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On October 29, 2015, Kochanski Zieba & Partners secured a win for Ringier Axel Springer Polska (RASP) in the Polish Supreme Court in a case brought by the former acting manager of Osrodek Rozwoju Edukacji (Center for Education Development), represented by Barczak Jurczak Witucki Safjan (BJWS).

The Supreme Court’s decision reversed the Appellate Court’s decision in favor of Osrodek Rozwoju Edukacji.

The case concerned an article published in the Polish daily Fakt reporting that the plaintiff, who was employed in a senior position at the Ministry of National Education, had been previously convicted of handling stolen goods. At trial and on appeal, the Courts ruled that the press had no right to write about convictions once they had been “spent” (i.e., expunged from the criminal record) before the date of publication.

In its appeal in front of the Supreme Court, KZP argued that “the press, in perform[ing] its statutory role [towards] the realization of people’s right to [access] honest information and transparency in public life, can publish information that a person who became a public officer had been convicted of a crime against property, [including] in a situation where their conviction has been spent.”

KZP explained that, in an oral statement of reasons, the Supreme Court stated that the interpretation of Article 106 of the Criminal Code by the Appellate Court, which provided for an absolute prohibition on writing about a spent conviction, was too strict and literal. In reversing the Appellate Court’s ruling, it declared that “a conviction, even if spent, may be of significance and in certain circumstances may be mentioned in the press.”

RASP was represented by KZP Partners Tobiasz Szychowski and Konrad Orlik, and Advocate Agnieszka Chajewska.

BJWS Partner Piotr Barczak represented the Center for Education Development. 

This adds to a long list of successful representations by KZP of Fakt.pl and its publishers, editors, and former editors, following successes in October 2015, August 2015, June 2015, March 2015, February 2015, and October 2014.

Schoenherr has advised Austrian pharmaceutical wholesaler Jacoby GM Pharma on its merger with L. Kogl Pharma. Regulatory approval for the merger was provided on December 19, 2014, which closed in October 2015. The Fischer family — the previous owners of Kogl — were advised by the Danler law firm in Innsbruck.

The owners of Jacoby GM Pharma continue to hold a majority share in the newly merged entity, with the Unterkofler and Jacoby families — through their private foundations — collectively owning 61.25%, and the Grabner family owning a 26.25% share. The Fischer family holds the remaining 12.5% stake.   

The merger places the family-owned business among the top 5 pharmaceutical wholesalers in Austria, with combined annual revenues of around EUR 333 million and a market share of 13.3%.  

Schoenherr advised Jacoby GM in drafting and negotiating the merger documentation and advised both parties in the merger control proceedings. The firm’s team was led by Partner Peter Madl, and included Partner Roman Perner and Franz Urlesberger, and Attorneys Stefanie Woss and Valerie Ditz.

Recent legislative updates on commercial electronic communications changed the whole commercial e-communication structure between the companies and customers in Turkey.

E-commerce Law (i.e. Law on Regulation of Electronic Commerce) and its Regulation (i.e. Regulation on Commercial Communication and Commercial Electronic Communications) are enacted consecutively, and they introduced strict processes for businesses. Aim of this piece is to highlight main weak spots and disorienting points of the Regulation, guide companies on how to proceed in a manner to balance the rights of consumers and protect their business structure, and bring a clear legal understanding on the debated matters.

From a consumer’s perspective, even if the number of commercial electronic communications decreases, the regulation may lead to vast amount of communications sent for obtaining prior consent, which would practically not prevent unwanted communications. From a business perspective, especially the ones whose target audience is consumers may have difficulties in promoting their goods and services due to the strict opt-in provisions. Additionally, the Regulation introduces many details, which requires changes to business structures for compliance. Still, it became effective immediately without granting a transition period, and lack of such a period led to concerns among businesses.

E-commerce Law and the Regulation aim to regulate the principles and processes regarding commercial electronic communications, the obligation to inform in particular. The scope of the regulation envelops all kinds of communication sent by electronic means to promote goods and services or brands of real or legal persons, directly or indirectly. 

The Regulation focuses on elaborating on how specific provisions of the E-Commerce Law on commercial communications should apply in practice. Still, the Regulation includes significant weak spots and disorienting points, which confuse both the companies sending commercial electronic communications and their recipients. 

Commercial electronic communication is defined under the Regulation as the communications with audio and video content and data sent with “commercial purposes” and that are carried out electronically through tools such as telephone, call center, fax, automatic dialer systems, smart voice recording systems, electronic mail, SMS. Regulation brings further details to the “commercial purposes” with Article 5 of the Regulation. Article 5 states that the prior consent is required for electronic commercial communications for promoting, marketing goods and services, promoting business or increasing recognition through contents of celebration or wishes. Therefore, yes, not only promotional messages, but also a simple “happy birthday” message to be sent to the customer requires prior consent form the recipient. 

Having said that, the scope of the Regulation causes confusions in practice. One of the controversial provisions of the Regulation is under Article 6. Article 5 states that commercial electronic messages can only be sent to recipients by obtaining their prior consent. Article 6 introduces content-free situations, where one of them is: if the recipient gave contact information to receive communication, no additional consent is required for the electronic commercial communications regarding modification, usage and maintenance of provided goods and services. In practice, companies are confused about the interpretation of “modification, usage and maintenance of provided goods and services”. For example, an SMS sent to a customer for promoting a new accessorize of the mobile phone sold to a customer, may be interpreted as to be related with the “usage” of that mobile phone. Therefore, if the foregoing phrase is interpreted broadly, the relevant exemption would go beyond the main purpose of the requirement of obtaining prior consent. To be on the safe side, the exemptions regulated under Article 6 should be interpreted in a narrow way. 

Another problematic point under the Regulation is the content of the commercial electronic communication. Article 8 of the Regulation gives more detail about the content of the commercial electronic communications. Commercial electronic communication should include at least one of the accessible contact information such as service provider’s phone, fax or SMS number and electronic mail address, depending on the type of electronic commercial communication tool. Moreover, if the electronic commercial communication has promotions of sale and gift or games or contents organized for promotion, this nature of the communication should be clearly stated within the communications itself. Option to opt-out should be provided in all commercial electronic communications. Now, think about a promotion call which includes all of the foregoing elements. Considering the foregoing requirements under the Regulation, certain sales and marketing functions of the companies would be obstructed. 

E-commerce Law entered into force in May 1, 2015, imposing an overall obligation to obtain prior consent of the recipients of commercial electronic communications. The Regulation, which entered into force on July 15, 2015, on the other hand, introduced very detailed process for obtaining prior consent and the companies had to restructure their businesses in accordance with these detailed requirements, some of which do not exist under the Law. No transition period was regulated for these structural changes, and lack of a transition period brought certain questions in mind: Will the companies be required to re-obtain prior consents in accordance with the Regulation for the consents they obtained between those dates? Will the companies be required to cease sending commercial electronic communications until they re-structure their business per the Regulation? Apart from the exceptions, mainly, the answer to the first question would be “no”, and to the second question would be “yes”. 

Would keeping customer data outside of Turkey exempt the companies from complying with these requirements? No, it would not. E-commerce Law and the Regulation are applicable the companies which are keeping their customer records outside of Turkey; as the main aim of the relevant legislation is to protect consumers from unwanted commercial communications in Turkey, and they do not introduce an exemption for the companies which are keeping that data abroad. 

There are certain paths that companies may choose to follow in this legal landscape of commercial electronic communications. First of all, they may classify and categorize their database based on the requirements and exceptions provided within the E-commerce Law and the Regulation. A guideline on how to handle the commercial electronic communications and the legal requirements regulated under E-commerce Law and the Regulation would be helpful for smooth operations. The last and one of the most important points; this legal landscape’s main aim is to protect consumers. To that end, while structuring the businesses, legal prong of this structuring should interpret E-commerce Law and the Regulation together with the consumer protection legislation. 

(First published in Mondaq in September 2015)

By Gonenc Gurkaynak, Managing Partner, Ilay Yilmaz, Partner, Nazli Pinar Taskiran, Associate, ELIG, Attorneys-at-Law

Sorainen and Triniti have advised on the acquisition of a 100% shareholding in the sports-betting company Orakulas by the Olympic Entertainment Group (OEG).

OEG is a Nasdaq OMX-listed company and the largest casino entertainment company in the region, employing 2,600 people. Orakulas was founded in 2003 and today owns 21% of the Lithuanian gambling market and employs 155 workers. In 2014 the company’s revenue was reported at about EUR 4 million.

Saulius Petravicius, CEO of OEG in Lithuania, commented on the deal: “By combining the strengths of our international online gambling brand ‘OlyBet’ and the newly acquired company Orakulas we will become one of the major players in the Lithuanian online betting and gaming market.”

Linas Sabaliauskas, the Partner leading the Triniti team working on the deal added: “The transaction was very complicated as the activities of the company were exclusively strictly regulated and supervised by the regulating institutions. Besides, it was the first acquisition in this sector in Lithuania, so the lawyers had to deal with a number of new and different issues.”

Aside from Sabaliauskas, the Triniti team advising Orakulas on the transaction included Lawyers Indre Zabielskiene and Ieva Strukiene, and Attorney Sonata Krasauskiene. 

Partner Sergej Butov and Senior Associate Mantas Petkevicius led the Sorainen team advising OEG in this transaction.

Completion of the transaction is dependent on the usual conditions, including approval by the Lithuanian Competition Council. The financial details of the deal were not disclosed.

Kochanski, Zieba & Partners (KZP) has advised a fund managed by Griffin Real Estate on the acquisition and financing of the Raiffeisen Business Center (RBC) in Warsaw, a Class A office building located in the city center. The seller, Invesco Real Estate, was advised by CBRE and Greenberg Traurig, and Griffin’s acquisition was financed by Bank Gospodarstwa Krajowego, which was represented by Allen & Overy.

Invesco Real Estate sold the property about a year after Raifeissen, the project’s anchor tenant, relocated its office elsewhere. A representative of Griffin reported that the RBC would undergo an in-depth modernization in 2016.

The KZP team advising Griffin Real Estate was led by Partner Rafal Rapala, and included Partners Kamil Osinski and Simon Galkowski and Associates Paulina Dabek, Claudia Szymanska, Agata Jurga, and Juliet Fabisiak.

The Greenberg Traurig team consisted of Partner Agnieszka Stankiewicz and Senior Associate Rafal Siwek.

Image Source: Radu Bercan / Shutterstock.com

White & Case has advised Mid Europa Partners (MEP) on its acquisition of a 100% shareholding in Customer Management Center (CMC) from ISS, the Denmark-based provider of facility services. ISS was advised by Yarsuvat & Yarsuvat.

MEP is a leading buyout investor focused on the growth markets of Central and Eastern Europe and Turkey, with more than EUR 4.2 billion of funds raised and managed since inception. CMC is the largest independent outsourced call center and customer management services provider in Turkey. It operates call centers in Istanbul, Malatya, and Sanliurfa, and provides both inbound as well as outbound services to blue chip corporate customers operating in various industries.  

The White & Case team advising on the transaction was led by London-based Partner Ross Allardice, with support from Istanbul-based Local Partner Emre Ozsar, Istanbul-based Associates Tugce Tatari, Ceren Sen, and Nesli Ozcelik, and London-based Associates Ivo Cavrak and Philip Vavalidis.

White & Case has a longstanding relationship with Mid Europa, and has — most recently — advised MEP on its acquisition of Walmark (reported on by CEE Legal Matters on October 20, 2015) and its acquisition of Centrul Medical Unirea S.R.L. – the Romanian healthcare services provider operating under the brand name “Regina Maria” (reported on by CEE Legal Matters on August 5, 2015).

Allen & Overy has advised London-based Infracapital, the infrastructure investment arm of M&G Investments, controlled by Prudential PLC, on its acquisition of 100% of the Slovak utility company GGE a.s. from Slovakian privately-held conglomerate Grafobal Group. Additional legal advice to Infracapital was provided by BDK (on Serbian and Montenegrin due diligence), Sayenko Kharenko (on the Ukrainian carve-out), and by Ganado Advocates (in Malta). White & Case advised Grafobal on the deal, and CMS advised the financing banks.

The transaction was negotiated and agreed on a bilateral basis under exclusivity. The purchase price was undisclosed, but A&O describes it as “one of the larger infrastructure deals for [Slovakia].” The deal closed on September 21, 2015.

GGE’s activities primarily consist of the production and distribution of heat and electricity using natural gas fuelled Combined Heat and Power (CHP) plants across Slovakia, provision of electricity balancing and power/frequency reserve services, and supply of electricity and gas in Slovakia, the Czech Republic, Serbia, Poland, and Hungary.

A&O’s team was led by Partner Hugh Owen. The A&O Financing team was led by Partner Renatus Kollar (on Slovak law aspects) and Counsel Attila Csongrady (on English law aspects), with support from Senior Associate Matus Kudlak, and Associates Rudolf Pfeffer and Martina Kasemova. The A&O Bratislava Corporate team was led by Associate Tomas Bury and, following his secondment to A&O London, by Senior Associates Vojtech Palinkas and Ivan Kisely. Senior Associate Katarina Matulnikova led the employment/incentives part, assisted by Lawyer Nora Sajbidor and Partner Paul McCarthy. UK corporate advice on the UK structure (holdcos, subscription, loan notes and management roll-over) was led by Senior Associates Luke Nicholls and Jessica O’Hara from A&O Perth. W&I insurance advice was provided by Partner Aaron Kenevan and Lawyer Adnan Husaini from A&O Sydney. Assistance from A&O Warsaw was led by Senior Associate Lukasz Lech, from A&O Budapest by Junior Lawyer Tamas Kubassek, and from A&O Prague by Associate Ondrej Kramolis. Further assistance was provided by Partners Matt Townsend and Nick Williams and Senior Counsel Craig Cohen on AIFMD, OFAC, FATCA, and sanctions advice, and by Associate Livia Talenti on New York law.

The BDK team advising Infracapital on Serbian and Montenegrin due diligence and regulatory matters was led by Partner Dragoljub Cibulic, and included Associates Dragoljub Sretenovic, Slobodan Trivic, and Marija Doci. 

The White & Case team advising the Grafobal Group consisted of, in Bratislava, Partner Marek Staron, Local Partner Juraj Fuska, and Associates Zoran Draskovic, Simona Rapava, and Radoslav Palka, and in Prague, Partner Damian Beaven and Associate Jan Stejskal.

The Sayenko Kharenko team consisted of Senior Associate Oleksandr Nikolaichyk and Associates Oksana Andronyk and Julia Kuyda. 

Infracapital was also advised by Erste Bank (on finance), Deloitte (on the structure), EY (on finance and tax due diligence), Willis (on insurance due diligence), and Arup (on technical due diligence). Grafobal received financial advise from Corpin. The W&I Insurer was XL Catlin, and the broker was Locktons.

White & Case has advised a consortium of banks consisting of Bank Zachodni WBK S.A., Bank BGZ BNP Paribas S.A., Bank Gospodarstwa Krajowego, Bank Polska Kasa Opieki S.A., and mBank S.A. on the financing in the form of a revolving credit of up to PLN 700 million (around USD 180 million) for Eurocash S.A. Eurocash was advised by Weil, Gotshal & Manges.

The funds made available to Eurocash will be used to repay part of its existing short term financial debt and for the company’s general corporate purposes.

The Eurocash group is a leader in the wholesale distribution of fast moving consumer goods, household detergents, alcohol, and tobacco products. It is also the franchiser of a number of retail stores including Groszek, Delikatesy Centrum, Polska Siec Handlowa Lewiatan, and the ABC trade network.  

The White & Case team in Warsaw that advised on the transaction included Partner Tomasz Ostrowski and Associate Sylwia Opiatowska.

The Weil team advising Eurocash included Associates Marcin Iwaniszyn and Jerzy Rostworowski.

The Yegin Cifti Attorney Partnership (YCAP) — the Turkish firm associated with Clifford Chance — has advised the shareholders of Millenicom Telekomunikasyon A.S., a leading Turkish telecom operator, on the sale of 100% stake in the company to EWE Enerji. YukselKarkinKucuk (YKK) advised EWE on the acquisition. According to YCAP, “the deal will be finalized after obtaining required approvals.”

The YCAP team was led by Partner Itir Sevim-Ciftci, with assistance from Counsel Kemal Aksel and Associate Deniz Gocuk.

The YKK team consisted of Partner Cuneyt Yuksel and Senior Associate Zeynep Sener.