund at this time of rising unemployment. The
amendments mostly pertain to working and rest time and night work.
One of the most significant changes is to postpone the entry into
force of provisions that grant the right to receive unemployment
insurance benefits to a person whose employment relationship ended
upon the initiative of the employee or by agreement between the
parties until 2013. The rates of unemployment insurance benefits are
also reduced. Unemployment insurance benefits will remain at the
level provided for by the prior act. In addition, the range is
changed within which the Government of Republic has the right to
establish the rate of unemployment insurance premiums. Based on the
aforementioned change the Government of the Republic adopted a
regulation on 2 July 2009, establishing new unemployment insurance
premium rates: from 1 August to 31 December 2009. Insured persons
(employees) pay unemployment insurance premiums at the rate of 2.8%
and the employers at the rate of 1.4%. The amendments entered into
force on 1 July 2009.
Pursuant to the new Employment Contracts Act, the Government of the
Republic adopted a regulation establishing the minimum wage.
Pursuant to the regulation, the minimum hourly wage continues to be
27 EEK and the minimum monthly wage is still 4350 EEK in case of
full-time work. The Government of the Republic also passed other
acts to implement the new Employment Contracts Act (e.g. the
conditions and procedure for the payment of average wages, the list
of light work allowed to be undertaken by minors and other acts).
The regulations entered into force at the same time as the entry
into force of the Employment Contracts Act on 1 July 2009.
 top
|
| |
|
Other Recent Legislative Developments |
|
|
Renewed Regulation for Mergers of Financial Institutions
On 10 June 2009, the Riigikogu adopted the Act Amending the
Investment Funds Act, Insurance Activities Act, Credit Institutions
Act, Securities Market Act and Estonian Central Register of
Securities Act. The purpose of the amendments is to create a more
suitable environment for mergers and takeovers of financial
institutions through reliable and effective supervision that is in
line with Community law. The provisions of the qualifying holding
directive (Directive 2007/44/EC of the European Parliament and of
the Council of 5 September 2007) are also transposed into Estonian
domestic law. Pursuant to the new provisions the supervisory
authority of the financial institution in which a holding is being
acquired or increased must be notified when the holding acquired is
10%, 20%, 30% or 50%. The supervisory authority shall make a
decision allowing or rejecting the acquisition within 60 working
days, based on the assessment criteria set forth in the directive.
Further changes concern additional requirements for persons having a
qualifying holding in financial institutions, the data to be
submitted when notifying the Financial Supervision Authority and
other procedural provisions. In addition to the changes arising from
the qualifying holding directive, the provisions regulating
conflicts of interest between pension management companies are
amended in the Investment Funds Act. The rules applicable to the
available solvency margin, including the minimum size thereof, are
amended in the Insurance Activities Act. The amendments entered into
force on 10 July 2009, except for a few provisions that shall enter
into force on 1 January 2010.
New Ports Act Adopted
On 15 June 2009, the Riigikogu passed the Ports Act. The act
establishes requirements for the provision of port services, as well
as for port authorities and port operators concerning shipping
safety, security and environmental protection. The act also
prescribes liability for failure to comply with the requirements and
regulates state supervision. The implementing provisions amend a
number of other acts, including the Law of Property Act, the Water
Act, the Building Act and the Planning Act. New provisions are
introduced to regulate the planning and building of port facilities
in the water. Amendments to the State Fees Act impose additional
state fees for operations performed under the Ports Act. A chapter
regulating the encumbering of water bodies for public use with
structures as well as the bases and procedures for charges related
to imposing such encumbrances is included in the Water Act. These
cover the encumbrance of water bodies for public use with submerged
cable lines. The Ports Act and amendments in other acts arising from
its implementing provisions entered into force on 10 July 2009. The
current Ports Act is repealed.
Structural Assistance Act Amended
On 10 June 2009, the Riigikogu passed the 2007–2013
Structural Assistance Act Amendment Act. The amendments eliminate
problems that have emerged in the course of the implementation of
the Act and should make the use of structural funds more efficient.
For example, more persons may now use a simplified procedure for
obtaining payments. The amendments entered into force on 1 July
2009.
Advertising Act Specified
On 18 June 2009, the Riigikogu adopted the Advertising Act
Amendment Act. Under the amendment advertising placed on or affixed
to sales packaging is not deemed labelling. Neither is the
disclosure of information about trade lotteries considered
advertising of gambling. In addition to the above, the provisions on
advertising alcohol and on liability for violating the Advertising
Act are set forth in more detail. The amendments entered into force
on 18 July 2009.
Natural Gas Act and District Heating Act Amended
On 10 June 2009, the Riigikogu passed the Act Amending the
Natural Gas Act and District Heating Act. The changes are intended
to ensure the transparency of the formulation of prices for natural
gas and network services. The Natural Gas Act now has a more
detailed definition of the selling price of gas. From now on sellers
of gas must allow termination of their gas selling contract when a
customer switches sellers. The rules pertaining to the approval of
gas prices payable by household customers are amended as well. Only
maximum prices of natural gas sold to household consumers by gas
undertakings in a dominant position on the market shall have to be
approved by the Competition Board. Further changes specify the
conditions of suspending gas supply, and describe new misdemeanours
punishable under this act. The amendments entered into force on 6
July 2009.
Electronic Communications Act Specified
On 15 June 2009, the Riigikogu passed the Electronic
Communications Act Amendment Act. The amendments are needed to
eliminate problems that emerged in the course of implementation of
the law. The terms used in the law are described in more detail
(e.g. Subscriber Identity Module and International Mobile Telephony
Terminal Equipment Code) and the requirements for their use, as well
as liability for failure to comply with the requirements are
specified, including liability for failure to comply with the
obligation of not retaining data. The amendments entered into force
on 10 July 2009.
State Assets Act Amended
In May and June 2009, the Riigikogu adopted acts amending and
supplementing the State Assets Act. Pursuant to the amendments, the
right of pre-emption in case of transferring an immovable which
contains a land parcel characterised as an area under cultivation or
natural grassland (agricultural land) rests with the person who
lawfully uses the land to be transferred. As a result, the person
currently cultivating the land should be able to acquire the land at
the price set in a public auction. Pursuant to further amendments,
state owned movable property may be transferred free of charge or at
a price lower than the usual value based on a decision of the
administrator of assets in state ownership. Similar transfers of
state owned immovable property are subject to the permission of a
relevant committee. In the latter case, the sales price of the
immovable shall be 65% of its usual value. The amendments entered
into force on 14 June and 2 July 2009.
Hunting Act Supplemented
On 21 May 2009, the Riigikogu passed the Act Amending the
Hunting Act and Associated Acts. The amendments include a provision
regulating the organisation of hunting. Pursuant to the changes, the
duty of the state is to formulate hunting policy, supervise, as well
as manage hunting activities, monitor wild game, survey hunting
grounds, and undertake management planning. The state is also
allowed to involve hunting organisations operating under private law
in hunting activities. Further amendments specify provisions
regulating permissions for the right to use hunting districts,
hunting certificates, and training in hunting. The amendments
entered into force on 22 June 2009.
top
|
| |
|
|
| For further information please contact
Raino Paron
(CV),
Partner at Raidla Lejins &
Norcous in Tallinn. |
| |
|
Latvia
|
|
|
|
Law on Public Procurement Amended |
| |
|
On 16 July 2009, the Latvian
Parliament (Saeima) passed a
large number of amendments to the
Law on Public Procurement, extending
the scope of the exemptions when the
law is not applicable, as well as
changing various details concerning
the tender procedures and their
application. The amendments entered
in force on 13 August 2009.
The amendments to the Public
Procurement Law have introduced a
new specific exemption for the loans
from the international financial
organizations in which Latvia is a
member state, as well as simplified
the exemption conditions for the
procurement of goods and services
from the entities that are fully
controlled by the tenderer. A
surprising new exemption has been
made in respect of contracts whose
value is below LVL 70,000 (approx.
EUR 100,000) – thus, according to
the new amendments, the Public
Procurement Law will not apply to
procurement of goods and services by
credit institutions for their own
needs if the contract value is below
LVL 70,000. The amendment is
surprising since the credit
institution per se is not among the
subjects subject to the public
procurement obligation under the
Public Procurement law.
The former state interests and
public security exemption has been
revised and split into two new
exemptions allowing the Cabinet of
Ministers (the Government) very
broad latitude in determination of
which of the government contracts
could be excluded from the public
procurement obligation. Thus,
pursuant to the new amendments, the
Public Procurement Law will not be
applicable to any contracts
information in respect of which or
whose performance has been declared
by the Cabinet of Ministers (the
Government) as a state secret. The
concept of a “state secret” is
governed by a special Law on State
Secret, according to which state
secret means all information
determined as such by the Cabinet of
Ministers based on the criteria
specified in the law. As such it
excludes particularly secret
information, secret information, as
well as all other information
declared as confidential. In
addition the Law will not apply also
if its application could cause harm
to protection of material state
interests, as decided by the Cabinet
of Ministers on a case by case
basis. In past the concept of
“protection of material state
interests” has been interpreted and
applied quite flexibly and broadly.
The amendments have also increased
the contract value thresholds below
which the tenderer is not required
to apply the public procurement
procedures. Thus, the former
threshold of LVL 10,000 (approx. EUR
14,000) has been doubled to LVL
20,000 (approx. EUR 28,000) for
procurement of goods and services
and increased to LVL 120,000
(approx. EUR 169,000) for
construction works. A new internal
procurement procedure is introduced
for the procurement of goods and
services where the contract value
exceeds LVL 3,000 (approx. EUR
4,225) but is less than LVL 20,000
and for the construction works the
value of which exceeds LVL 10,000
but is less than LVL 120,000. In
respect of procurement of these
goods, services and construction
work the tenderer must organize an
internal tender committee. The
tender committee’s decisions may be
appealed in the courts but the
appeal would not suspend the
decision.
The amendments were opposed by the
President of Latvia and were
returned to the Parliament for
reconsideration. The Parliament,
however, disagreed with the
President’s objections and has
reconfirmed the law. Due to this
reason a constitutionality claim has
been made to Satversmes tiesa (the
Constitutional Court) and is
currently pending.
top |
| |
|
Public Private Partnership Law Finally Passed |
| |
|
On 18 June 2009, the Saeima
passed the Public Private Partnership
Law. The Law entered in force on 10 July
2009. The Public Private Partnership Law
will apply to various projects carried
out jointly by one or more public
entities and one or more private
partners in respect of satisfaction of
public needs for the services or
construction works. The law will apply
to long term projects with the duration
of not less than 30 years, and will
regulate such issues as the legal forms
of the public private partnership, the
procedures concerning the commencement
of public private partnership procedure,
awards of the contracts, various issues
concerning the form and substance of the
contracts, the rights and obligations of
the partners.
The law distinguishes between two basic
forms of public private partnerships –
contractual partnership, i.e. the
partnership which is based on
partnership procurement contract or a
concession contract, and institutional
partnership, i.e. the partnership
carried out through a joint venture as a
contracting party to the partnership
procurement contract or the concession
contract. The form of an institutional
partnership may only be used if the
business to be carried out by the joint
venture is such which under the laws of
Latvia is permitted to be performed by
the public partner, and the joint
venture is formed to carry out a
function which is assigned to the public
partner under the public law of Latvia
or which has been delegated to the
public partner by another public person
and is permitted to be sub-delegated.
Similarly as it used to be under the
Public Procurement Law prior to the
amendments described above, the Public
Private Partnership Law would not apply
if the Cabinet of Ministers has
classified the information in respect of
the concession as subject to secrecy, or
if the performance of the concession
agreement involves state secret
protection measure, or if the
application of the law could cause harm
to protection of material state
interests as determined by the Cabinet
of Ministers of a case by case basis.
The Law will also not apply if the entry
into the concession contract is governed
by another law and the concession right
is awarded under an international
agreement entered into by an EU Member
State with one or more non-Member States
in respect of construction works or
services for a project carried out or
participated by these states, or under
an international agreement concerning
armed forces dislocation, or pursuant to
a special procedure of an international
organization.
top |
| |
|
|
| For further information please contact
Dace Silava-Tomsone
(CV),
Partner at Raidla Lejins
& Norcous in Riga. |
| |
|
Lithuania
|
|
|
|
Draft Law on Real Estate Brokers |
|
|
|
Real estate contracts are an important
part of civil turnover. Thus, taking
into account social and economical
importance of such contracts, the state
must undertake certain legal actions in
attempt to create a mechanism capable of
ensuring adequate methods and conditions
for provision of services regarding real
estate contracts. Moreover, attention
must be paid to the control and
supervision of those real estate
contracts where brokers act as
intermediaries between the seller and
the buyer. Transparency of services
provided by brokers, protection of
private and public interest and
effective collection of taxes would be
ensured by establishing a certain legal
system of mediation in real estate
contracts.
At the moment, mediation services in
real estate contracts in Lithuania are
not subject to any kind of regulations.
Natural or legal persons are not subject
to any specific requirements, rights or
obligations with regard to mediation
activities. There is no control of the
quality of mediation services, nor any
official record with regard to the
collection of taxes. Mediation services
are mostly provided without any kind of
agreement establishing the
responsibility of a broker. Thus, the
legal system in force is not capable to
ensure the rights of consumers.
On 28 July 2009, the Draft Law on Real
Estate Brokers was submitted to
the Parliament of the Republic of
Lithuania. The purpose of the Draft Law
on Brokers is to protect the interests
of consumers and other participants in
the market, to ensure the quality of
mediation services and to ensure proper
calculation and collection of taxes. The
main attention is paid to the protection
of interests of consumers who are
unprofessional participants of the real
estate market and are usually forced to
rely solely on information provided by a
broker. The Draft Law on Brokers aims to
ensure that real estate brokers would
have sufficient professional
qualifications. Thus, the main task of
the Draft Law on Brokers is to set
certain requirements to natural and
legal persons engaged in mediation in
real estate contracts and to create an
effective system of control and
supervision of such contracts.
top |
| |
|
Draft Law on Postponement of Tax Payment
Terms for Limited Liability Companies |
|
|
|
On 1 July 2009, the Draft
Law on Postponement of Tax
Payment Terms was submitted to the
Parliament of the Republic
of Lithuania. The Draft Law
on Postponement of Tax
Payment Terms regulates the
postponement of terms for
payment of taxes
(corporation, real estate,
land and social insurance
taxes established by law)
with respect to companies
that meet certain
requirements, i.e. limited
civil liability companies
established after 1 June
2009 or reorganized from
unlimited liability
companies not less than 90
percent of which is owned by
one family or 100 of which
is owned by a single natural
person and etc.
According to the Draft Law
on Postponement of Tax
Payment Terms, companies
that meet the requirements
laid down therein may pay 80% of corporation, real
estate, land or social
insurance taxes calculated
for a period of 1-12 months,
50% of corporation,
real estate, land or social
insurance taxes calculated
for a period of 13-24
months, and 30% of
corporation, real estate,
land or social insurance
taxes calculated for a
period of 25-36 months
within 5 years after
respective taxes are
calculated.
top |
|
|
|
Recent Draft Amendments of the Law on
Public Procurement Aims to Bring More Transparency into Public
Procurement Procedure |
|
|
On 17 July 2009, the draft amendments of the
Law on Public Procurement was submitted to the
Parliament of the Republic of Lithuania.
The main purpose of the amendments is to
compel contracting authorities to
announce in public annual procurement
reports, to notify on procurements
planned for a year, to announce in
public procurement documents and reports
on important procurement agreements, as
well as report on preliminary
procurement agreements.
Furthermore, the amendments suggest that
a supplier should assure in the
declaration of impartiality that at the
moment of submission of a proposal or
application to the contracting authority
it is not involved in any sort of
agreements that are forbidden by the Law
on Competition of the Republic of
Lithuania or are against the principles
established in the Law on Public
Procurement of the Republic of
Lithuania. Moreover, according to the
amendments a supplier should provide
information about its relations with
certain enterprises pursuant to the Law
on Competition of the Republic of
Lithuania. In case such affirmations by
the supplier are false, it will be
eliminated from the public procurement
procedure. The authors of the amendments
also suggest to introduce a provision
that an application should be rejected
from a supplier (legal person) who has
earlier violated the prohibition
established in the Law on Competition of
the Republic of Lithuania and concluded
a forbidden agreement and less than 3
years have passed since the decision to
impose economical sanction for such
violation.
The Draft Amendment of Law on Public
Procurement seeks to eliminate a
possibility in a public sector to
purchase from coherent enterprises.
Thus, the authors of the draft
amendments suggest to establish an
obligation to public sector contracting
authorities to announce of any
procurements according to law, to submit
to the Public Procurement Office the
reports regarding simplified procurement
procedures (except for low value
procurements) and notify of concluded
and preliminary procurement agreements
(when procurement procedure was
suspended, all proposals and
applications were rejected, no proposals
or applications were received).
top |
| |
|
The Minister of Economy Approved First
Code of Conduct for Bankruptcy Administrators |
|
|
On 7 July 2009, the Minister of Economy
of the Republic of Lithuania issued
Order regarding the approval
of the bankruptcy administrators’ code
of conduct ("Code of Conduct"). The Code
of Conduct establishes the principles of
ethics that bankruptcy administrators
must follow while performing their
functions. The code is applicable to
bankruptcy administrators, i.e. natural
persons or employees of legal persons
that have the right to provide
bankruptcy administration services in
the Republic of Lithuania.
A bankruptcy administrator has certain
duties before he is appointed to conduct
bankruptcy proceedings of an enterprise.
For instance, he is not allowed to
settle with persons who recommended him
as a bankruptcy administrator, or he can
refuse to administrate certain
bankruptcy proceedings if he is not able
to provide certain administration
services in a proper manner. Besides, a
bankruptcy administrator has even more
obligations when he is engaged in
bankruptcy proceedings of an enterprise:
he has to observe principles of
effectiveness, confidentiality,
impartiality, professionalism,
cooperation and others. Liability of a
bankruptcy administrator may arise if he
fails to comply with the Code of
Conduct, i.e. the Bankruptcy and
Restructuring Administrators’ Assessment
Commission (i) may decide that a
bankruptcy administrator should retake a
qualification exam, or (ii) to annul a
certificate or license of a bankruptcy
administrator for repeated or gross
violation of the Code of Conduct.
top |
| |
|
An Initiative to Simplify the Current Tax
Dispute Settlement Procedure |
|
|
Tax disputes are a specific kind of
administrational disputes. Thus, the
state has to ensure a clear, transparent
and effective pre-trial settlement of
such disputes in an independent
institution. The current regulation and
recent tax regulation amendments
suggested by the Government of the
Lithuanian Republic constitute a
possibility to resolve a dispute in a
pre-trial procedure twice: in the State
Tax Inspectorate and in the Commission
on Tax Disputes at the Government of the
Republic of Lithuania. This situation
clearly contradicts the principle of one
pre-trial dispute settlement procedure,
because the functions of the
aforementioned institutions with regard
to tax disputes overlap and the cost of
tax dispute settlement increases.
On 28 July 2009, the Draft Amendment of the
Law on Tax Administration were submitted. The
purpose of the said amendments is to
eliminate double pre-trial tax dispute
settlement procedures and to improve the
expedition and effectiveness of the
current tax dispute settlement by
determining a clear and independent
dispute settlement mechanism and to
reduce costs of settlement on such
disputes.
The Draft Amendment of Law on Tax
Administration seeks to annul excess
functions of the State Tax Inspectorate
with regard to tax disputes by leaving
the Commission on Tax Disputes as a
single institution for pre-trial tax
dispute settlement. Thus, the period of
pre-trial settlement of tax disputes
would shorten up to 80 days (now it can
take up to 140 days). Consequently, an
efficient and transparent pre-trial tax
dispute settlement system would help
natural and legal persons to protect
their rights regarding tax
administration issues more effectively.
The above mentioned amendments would
also help to reduce corruption issues.
top |
| |
|
Recent Draft Law on Electricity – Big Step
Towards Greater Liberalization of the Electricity Market |
|
|
The Draft Law on Electricity of Republic
of Lithuania No XIP-947 (“Draft Law on
Electricity”) was submitted to the
Parliament of the Republic of Lithuania
on 24 July 2009. The draft law was
prepared in accordance with Directive
2003/54/EC of the European Parliament
and of the Council of 26 June 2003
concerning common rules for the internal
market in electricity and repealing
Directive 96/92/EC - Statements made
with regard to decommissioning and waste
management activities, as well as,
according to the new directive
concerning common rules for the internal
market in electricity and repealing
Directive 2003/54/EC (the text of the
latter directive has not been officially
announced yet).
While preparing the Draft Law on
Electricity major attention was given to
the provisions that would ensure the
rights of consumers, because the
regulation of the Lithuanian electricity
market in force is primarily aimed at
the protection of interests of operators
in the electricity market. Thus, the
Draft Law on Electricity aims to find a
balance between the rights of operators
and consumers, to introduce the
principles of effective control of
operators and finally to introduce the
ongoing changes in Baltic energy
markets, i.e. liberalization of the
energy market.
The Draft Law on Electricity encompasses
two major changes: (i) provides for a
possibility for consumers to conclude
electricity provision agreements with
independent suppliers, i.e. buy
electricity from independent suppliers,
and (ii) annuls a requirement of
importation and exportation licenses for
importation and exportation of
electricity among EU and EEA members. By
latter changes the authors of the draft
law seek to ensure effective and
expeditious protection of consumer
rights, to introduce simple requirements
for consumer power station connection
and allocated production, to ensure
transparent and reasonable electricity
price calculation principles and etc.
top |
| |
|
Belarus: New Incentives for Investors |
|
|
On 6 August 2009, the President signed
the Decree on Creation of
Additional Conditions for Investment
Activity in Belarus. The Decree
introduces the basic guarantees and
benefits to be provided to every new
investor coming to Belarus. Earlier,
many benefits set forth in the Decree
were usually granted to foreign
investors by a special decision of the
President; however, every other investor
was not guaranteed he would receive
them. The Decree was highly welcomed by
businesses and business experts. The
Decree confirms the investment agreement
as a basis for investment activity in
Belarus. However, it amends material
rules of the Investment Code in several
respects.
First, the Decree sets forth a 3-level
system of investment agreements. The
criteria of their differentiation are
significance for the Belarusian economy
and necessity to provide a preferential
regime for anticipated investments. If
an investment agreement concerns local
municipal matters, it may be concluded
by decision of a local authority or
state institution. If an investment
agreement represents the interests for
the whole economy but does not require
granting the investor benefits in
addition to those set by legislation, it
may be concluded by decision of the
Council of Ministers (the Government).
If an investment agreement requires
granting the investor benefits that are
additional to those already existing, it
may be concluded by decision of the
Council of Ministers upon approval of
the President.
Further, the Decree amends the rules of
the Investment Code on material
conditions of an investment agreement.
In addition to the term of an investment
agreement, the Decree provides for the
term of starting actual investment
activity. It also specifies
responsibility questions, such as an
investor’s right to claim damages for
illegal actions (omissions) by
government officials or institutions,
and the right of the Republic of Belarus
to unilaterally withdraw from an
investment agreement if the investor
fails to perform its contractual
obligations or does not perform them in
good faith. An investor, however, is not
granted the right of withdrawal from the
investment agreement.
The Decree sets forth the following list
of benefits which may be exercised after
an investment agreement is concluded:
-
performance of construction works in
parallel with preparation of design
documentation;
-
allocation of a land plot without an
auction;
-
preparation of land allocation
documentation in parallel with
construction works;
-
fixed payments for lease of land
plots during the whole period of the
investment project;
-
an exemption from an obligation to
compensate for damage made to
agricultural and forest lands and to
cover expenses of relocation and
cutting down of green plantations in
populated areas;
-
an exemption from import customs
duties and VAT on equipment and
spare parts to be used for
investment projects. The list of
imported equipment and spare parts
should be approved by a local
authority or state institution
appropriately authorized by the
Council of Ministers (if the
investment agreement is concluded by
decision of the Government);
-
an exemption from the stamp duty for
obtaining permits to employ foreign
workers and their temporary
residence permits.
The Decree will come into force on 7
November 2009. These three months are
given to the Council of Ministers to
implement the provisions of the Decree.
It shall not apply to investment
agreements concluded before its entry
into force.
Belarus Help Desk Web Page
In the beginning of 2008, responding to
the clients’ increasing interest in
investment opportunities to the East,
Raidla Lejins & Norcous’ Vilnius office
launched Belarus Help Desk to offer
comprehensive legal advice on doing
business in Belarus. Now, after a year
has passed, Vilnius office has launched
a Belarus Help Desk web page for
investors to provide with topical issues
on investment opportunities, actual
legal and non-legal news in Belarus.
You may find the web page here
http://www.rln.lt/index.php/pageid/index.php/pageid/345
top |
| |
|
|
|
| For
further information please contact
Irmantas Norkus, (CV),
Managing Partner at Raidla Lejins & Norcous in Vilnius. |
| |
|
Finland
|
|
|
|
Implementation of the
Shareholders’ Rights Directive
in Finland |
| |
|
Directive 2007/36/EC of the European Parliament and of the Council on the
exercise of certain rights of shareholders in listed companies was implemented
in Finland on 3 August 2009 through amendments to the Finnish Companies Act,
Securities Market Act and Insurance Companies Act. The amendments result in
somewhat improved shareholders’ rights in respect of, inter alia, the
attendance at the general meeting and appointment of proxy holders.
Minimum standards have been set out in the directive to ensure the rights of
shareholders of companies which have their registered office in an EU Member
State and whose shares are admitted to trading on a regulated market situated or
operating within a Member State. Although most of the minimum standards have
already been incorporated in the Finnish legislation, certain further amendments
have been made in order to fully implement the directive. The amendments
stipulate e.g. that the notice to the general meeting shall be issued and the
meeting documents shall be made available at least three weeks prior to the
general meeting. Further, additional requirements have been included in respect
of the content of the notice to the general meeting and the recording of the
details of the voting results at the general meeting. The shareholders’ right to
put an item on the agenda of the general meeting has also been further specified
and voting by correspondence has been specifically included as one of the
possibilities to attend the general meeting.
One of the more significant amendments relates to the attendance at the general
meeting. The record date of the general meeting, i.e. the date when shareholders
must be entered into the shareholders’ register in order to have the right to
attend the general meeting, has been changed to eight business days prior to the
general meeting. Further, it is now also sufficient that a notification of
temporary registration in the shareholders’ register is delivered at the latest
on the date indicated in the notice, which must be after the record date of the
general meeting. Before the amendments the notification had to be delivered at
the latest on the record date. The new provisions will facilitate the
attendance of foreign shareholders at the general meeting and also abolish share
blocking as the notification is delivered after the record date. Changes in the
holdings after the record date do not affect the right to attend the general
meeting or the voting rights.
Further, the Companies Act has been amended in accordance with the provisions of
the directive so that a shareholder can appoint several proxy holders if the
shareholder holds shares of a listed company in several securities accounts.
This right may not be limited through the articles of association or a decision
of the general meeting. Amendments have also been made allowing shareholders in
listed companies to split their votes, unless such voting has been restricted in
the articles of association. Previously a shareholder could appoint only one
proxy holder and split voting was not considered permitted.
Finally, the government bill introducing the amendments is somewhat ambiguous as
regards the calculation of shares represented at the general meeting. According
to the Companies Act, a qualified majority of the votes cast and the shares
represented at the meeting is required in order to reach a qualified majority
decision. This means in practice that even if the shareholder would abstain from
voting, his presence is relevant in the calculation to reach a qualified
majority decision. So far, shareholders who do not want their presence to affect
the decision have thus had to exit the meeting venue during the voting. However,
according to the wording of the government bill, it is no longer necessary for a
shareholder to exit the meeting venue which would suggest that it would be
sufficient that the shareholder only notifies that his shares are not to be
taken into consideration in the calculation of the shares represented as regards
a qualified majority decision. This interpretation of the law has, however, only
a weak link to the wording of the law and it thus remains to be seen whether
this interpretation is going to be generally accepted.
top |
| |
|
|
|
For further information please contact
Manne Airaksinen
(CV),
Partner at Roschier in Helsinki. |
|
|
|
|
Sweden
|
|
|
|
IPRED – New
Measures for IPR
Enforcement in
Sweden |
| |
|
The widely
debated
Intellectual
Property Rights
Enforcement
Directive (“IPRED”)
2004/48/EC
finally came
into full effect
in Sweden on 1
April 2009,
three years
later than the
prescribed
implementation
date. The
overarching goal
of the directive
has been to
ensure that
intellectual
property right
holders across
the EU have
access to
effective
enforcement
measures and
remedies in the
event of
infringement. By
only stipulating
the minimum
requirements to
be fulfilled in
this regard, the
directive leaves
it to each
member state to
enact more
far-reaching
legislation.
Since Sweden
already lived up
to most
requirements
posed by IPRED,
it was a rather
small, albeit
significant,
number of
legislative
amendments that
had to be made.
The
implementation
has improved the
legal arsenal
available to
right holders by
increasing the
possibility of
investigative
and preliminary
measures.
Revealing the
infringers - a
controversial
piece of
legislation
Some of the
amendments have
been criticized
for tipping the
scale too far in
favor of right
holders’
interest. The
public’s
attention has in
particular been
directed at the
introduction of
a right of
information,
through which
right holders
can request that
the court orders
certain third
parties, e.g.
Internet Service
Providers
(“ISPs”), to
disclose certain
information of
importance in an
investigation
regarding
infringement,
e.g. the
identity of a
subscriber to a
specific IP
address from
which the
alleged
infringer has
been operating.
Such information
injunction shall
be issued if: (i)
the applicant
can show a
probable case
that an
infringement has
been committed,
(ii) the
information can
be presumed to
facilitate the
investigation of
the alleged
infringement and
(iii) it is
consistent with
the principle of
proportionality.
A number of
first instance
rulings over
requested
information
injunctions in
relation to
alleged
copyright
infringements
have already
been delivered.
The first, and
most discussed,
case concerns a
request filed
against an ISP
by certain
publishers who
sought to unveil
the identity of
persons claimed
to have
infringed the
copyright
attached to
audio books
under their
control. The
Solna District
Court granted
the request
after finding,
inter alia,
that an
information
injunction would
not
unproportionally
violate the
right to
personal
integrity.
The decision was
appealed on 15
July by the ISP
in response to
the demand of
its customers.
The efficiency
of the right of
information
regime has also
been challenged
by other ISPs,
declaring that
they will
circumvent the
law by simply
not storing IP
addresses. This
will, however,
not be
permissible
after the
implementation
of the Data
Retention
Directive
2006/24/EC,
which was due to
have become
fully
implemented on
15 March 2009,
but has been
delayed.
Other measures
Beyond the
controversies
over information
injunctions and
Internet
privacy, the
implementation
of IPRED has
brought along an
expansion of
right holders’
possibility to
seek injunctive
relief against
infringing
activity.
Whereas
injunctions
previously could
be issued only
after an
infringement had
been completed,
it is now
possible to also
act against
preparations or
attempts to
infringement. It
has furthermore
been clarified
that this
remedy, as well
as other
preliminary
measures, apply
to accomplices
to the same
extent as
principal
infringers.
Finally, the
courts may under
the new rules
order, at the
request of the
applicant and at
the expense of
the infringer,
appropriate
measures for
disseminating
information
about a court
decision. It
will be at the
discretion of
the courts to
decide how to
best achieve
this, but it is
likely that
publication in
major newspapers
will be a
frequently used
method.
 top |
|
|
|
|
| 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. |
| |
|
|
|
